text:
    ACTIONS — CONTRACTS.
    [Cuyahoga, (8th) Circuit Court,
    October 19, 1908.]
    Marvin, Winch and Henry, JJ

      J. A. Snell v. W. A. Banks Co.
    Taking Judgment for Part of Amount Claimed Waives Balance.
    In an action for the amount due at an agreed price for a carload of oranges, the answer alleged that the oranges arrived in a frozen condition and were riot accepted; that notice of nonacceptance was given the shipper and that the fruit would be sold upon a commission basis, which was done, realizing less than the agreed price, which less sum it was admitted was due the plaintiff. For this admitted amount plaintiff took judgment and asked for trial as to the balance of his claim under favor of Sec. 5320 R. S. (Sec. 11592 G-. C.); this was denied him. Held: no error.
    [Syllabus by the court.]

      David B. Carpenter, for plaintiff in error.

      White, Johnson, MeCasUn & Cannon, for defendant in error.

      Affirmed, no op., Snell v. Banks Co., 83 O. S. 464.

   MARVIN, J.

J. A. Snell brought suit against the Banks Company, setting out two causes of action. We are here concerned with the first cause of action only. As to that, the allegations of the petition are that Snell sold and delivered to the Banks Company a carload of oranges for the agreed price of $495, payable on delivery. To this the defendant answered, admitting that it made an agreement to take from the plaintiff a carload of oranges, at the price named, upon a contract that these oranges should be of the quality known in the trade as fancy fruit, and that the same were to be shipped to it immediately. It avers that the goods were not shipped immediately, but were placed by the plaintiff in a car on the railroad track at Ozone, Florida, where he allowed them to remain for four days, and when the fruit arrived (presumably in Cleveland, though that is not averred), it was not fancy fruit but had been frozen and was of a grade at least thirty-three and one-third per cent inferior to fancy fruit. Defendant says it did not accept such fruit as a compliance with the contract «n the part of the plaintiff, but that it notified the plaintiff that it refused to accept the fruit, and that it would handle the same on a commission basis. It did sell the fruit and obtained therefore a sum, that, after deducting the commissions, left $152.34, which amount it admitted was due to the plaintiff. Thereupon the court entered judgment against the defendant and in favor of the plaintiff for said last named sum, and continued the case for further trial, on the motion of the plaintiff. At the next term of court the ease was tried upon the second cause of action, and judgment recovered by the plaintiff, but the court refused to allow any evidence to be introduced on the first cause of action and rendered judgment thereon in favor of the defendant. It is urged that this action was erroneous, because of the provisions of Sec. 5320 R. S., which, so far as it has any bearing on this case reads:

“When all or a part, of one or more of the causes of action are not put in issue by answer, judgment may be taken as upon a default, for so much of the plaintiff’s demand as is not put in issue by the answer upon any or all of the causes of action, without prejudice to the rights of the plaintiff as to that portion of his demand disputed.”

This section was originally Sec. 376 of the Code of Civil Procedure, and as amended March 13, 1872 (69 O. L. 44), reads, where the defendant “having answered to a part of the cause of action alleged, the court may, in its discretion, render judgment upon such part or parts as are not put in issue by such answer. ’ ’ It is further provided that the court may direct, as to the damages put in issue, that the same be assessed by a jury.

So far as the matter here is affected, there seems to be no substantial difference between the statute as it now is and it was prior to the amendment, for if the defendant in this case admitted that there was due to the plaintiff a fixed sum upon a part of his claim and nothing upon the balance, the statute would apply, but here the entire claim of the plaintiff was disputed. As creating any indebtedness upon the contract relied upon by the plaintiff the defendant says that the plaintiff did not furnish fruit in accordance with the contract, but that he did put certain fruit into its hands which was not in accordance with the contract and it was not bound to accept and did not accept, but that it did obtain for such fruit a specified sum, to which the plaintiff is entitled. It seems clearly to us that the admission by the defendant is not such an admission as entitles him, after having recovered a judgment upon the facts admitted, and accepted the same, to further litigate the question as to whether he performed the contract into which he entered. We regard the case of Weaver v. Carnahan, 37 Ohio St. 363, decided under the section as it was in 69 O. L. 44 as authorizing the conclusion to which the court below arrived, and this is strengthened by the ease of White v. Herndon, 8 Circ. Dec. 292 (15 R. 290).

The result is that the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: CHITTENDEN, J. CHITTENDEN, J.

license: Public Domain

text:
    ASSESSMENTS — DEDICATION—DEEDS—MUNICIPAL CORPORATION
    [Lucas (6th) Court of Appeals,
    December 14, 1914.]
    Richards, Chittenden and Kihkade, JJ.

      Carrie E. Vrooman et al. v. Toledo (City) et al.

      1. City Accepting Deed of Land for Boulevard Enjoined from Assessing Cost of Improvement Against Lands of Abutting Grantor.
    Where a city, having statutory authority to acquire land for street purposes and assess the cost upon the general tax list, purchases land to be used as a boulevard, and as a consideration for such land agrees that such land shall be improved for boulevard purposes within ten years, and that no special tax or assessment for the improvement thereof or the maintenance of said boulevard will ever be levied or assessed against the property abutting said boulevard, except such as is levied in the general levy for park purposes, and where the deed for such property is executed by the grantor and delivered to the city and the city takes possession of such land and improves the same in accordance with the terms of the deed, it will be enjoined from assessing the cost of such improvements against the abutting lands of the grantor.
    2. Provision Exempting Abutting Lands of Grantor of Deed from Maintenance Assessments Invalid.
    That part of such agreement providing that the abutting lands of the grantor shall never be assessed for the maintenance of such boulevard is against public policy and is void.
    3. Dedication of Lands for Streets Imposing Conditions not Taking Control from Public Authorities.
    A dedication of land for streets may impose any conditions not inconsistent with public policy and which do not take the dedicated property from the control of the public authorities.
    4. Conditions irt Dedication Sustained not Inconsistent With Public Policy.
    Dedication rests upon good faith, and in so far as good faith requires the parties to comply with the contract and is not inconsistent with a sound, public policy, the conditions contained in a dedication will be sustained.
    [Syllabus by the court.]
    Appeal demurrer to petition.

      Kohn, Northup, Bitter & McMahon, for plaintiffs.

      W. S. Thurstin Jr., city solicitor, and Thomas L. Gifford, for defendants.

      Motion to certify record overruled, Toledo v. Vrooman, 60 Bull 420.

   CHITTENDEN, J.

This cause has been submitted upon a demurrer to the petition. The petition sets forth, in substance, that in the fall of 1899 certain of the plaintiffs, for a valuable consideration, sold and transferred by proper deed of conveyance, to the defendant, the city of Toledo, certain property therein described. The petition reads in part as follows:

“One of the considerations and conditions of said sale of tiie premises last above described to the city of Toledo, as evidenced by and contained in said last mentioned deed of conveyance was and is that the said premises last above described, together with other lands procured by said city for the same purposes, would be opened by said city from Walbridge Park to Ottawa Park in said city and improved by turnpiking on or before July' 1, 1900, and that said boulevard between said points would all be permanently improved and completed by opening it to its full length and grading it to its permanent grade, constructing roadways, improving the same with gravel or other suitable material to make improved roadways thereof, within ten years from the date of said last described conveyance, and would in like manner be perpetually maintained as a boulevard and that no special tax or assessment for the improvement thereof or the maintenance of said boulevard would ever be levied or assessed against the property abutting said boulevard except such as is levied in the general levy for park purposes. Ever since said seventh day of November, 1899, the said defendant, the city of Toledo, has been the owner and in possession of the premises last above described.”

Thereafter in the petition it is alleged that the city took possession of the property and improved the same as a boulevard, in accordance with the condition of the deeds as set forth in the petition. That as a part of the improvement the eity constructed sidewalks along the side of the boulevard and in front of the premises of the several plaintiffs, and thereafter passed an ordinance levying a special assessment against the abutting property to pay the cost and expense of the construction of the sidewalks, the amount assessed against each piece being specifically set forth in the petition. It is alleged that the ordinance was duly approved and that the assessment was thereafter certified to the auditor of the county who placed the assessments against the several parcels of land of the plaintiffs upon the tax duplicate of Lucas county, to be collected with the general taxes. An injunction is asked restraining the collection of the assessments so levied by the city.

The only question sought to be raised by the demurrer, and the only question argued, is the validity of the condition set forth in the deeds as one of the considerations for the sale of the property. It is claimed that the condition which provides that no special tax or assessment for the improvement of the boulevard or the maintenance of the same would ever be levied or assessed against the property abutting upon the boulevard, except such as are levied for general park purposes, is void because it is an attempt to exempt property from taxation.

The claims of the several parties have been presented to the court in oral argument and by briefs. We have examined the cases cited by counsel and many others, but do not believe it would be profitable to enter upon an extended examination and analysis of these casts in this opinion.

At the time the deeds were executed the city was empowered, by virtue of Sec. 1692 R. S., Par. 18, to lay off, establish, open, widen, narrow, straighten, extend, keep in order and repair streets, etc. By Par. 34 of the same section the city was empowered to acquire, by purchase or otherwise, and to hold real estate.

Section 2263 R. S., provided that when the corporation appropriated or otherwise acquired lots or lands for the purpose of laying off, opening, extending, straightening or widening a street, the council might assess the cost and expense of such appropriation or acquisition and of the improvement, upon the general tax list, in whieh case the same should be assessed upon all the taxable real and personal property in the corporation.

Section 2264 R. S., provided that in tbe city of Toledo the municipality might, if it so desired, assess the cost and expense of such improvement upon either the general tax list or upon the benefited property, and provided for the time when such assessments might be made due and payable, etc.

It is to be observed that the petition alleges that this contract has been fully performed, the grantors having executed and delivered the deed for the property, and the city having accepted such deed and taken possession of the property and improved the same in accordance with the conditions and provisions of the deed. Therefore, all those cases in which the parties sought by mandamus to compel the specific performance of similar agreements are of little, if any, assistance in determining the question here presented.

The statutes above cited conferred upon the city full power to acquire the land in question, either by process of condemnation or by purchase. Had it been acquired by condemnation, under the decisions of this state the cost and expense could not be assessed upon the abutting land.

Cincinnati, L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229; 49 L. R. A. 566]; 4 Longsdorf’s Notes, 839.

In Ohio, therefore, when property is acquired by a city for the purpose of opening and laying out a street, unless the method provided for by the special act, See. 2264, is followed, tho cost thereof must be paid by the city and assessed upon the general tax list. There is no claim that the city undertook to act under See. 2264 in the purchases set forth in the petition in this case.

The decided cases sustain the statement of the law set forth in 2 Elliott, Roads & Streets See. 678, as follows:

“In the absence of legislative authority a city, under ordinary circumstances at least, has no power to make contracts for the exemption or commutation of local assessments.”

The law is stated to the same effect in 1 Page & Jones, Taxation Sec. 616, and in 28 Cyc. 1133.

After a careful consideration of the facts alleged in the petition we do not construe the contract as therein set forth as one granting exemption from taxation. There was no attempt by the wording of the deed to exempt the property from general taxation. The deed provided, first, that the abutting property should not be subject to any special tax or assessment for the improvement of the boulevard, and, second, that it should not be required to pay any special tax or assessment for the maintenance of the boulevard. The provision that the abutting property should not be called upon to pay any assessment for the construction and improvement of the boulevard is, in effect, an agreement that the value of the land so conveyed by the grantors to the city was equal in value to the cost of making the improvement contemplated. The city needed the land for the purpose of constructing a boulevard connecting its several park properties. This land was valuable and its value was recognized by the city. The construction of the boulevard would no doubt be of some value to the abutting property of the grantors. That the construction and improvement of the boulevard would entail a given expense upon the city was known. The grantors and the city were competent to contract and it was undoubtedly concluded that the values were equal, and that the one should be offset by the other. There is no claim that the one value was not as great as the other, and there is nothing in the pleading to indicate that either the city or the grantor was imposed upon. This view of the case is in accordance with the opinion of the U. S. circuit court of appeals in the case of Bartholomew v. Austin, 85 Fed. Rep. 359 [29 C. C. A. 568], and the case of Grant v. Davenport, 36 Iowa 396, 405, 406, cited by the circuit court of appeals in the above case.

The case at bar we think corresponds in principle with the case of Coit v. Grand Rapids, 115 Mich. 493, in which case, concerning a similar contract, Judge Grant, rendering the opinion, said:

“The contract was one of sale and purchase. The deed was not intended as a gift.”

See also, Omaha v. Megeath, 46 Neb. 502 [64 N. W. Rep. 1091]; Browne v. Palmer, 66 Neb. 287 [92 N. W. Rep. 315].

There is no positive statutory provision requiring a city to pay for the property so acquired, in money. The city having purchased the land and paid the consideration agreed upon by making the improvements as provided in the deed, and having retained and used the land for boulevard purposes, it would seem to be inequitable to permit the city to thereafter collect from the grantors the cost of making the improvements that the city had agreed specifically to make as a consideration for the land conveyed by the grantors to the city.

The ease presented by the petition is quite different from the ease of Richards v. Cincinnati, 31 Ohio St. 506, in which the owners of land dedicated certain streets and sought to attach to the dedication a stipulation that the adjoining property should thereafter be exempt from assessments for the improvement of such streets.

That contracts on behalf of a municipality by which it is attempted to exempt property from assessments and taxes indefinitely, are contrary to public policy, we think, is well established upon authority of the decided cases and upon reason. We therefore hold that that part of the condition in the deed which provides that the abutting property shall never be assessed for the maintenance of the boulevard is void. Coit v. Grand Rapids, supra.

The court in the case just cited did not decide the effect of an agreement to exempt abutting lands from taxation for the maintenance of the sewer under the terms of the deed in that case, but raised the question as to whether or not the contract would be valid in so far as it undertook to exempt from the maintenance of the sewer.

We do not find that the cases cited by counsel for the city are in conflict with the conclusion we have reached. They are all, or nearly all, readily distinguishable upon grounds that are not obscure.

The demurrer will be overruled and the defendant given leave to answer.

Kinkade and Richards, JJL, concur.

June 7, 1915

CHITTENDEN, J.

This action was begun to enjoin the city from collecting from the plaintiffs the cost of construction of certain sidewalks. The case was recently before this court on a demurrer to the petition. In overruling the demurrer the court expressed its views upon the subject matter sufficiently at length.

Since the former hearing an answer has been filed and evidence taken and the case is now submitted upon the evidence. We find nothing in the evidence that materially changes the situation as presented by the allegations set forth in the petition.

It is claimed that the deeds from the plaintiffs to the defendant, the city of Toledo, introduced in evidence, disclose that the transaction between the plaintiffs and the city was not that of sale and purchase, but was tha/t of a dedication by the plaintiffs of certain land to the city for street purposes. It is not very material whether the transaction be treated as a dedication or a sale, and it would avail little to enter into any distinctions between grant and dedication. In our opinion the evidence does not disclose that the conveyance amounted merely to a dedication. If, however, it be assumed that such is the character of the conveyance, the law is entirely settled that such dedication may impose any conditions not inconsistent with public policy, or which do not take the property dedicated from the control of the public authorities. It appears to the court to be entirely clear that the plaintiffs did not intend to make a gift to the city of the land in question, but that they were to receive, as a consideration therefor, the construction of a boulevard, with its driveways and walks, as set forth in the deed.

We hold, as stated in the former opinion, that in so far as the deed undertook to exempt the adjoining property from assessments for the future maintenance of the boulevard, the conditions are void as against public policy, but in so far as it provides against assessments for the original construction of the boulevard, it is not invalid.

It has been frequently stated that the doctrine of dedication rests upon good faith, and, in so far as good faith requires the parties to comply with the contract and it is not inconsistent with a settled public policy, the conditions contained in a dedication will be sustained. These principles have been so frequently set forth in decisions and in the text-books that authorities will not be cited here. This conclusion is not in conflict with the decision of the Supreme Court in Richards v. Cincinnati, 31 Ohio St. 506, in which case there was a plain dedication of land for streets, in which dedication it was sought by a condition to interfere with the legal provisions as to the improvement of the streets, by providing that the lots should be exempt from charges for the improvement of streets unless a majority of the abutting owners should assent thereto in writing.

Nothing more need be added here in view of the announcement of the court in its former opinion. A decree may be drawn in favor of the plaintiffs in accordance with this opinion.

Richards and Kinkade, JJ., concur.


author: KINKADE, J.

text:
    AUTOMOBILES.
    [Sandusky (6th) Court of Appeals,
    October 6, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Fremont (City) v. Charles Keating.
    Municipal Corporations Prohibited from Regulating Speed of Automobiles.
    By virtue of the provisions of Sec. 6307 G. C., councils of municipalities acting under the general law are prohibited from regulating by ordinance, by-law or resolution, the speed of motor vehicles within the municipality.
    [Syllabus by the court.]
    ErboR.

      H. 8. Buckland, city solicitor, for plaintiff in error.

      Hunt & Gam, for defendant in error.
   KINKADE, J.

The defendant in error was prosecuted before the mayor of the city of Fremont for the violation of Sec. 17 of an ordinance of the city of Fremont passed March 14, 1916. By the affidavit filed he was. charged with having driven an automobile more than fifteen miles an hour on one of the streets of Fremont on July 18, 1916. Upon trial he was convicted and sentenced by the mayor to pay a fine of $25 and costs and to stand committed until the fine and costs were paid. Error was prosecuted by Keating to the court of common pleas in which court the judgment of conviction and sentence entered by the mayor was reversed and the defendant discharged. The city prosecutes error to this court to secure a reversal of the judgment of the court of common pleas.

Numerous errors are assigned by the city solicitor as sufficient to necessitate a reversal of the judgment below. Counsel for the defendant Keating, on the other hand, assign many reasons why the judgment must be affirmed. One of the reasons assigned by the defendant for the affirmance of the judgment of the court of common pleas we think is sound and entirely sufficient and, therefore, we deem it wholly unnecessary to discuss any of the others — that is to say, it is contended that the council of the city of Fremont was wholly without power to pass the ordinance in question in so far as the fixing of the speed as provided in Sec. 17 of the ordinance was concerned. In support of this proposition counsel rely upon Sec. 6307 G. C., which reads as follows:

“Local authorities shall not regulate the speed of motor vehicles by ordinance, by-law or resolution, but, for a given time, they may set aside a specific public highway for speed tests or races. The term ‘local authorities,’ as used therein, means all officers, boards, and committees of counties, cities, villages or townships.”

This law was in force at the time of the passage of the ordinance in question and we see no escape from the conclusion that the council of the city of Fremont was wholly without authority to pass the ordinance in so far as it regulates the speed of automobiles. It signifies nothing that the ordinance on the subject of speed is in accord with the provisions of the statute on the same subject, Sec. 12604 6. C. While the defendant, by virtue of the authority conferred by Sec. 4528 G. C., might have been prosecuted before the mayor for a violation of See. 12604 G. C., and convicted and punished if shown to be guilty by the evidence, it by no means follows that the prosecution and conviction in this case can be sustained, for the manifest reason that the prosecution was not in the name of the state and was not for a violation of any law of the state, but was in the name of the city of Fremont and for the violation of Sec. 17 of an ordinance of the city of Fremont, as stated.

We are very clearly of the opinion that but one result can be arrived at here and that is, the affirmance of the judgment of reversal entered by the court of common pleas, including the discharge of the accused, and such will be the judgment of this court. Fñsbie v. Columbus, 80 Ohio St. 686 [89 N. E. Rep. 92].

Richards and Chittenden, JJ., concur.


author: HENRY, J.

text:
    CORPORATIONS — NOVATION.
    [Cuyahoga (8th) Circuit Court,
    June 3, 1907.]
    Marvin, Winch and Henry, JJ.

      Matilda A. Gill v. Cleveland Print. & Pub. Co., et al. and Thirteen Other Cases.
    1. Note Obligating Stockholder Transferred after Repeal of Double Liability, Renewed in Name of Transferee, Novation.
    Where a note evidencing a debt upon which stockholders would be liable, was transferred after the change in the law by which stockholders liability was abolished, and was subsequently renewed by and in the name of the transferee, there was such a novation that the original debt and its incidents were extinguished.

      2. One Induced by Fraud to Subscribe for Stock Liable for Debts Subsequently Incurred, Creditor as to Others.
    When one is induced through fraudulent representations to subscribe for stock in a corporation, upon the insolvency of the corporation he will be liable as a stockholder so far as creditors of the corporation who became such subsequent to the date of his subscription are concerned, but as to other stockholders, he himself is a creditor.
    3. Liquidating cannot Acquire Title to Stock making Corporation Liable as Stockholder.
    Liquidating trustees of an insolvent corporation have no authority to acquire the legal title to stock which has been pledged with the insolvent corporation to secure a loan and when such stock is transferred to them, the corporation which they are liquidating does not become liable as a stockholder, nor for unpaid subscriptions on the stock transferred.
    Appeal.

      A. N. Thompson, for plaintiff,

      A. T. Brewer, W. W. ElUott, Calhoun <& Guenther, A. B. Thompson, Hills & Van Derveer, Laubscher & Kees, Herrick <Ss Hopkins, M. L. Thompson, C. K. FaMver and C. A. Judson, for defendants.

      Aflirmed, no op., Union National Bank v. Gill, 80 O. S. 742, with a modification permitting all creditors of the corporation to participate in the fund arising from unpaid stock subscriptions.

   HENRY, J.

This is an appeal of a stockholder’s liability ease, and, as that subject is now practically obsolete, we announce our conclusions without any extended opinion.

The first question concerns the Union National Bank's claim, and is, in brief, whether the secondary liability of stockholders meanwhile abolished, continues to attach to a debt, the note evidencing which is transferred after the change in the law and subsequently renewed by and in the name of the transferee. We think this is such a novation, as extinguishes the original debt and its incidents. Section 3175j R. S.; Cason v. Wallace, 67 Ky. (4 Bush.) 388; on rehearing former judgment adhered to, no op., Union Nat. Bank v. Gill, 81 Ohio St., 515; Battle v. Coit, 26 N. Y. 404.

The second question involves the right after adjudication of the corporation’s insolvency to rescind subscription to its stock theretofore fraudulently procured by such corporation.

We adhere to a former decision of this court that no such rescission can be made to the prejudice of the corporation’s creditors. We think, however, that the rule does not apply as between the rescinding subscriber and other stockholders of the corporation. Hence creditors of stockholders whose subscriptions were procured by fraud, can not resort to either primary or secondary liability unless and until the liability of all- other stockholders is exhausted.

The defrauded stockholders will, moreover, be treated as creditors but not to the prejudice of any other creditor of the insolvent corporation. The defrauded stockholders included all whom the referee found to have been defrauded, excepting Broekett, who became a director in September, 1903, and continued to act in that capacity until the corporation was adjudged insolvent, more' than a year afterwards. He is therefore, presumed to have acquired knowledge of the corporation’s insolvent condition long before he made use of that knowledge as the basis for rescinding his subscription.

His laches thus prevents his affecting such rescission. Parrnalee v. Adolph, 28 Ohio St. 10.

We think Mason v. Moore, 73 Ohio St. 275 [76 N. E. Rep. 932; 4 L. R. A. (N. S.) 597; 4 Ann. Cas. 240], does not conflict with the imputation of laches to Broekett. '

The third question concerns the State Savings & Loan Company, whose alleged ownership of stock in the insolvent corporation accrued while it was being voluntarily liquidated by trustees appointed under the Ohio statute. These trustees had no authority in law to acquire stock of other corporations except, if at all, in necessary aid of such liquidation. The trust had nothing to gain and much to lose by the acquisition of the general title to stock, of which the liquidating corporation was theretofore the mere pledgee. And all the world is conclusively presumed to have known this limitation of the liquidating trustee’s authority. Nor could their authority be enlarged by es-toppel. We hold, therefore, that the State Savings & Loan Company is not liable as a stockholder herein, either by way of unpaid subscription or secondary liability.

The fourth question involves the construction of the action taken at the stockholders meeting of February 10, 1903, and on this point we are content with and follow the decision of the court of common pleas, modifying the report of the referee.

The fifth question involves the right of set-off against J. A. Starral. He acquired, by assignment, a past due note of the insolvent corporation, payable to W. M. Day and F. J. Starral jointly. Both payees were then indebted to the maker of the note. Dy’s debt was overdue; Starral’s was not yet due. Day was then insolvent and F. J. Starral either was then or soon after became insolvent.

Although the authorities are not harmonious we think the right of equitable set-off as against Day’s interest in the note existed at that time, and if so, it extends to that interest after Day’s assignment to J. A. Starral. The assignment of the note was the joint act of Day and of F. J. Starral, and though the evidence fails to show strictly that the latter’s insolvency had at that time actually accrued he was clearly in failing circumstances, which, in view of his relation to the insolvent company, at least forecasted the impending event.

Under all the circumstances of the ease we think it would be inequitable to hold his interest in the note invulnerable to set-off. It follows, that although the referee’s findings of fact are, in these respects, incorrect, his conclusion of law is applicable to the facts as they actually existed.

In all respects except as we have otherwise indicated the decree here will follow the decree below. As to the matter of costs we do not feel authorized to alter the discretionary allowance made by the court of comnon pleas to its referee.

Marvin and Winch, JJ., concur.


author: NIMAN, J.

text:
    AUTOMOBILE — MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1912.]
    Marvin, Winch and Niman, JJ.

      L. Q. Rawson, Adm. v. Olds Motor Works.
    Owner of Automobile not Liable for Negligence of Employe Using Automobile Without Authority.
    When an employe of the owner of an automobile steps aside from his employment and uses his employer’s automobile for his own purposes alone, during which use he negligently injures another, the employer is not liable for such injuries.
    Error.

      Seaton & Paine, for plaintiff in error.

      V. H. Burke, for defendant in error.

      Affirmed, Rawson v. Motor Works, 90 O. S. 469.

   NIMAN, J.

The action in the court below (Rawson v. Motor Works, 22 Dec. 188) was brought by the plaintiff, who is plaintiff in error here, as administrator of the estate of Jerry Mahoney, deceased, to recover damages of the defendant for the death of the said Jerry Mahoney, claimed to have been caused by the negligence of the defendant, acting through one of its servants.

At the close of the plaintiff’s evidence the trial court, no motion of the defendant, directed a verdict for said defendant. Proper steps were taken by the plaintiff to save the question for review, and by this proceeding in error we are called upon to determine whether the court erred in so directing a verdict for the defendant.

The facts are substantially as follows:

The defendant, the Olds Motor Works, is a Michigan corporation and maintains a branch office in the city of Cleveland, for the sale and distribution of automobiles manufactured by it, and for the repair and maintenance of such automobiles.

On September 28, 1908, William Booth was in charge of the Cleveland branch of the defendant’s business as sales manager, and William Clark was employed there as a washer, and when not engaged in the work of washing cars, did general work about the branch office, and operated and delivered cars.

On the day mentioned Mr. Booth, having received a telegram from a main office of the defendant in Detroit, calling for the shipment to that city of a certain car then in the Cleveland branch, by way of the Detroit boat, ordered and directed William Clark to take this car to the dock of the Detroit boat and ship it to Detroit. This order was given about the close of the business day. The branch was located on Euclid avenue near East 22nd street; the dock'is at the foot of Superior avenue west of the place of business of the defendant. The boat left at 10:15 o’clock in the evening, and in order that the car might be shipped it was necessary that it be at the dock by about 10 o’clock.

The usual route over which ears were taken from the defendant’s branch was from the garage on Euclid avenue through an alley westerly to East 18th street, northerly on East 18th street to Euclid avenue, westerly on Euclid avenue to East 9th street, to Superior avenue, to the Detroit boat dock at the foot of Superior avenue.

On the day mentioned, Clark, about 6:30 P. M., took the car which he had been directed to deliver at the boat and drove to a restaurant on Prospect avenue, where he obtained something to eat. After he had finished eating, he invited two waitresses at the restaurant to accompany him on a ride, and the invitation being accepted, they all got into the car and after driving about in various directions, drove onto St. Clair avenue from East 9th street and started east, in a direction exactly opposite to that necessary to arrive at the dock of the Detroit boat, for the purpose of taking a trip to Euclid Beach. While driving east on St. Clair avenue in the vicinity of East 14th street, at about 8 o’clock P. M., Clark struck Jerry Mahoney, a boy 15 years of age and ran over him and killed him with the automobile, under circumstances tending to show negligence on Clark’s part in the operation of the car. Later in the evening Clark took the car to the boat dock for shipment to Detroit.

The law of master and servant which we conceive to be applicable to this state of facts, is considered at length in Lima Ry. v. Little, 67 Ohio St. 91 [65 N. E. Rep. 861]. In paragraphs two and three of the syllabus the law is stated as follows:

“2. The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.
“3. A master is not liable for the negligent act of a servant or employe, if at the time of the doing of such act the servant or employe is not then engaged in the service or duties of his employment although the act be one which if done by such servant or employe in his master’s service would be clearly within the course and scope of the usual and ordinary duties of such servant or employe. ’ ’

In the opinion on page 88. it is said:

“In determining whether a particular act was done in the course or within the scope of the agent’s employment, two things are always primarily considered.
“First. Was the agent engaged at the time in serving his principal ?
“Second. Even though so engaged, was the act complained of within the scope of the agent’s employment?
“The cases dealing with the subject have generally to do with one or the other of these questions, and can generally be classified under these two heads.”

Applying the principles announced in that case to the facts before us in the eases under consideration, was Clark, at the time

It is conceded that he was in the employ of the defendant, and that the fatal injury to the boy could not-have occurred except for the facilities afforded Clark for committing the act complained of by entrusting him with the automobile.

The only act required of Clark, however, was to take the car to the Detroit boat. Whatever may have been his intention when he started, he turned aside from the performance of the duty imposed upon him, and departed entirely from the scope of his employment with respect to that particular car. For all practical purposes he appropriated the car to his own use and devoted it to his own purposes, exclusively. In starting on a ride to Euclid Beach for his own pleasure, he was engaged in his own enterprise exclusively. By thus stepping aside from his master’s business, to serve his own purposes, the relation of master and servant existing between the Olds Motor Works and himself was suspended, and no liability for his acts committed during the period when he turned aside from his master’s business attached to the latter, unless, as is contended on behalf of the plaintiff in error, the automobile is a dangerous instrumentality, and the master liable for the negligent act of his servant, to whom he has committed the custody and control of such instrumentality, whether the servant is at the time of the injury complained of, in the master’s business or otherwise.

It has been held that the duty of those who use dangerous agencies in the prosecution of their business, to observe the greatest care in the custody and use of them, can not be shifted by a master from himself to his servant, so as to exonerate him from the negligence of the servant in the use and custody of them, and that where they are entrusted, the proper custody as well as the use of them, becomes a part of the servant's employment by the master, and his negligence in either regard is imputable to that master, in an action by one injured thereby, and when the injury results from the negligence of the servant in the custody of the instrument, it is immaterial so far as the liability of the master is concerned, as to what use may have been made of it by the servant. Pittsburgh C. & St. L. Ry. v. Shields, 47 Ohio St. 387 [24 N. E. Rep. 658; 8 L. R. A. 464; 12 Am. St. Rep. 840],

The plaintiff in error invokes this principle and insists that the defendant in error having made its servant the custodian of a dangerous instrumentality, is liable for the negligence of its servant in the custody of such instrumentality, regardless of the use of it by him.

This contention would be sound if an automobile is to be classed as a dangerous instrumentality, but it can not be so classed. It is not inherently dangerous. In the hands of a careless or reckless operator in the public streets, it may become a dangerous instrument, but the danger arises from its use and operation, and not from any inherent quality of the automobile.

In Cunningham v. Castle, 127 App. Div. 580 [111 N. Y. Supp. 1057], it was held:

‘ ‘ The owner of a motor ear is not, as a matter of law, liable for injuries caused by tbe negligence of his chauffeur when not engaged in the master’s business, but using the ear with the master’s knowledge and consent on a private pleasure trip of his own.”

The court in answering the same argument advanced here said:

“It is urged that the automobile was a dangerous instrumentality, and having been entrusted to the chauffeur, the liability of the master still attached because of its dangerous character. The automobile is not necessarily a dangerous device. It is no more dangerous per se than a team of horses and a carriage, or a gun, or a sailboat, or a motor launch. There is no evidence that the chauffeur was not competent and qualified to run the machine. In fact, he was employed by the defendant for that very purpose. ’ ’
“If a game keeper had borrowed his master’s gun and had gone from the estate on a hunting expedition of his own, and had negligently shot a man, would the master be responsible because he was using that instrumentality which might be dangerous if carelessly used, the gun?”

We are of opinion that the trial court did not err in directing a verdict for the defendant at the close of the plaintiff’s evidence, and this being the only error complained of, the judgment of the court of common pleas is affirmed.

Marvin and Winch, JJ., concur.


author: JONES, O. B., J.

text:
    EASEMENTS.
    [Hamilton (1st) Court of Appeals,
    1916.]
    Jones, Jones and Gorman, JJ.
    Henry Rimpler v. James Iuen.

      Right of Way Conditions Existing at Time of Conveyance Control.
    Conditions existing at the time of conveyances by a common grantor as to a right of way constructed with the knowledge and assistance of the grantee before his purchase of such lot, entitle the grantees of other lots to a way out and rights then obtaining in the existing roadway, notwithstanding no reservation of the easement was made in the conveyance of the serv-ient lot and notwithstanding other rights of way over other lots are available.
    Appeal.

      Dempsey & Nieberding, for plaintiff.

      Horace A. Reeve, W. & R. Cogam,, Aaron A. Ferris, for 'defendant.
   JONES, O. B., J.

Prior to May 24, 1892, Frederick Rimpler was the owner in fee simple of lots 21, 22, 23, 24, 25 and 27 on the plat of the subdivision of Round Bottom Farm made by the order of the court of common pleas in the settlement of the estate of Thomas R. Biggs, deceased. These lots lie southeast of the Little Miami branch of the Pennsylvania Railroad all except lot 27 bounding southwardly on the Little Miami river. Lot 27 lies north of lots 21 and 22; its east line is the west line of lot 20 of the same subdivision, which is owned by Michael Leaf; and on the north it is bounded by a county road which passes under the Little Miami railroad and connects with Wooster turnpike.

Prior to May, 1892, Frederick Rimpler was also the owner of lot 7 of Muchmore’s estate lying west of said lot 25 of the Biggs estate and lying on both sides of the Wooster turnpike and the Little Miami Railroad. The railroad company has constructed a farm-crossing over the railroad upon lot 7 which was in use by Frederick Rimpled and is still in use by his daughter, the owner of the property up to the present time, for all of the purposes of said lot 7 of the Much-more estate. This same crossing was at times used by Frederick Rimpler and by his successors in title for access to lot 25 of the Biggs estate, which lies immediately east, and also for the other lots in the same tier, being 24, 23, 22 and 21. While Frederick Rimpler was the owner of all of said six lots in the Biggs estate, for the convenience of the property he established and maintained a roadway twenty feet in width in lot 27 along its east line running from its southeast corner to the county road, and used the said roadway as a means of ingress and egress, to and from said county road for lots 21. 23 and 24.

On May 24, 1892, Frederick Rimpler and his wife conveyed to the plaintiff Henry . Rimpler lot 24 together with all the privileges and appurtenances thereto belonging. On June 20, 1892, said Frederick Rimpler and wife conveyed to the defendant, James Iuen, said lot 27, no specific reservation being contained in said deed of such roadway along its east side. But at that time said James Iuen, who had previously been a tenant and cultivated certain of said lots for Frederick Rimpler, knew of the existence of said private roadway and had himself assisted in its construction and frequently used it. At the time of such conveyance of lot 27 to James Iuen by him Frederick Rimpler was still the owner of lots 21, 22 and 23, and continued to use such roadway across lot 27 for ingress and egress to them.

On May 21, 1894, Frederick Rimpler conveyed to plaintiff, Henry Rimpler, said lots 21, 22 and 23, together with all the privileges and appurtenances thereto belonging. On the same day Frederick Rimpler conveyed to Joseph F. Iuen lot 25 of the Biggs estate, making in said deed reservation of a roadway of twenty feet across said lot and along the right-of-way of the Little Miami railroad and extending along said track in a northerly direction 1047.4 feet from a section line where it crosses the railroad, said road being for the joint use and convenience of the owners of lots 22, 23, 24 and 25 of the Biggs estate.

The evidence shows that while a fence was built along the south line of lot 27, a gate was built across where it intersected this private roadway at the southeast comer of the lot, and this road was used by both Frederick Rimpler and Henry Rimpler as the owners of lots 21, 22, 23 and 24, from the time of its construction, as a means of ingress and egress for said lots to the county road and Wooster turnpike. This use was without objection on the part of defendant, James Iuen, until some little time before the bringing of this action, when at times Mr. Iuen would cause the gate to be locked, and it became necessary for Mr. Rimpler or his employes on one occasion to take up the gate post, and on another to remove the lock and chain; and shortly before the bringing of this suit Mr. Iuen made a determined resistance to the further use of the road by plaintiff.

A great deal of testimony has been heard by the court, but when carefully considered there is little conflict in its essential elements, defendant himself admitting his participation in the original establishment of the road and in its use, and there being no question of its continued use from the time of its original construction up to the time of bringing the suit, notwithstanding the slight interference made at times by the defendant.

There is no claim in his case of a right of way by prescription, nor is there any specific grant by deed except that contained by way of appurtenances to the land'for the use and benefit of which this way was originally established.

Plaintiff claims an easement in this roadway over lot 27 as a way of necessity, or at least as a way of convenience, under the principle announced in the case of Baker v. Rice, 56 Ohio St. 463 [47 N. E. Rep. 653]. Defendant insists that such right can not be claimed where no reservation was made in the grant for the reason:

First, that the plat of the subdivision of the estate of Thomas R. Biggs shows a twenty-foot farm road extending along the north lines of lots 24, 23, 22 and ,21 and out through the property now owned by Michael T. Leaf along the south line of lot 20 to reach Elm avenue at the county road, which is reached further west by the private road under discussion.

And, second, that plaintiff had a way out across intervening lots and over lot 7 of Muchmore’s estate, from the railroad crossing to the Wooster pike.

In considering these- questions we must determine the conditions existing at the time of the conveyance of lot 27 by Frederick Rimpler to James Iuen, rather than the conditions which have since arisen:

If the making and recording of the Biggs plat August 19, 1882, constituted this farm road a public highway for the benefit of the abutting lots and its use could be insisted upon by Frederick Rimpler and the plaintiff as his successor in title, then they could not claim the roadway over defendant’s land as a way of necessity. The evidence shows that this farm road was never opened and used as such but has been occupied and cultivated as a part of the farm made up of the adjoining lots, the part lying in the Rimpler land never having been opened and the part through the Leaf property never having been opened or used, and its line not being apparent to any one or differing in any way from the rest of his farm. As to the way out west-wardly across the railroad over lot 7, a consideration of the evidence will show that in May, 1892, when Frederick Rimpler conveyed lot 24 to Henry Rimpler without reserving any way across, he became dependent upon the roadway he had built and used across lot 27 for access to the public highway for lots 21, 22 and 23; and Henry Rimpler under the deed of lot 24 to him, not being entitled to any way out across lot 25 also became entitled to the use of the way across lots 23, 22 and 21 and over this roadway on lot 27 out to the public highway. The evidence shows that while Frederick Rimpler and his successors have traveled across the farm and availed themselves of the crossing in lot 7 over the railroad to Wooster pike, no defined roadway has been in existence across these lots and at least part of the travel has been along and over the right of way of the Little Miami Railroad, and not by right but purely as a matter of sufferance.

Giving full consideration to all of the evidence, the dates of the conveyances above recited, and the use of the property and this roadway by the owners of these lands and their tenants, the court has come to the conclusion that Henry Rimpler when he received the deed from Frederick Rimpler for lot 24 was entitled, under the principle set out in Meredith v. Frank, 56 Ohio St. 479 [47 N. E. Rep. 656], to a way out over lots 23, 22, 21 and 27, all of which were then owned by his grantor Frederick Rimpler; and later when lot 27 was conveyed by Frederick Rimpler ot James Iuen it was still subject to this easement in favor of lot 24 then owned by Henry Rimpler; and under the principle set out in Baker v. Rice, supra, it was also subject to like use by Frederick Rimpler for the benefit of his lots 23, 22 and 21 as a way of convenience. It was then an existing way, the use of which was and had been apparent to James Iuen. It was being continually used, and was reasonably necessary to the use and enjoyment of the land for which it had been constructed, and added materially to its value. The fact that under the subsequent deed of lot 25 an easement had been reserved which is now available to Henry Rimpler as the owner of lots 21, 22, 23 and 24, can not be held to revoke the rights already obtained by him in the use of the roadway across lot 27.

A careful examination has been made of Jordan v. Manufacturing Co. 89 Ohio St. 311 [106 N. E. Rep. 46], which is strongly relied upon by defendant’s counsel, but nothing in that case in any way changes or modifies the rules here applied under the two cases above referred to in Meredith v. Frank and Baker v. Bice, supra.

Judgment will therefore be given in favor of plaintiff, as prayed in the petition.

Jones, E. H. and Gorman, JJ., concur.


text:
    ERROR — EVIDENCE—WILLS.
    [Hamilton (1st) Court of Appeals,
    1916.]
    Jones, Jones and Gorman, JJ.
    Alexander M. Ware v. Anna J. Slocum, et al.
    1. Photograph Admissible to Prove Appearance of Testator in Will Contest.
    A photograph of the testator is competent in a will case, where evidence has been introduced as to his slovenly appearance which is denied by the defense, and the authenticity of the photograph has been established and also the fact that it resembled the testator as he appeared at about the time of the execution of the will.

      Exclusion of Testimony on Objection Testing Weight Rather than Competency not Prejudicial.
    The ruling out of testimony, under an objection which went to its weight rather than its competency, can not be regarded as prejudicial error.
    EeROK.

      John G. Hudson and B. H. Stiies, for plaintiff in error.

      Bettinger, Schmitt & Eréis, for defendants in error.
   JONES, O. B., J.

Plaintiff in error seeks to set aside tbe judgment of tbe eonrt below sustaining tbe will of Charles Henry Ware. But two errors are relied upon:

First, that tbe court erred in admitting a photograph of testator, taken five years before tbe execution of tbe will, by his son-in-law, an amateur photographer. To sustain him in his claim as to this error plaintiff in error relies upon the case of Varner v. Varner, 9 Circ. Dec. 273 (16 R. 386). In that case it was held, properly as we think, that on the trial of an issue of testamentary capacity a photograph of the testator is not competent evidence as tending to prove or disprove testamentary capacity. But the ease does not go to the extent of excluding photographs altogether in the trial of a will ease.

In will eases as in other cases issues may be raised in which photographic evidence is competent. There is no question that photographs of places, persons, machinery and other objects, and maps and drawings, can be received as proper evidence when the circumstances of the ease are such as to make them competent. In the Yarner case the photograph itself was relied upon, without proper proof of its correctness or authenticity, or as to the ability of the traveling photographer who was said to have taken it. The court says, in its opinion:

“There is no evidence from any source as to the accuracy of the picture, or to what degree it resembled the old gentleman either at the time it was taken or at the date of the will.”

And that court further said:

‘ ‘ Their introduction must be preceded by some proof of the correctness of the map or the photograph, for there is no legal presumption that they are correct.”

In this case, however, there was testimony as to the appearance and slovenly condition of the testator, which the photograph was well calculated to rebut, as well as testimony of his neat dress and good appearance which it would corroborate; and there was proper testimony showing that the photograph was a good likeness of the testator and resembled him at about the time of the execution of the will. Among others, his sister, who was one of the principal witnesses for plaintiff, testified to this effect. We do not find any error in the admission in evidence of this photograph by the court below.

The other claim was that the court erred in ruling out the testimony of Dr. J. C. Krieger. Dr. Krieger testified that he had practiced medicine since 188, and had examined lunacy cases in the probate court three times a week for several years; that he made an examination of Dr. Ware in May, 1913, almost two years after the execution of the will, and certified to the probate court that he found him to be an imbecile and unable to attend to any business that might be entrusted to him. He explained, however, in his testimony that he used the term “imbecile” as indicating that he ought to have- a guardian to take care of his property; that he understood that the law in order to justify the appointment of a guardian for a person required that he should be found to be an imbecile, and he so reported it when his condition was such as to render him incapable of attending to his business, using the term “imbecile” in the sense of “incapability.” In answer to the hypothetical question framed by plaintiff, Dr. Krieger testified that he would regard the person referred to in such question as of unsound mind; and on cross-examination he testified: “I am not a mental expert. I didn’t examine him as such.” He further testified as to how he found the testator when he made this examination which resulted in the certificate that he was an imbeeile, and his testimony is contrary to some of the features of the hypothetical question asked by plaintiff. On motion of defendants’ counsel the answer to plaintiff’s hypothetical question was ruled out, to which plaintiff excepted, and this ruling is urged and relied upon by plaintiff in error as the second reason for reversal.

The court below erred in ruling out this testimony of Dr. Krieger. Any objection to it was in regard to its weight rather than to its competency; but considering the entire testimony given by Dr. Krieger, this error of the court can not be considered as prejudicial to the plaintiff in error.

The question might be raised as to whether the bill of exceptions which we have treated as being part of the record should be so considered. The original bill of exceptions as prepared by plaintiff contained but four pages and set out but two items of evidence. It was filed as a bill of exceptions, but was never allowed and signed by the trial judge. The defendants, however, prepared certain exceptions and corrections to the bill of exceptions containing some thirty-three pages, and containing in narrative form what purported to be all of the evidence in the case. This so-called bill of exceptions and corrections to the bill of exceptions was allowed and made part of the bill of exceptions by the signature of the trial judge, October 9, 1915. The two are attached together, and we have treated them as together constituting the entire bill of exceptions. But if objection had been urged to the form in which they are drawn and certified, it is doubtful whether they could be sustained as a proper bill of exceptions. This fact is mentioned as an additional reason for the affirmance of the judgment below.

Treating this, however, as a proper bill of exceptions, the court finding upon a review of the whole record that there is no error to the substantial prejudice of plaintiff in error, the judgment will be affirmed.

Jones, E, H, and Gorman, JJ., concur.


author: WALTERS, J.

text:
    INJUNCTION — TRESPASS.
    [Hamilton (1st) Court of Appeals,
    January 28, 1916.]
    Sayre, Merriman and Walters, JJ.
    (Judges of the 4th district sitting by designation.)
    Missouri Hayes v. Enos Hayes.
    Injunction Lies to Prevent Repeated Trespasses by Stock to Avoid Multiplicity of Suits for Damages and Attendant Costs and Expenses.
    A bill in equity lies to restrain a defendant from permitting his stock to trespass upon the land of plaintiff, where a multiplicity of suits would be thereby avoided, together with costs and expenses in each suit which would probably exceed the amount of damages recovered.
    Appeal.

      H. J, Buntin, for plaintiff.

      E. T. Broivn, for defendant.
   WALTERS, J.

This case comes into this court on appeal from the common pleas court of this county, and the same was heard by this court on the evidence.

The action was brought in the common pleas court to restrain the defendant from allowing his stock to run at large upon the highway and into the enclosures of the plaintiff. The testimony showed a long series of trespasses by the defendant’s stock upon the premises owned by the plaintiff. The premises of the plaintiff and defendant are separated only by a public highway. The plaintiff had brought other suits before this one was instituted, to recover damages of the defendant for the injuries she had sustained from his stock. In one case she recovered one cent damage; in another case she recovered $32, less nine dollars, damages which were sustained by her tenant. She testified that the damages she recovered were far less than the costs and expenses of the litigation, to her.

A temporary restraining order was issued in this ease by the court of common pleas, which was violated by the defendant and he was brought before the court and fined for contempt.

The testimony before us shows that the defendant has allowed his stock to annoy the plaintiff, and to go upon her premises and eat her wheat and grass and other herbage that may be growing there, and it has a little smack, to us, of either being done recklessly by the defendant, or with some feeling on his part.

We recite this much of the facts and circumstances that have been developed before us by the evidence in order to come to a discussion of the demurrer that was interposed to the petition by the defendant, the defendant claiming that equity by injunction will not lie in this case because the plaintiff has an adequate remedy at law. His counsel has cited us to very many cases bearing upon the subject, and claims that no cases can be found where an injunction has been allowed for repeated trespass except where the trespasser has claimed to do so under some color of title or right to do and perform the things he did do.

The Ohio cases upon that point that have been cited seem to sustain the defendant’s contention, so far as the authorities are concerned. The case of Scofield v. Railway, 43 Ohio St. 621, 571 [3 N. E. 907; 54 Am. Rep. 846], is a case that presents that point; also Lembeck v. Nye, 47 Ohio St. 336 [24 N. E. Rep. 686; 8 L. R. A. 578; 21 Am. St. Rep. 828]. In the last named case, Bradbury, the delivering judge, on page 354 makes use of this language:

"The agreed statement of facts shows that the defendant Nye, is insolvent, and that the financial condition of Andrews doubtful; but aside from this, and were they both solvent and fully able to respond to any damages that might be recovered against them in actions of trespass, yet, it is apparent from the whole record that such actions would not afford an adequate remedy for the violations of the rights of the plaintiff in error in the past; and those threatened in the future were, and are, during certain seasons of the year of daily, if not of hourly occurrence under the claim of a right to do so; besides the injury resulting from each separate act would be trifling, and the damages recoverable therefor scarcely equal to a tithe of the expense necessary to prosecute separate actions therefor.”

It is claimed by the learned counsel for the defendant that the plaintiff has three or four remedies under the statute: she might impound the cattle so trespassing; she might sue for damages done; or, she might prosecute him criminally. But notwithstanding all these remedies which, or some of which, she has already tried to her sorrow, it is evident, as the Supreme Court say in the last ease quoted, any particular injury at any particular time, would be small — some of them trifling — as the court says.

As the testimony discloses that the plaintiff has tried this remedy and that her costs have been much more than damages she has recovered, we are constrained to the opinion that in a ease like this — and we desire our opinion to be confined to the facts of this particular case — she has a right to file her bill in equity to restrain the defendant from allowing his stock to trespass further upon her.

Barnes v. Hagar, 148 N. Y. Supp. 395. The third paragraph of the syllabus of that case is as follows:

“Where an owner of cattle permits them to run at large, so that they repeatedly break in and wander over the land of another, and disfigure and destroy the improvements thereon, and the trespass is continuous or constantly recurring, an injunction lies to restrain the wrong, on the ground that the remedy at law is inadequate, and to prevent a multiplicity of actions for trespass.”

The court cite as authority for this: 22 Cyc. 836; Henderson v. Railway, 78 N. Y. 423, 434.

Blevins v. Mullally, 22 Cal. App. 519 [135 Pac. Rep. 307]. The syllabus of the case is as follows:

. “6. Plaintiffs, who were engaged in raising sheep on a large scale, owned and used, for that purpose, a large area of unenclosed land. Large numbers of cattle belonging to an adjoining, landowner repeatedly and almost daily entered upon such land and. consumed the herbage, thus depriving the sheep of the. necessary sustenance. Held, that since the herbage destroyed could not be replaced so as to accomplish the immediate purposes for which it was being used — the feeding of sheep — the injury was irreparable, and a court of equity would grant in-junctive relief.”
“7. Since the trespasses were repeated and continuing, injunctive relief could also be invoked to prevent a multiplicity of suits. ’ ’

In the opinion, the court quotes from Pomeroy Bq. Jurisp. See. 1357:

“If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may therefore be adequate for each single act if it stood alone, then also the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar actions. In both cases the ultimate criterion is the inadequacy of the legal remedy. ’ ’ Citing a large number of cases.

In the case of Alden Coal Co. v. Challis, 103 Ill. App. 52, the first syllabus is as follows:

“Where a trespass had already been committed, and the court can see that it is the purpose of the defendant to commit other deliberate trespasses, which cannot be adequately compensated by a judgment at law, or where the damage of such trespass is merely nominal, then a bill for injunction lies. ’ *

So we are constrained to hold, upon the evidence that is disclosed in this case, and upon the authority of the cases just cited, that this ease follows within the exception to the rule, and that a bill in equity will lie, under these circumstances; and a perpetual injunction will be allowed. We make no ruling upon the order issued by the court below to show cause why the defendant should not be punished for contempt of court.

Sayre and Merriman, JJ., concur.


author: JONES, E. H., J.

text:
    GAS COMPANIES — RAILROADS.
    [Hamilton (1st) Court of Appeals,
    March 6, 1916.]
    Jones, Jones and Gorman, JJ
    Cincinnati, N. O. & T. P. Ry. v. Union Gas & Elec. Co.
    Cost of Lowering Gas Main Under Railway Tracks in Vacated Street Borne by Gas Company.
    A gas company having laid a large gas main in a city street, which is subsequently vacated by order of court, the land reverting to a railroad company as abutting owner of both sides of the street, is liable for the expense involved in lowering such pipe in order to protect it from the tracks of the railroad company, notwithstanding the grade thereof is lower than the old street level.
    ERROR.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Miller Outcalt, for defendant in error.
   JONES, E. H., J.

This action was brought by the Union Gas & Electric Company to recover from the Cincinnati, New Orleans & Texas Pacific Railway Company the sum of $2,169.12 expended by it, the gas company, in lowering or changing the location of its large gas main in the yards of the railway company.

Prior to May 18, 1902, there was a street in Cincinnati known as Dalton avenue; and in the year 1894 the gas company, with the consent of said city, laid a twenty-four inch gas main in that street. On May 18, 1892, plaintiff in error, being the owner by virtue of perpetual leases with privilege of purchase of all the property abutting on both sides of Dalton avenue, between Plopkins and Kenner streets, filed a petition in the court of common pleas for the vacation of Dalton avenue, between Hopkins and Kenner streets. The prayer of the petition was granted by said court on November 26, 1902. The court as a condition upon which the order of vacation would be made required the plaintiff in error to agree that it would “at all times permit the Cincinnati Gas Light & Coke Company, its successors and assigns, to enter upon the said vacated street or vacated parts of streets for the purpose of laying, keeping in repair, changing or removing its system of gas mains and pipes, in the streets or parts of streets vacated.”

In the year 1903 the plaintiff in error graded that part of Dalton avenue which had been vacated and laid tracks across it. These tracks were laid in close proximity to the top of the gas main above described. In fact, the rails of one of the tracks were resting on said main. This condition so remained until August, 1910, when defendant in error made discovery thereof and made a demand on the plaintiff in error to change the location of the pipes. This the plaintiff in error refused to do; and the gas company then did the work it deemed necessary and demanded that the railway company pay the expenses thereof. This was refused, and this suit was filed in the court below on February 15,1912, to recover the expenses of doing that work.

There were two defenses set out in the answer: first, admitting certain allegations of the petition, and then making general denial of the remaining allegations. . The second sets up the four years statute of limitations.

Prior to the vacation of this portion of the Dalton avenue, while it was still under the control of the city, there could have been no question about the right of the city to change the grade of the avenue, and, likewise, no question but that the gas company would have to bear all expenses of removing, lowering or raising its pipes, made necessary by such change in the grade of the street. See, Gas Light & Coke Co. v. Columbus, 50 Ohio St. 65.

“A gas company laying its pipes in the streets of a city, under a grant from the city, in conformity with an established grade, does so subject to the right of the city to change the grade of the street whenever the necessities of the public require it, and, in the absence of wantonness or negligence on the part of the city, the company can not maintain an action for damage occasioned by the necessity of taking up and relaying its’ pipes in order to accommodate them to the new grade. ’ ’

It follows that had the grade of Dalton avenue been changed by the city of Cincinnati before the decree for vacation, the gas company would bave been compelled to change the location of its pipes and to bear the expense thereof.

By the terms of the court’s decree vacating the avenue the right to maintain the pipe therein is made secure; without such provision in the entry, said right would have then terminated. The manifest purpose of the court was to protect as far. as possible such rights as the gas company then had. It was powerless to do more. There was no attempt on the part of the court to enlargé the rights of the gas company, and it is not claimed that any additional right followed the decree or inured to defendant in error under favor of statutory provision or by operation of law. The railroad company being the owner of all the property abutting on both sides of the vacated street became the owner and was entitled to the possession of the part vacated, with the right to use for yard purposes in the same manner and as completely as it could use its contiguous property, subject only to the rights of the gas company as they then and theretofore existed.

No question enters this ease as to the necessity or reasonableness of the grading done by the railroad' company. The presumption to which it is entitled — that its plans were adopted in good faith and the work carefully done — has not been assailed in any way.

Neither is there any question in this case but that the gas company was justified in looking upon the proximity of the rails to its pipe and the operation of locomotives and ears over same as a menace to its business, its patrons and the public. But this condition was brought about by reason of a necessary change of grade and a rightful, lawful use of its property by plaintiff in error, and we know of no rule of law that would compel the railroad company, in the absence of an agreement, to bear the expense incurred in changing the location of the pipe.

The question of the statute of limitations is discussed in the briefs. It is claimed by the railroad company that this action accrued in 1903 when the track was laid, which if true would be a bar. The gas company claims that the operation of the ears over the tracks as laid constituted a continuing trespass and that the statute did not begin to run until the change was made in the location of the pipe and the cost of same ascertained and paid.

Having fonnd that no cause of action ever arose, we do not deem it necessary to determine this question. From such consideration as we have given the matter we are inclined to think that the action is barred.

For the reasons stated the judgment of the court below is reversed, and the judgment which that court should have rendered will be entered here.

Jones, O. B. and Gorman, JJ., concur.


author: JONES, E. H., J. Gorman, J.,

text:
    ELECTION — PLEADING—WILLS.
    [Hamilton (1st) Court of Appeals,
    June 5, 1916.]
    Jones, Jones and Gorman, JJ.
    William S. Graft, et al. v. Owen N. Kinney, Exr. et al.
    Filing Supplemental petition in Will Contest Setting up Contract of Settlement Without Contest no Election is Required.
    Where an action has been brought contesting the validity of a will, and in a supplemental petition a contract of settlement is set up which gave the plaintiffs a specified amount in consideration of their permitting a consent verdict to be taken sustaining the will, which sum of money promised in settlement has not been paid them, it is error to require plaintiffs to elect upon which cause of action they will proceed, it being their right to seek relief on the supplemental petition, and failing in that to try the issue as at first made up as to the validity of the will.
    Error.

      Gulla Smith and Andrews & Andrews, for plaintiffs in error.

      George B. Goodhart, Matthews & Klein and Black, Swing & Black, for defendants.
   JONES, E. H., J.

Plaintiffs began their action in the conrt below to contest the validity of the will of James A. Graft. After the issues were made up, the plaintiffs by leave filed a supplemental petition, alleging a contract of settlement according to the terms of which they were to receive from the contestees the sum of $1000. Upon receipt of said sum, it is averred that contestants were to consent to a verdict sustaining the will. It is then averred that eon-testees failed and refused to pay the money, and judgment for said sum is asked.

When thé case came on for trial defendants moved the court to require plaintiffs to elect whether they would proceed upon the original petition, or upon the supplemental petition. Over the objection of defendants this motion was sustained, and thereupon-defendants elected to try the issues made by the supplemental petition and answer thereto, and the original petition was by order of court dismissed. To all of which plaintiffs at the time excepted.

The claim of the plaintiffs in error is that they had the right in the court below “to first try the question on the supplemental petition, and thereafter, the right to try the question on the original petition if they failed to obtain relief on the suplemental petition.”

The question thus raised is not free from difficulty. The authorities to which we are referred do not decide the precise question here presented. It seems that the matters set up in the supplemental petition could have been made the subject of an independent action if the pleader had so chosen. The course pursued, however, seems more in accord with our practice and with the spirit of the code which discourages multiplicity of actions.

If the supplemental matter had been made the basis for a new action, we can not see that the trial of one would necessarily require the dismissal of the other. On the contrary, we are of the opinion that both actions could well remain on the docket, with the right to relief in one only. At plaintiff’s election, the last ease could and ought to be tried first. If the relief therein sought is obtained, the other case is no longer maintainable. If, however, it is denied, the first case involving the validity of the will can proceed to final determination.

This hypothetical case, it seems to us, clarifies the situation, and if correctly reasoned leaves little doubt about the question under consideration. Plaintiffs should not be penalized for uniting the different grounds in one proceeding. They should be and are entitled to at least as much choice of procedure in the consolidated action as they would have were two actions pending.

From these considerations we have reached the conclusion that it was error to dismiss the original petition, and that having failed to get relief on the supplemental petition the plaintiffs have the right to try the issue as first made up.

There are no other errors.

Judgment reversed and cause remanded for reinstatement on the docket of the court of common pleas.

Jones, O. B., J., concurs.

Gorman, J.,

dissenting.

I am unable to concur with my brethren in the conclusion reached in this case.

It appears to me that the supplemental petition sets out a cause of action inconsistent with the cause of action set out in the petition to contest the will. If a recovery could be had upon the supplemental petition certainly no action could be further prosecuted by the parties who recovered this judgment to set aside or have the will contested. And if the plaintiffs who seek to have the will set aside should proceed to the trial of the cause and a verdict and judgment should be rendered, there could be no action prosecuted upon the supplemental petition.

I am, therefore, clearly of the opinion that it was a case in which the supplemental petition set up a cause of action inconsistent with the cause of action set out in the petition, and the plaintiffs could not prosecute both these actions. The trial court was therefore not only warranted, but required, to compel an election in this case. Plaintiffs having elected to stand upon the supplemental petition, the fact that they failed to establish their ease does not entitle them to now rescind that election and prosecute the action to contest the will.


text:
    PRINCIPAL AND SURETY.
    [Hamilton (1st) Court of Appeals,
    April 24, 1916.]
    Jones, Jones and Gorman, JJ.
    O. N. Olmstead et al. v. Henry W. Albers.
    Surety not Bound for Firm Debt Without Notice of Partnership Relation of Principal.
    A surety can not. be held for a firm debt, where he testifies that at the time he signed the bond he did not know the man for whom he was signing was a member of the partnership, and his testimony is riot denied.
    Error.

      Shaituck & Hightower, for plaintiffs in error.

      A. L. Herrlinger and Healy, Ferris & McAvoy, for defendant.
   JONES, E. H., J.

The judgment of the superior court is affirmed on the authority of the following: McGovern v. State, 20 Ohio 93; Morgan v. Boyer, 39 Ohio St. 324 [48 Am. Rep. 454]; State v. Medary, 17 Ohio 554; London Assurance Co. v. Bold, 6 Q. B. Rep. 514; Parham Sewing Mach. Co. v. Brock, 113 Mass. 197.

Counsel for plaintiffs in error tries to distinguish the ease at bar from these cases, and in so doing says that in the cases cited the change in the business relationship of the parties to the bond, and especially of the principal obligor, arose after the bond was signed, while in this case Edwards was a member of the firm when the bond was signed by Albers, who by the terms of the bond became surety for Edwards only.

There is this distinction between the cases cited and this ease. But Albers, the surety here, claims that he knew nothing about the partnership of which Edwards was a member when he signed the bond, and his statement is not denied. This want of knowledge on the part of Albers, the surety, would seem to warrant the application of the same principle to his case as was applied by the courts in the cases cited and would we think, by like reasoning exempt him from liability for any joint delinquency shared by Edwards and other members of his firm.

It is also contended that the bond expressly provides for a several or joint defalcation. The language relied upon in this connection is not clear, and gives some color of right to the claim of defendant in error, viz., that this language in the bond is only intended to cover or apply to default growing out of a partnership formed in the future, and had no reference to any then existing joint arrangement to which Edwards was a party.

We think Albers is entitled to have the doubt, if any, resolved in his favor. But on account of the view we take of other aspects of the ease the question is unimportant. The money due Olmstead Bros, upon the termination of the Edwards-Evans agency was due from the firm, and until the firm assets and the assets of the members thereof were exhausted there could be no liability on the bond.

The record fails to show that any effort was made to collect the sum here involved from Evans, and we think that is a condition precedent to recovery upon the bond, even though the construction contended for by counsel for Olmstead Bros, as to liability of the surety on the bond for joint malfeasance be correct.

Judgment affirmed.

Jones, 0. B. and Gorman, JJ., concur.


author: MARVIN. J.

text:
    ERROR — TRIAL.
    [Lucas (6th) Circuit Court,
    November, 1908.]
    Marvin, Winch and Wildman, JJ.
    Lake Shore Elec. Ry. v. Sanders Sharp, Admr.
    Dismissal of Case after Court Grants Motion to Direct Verdict for Defendant, Erroneous.
    At the conclusion of the plaintiff’s evidence, a motion having been made to direct a verdict for the defendant which the court has announced it will grant, it is erroneous to permit the plaintiff to dismiss the case without prejudice.
    Error.
   MARVIN. J.

The plaintiff below was Sanders Sharp, as administrator, and he brought his suit against the plaintiff in error for the wrongful death of his decedent. In this opinion the terms “plaintiff” and “defendant” are used, meaning the parties as they stood in the court below.

At the close of the plaintiff’s evidence the defendant moved the court to direct a verdict in its favor. After the arguments on this motion were concluded the court announced that the motion would have to be allowed. The plaintiff thereupon asked leave to withdraw a juror and continue the case. This was refused and the plaintiff then moved that the case bé dismissed without prejudice and this motion was allowed and an order made by the court dismissing the case without prejudice. To reverse this order the present proceeding is prosecuted.

Section 5314 R. S., provides for the dismissal of actions without prejudice, and the first of said provisions is that it may be dismissed by the plaintiff, before the final submission of the case to the jury or to the court, when the trial is by the court. This is the only provision authorizing the plaintiff to dismiss the case without prejudice, except a dismissal provided for in vacation. It is provided by the same section that the court may dismiss the ease without prejudice where the plaintiff fails to appear at the trial, or for want of necessary parties, or on the application of some of the defendants where there are others whom the plaintiff fails to prosecute with diligence, or for the disobedience by the plaintiff of an order concerning the proceeding in the action.

It is urged here that since the court had not directed the jury, that a verdict be returned for the defendant, the case comes within the first class, to-wit, one that may be dismissed by the plaintiff before the final submission of the ease to the jury or court, and that the action of the court in entering the dismissal, without prejudice, was simply authorizing the plaintiff to make this dismissal, as provided by the statute. This reasoning, we think, is not sound. The case of Turner v. Car Co., 29 O. C. C. 181 (9 N. S. 65) was in some respects like the case at bar. In that case, after the evidence on the part of the plaintiff had been concluded a motion was made that a verdict be directed for the defendant. That motion was taken under consideration by the court, and the court adjourned until the following morning. When the court convened counsel for the plaintiff announced a dismissal of the case, without prejudice. The court refused to enter the dismissal and directed a verdict for the defendants, which was at once returned by the jury. Error was prosecuted to the refusal of the court to enter the dismissal. In the circuit court the judgment of the common pleas was affirmed, the court finding that, in substance, the case was finally submitted upon the motion to direct a verdict within the meaning of See. 53 14 R. S.

The same question under a statute similar to our own was passed upon by the Supreme Court of Nebraska, in the case of Bee Bldg. Co. v. Dalton, 68 Neb. 38 [93 N. W. Rep. 930]. See also St. Joseph & D. C. Ry. v. Dryden, 17 Kan. 278.

These eases are familiar to counsel and need not here be quoted from.

We reach the conclusion that the court erred in dismissing the case without prejudice, and we reach the further conclusion that the case was submitted to the court, for when a motion is made to direct a verdict it amounts, as has been said in other cases, to a demurrer to the evidence, and raises a question of law for the court. The court was without authority to dismiss the case without prejudice but the court was not without authority to dismiss the case upon the motion of the plaintiff. His motion was in effect an announcement that he did not care further to prosecute this case. True, his motion implied that he hoped to be able to prosecute a case upon the facts undertaken to be brought out in this case, but the case had reached a point where, by this motion, the court, as already said, was authorized to dismiss it upon the plaintiff’s motion, and the order should have been that the ease be dismissed and should not have included the words “without prejudice.”

Proceedings here to modify the judgment so as to make it conform to that which the judgment below should have been the judgment is that the case in the court below be dismissed.

Winch and Wildinan, JJ., concur.