text:
    NEGLIGENCE — SHIPPING
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    H. J. Dunn v. Lake Shore Navigation Co.
    Injury from Stepping on Slippery Threshold of Steamer not Recoverable.
    One who steps upon a smooth, polished, brass threshold of a door on a steamer, such as are usually found on steamers and with which he was familiar, the same being in plain view, and slips and is injured, can not recover damages from the steamboat company.
    Error.

      D. D. Hurlbut and W. C. Ong, for plaintiff in error.

      Goulder, Holding & Masten, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The defendant is a corporation owning the steamer Eastland. On the 14th of July, 1907, the plaintiff took passage on said steamer in the morning from Cleveland to Cedar Point, returning to Cleveland on the same boat in the afternoon.

When the steamer arrived at Cleveland it was getting dark and the boat was well lighted by electricity. Shortly before the arrival of the boat at Cleveland the plaintiff, who was in the main cabin on the promenade deck, started to walk ont onto the open deck outside of the cabin, carrying in his arms his little daughter, about two years old. In passing out from the cabin to the open deck, he stepped on a brass plate across the bottom of the doorway, placed there like a door threshold. This plate was polished and smooth and as his foot stepped upon it he slipped and fell, thereby sustaining an injury, to recover damages for which he brought his action in the court of common pleas. He charges that the defendant was negligent in the construction and maintenance of said door plate or threshold, and in keeping the same so highly polished. At the close of the evidence on the part of the plaintiff, on motion of the defendant, the court directed a verdict for the defendant, which was rendered and judgment entered accordingly. That judgment is here for review upon proper proceedings.

We are of opinion that there was no error on the part of the court in directing a verdict, as it did. The evidence fails to show that there was any difference in the construction of this door plate or threshold, or in the maintaining of it in its polished condition, from that in general use upon passenger steamers. It fails to show that it was an improper construction, or that it was more thoroughly polished than similar door plates or thresholds usually are on steamers. It shows also that the plaintiff had been a passenger on the boat and been all about it on the trip from Cleveland to Cedar Point in the forepart of the day and had had opportunity to see exactly what the condition of this door plate or threshold was, both on the journey to and from Cedar Point; that the lights, at the time of the accident, were sufficiently brilliant, so that a glance on plaintiff’s part to the door plate or threshold would have shown him its condition.

From the evidence introduced the jury would not have been justified in finding that any negligence on the part of the defendant was shown, nor that there was anything about this door plate or threshold which by the most ordinary observation would not have been known by the plaintiff, and on this ground we affirm the judgment of the court below.

Judgment affirmed.

Winch and Henry, JJ.; concur.-


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    RAILROADS
    [Cuyahoga (8th) Circuit Court,
    February 28, 1911.]
    Marvin, Winch and Henry, JJ.

      Eunice Riter, Admx. v. Cleveland, C., C. & St. L. Ry.
    Section Foreman and Engineer are Fellow-Servants.
    A section foreman on a railroad is a fellow-servant of an engineer on a locomotive, and there can be no recovery against the railroad company for injuries received by the engineer due solely to the negligence of the section foreman.
    Error.

      E. 8. Meyer, for plaintiff in error.

      E. A. Foote, for defendant in error.

      Affirmed no opinion, Ritter v. Cleveland, C., C. & St. L. Ry. 83 Ohio St. 515.

   MARVIN, J.

The parties here are as they were in the court below. The defendant is a railroad corporation, operating a line of railroad from the city of Cleveland southerly in the state of Ohio to and through the city of Columbus, Ohio. The plaintiff’s decedent, William Riter, was a locomotive engineer in the employ of said defendant. At the time of his death on October 20, 1902, he was operating as such engineer a locomotive engine, drawing a passenger. train known as No. 19, going south, at a very high rate of speed, to wit, about sixty miles an ho.ur, which was the scheduled rate of said train. Near the station known as Flint, some miles north of Columbus, while said decedent was running his said engine at the rate aforesaid, it turned on to a switch-track which had been negligently left open, and by reason of going on to this switch-track, the engine overturned and the engineer was killed. The plaintiff, as administratrix of the estate of the decedent, brought suit to recover damages on account of this death. The negligence charged in the petition and in the amendment thereto which was filed by leave of the court, is that the defendant ordered its section foreman to take certain heavy wooden beams upon a hand-car and move them to a point two or three feet northerly from where the switch track, already mentioned, diverted from the main track of the road, and to use these in preparing a support for what is called a mail crane, which was to be removed from a point where it had stood severál hundred feet to the north and on the opposite side of the track. This section foreman, pursuant to his orders, had the timbers spoken of loaded upon his hand-car, and he together with a squad of men under his direction, moved the hand-car north upon the switch and ran the hand-car out on to this switch. The section foreman having, by authority of the company, in his keeping, a key to the lever which had to be moved to open or close said switch.

The facts shown establish that the section foreman had charge of the squad of men doing the work of removing this mail crane and doing whatever work was required for that purpose. The train drawn by the engine in charge of the decedent passed the point where the accident occurred at the time it was scheduled to pass. In his hurry to get the mail crane erected the section foreman neglected, after he opened the switch and ran his hand-ear onto it, to close the switch again, so that the train drawn by the decedent’s engine could safely pass that point.

That the decedent was in no wise negligent is established by the evidence, and that the section foreman was negligent is equally well established, and the only question is whether the section foreman so represented the defendant as that he was the vice-principal of the employer of both the decedent and the section foreman. If they were fellow servants, the defendant is not liable. If the section foreman was the vice-principal -of the defendant, as between these two employees, then it is liable. We know of no principle of law which would authorize the court to hold that the section foreman was such vice-principal.

It is urged earnestly and ably on the part of counsel for plaintiff in error that although, if the work being done by the section foreman and his squad of men was repairing the road, the foreman would not be the vice-principal, yet, if the work which was being done must be treated as work of construction the position of the foreman in relation to the decedent was altered.

We are unable to see that the work here being done changed in any way the relation between these two employees and what their relation would have been if the work being done by the foreman and his squad was simply repairing a track.

This being so, we reach the conclusion that there was no error on the part of the trial court in sustaining a motion made by the defendant at the close of the plaintiff’s evidence to direct a verdict for the defendant, and the judgment is affirmed.

Winch and Henry, JJ., concur.


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    MASTER AND SERVANT — RELEASES
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Henry, Marvin and Winch, JJ.
    David Herbst v. Schaeffer-Suhr Coal Co.
    Receipt in Full Settlement of Claim Defense Against Damages.
    One who has settled a claim for personal injuries received through the negligence of another and given a written receipt for the money paid him, reciting that it is in full settlement of his claim, in the absence of fraud or deceit, can not maintain an action for the recovery of damages growing out of said injuries.
    Error.

      Hart, Canfield & Croke, for plaintiff in error.

      Dissette, Dissette & Dissette, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff was an employee of the defendant, which is a corporation. He was driving a team owned by the defendant on the 22d of May, 1906. On that day, while driving the said team which consisted of a span of horses, he was ordered to hitch the team to a large roller, for the purpose of pulling it out of a hole where it was located. To do this, he was obliged to get right behind the horses, and while on this work, one of the horses kicked him and injured his leg, to recover damages for which he brought this suit. The plaintiff says that the horse which kicked him was known by the defendant to be a vicious animal and a kicker, equally liable at any time, without the least warning, to kick anyone without any cause whatever; that he had no knowledge of the character of the horse, and that he was not in any wise negligent in doing his work which he was doing at the time of the injury complained of. The defendant answered, admitting the employment of the plaintiff by it and that he was injured by the kick of a horse owned by the defendant; it denies, however, that it was in any wise negligent in having him use the team in the way that he was directed to use it, and further the defendant answers, that whatever claim the plaintiff had against it for such injury was fully settled on July 26, 1906, for the consideration of $24.40, which it paid to him on account of the injury. The plaintiff replies to this defense of settlement that there was not a settlement of the claim, but that the plaintiff paid him, without any solicitation on his part, but of its own free will, the sum of $24.40 while he was suffering from the injury.

On the trial there was introduced in evidence a writing which reads:

‘ ‘ Cleveland, Ohio, July 25, 1906.
“Received of the Sehafer-Suhr Coal Co. twenty four and 40-100 dollars .in full settlement of accident claim for being kicked by horse.
(Signed) “David Herbst.”

This paper writing the plaintiff admits that he signed, and says he can read and that he did read this writing, and that he received at the time of the signing of this paper the amount of money therein named.

It does not appear from the evidence that any fraud was perpetrated upon him to obtain this signature, nor is any effort made in this action to set it aside or have it canceled.

We think this is a complete defense to the claim of the plaintiff, and that whatever may be said as to any rule of the court, as to any question in relation to evidence, or whatever may have been said in the charge, the result reached was the result which should have been and must have been reached in this action,.

The question in this case is settled by the case of Ferry v. O’Neal Co., 78 Ohio St. 200 [85 N. E. 41].

The judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    BAIL AND RECOGNIZANCE
    [Cuyahoga (8th) Circuit Court,
    January 24, 1910.]
    Henry,'Marvin and Winch, JJ.
    State ex rel Cline, Pros. Atty. v. Angelo Liggotta et al.
    Recognizance Forfeited at Next Term of Court.
    Previous to the act of May 9, 1908 (99 O. L. 356), there could be no recovery against the' sureties on a recognizance in a criminal case, for the appearance of the prisoner at the next term of court, unless at said term the prisoner was called, failed to appear and the recognizance was forfeited.
    Error.

      John A. Cline and George C. Hansen, for plaintiff in error.

      Harry F. Payer, for defendant in error.
   MARVIN, J.

Thé relation of the parties here is as in the court below.

In thát court a general demurrer was sustained to' the second amended petition filed in the case, and the plaintiff not desiring to plead further, judgment was rendered for the defendants.

The present proceeding is prosecuted to reverse said judgment. The only question, therefore, is as to the sufficiency of such petition.

The petition alleges that Mr. Cline is prosecuting attorney for Cuyahoga county, Ohio, and that he brings the action on behalf of the state. . That Angelo Liggotta was indicted by the grand jury of said county on June 23, 1907, charged with the crime' of shooting with intent to wound; that on July 5, 1907, all of the defendants personally appeared at the court of common pleas of said county and jointly and severally acknowledged themselves to owe unto the state of Ohio the sum of $2,000 to be levied of their goods and chattels, lands and tenements, if default should be made in the condition following, to wit: that the said Angelo Liggotta should personally be and appear before the said court, at the next term thereof, and so from day to day, to answer unto the state of Ohio the said charge of shooting to wound, as contained in said indictment, and abide the judgment of the court in the premises, and not depart the court without leave. Said undertaking was in writing and duly filed in the said court. The next term of said court was the September term thereof, 1907. Said Liggotta did not appear at said September term of said court. On the last day of said September term the case under the said indictment was continued until the January term of said court.

Said Liggotta did not appear before the said court at the said January term, 1908, and from day to day, as by the terms of said recognizance he was bound to do, and said Angelo Liggotta did not abide the order of the court in the premises, .but did depart without leave, contrary to the terms of said recognizance, and the said Angelo Liggotta then and there on February 9, 1908, at the January term of said court, was solemnly called to come into said court and answer unto the state of Ohio, the said charge preferred against him, and came not, but made default ; that said defendants, Payer and Oastigline, were then and there solemnly called to come into court and bring the said Angelo Liggotta, but they came not, but made default. By reason whereof it was then and there considered that the recognizance be and was thereby forfeited, absolutely, as is shown by the records of said court.

Prayer is therefore made for judgment against these defendants for said sum of $2,000.

The statute under which the recognizance was given is See. 7161 R. S. (See Sec. 18526 G-. C.) and reads:

“If the offense is bailable and the prisoner offers sufficient bail, a recognizance shall be taken for his appearance to answer the charge before the court of common pleas on the first day of the next term thereof. ’ ’

It will be noticed that the statute required that the recognizance should be for the appearance of the defendant at the first day of the next term of the court, while the recognizance described in the petition is that he shall appear at the next term of the court. An exhibit is attached to the petition, but not made a part of it, which purports to give a true copy of the recognizance, and in this language is that Liggotta shall be and appear before the court on the first day of the next term. While we may not look at this exhibit to determine the sufficiency of the petition upon demurrer, we may probably assume that the obligation set out in the petition is sufficient to hold the defendants to answer for any default in the September term of the court.

It is urged that the allegation of the petition “that the said Angelo Liggotta did not appear at the next term of said court” is sufficient to show that his recognizance was forfeited at that term.

If this contention be sound, all the statements as to what occurred or did not occur at the January term, would seem to be surplusage, and it does seem somewhat difficult to know just what is relied upon as having occurred at the January term, which would render the defendants liable.

It is said that the accused did not abide the order of the court, but what that order is, is not stated. It is said that he departed without leave, but if what is meant by the statement that he did not appear before the court is that he was not in or about the court room, then it is difficult to understand how he departed either without leave or with leave of the court.

Clearly the plaintiff relies for relief upon the provisions of Sec. 7180 R. S. (See. 13545 G. C.), which reads:

“When a person under recognizance in any criminal prosecution, either to appear and answer or to testify in any court, fails to perform the condition of such recognizance, his default shall be recorded and the recognizance forfeited in open court.”

It is because of this provision that the petition sets out the open forfeiture at the January term, recognizing what we hold to be a true construction of the statute that until such forfeiture in open court, suit can not be maintained upon the recognizance. This being so, no recovery can be had because of the failure of the accused to appear at the September term. He was not called at that term; no attempt was made to have him called, and no forfeiture was declared.

It is urged, however, that as the case was continued to a subsequent term, the liability of the sureties continued.

It is difficult to understand why the general assembly enacted what is now Sec. 7160a on May 9, 1908, found in 99 O. L. 356, if the law as it stood when this recognizance was entered into, meant what is claimed for it here. This new section reads:

“And in all eases in which an indictment or presentment is returned into the court of common pleas, such court shall require the accused to enter into a recognizance in such an amount as the court may fix. And it shall not be necessary to renew such recognizance at the end of the term or at any other time, except upon motion made to the court, or the court may upon its own motion renew the same, or, for proper cause shown, increase or decrease such recognizance. And said recognizance, when so given, shall be conditioned that the defendant abide the order and judgment of the court and appear from day to day and not depart without leave until such case is finally disposed of. And it shall not be necessary when said recognizance is so executed, for the accused to give any other recognizance pending any prosecution for error, but such recognizance shall continue and be in full force throughout the prosecution in error. But the court in which such error is prosecuted may for good cause shown increase or decrease such recognizance or remand the accused to the sheriff of the county in which such indictment or presentment was returned. Provided that when two or more indictments or presentments are returned against the same person at the same term, the recognizance given may be made to include all offenses charged therein.”

As to the non-liability of the sureties upon this recognizance beyond the term of the court next after its execution, we regard the case of Swank v. State, 3 Ohio St. 429, as decisive that they are not liable, and it may well be that the recent statute was enacted because of this decision.

We reach the conclusion therefore, that the judgment of the court below in sustaining the demurrer to the second amended petition was correct, and it is affirmed.

Henry and Winch, JJ., concur.


text:
    ASSESSMENTS
    [Cuyahoga (8th) Circuit Court,
    February 7, 1910.]
    Henry, Marvin and Winch, JJ.
    John Wageman v. Cleveland (City).
    Levying Assessment Fixes Amount, not Compels Payment.
    To “levy an assessment” within the purview of Sec. 1536-213, R. S. (Sec. 3819 G. C. et seq.), is to fix the amount to be paid as an assessment and not to compel its payment.

      George G. Hafley, for plaintiff in error.

      Newton D. Baker and C. D. Wilkin, for defendant in error.
   MARVIN, J.

Plaintiff brings his action praying for an injunction against the defendant to prevent the collection of certain assessments made or attempted to be made by the city upon certain real estate of the plaintiff lying within the limits of the city. It appears that on September 31, 1901, the city made certain assessments on the property of the plaintiff for the construction of a sewer, which assessments were made payable in five installments, beginning with 1901 and ending in 1905, the first half of the last installment being payable December 20, 1905. That on April 13, 1906, the city passed another ordinance, assessing this same property for a street improvement, payable in five installments, beginning with 1906 and ending with 1910.

The claim on the part of the plaintiff is that the assessments provided for in each of these ordinances constitutes the levying of an assessment as that word is used in Sec. 1536-213 R. S. (Secs. 3819 G. C. et seq.) (It should here be said as to each of these assessments that they were levied to be paid according to benefits.) It is provided in the section of the statute named that:

“In all cases of assessments the council shall limit the same to the special benefits conferred upon the property assessed, and in no case shall there be levied in any lot or parcel of land in the corporation any assessment or assessments for any or all purposes, within a period of five years, exceeding 33 1-3 per cent, of the actual value thereof after the improvement is made. ’ ’

We hold that the word “levy” as used in this statute, clearly means the fixing of the amount to be paid by the assessments. The claim made here by the defendant that the word “levy,” as used here, is used in the sense of “compel to pay” is not sound. The language is: “and in no case shall there be levied any assessment or assessments.” We can not doubt that the meaning of the statute clearly is that the council shall not fix assessments to be paid in excess of the limit named, within the specified period of five years. This is clearly shown by the construction put upon this section by the Supreme Court in the case of Gray v. Toledo, 80 Ohio St. 445 [89 N. E. 12]. The statute then under consideration was Sec. 53 of the Municipal Code, passed October 22, 1902, found in 96 O. L. 40, and reads:

“In no case shall there be levied upon any lot or parcel of land in the corporation any assessment or assessments for any or all purposes within a period of five years exceeding 33 per cent, of the tax value thereof.”

It will be noticed that the language is the same as that of the statute now under consideration except that the percentage of the assessment was to be but 33, while here it is 33 1-3 per cent., and the basis for the estimate of this per cent, is the tax value of the property, while in the present statute it is the value of the property after the improvement is made. But the words “assessment” and “levied” are used in exactly the sense in which they are used in the present statute, and yet the syllabus of the case reads:

“Section 53 of the municipal code of 1902 (Sec. 1536-213, Rev. Stat. prior to the amendment of April 21, 1904, .97 O. L. 126) which provided that assessments upon a lot for any and all purposes, within a period of five years, were limited to thirty-three per centum of the tax value thereof,” etc.

So that the court uses the word “assessment” as synonymous with the word “levied.”

We are then brought to the question whether the assessments provided for in the two ordinances to which attention has been called and the second of which was passed less than five years after the passage of the first, made a levy in excess of 33 1-3 per cent, of the value of the property, after the improvements were made. The evidence in this record is conflicting, but we think the valuation, as fixed by the appraisers appointed by the city, is fair and just, and we adopt it. This shows that the levy made by the last ordinance when added to that made by the first, aggregates considerably more than the limit provided for by the statute, and to the extent of such.excess the defendant will be enjoined from making collection of the assessment.

In determining the amount beyond which collection is enjoined interest will be included.

Henry and Winch, JJ., concur.


text:
    ACTION OR SUIT — PLEADING—PROCESS
    [Cuyahoga (8th) Circuit Court,
    February 7, 1910.]
    Henry, Marvin and Winch, JJ.
    Union Salt Co. v. Gordon Miller.
    1. Allegations, Not Prayer, Determine Character of Action.
    A petition which states a case for money only, and nothing else, can not, by the prayer, be made a case for the interposition of a court of equity.
    2. Service by Publication Denied in Action for Money Only.
    In such a case service by publication can not be had upon a nonresident defendant under either the third or fifth paragraph of Sec. 5045 R. S. (Sec. 11292 G. C. et seq.)
    Error.

      Henderson, Quail & Siddall, for plaintiff in error.

      Weed, Miller & Bothenberg, for defendant in error.
   MARVIN, J.

Suit was brought by plaintiff in error against the defendant in error and William S. Miller, both non-residents of the state of Ohio. Proper affidavit was filed for service by publication. Publication of notice was made and a copy of the petition and summons was served upon each of said defendants in the state of New Jersey. In short, if the case is one in which the defendants could be brought into court by publication and service outside of this state, the defendants were properly brought into the jurisdiction of the court.

The defendant in error, appearing only for the purpose of his motion, filed a motion to set aside the service made upon him, the ground of the motion being only that the case made in the petition is not one in which service by publication is authorized by law. This motion was sustained and error is prosecuted here to reverse this action of the court.

The petition is somewhat voluminous, but the substance of it is that Gordon Miller is the sole surviving partner of a copartnership which did business under the firm name of Alexander Miller & Brother; that said firm, on the 4th day of February, A. D. 1908, entered into a written contract with the plaintiff whereby said firm was to furnish and erect on the premises of the plaintiff at Cleveland, Ohio, a certain salt manufacturing apparatus, weighing about 200 tons, capable of producing 200 tons of salt every twenty-four hours. Provision is made in the contract as to material and workmanship to be employed in the construction of such apparatus. The plaintiff was to provide a suitable building and sufficient and adequate foundation for such apparatus. The plaintiff was to pay for said apparatus in all $60,000 to be paid in monthly installments, upon estimates, the several payments to be 85% of the value of labor and materials used and applied in such construction at the time of such payments. When the construction should be completed, the construction firm was to give it tests, and when showing by such tests that it fully met the requirements of the contract, the entire balance of the contract price was to be paid.

Said firm entered upon the construction of said apparatus; while the work was in progress Alexander Miller, the head of the said firm, died, and the defendant in error, as surviving partner, continued the work of construction, until he claimed and claims to have fully performed the contract on his part and on the' part of said firm to be performed.

Pursuant to the terms of the contract, the plaintiff paid from time to time estimates upon such work until it had paid 85% of the full contract price, to wit, $51,000. The petition alleges that the apparatus, as constructed, will not do the work which it was to do; that the defendant has been unable to make it operate, and that, therefore, the defendant has failed to complete the contract on the part of said firm.

The plaintiff further says in its petition that owing to the peculiar nature of the apparatus, and the way in which it was operated, experiments must be made, and alterations and changes, so as to adapt the apparatus to the work required of it; that this requires the service of persons of exceptional skill who may be required to experiment and make changes, and again make experiments and other changes so that a large amount must be expended before it can be determined whether the apparatus can be made to operate properly. The materials and machinery constituting the construction erected by the defendant and his firm are mostly iron and steel, and to prevent deterioration and loss require constant care. The plaintiff refused and does refuse to accept the apparatus so constructed, and has notified and requested the defendant to care for and protect such materials and machinery which he refuses to do, and so the plaintiff says the same is rapidly going to waste and that unless properly cared for, it will soon become of little value. The only allegation in the petition as to the defendant, William S. Miller, is that he has, or claims to have, some interest in the salt making apparatus, which is the subject of the controversy. He had made no appearance in the ease for any purpose.

The prayer of the petition, based upon the foregoing facts is:

“Wherefore, plaintiff prays that it may be found to have an equitable lien upon the said plant and apparatus for its expenditures in connection therewith under the said contract; that the court at once appoint a receiver to take charge of the said plant and apparatus, to care for the same under the order of the court and to take such action with respect to its completion and the demonstration of its capacity as to the court may seem proper; that an accounting may be had herein as to the rights and obligations of all the said parties with reference to the said plant and apparatus; that, if it shall appear herein that the same can not be reasonably adapted to the plaintiff’s use as contemplated by the said contract, the plaintiff’s lien thereon may be protected and enforced, and that the plaintiff may be given such other and further relief in the premises as equity may require.”

It is urged that the facts stated in the petition are such as to authorize the appointment of a receiver and that one being appointed and the property being thereby taken into the custody of the court, it has full jurisdiction to determine all questions concerning such property.

At any rate, it is urged that the petition clearly shows that the plaintiff is seeking to have the property of the defendant taken or appropriated by one of the provisional remedies provided by statute, and so, it is said, that the case comes within the provisions of Sec. 5045 R. S. (Sec. 11292 G. C. et seq.), the third subdivision of which provides for constructive service “in actions in which it is sought by a provisional remedy to take or appropriate in any way the property of the defendant, when the defendant is a nonresident of this state.” And in subdivision 5 of the same section, it is provided that such service may be had when the relief demanded consists wholly or partly in excluding him — the defendant — “from any interest therein.” It is said that this clause necessarily relates to the prayer of the petition. But it certainly is not the law that upon a petition which clearly states a case for the payment of money only, and states nothing else, the pleader may by his prayer make a case for the interposition of a court of equity.

True, it is said in Buchanan v. Roy’s Lessee, 2 Ohio St. 251, that:

“We do not wish to be understood as assenting to the proposition that wherever a general demurrer would have been well taken to a bill, it follows that the court has no jurisdiction.”

This language is relied upon by counsel for plaintiff in error, and quoted in his brief. However, immediately following this language in the opinion the court uses the following language:

“But when the defect is not a mere want of equity, but is some fact that precludes the court from entering upon the inquiry whether the complainant has an equity or not, in such a case the defect is fatal to the jurisdiction. ’ ’

In the case of Barbour v. National Exchange Bank, 45 Ohio St. 133, 135 [12 N. E. 5], cited and quoted-from in plaintiff ?s brief, the court sustains its holding upon the ground that the facts shown by the pleadings authorize the appointment of a receiver and not because one is prayed for.

Undoubtedly a court may have jurisdiction of a case in equity as well as at law where there is some defect in the petition which would render it subject to be held bad on general demurrer, but when all the allegations of a petition, giving the most liberal construction to the pleader, clearly show that whatever the case he has is one at law, and not in equity, the case can not be brought within the jurisdiction of equity by following the allegations of fact with the prayer for equitable relief.

Judgment affirmed.

Henry and Winch, JJ., concur.


text:
    CORPORATIONS — STRIKES
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Henry, Marvin and Winch, JJ.
    United States Coal Co. v. Frank M. Osborne et al.
    Contracts between Corporations to Protect Property during Strike Lawful.
    A contract between several coal companies providing that they shall at joint expense, to be paid ratably by each, according to tonnage of its mines, hire guards to protect the property and employees of one of the companies and operate its mines during a strike affecting all of them, is a lawful contract, upon sufficient consideration, and not beyond the powers of such corporations to enter into.
    Appeal.

      Henderson, Quail & Siddall, for plaintiffs.
   MARVIN, J.

Each of these three cases is an appeal from the judgment of the court of common pleas made in a single case, the appeals being taken by separate defendants. The plaintiff brought suit for an accounting and payment of certain moneys which it claims to be due to it from a large number of defendants, in-eluding each of these appellants, to wit, the Dayton Coal Co., the Milton Coal Co. and the Superior Coal Co. The claim of the plaintiff is based upon its alleged rights growing out of the performance by it of the provisions of certain contracts, which it says were entered into between it and each of the defendants on May 8 and 11, 1906. And the plaintiff uses this language in declaring what the contract was:

“Desiring to have said Plum Run mine operated on their joint account and for their joint benefit, entered into a contract with this plaintiff, by the terms of which they agreed that the plaintiff should proceed to operate the said Plum Run mine and deliver or consign the coal removed therefrom to such persons and at such places as a committee of said defendants known as an executive committee should direct, and that the said defendants last above named, would pay to the plaintiff all the expenses of every character and description connected with such operation upon presentation to such executive committee of properly receipted bills or vouchers showing the amount thereof, the same to be paid as so presented, and the plaintiff to be permitted to receive and retain five cents per ton for all the coal so mined and shipped. Thereupon the plaintiff at once entered upon the performance of said contract and in pursuance thereof, expended large amounts of money, and incurred large obligations on behalf of said defendants in preparing for and carrying on said mining operations for and in delivering and consigning said coal as provided in said agreement. By agreement of all of the said parties to the said contract such operation continued until June 20, 1906, on which date the defendants, Frank M. Osborne, J. J. Roby, George M. Jones, J. C. McKinley, Thomas E. Young, J. P. Burton, Charles E. Maurer, Franklin Neff, John Simpson, Lute Horniekel, Hudson E. Willard, Pitt Townsend, William B. Murray, F. P. Jones, Clifford Ayres, John F.. Johnson, William J. Sampson and Alfred S. McGary, many of whom were parties to the said Plum Run mine thereafter operated on their joint account and for their joint benefit by this plaintiff, entered into a contract with the plaintiff whereby it was agreed that the said operation of said mine should be continued in the same manner as that in which it had been conducted under the said contract of May 11, 1906, and that the said defendants last above named would assume and pay all the expense thereof from and after the time of the termination of the operations under the said contract of May 11, 1906. This plaintiff proceeded to operate the said mines, and incurred in doing so many large expenses and also at the request of the said parties incurred further expense in an effort to operate another mine known as plaintiff’s Crow Hollow mine, which effort, however, was shortly abandoned.”

These contracts, if any were made, were made at a meeting of representatives of the plaintiff and the several defendants, all of whom were operators of coal mines in what is known as the ‘ ‘ Ohio district, ’ ’ and at a meeting of what is known as the Eighth district, at Cleveland, on May 11th.

At the time of entering into these contracts there was a general strike among the miners in the district so extensive that it prevented the safe operation of any of the mines owned by the several parties, and the purpose of the contracts was that some one of the mines should be opened and the miners who should be employed in such mine, together with the property connected with the mine, should be protected. To do this it was resolved that:

“A general committee of fourteen be appointed by this body, which committee shall have full power to act under these resolutions in the selection of mines to be operated, to take charge of the operation of the same; to appoint sub-committees in the several districts in which such mines may be located, and also have power to levy assessments upon our tonnage to pay any expenses incurred therein. And we hereby pledge ourselves to pay such assessments as may be levied under these resolutions. ’ ’

That committee of fourteen was selected. Several meetings of the representatives of the parties to this suit were held. Without stopping to enumerate the action taken at each of these several meetings, suffice it to say that the arrangement made was that this committee of fourteen should select, as the resolution provided, a mine or mines to be operated. It selected what was known as Plum Bun mine of the plaintiff, as the one to be opened. That was opened and operated, in pursuance of the resolution. A large expense was incurred in opening and operating this mine, including as was contemplated by the parties, the employment of guards to protect the miners and the property. Assessments were made upon the several parties represented at these meetings, including these several defendants, for their proportionate share, by tonnage, of the expenses thus incurred. These expenses were paid by the plaintiff and it now seeks to recover, after an accounting, the part of such expense which it claims the several defendants should pay. There is no dispute here as to the amount expended by the plaintiff, nor as to the proportionate share of the several defendants, provided it shall be found that they are under obligation to pay any part of this expense. On the part of the defendants, however, it is urged that no legal contract was entered into by which they are bound to respond in any sum whatever. It is .urged, first, that the alleged contract is against public policy, and it is said in argument, as sustaining this view, that the bringing of guards to protect this mine, which would have to be operated by strike breakers, if operated at all, was a menace to the strikers, and was calculated to bring about strife and bloodshed, not contemplated by the contract; that there were employed as guards for the purpose of protecting the miners and property, men from the Pinkerton Detective Agency, and that the feeling against men of that agency was such among the strikers that it was known that the employment of these men was likely to bring about the results already mentioned.

Certainly the employment of men to guard the property and the employees who should be engaged in working such property was a matter in which neither the strikers nor any other citizen outside of the parties to this contract had any interest. It was not a menace to any law-abiding citizen to have the property thus guarded. One may surely employ whom he will to guard his property and protect his employees against any danger which he apprehends, whether such apprehension be well founded or not, and whoever undertakes to interfere with or to prevent those thus guarding property and persons is himself to blame if any bloodshed or' other trouble comes from such guard of property and persons. It is not for outsiders to say what number of men or how strong a guard shall be put over one’s property and employees. If one apprehends that his property, his family, or his employees are in danger of interference by outsiders having no interest in the matter, he may employ what force he will, and as long as such force confines itself to the guarding of the persons and property which they are employed to guard, it is not the business of any outsider to interfere or complain. There was nothing in this regard in this contract against public policy.

It is further said that this was an attempt to form a partnership between the several parties to the contract; that most, if not all of them, were corporations, and that corporations may not enter into partnership. We fail to find that this contract was in the nature of a partnership. A partnership is generally defined to be a contract between two or more persons, whereby they unite their money, effects, labor or skill, or any or all of them, with an agreement to share the losses and divide the profits in certain proportions among them. Though this definition may not be strictly accurate, there must always be in a contract of partnership some arrangement as to the division of profits. Here there was no agreement of that sort. It was understood from the beginning that instead of there being profits, the mine would be operated at a loss, and therefore no agreement was entered into with reference to profits. It was important to the several parties to this contract that work be done in several mines. They found themselves so situated that no one man could operate his mine without the assistance of those similarly situated. They knew that for any one of them to operate a mine, it must be attended with great expense, but that if one mine could be operated as against the strikers, it would tend to make it possible for all the mines to be operated, and so they might very well agree to share in the expense of operating some one mine. This contract was no more a contract of partnership than would be a contract between two men, A and B, each of whom wanted something done, that A should contribute to the expense of having something done by B, for which he should be compensated by B’s agreement to do something thereafter for A.

If it be said that the promise made by these several defendants was without consideration, it is a sufficient answer to say that because of such promise the plaintiff was induced to make an outlay of money, which it would not otherwise have made, whether such outlay resulted in benefit to the promisor or not.

It has already been said in this opinion that the amount owing by each, if anything is owing, is not in dispute here. Perhaps this should be somewhat qualified, for some claim was made in argument and is made in the brief of counsel for defendant, that in no event could any one of the parties to the contract, be required to pay more than his proportionate share, estimated by tonnage, of the entire expense incurred. That is, the aggregate tonnage of the several parties to the contract being fixed, if the tonnage of any one of the defendants was, say, a twentieth part of such aggregate tonnage, then such party could be required to pay but a twentieth part of the entire expense, and not that all should pay the entire expense, so that if one failed to pay, the amount to be paid by each of the others would thereby be increased. We do not so understand the contract. The language is as expressed in the resolution passed at the meeting at Columbus, and is: “We hereby pledge ourselves to pay such assessments as may be levied under these resolutions. ’ ’

This is a joint promise and binds all the promisors to the payment of the entire assessment. This is equally true as to the resolution passed at Cleveland on May 11th, which reads:

“This association guarantees to Mr. Willard and his company the total payment to him or it of all expenses of every nature and description connected with said operation.”

The Mr. Willard mentioned in the resolution was the secretary and manager of the United States Coal- Company, and this company was meant by the words “His Company” used in the resolution. The claim made by the defendant that the contract was ultra vires on the part of any of the defendants is not well taken. The contract was made with a view to the promotion of the interests of the business of each of the parties thereto, and was a legitimate exercise of the rights of each to carry on its business, because, as has already been said, the purpose was to get one mine open to the end that others might thereby be enabled to be opened. The authority of the parties attending the meeting to which attention has been called, and representing the several defendants, is sufficiently established by the fact that all parties recognized the contract as binding in the beginning. In any event, the plaintiff was induced to incur the expenses which were incurred by reason of this action of the representatives of the several defendants, and this with the full knowledge of the defendants, and practically acquiesced in by all of them.

Without entering into a discussion of other points urged on the part of the defendants, we reach the conclusion that the plaintiff is entitled to recover against the several defendants the proportionate share of each, estimated on the tonnage, to make up the amount of the expenditures incurred by the plaintiff, and judgment will be entered accordingly.

Henry and Winch, JJ., concur.


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    ATTACHMENT — CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Goegbic Boiler Works v. International Grading & M. Co.
    Averment of Failure to Comply with Statute Prerequisite to Attachment against Foreign Corporation.
    Process of attachment can not issue against a foreign corporation unless the affidavit in attachment states that such foreign corporation has not complied with the requirements of Sec. 148c R. S. (See Sec. 183 G. C. et seq.)
    Error.

      White, Johnson & Cannon, for plaintiff in error.

      Goulder, Holding & Hasten, for defendant in error.
   MARVIN, J.

Each party hereto is a corporation and are referred as below. The defendant in error brought a civil action in the court of common pleas against the Brown Hoisting Machine Co.

The only service which was had upon the defendant, was the constructive service providéd by See. 5045 R. S.'(Sees. 11292 G. C. et seq.) and the ground for such service was based upon an affidavit filed in the action upon which an attachment was issued. The defendant appeared in the court for the sole purpose of making its motion to have the attachment and service set aside. The court sustained the motion. To this action of the court.error is prosecuted here.

The sole question for consideration is whether the affidavit for attachment justified its being issued.

Each, of the facts necessary’ to justify an attachment are confessedly stated in the affidavit, except the statement as to the corporate character of the defendant. Thé language of the affidavit in that regard is, “Said defendant the International Grading & Machine Co. is a foreign corporation incorporated and existing under and by virtue of the laws of the state of Minnesota.”

The attachment was claimed under favor of clause 1 of See. 5521 R. S. (Sec. 11819 G. C.), which provides for the issuing of an attachment in a civil action for the recovery of money “when the defendant is a foreign corporation, except as provided by an act, entitled ‘ an act to further supplement Sec. 148 R. • S; (Secs. 183 G. C. et seq.), passed May 16th, 1894, and except as provided by an act entitled ‘ an act to amend Section 1 of an act passed May 19th, 1894.’ ”

These acts named in the exception are now designated in the Revised Statutes as Sec. 148c, and See. 148d, respectively.

By Sec. 148c, it is provided that if a foreign corporation doing business in this state shall make and file with the Secretary of State, a certain statement provided for in the act, it shall not be subject to attachment on the ground that it is a foreign corporation, the language being: :

“Every corporation subject to the provisions of this section which complies with its requirements shall not be subject to the-process of attachment under Sec. 5521 R. S., or any law of Ohio, upon the ground that it is a foreign corporation or a non-resident of this state.1 ’

And in Sec. 148cZ, this provision is made:

“Provided that such foreign corporations as comply with the provisions of Sec. 148c R. S. as amended May 16, 1894, shall not be subject to the process of attachment under Sec. 5521 R. S., or any law of Ohio upon the ground that it is a foreign corporation or a nonresident of this state. ’ ’

It will be noticed that the affidavit now under consideration makes no mention of whether the defendant has complied.with the requirements of Sec. 148e, or not, and the contention of the plaintiff in error that no averment in that regard is required;-' that the filing of the affidavit containing the other proper aver-' ments, and then averring that the defendant is a foreign corporation, is all that is required, and that it rests with the defendant to show, upon motion to dismiss, that it comes within the exception.

Counsel for both parties are familiar with and have commented on the case of Edwards Mfg. Co. v. Ashland Sheet Mill Co., 31 O. C. C. 414 (11 N. S. 479), where this precise question was passed upon, the holding being as contended for here by the defendant in error.

It is true, as said in brief of counsel for plaintiff in error, that no authorities are given by the court, nor is there any discussion of the reasons for holding as the court did.

In the same case the judge of the common pleas court, though he entered into a lengthy discussion of other questions in the case, contented himself with saying:

“ As to whether the plaintiff must not only aver in the affidavit that defendant is a foreign corporation, but must also allege that it is not within the exceptions, we are inclined to think that the rule of strict construction which applies to matters of attachment would require the plaintiff to make such additional averment. ’ ’

The ease of Bradley v. Interstate Land & Canal Co., 12 S. D., 28-9 [80 N. W. 141], as quoted in brief of plaintiff in error, seems directly in point and to sustain the contention of the plaintiff in error. An examination of the case, however, shows that Section 4995 of the statutes of the state provided that a warrant of attachment “may issue upon affidavit stating that a cause of action exists against the defendant specifying the amount of the claim and the grounds thereof and that the defendant is either a foreign corporation or not a resident of this territory.” (The statute having been amended while South Dakota was a territory.)

This section was never in terms amended and was in full force, unless it should be held that such amendment was affected by implication.

Section 4993 R. S. (See. 11241 G. C.) was amended in 1895, so as to provide that the property of a corporation, which has complied with the laws of the state relative to the appointment of agents, upon whom service of process may be made, is not subject to attachment.

The court holds that this amendment of Sec. 4993 did not repeal or amend by implication Sec. 4995 E. S. (Sec. 11244 G. C.) and that therefore an affidavit containing all the averments required by Sec. 4995, authorized the issuance of the attachment, without any averment in reference to the provisions of Sec. 4993, the apparent implication being that if the provisions of Sec. 4993 were incorporated into Sec. 4995, the affidavit would have been insufficient.

The argument made by counsel for defendant in error, that the words of Sec. 148c, that the corporation which complies with the provisions of the section “shall not be subject to process of attachment under Sec. 5521 E. S. (Sec. 11819 G. C.)” the same word “process” being in Sec. 148d, seems to be sound, and that the statute means not simply that the property of the foreign corporation, which had complied with the statute, should not be held under attachment, when the fact of such compliance should be made to appear, but that no process should be allowed to issue against such corporation, thereby subjecting it to the expense and annoyance of getting the property discharged upon a hearing in court, in which the fact that it had complied with the statutes might be shown, this after its property had been taken without any undertaking, with proper sureties to protect it in case the plaintiff was not entitled to the attachment.

In argument and briefs of council on both sides, the rule to be applied is likened to the case of indictments for crime in cases where certain acts are declared to be criminal, with exceptions under given conditions.

It. is not necessary to determine whether the same rule will govern .this matter that would govern in a criminal indictment. We think a fair construction of the section is as though it read that the plaintiff may have, an attachment against a defendant which is a foreign corporation which has failed to do the things required by Sec. 148c, and when so read, an affidavit, to justify an attachment against a foreign corporation, must aver that it is a foreign corporation which has not done these things.

Without stopping to quote from Judge Phillips’ work on Code Pleading, we think the rule well stated in Section 339, and that applying that rule the affidavit filed by the plaintiff in this case.was insufficient, and the judgment is affirmed.

Henry and Winch, JJ., concur.


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    CRIMINAL LAW — LARCENY
    [Lucas (8th) Circuit Court,
    November, 1908.]
    Winch, Marvin and Wildman, JJ.
    Judge Wildman of Sixth Circuit sitting in place of Judge Henry.
    Harry Rosenbloom v. State.
    1. General Demurrer In Criminal Prosecution Raises Question of Intent.
    In a criminal case a general demurrer under Sec. 7251 R. S. (See. 13623 G. C., raises the question of whether intent has been alleged, and proof of it is necessary to make out the offense charged.
    2. Intent to Defraud in Receiving Stolen Goods Averred by “Unlawfully and Fraudulently.”
    In an indictment under Sec. 6858 R. S. (Sec. 12450 G. C.), for receiving stolen goods, an intent to defraud is sufficiently alleged by the use of the words “unlawfully and fraudulently.”
    Error.
   MARVIN, J.

The only question in this case is whether an indictment seeking to charge the offense of receiving stolen goods, under Section 6858 R. S. (Sec. 12450 G. C.), is sufficient, if it has all of the formal particulars properly stated, together with the following words:

“That Harry Rosenbloom, late of the county aforesaid, on the 8th day of February, 1907, at the county aforesaid, unlawfully and fraudulently did receive 80 pairs of Pingree shoes, of the value of $160 of the personal property of the Michigan Central Railroad Company, a corporation, then lately stolen, he, the said Harry Rosenbloom then and there well knowing said personal property to have been stolen, as aforesaid, and so the jurors aforesaid, upon their oath aforesaid, do say that the said Harry Rosenbloom then and there, in manner and form aforesaid, unlawfully did steal, take and carry away the said personal property,” etc.

The sufficiency was challenged in the court of common pleas by a demurrer, specifying not only that the facts stated in the indictment do not constitute an offense, but also that an allegation is not made that the act done was with intent to defraud.

It is conceded on the part of the plaintiff in error that such indictment is good as against a general demurrer, and this is on the authority of Whiting v. State, 48 Ohio St. 220 [27 N. E. 96], where the exact question was raised. In that case it is said, in the third clause of the syllabus:

“It is an established rule of pleading that facts, and'not conclusions of law, should be pleaded. Therefore, an indictment under See. 6858 R. S., which charges that the accused did unlawfully and' fraudulently receive certain personal property— describing it and giving its value and ownership — knowing the same to have been stolen, sufficiently charges an offense under that section, without an averment as to the character of the offense he is thereby deemed to have committed.”

But, it is said, that the attention of the court was not challenged, in that case, to the failure to charge “intent” and that since Sec. 7251 R. S. (See. 13623 G. C.) provides that, “The accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of this state, or when the intent is not alleged, and proof of the intent is necessary to make out the offense charged,” therefore the failure to charge intent is a ground of demurrer separate from the general demurrer, that the indictment does not charge facts sufficient to constitute an offense.

It must be conceded that unless this contention be sound, there is some tautology in the language of the statute, and yet we are of opinion that the entire question is raised by the.general demurrer.

Where intent is an ingredient of the offense, such intent is a fact to be charged. Offenses are only charged by allegations of fact and so if intent is a necessary ingredient of the offense, it is a fact necessary to be stated in the indictment. We think, therefore, that the question was distinctly raised in the case of Whiting v. State, supra, and that under the authority of that case, the indictment here was sufficient, and we might well rest our opinion upon this case alone.

In view, however, of the very able and carefully prepared argument on the part of the plaintiff in error, in which attention is called to other cases, we feel it proper to say something in addition to what has already been said.

Our attention is called to the case of Drake v. State, 19 Ohio St. 211, in which it is said, in the opinion:

“To constitute the crime of forgery, or of uttering or publishing as ti-ue, and genuine, etc., as defined by the statute, the criminal act must be done ‘with intent to prejudice, damage or defraud some person or persons, body corporate or politic, or a military body organized under the laws of this state.’ This intent is an essential ingredient of the crime, and must therefore be stated, and charged in the body of the indictment, in a direct and positive manner.”

And the court goes on to say, in that case it is not thus charged. It will be noticed, however, that the statute under which that prosecution was had, expressly provides that the act must be done with intent to prejudice, etc., whereas, the statute under which the indictment in the ease now under consideration was framed, does not use these words. However, the fact is urged, and with good reason, that the party charged would not be guilty of a crime unless what he did was done with intent to defraud somebody, and it is urged that therefore, proof of intent is necessary to a conviction, and that such proof could only be required where the intent is one of the ingredients of the crime, necessary to be set out in the indictment. It may be questioned, though it is not here necessary, to decide, whether an intent to defraud is an element which must be proved in order to secure a conviction under this section, or whether want of intent, if there was want of intent, would not be matter of defense, after the fact of the receiving of the stolen goods, knowing them to have been stolen, had been established. But, however that may be, we think this indictment sufficiently charges a criminal intent in the use of the words “unlawfully and fraudulently. ’ ’

It is true that these words may be used in such sense as not to imply criminal intent, but when used in the criminal law, the word “fraudulently” has been held to carry with it the intent of the party charged to have fraudulently done a particular thing.

In the case of Bank of Montreal v. Thayer, 7 Fed. 622, 625, it is said:

“Fraudulently,” as used in an allegation that a person wrongfully, fraudulently, and falsely certified and represented certain things, “should be given the meaning which the law gives it, and which attaches to it in common usage, to wit, a deliberately planned purpose and intent to deceive, and thereby be given an unlawful advantage. It necessarily includes the idea of a fraudulent intent.”

In the case of West v. Wright, 98 Ind. 335, 339, it is said:

“An allegation in a complaint as follows, ‘That said defendant at the time of said purchase of said lands knowingly, falsely, and fraudulently represented to said plaintiff that said lands were clear of all incumbrances,’ is equivalent to a charge that the representations were made with intent to deceive.”

We reach the conclusion in this ease that the word “fraudulently” as used in the indictment, sufficiently charged that the intent of the party accused was to defraud although the word is often used in civil proceedings, and especially in equitable proceedings, in a sense not necessarily imputing a wrongful intent.

Surely, in view of the provisions of Sec. 7215 (13623) and the recognized forms of indictments used in this state and the decision of the ease of Whiting v. State supra, this court would not be justified in holding that the demurrer to the indictment should have been sustained, and the judgment of the court of common pleas is therefore affirmed.

Winch and Wildman,. JJ., concur.


text:
    ASSESSMENTS — STREET RAILWAYS
    [Summit (8th) Circuit Court,
    October 8, 1908.]
    Winch, Henry and Marvin, JJ.
    Northern Ohio Trac. & Light Co. v. William L. Stewart et al.
    Neither City nor Abutters can Recover Cost of Paving Against Street Railway on Laying Additional Track in Street.
    A street railroad company operating a single track on a street of a city, when said street was paved, paid for seven feet of the pavement as required by its franchises; nine years later the company laid another track in the street, replacing the pavement in good order; thereupon the city brought an action to recover from the street railroad company the cost of paving an additional seven feet, which the company would have been required to pay for if it had been operating two tracks at the-time the pavement was first laid. Held: There could be no. recovery for or on behalf of the city or of abutting property, owners.
    Error.

      Rogers, Rowley & Rockwell, for plaintiff in error.

      Voris, Vaughan & Vaughan, G. M. Beery and N. M. Greenherger, for defendants in error.
   MARVIN, J.

The suit was originally brought by William L. Stewart and the city of Akron for and on behalf of themselves and many others, the owners of real estate abutting on the north and south sides of West Market street in the city of Akron, between Canal street and the west line of the city. Later an amended petition was filed in which Stewart was not joined, the city claiming to recover on behalf of itself and the other property owners named in the original petition. The relief .sought was the recovery from the defendant of the expense which had been paid by the city and the property owners in the paving and improvement of West Market street between the points named, to the amount of seven feet in width of such pavement. The facts relied upon were that the city paved said street with brick in 1892. All of the expense of street crossings was paid by the city and one-fiftieth of all the other part of such pavement. The balance of the expense was paid by the abutting property owners, except that at the time of such improvement the predecessors of the defendant paid the expense of paving a strip seven feet wide along the entire length of the street, the predecessors of the defendant putting down a single track street railroad along the entire distance named and paying for the seven foot strip in accordance with the terms of the franchise under, which it operated the line of street railway in Akron. In the year 1901, the defendant took up its single track before mentioned, which was laid along the middle line of the street. It removed the pavement so far as necessary to put in a double track, and then .put in such double track, one on each side of the middle line of the street, and repaired the street so far .as the same had b.een taken up, putting in the pavement all along where it had been taken up.

On the part of the plaintiff it is urged that the defendant should pay for the seven foot strip; that is; for an additional seven foot strip above that which it paid at the laying of the original pavement, because it is said it is clear that had the double track been laid at the time that the pavement was laid by the city, the company would have been required to pave fourteen feet instead of seven feet, that being the amount required to be paid by the company; that is seven feet for each track, and that therefore had the double track been laid at the time the city and property owners had to pay for the pavement, the property owners and the city would have been relieved of the expense of paving for said additional seven feet.

It is alleged in the petition that the company purposely laid but one track originally, intending to lay the additional track as soon as the street should be paved and improved and paid for, thereby escaping the expense to which it would have been put had the double track been laid in the first place. It is not shown by the facts that this allegation is true. Nine years elapsed between the laying of the single track and the laying of the double track by the- company. The company, by putting in the double track, was put to the expense of removing the first track, removing the pavement therefrom and ■ putting in the pavement which had been removed. It would be a reflection upon the good-sense as well as the integrity of those who put in the first track, to find that they did this for the purpose suggested of laying another track nine years later; that they would operate a street railroad with a single track where they ought to have a double one, for nine years, to relieve themselves from the expense of paving a strip seven feet wide. The allegation is not sustained. The franchise granted to the defendant’s predecessor, referred to and made a part thereof, Section 437, subdivision 2, chapter 34, of the revised ordinances of the city of Akron, which reads, “Any individual or company to whom any such privilege shall be granted, upon any street or highway (that is, any privilege to lay street railroads), shall be required, when it is deemed necessary by the board of city commissioners to pave or repair, to macadamize or remacadamize such street or highway, or to pave or repave, macadamize or remacadamize, the space between the rails of the tracks, turnouts and switches used by them, and one foot on the outside of such rails on both sides of said track, through any street or portion thereof through which such street railway may pass; and such paving of macadamizing so done shall be with the same kind and quality of material that shall be used by the city.” From this it is clear that the city could have required of the defendant, or its predecessor, to pay for both tracks had both tracks been laid when the pavement was put down, but it would be an exceedingly strained construction to hold that the city could require the defendant to pay' back to the city what had been paid for a pre-existing pavement by it.

Our attention is called to the case of Akron v. Northern O. Trac. & L. Co., 27 O. C. C. 536 (6 N. S. 445), wherein a recovery was had.for the value of a part of a pavement which the city had put in prior to the laying of the second track, there having been only one track before. We do not regard that case as decisive of this. We find from the record that this court allowed judgment to stand for the value of a part of that street, a part of the distance only was allowed, and that was affirmed by the Supreme Court. What distinction there was between that part where the court allowed the judgment to stand, and that part of the street where it was not allowed to stand, we do not know. It may be that the court found that the conduct of the company was for the purpose of defrauding, or the express purpose as charged in this petition of getting the pavement laid and then thereafter laying the track, the time between the laying of the pavement and the first track, and the time when the second track was put in was about half the time that it was in this case.

Other questions were argued in this case as to the right of the city to maintain this action and the like, but as what has already been said disposes of the case we deem it unnecessary to discuss the other questions. The result here is that the judgment should be reversed, and the judgment that should have been entered in the court below will be here entered.

Winch and Henry, JJ., concur.


text:
    CRIMINAL LAW — PARENT AND CHILD
    [Summit (8th) Circuit Court,
    October 8, 1908.]
    Winch, Henry and Marvin, JJ.
    Harvey Mohr v. State.
    Father not Judge as to Mode and Severity of Punishment of Child.
    In a prosecution under Sec. 6984a R. S. (Sec. 12970 G. C.), against a father for cruelty and unlawfully punishing his child, it is not proper to charge the jury that the father is the judge as to the mode and severity of the punishment and can not be found guilty for error in judgment, even if the punishment was excessive, nor unless the jury should find he was prompted by malice and ill-will toward the child.
    Error.

      W. R. Talbot, for plaintiff in error.

      H. M. Hagelbarger, for defendant in error.
   MARVIN, J.

This in an action wherein the plaintiff in error seeks to have this court set aside the judgment of the court of .common pleas in affirming the judgment of a justice of the peace, where this defendant was found guilty upon a charge made under Sec. 6984a, R. S. (See. 12970 G. C.), which section reads as follows:

“Whoever tortures, torments, cruelly or unlawfully punishes, or willfully, and negligently deprives of necessary clothing, food, or shelter, any person, or whoever having the eontrol of, or being the parent or guardian of any-child or children under the age of sixteen years, willfully abandons such child or children, or willfully, unlawfully or negligently fails to furnish necessary and proper food, clothing or shelter for such child or children shall be fined not more than two hundred dollars nor less than ten dollars, or imprisoned for not more than six months or both. ”

The charge in this case was that on June 7, 1907, Mohr cruelly and unlawfully punished his little daughter. The evidence shows that he punished his daughter, who was seven years old, on June 7, 1907; that he struck her several times — it is uncertain how many times — with a strap. He says that the strap which is attached to the bill of exceptions is the strap with which he punished her. There is testimony to the effect that it was a part of a tug of a harness, but perhaps the weight of the evidence would bring one to the conclusion that it was this strap, which evidently has been used, sometimes as a razor strap, and which he says he kept in a drawer for the purpose of using it as a razor strap, and for such other purposes as he might want to use it for. He was asked several times what those purposes were, and he said, any purpose that he might want to use it for, and finally admits he used it sometimes to punish his children with. On June 15 Mohr was arrested, and on that day Mr. Seuphlon, who is I believe the health officer in Cuyahoga Falls, and Mr. Weber, who is humane officer of this city, saw the girl and found that there were marks upon her. person, black and blue, as they expressed it, at that time, eight days after the punishment. And Weber and Mrs. Richards, the housekeeper of Mohr, found that on June 22, when the trial was had, the marks were still visible, but they were pretty nearly gone at that time. The child, right after the punishment, dressed herself and played around as before. She cried some at the time of the punishment.

From the evidence we think the jury might well have found that the punishment was cruel. But it is said that the court erred in its charge to the jury and erred in refusing to charge as requested, and for these errors it is said the judgment should be reversed. The court charged the jury in a most praiseworthy way, by saying that he would not take a great deal of time in charging them, but that he would charge them, and he said:

“A parent or guardian of a child is undoubtedly the judge as to when and how a child should be punished, so long as that punishment does not conflict with the law, but when it goes to such an extent that it does .conflict with the law then that parent or guardian is just as guilty as though it was some one else who was punishing that child. ’ ’

The proposition can not be denied that if the father went beyond the law he was doing that which was unlawful. But the court then read the section of the statute which has already been read. He read that to the jury, so that he was-as definite in saying to the jury what would constitute an unlawful punishment as the statute is definite. The language of the statute is:

“Whoever cruelly or unlawfully punishes a child,” etc. The court then says, after reading the section: “Now as to the facts that have .been brought out before you hére, gentlemen, you are to decide upon them. I have no wish to say a word concerning the evidence, and I believe that you all understand from what I have said and what you have heard here what the law is upon this subject. I have prepared, the two regular forms of verdict here,” etc.

Now, he was requested to give in charge certain propositions, which he refused, and it is urged that it was erroneous to refuse these. The first is:

“The father was the judge as to the mode and severity of' the punishment, and for error in judgment, if you find there was error of judgment in punishing his minor daughter, Edith Mohr, the defendant can not be found guilty, even though you should find that the punishment was excessive.”

That ought not to have been given in those words, no difference how excessive you find that punishment to be, if the father, in his judgment, thought it was not excessive, you, gentlemen of the jury, have no right to say whether it is excessive. If that had been given and if this father had amputated a finger -of that child, cut off a hand of that child so she should never be able to write anything, if, in his judgment, that was the right punishment, then in such case as that, if the father were prosecuted and this charge were given and the jury had accepted it as the law in the case, the father would have had to be returned not guilty. The proposition has some merit to it. It is true the father is the judge, and the court said to the jury that the father is the judge of when he shall punish and for what, and in order that the father may have the authority that it is conceded by the law, at least, that he may have, he must have the authority to judge, but if his judgment warrants a punishment that is shocking to every right thinking man, he is not to b.e excused, even though it was an error of judgment on his part; that is to say, the punishment may be so excessive that even though it is an error of judgment and results from that, that it is cruel and the father is liable to punishment.

The second and third propositions are:

“Before you can find the defendant guilty under this affidavit you must find that defendant was prompted by malice and ill will toward his minor daughter, Edith Mohr, in inflicting the punishment in question. ’ ’

That is the way the second reads, and the third is practically the same. If those propositions had been given and accepted by the jury, they must have found the father not guilty, even though he had punished the child severely because of ill-will that he had to the child’s mother or sister or brother. There are men who, for the sake of punishing the mother, and having no ill-will to the child, will excessively punish the child. The fact that a parent has no ill-will to the child won’t excuse him from a cruel punishment — so cruel as to be clearly shocking to the sense of right thinking men. An authority was cited to us from the state of North Carolina, and some other authority, going to the very extreme and justifying these charges. We find that they have been criticized, and, we feel justly criticized, and though a good many things were hinted at in this record that might be calculated to induce the jury to think this father was a much more wicked man than he was, which facts were not at all established, still there was no admission of evidence which was objected to that constituted any error, and the judgment is affirmed.

It is questionable perhaps whether it was wise to prosecute it, but we find no error which would justify a reversal.

Winch and Henry, JJ., concur.


text:
    DRAINS AND DITCHES — MANDAMUS—WATER COURSES
    [Summit (8th) Circuit Court,
    October 8, 1908.]
    Winch, Henry and Marvin, JJ.

      State ex rel W. P. Irish et al. v. L. H. Oviatt et al.
    County Commissioners not Compelled by Mandamus to Interfere with Riparian Rights.
    A writ of mandamus will not issue against the county commissioners commanding them to remove an obstruction placed by a property owner in a water-course along the course of which said commissioners had constructed a ditch, because the commissioners in the first instance had no right to convert the water-course, a living stream, into a ditch.
    Mandamus.

      KoTier & Mottinger and Mr. Andrews, for plaintiffs in error.

      11. M. Hagelbarger, for defendants in error.

       Affirmed no opinion, State v. Oviatt, 83 Ohio St. 460.

   MARVIN, J.

We have before us the question of whether the petition on its face states facts authorizing the issuance of an alternative writ of mandamus.

The petition alleges that in 1890 the board of commissioners of the county, by proper proceedings, established and constructed a ditch about eleven miles long at an expense set at $30,000, paid by assessment on the lands benefited by such ditch; that the ditch extended from Chockalog pond, in Copley township, to a point in the Tuscarawas river, near the villag;e of Barberton. And it further says that this ditch was established and constructed along the course of a stream known as Wolf creek for this whole distance; that it has been used all these years for draining adjacent land, whereby such lands have been converted from swamp and marsh lands to good agricultural lands; that on the faith that said ditch would remain open and unobstructed, the property owners along its line have constructed at large expense lateral ditches in and upon their several holdings whereby drainage of their lands is had into said ditch. The Columbia Chemical Co. has lands near the mouth of the ditch, through which it runs. For the purpose of utilizing the water from this ditch for its manufacturing plant, the chemical company has constructed a dam across the ditch,- obstructing the flow of water, setting the same back along the channel and adjacent lands, and has diverted the ditch from its priginal channel and constructed a circuitous channel, which interferes with the flow and causes great injury to relators and those similarly situated. The relators gave notice to the chemical company to remove said dam, and after waiting more than ten days, they, by motion, called upon the commissioners to cause said dam to be removed, together with all obstructions, and that the ditch be restored to its former state. The commissioners have refused to do this, and the prayer of the petition is that a writ of mandamus be issued to compel the commissioners to remove the dam and restore the ditch to its original state.

The authority under which the commissioners assumed to act in establishing and constructing the ditch is found in Sec. 4447 R. S. (Sec. 6443 G. C.), which reads as follows:

“The commissioners of any county at any regular or called session may, in the manner provided in this chapter, when the same is necessary to drain any lots, lands, public or corporate road or railroad, and will be conducive to public health, convenience and welfare, cause to be located, and constructed, straightened, widened, altered, deepened, boxed or tiled, any ditch, drain or water-course, or box or tile any portion thereof or cause the channel of all or any part of any river, creek or run within such county to be improved by straightening, widening, deepening- or changing the same, or by removing from adjacent-lands any timber, brush, trees or other substances liable to form obstruction therein.”

The provision of law under which it is urged the commissioners should act is in Sec. 4509 R. S. (Sec. 6514 G. C. et seq.), which reads:

“Whoever obstructs any ditch, or refuses, or neglects to remove any obstruction heretofore by such person or persons placed in the ditch, or being the owner of any lands through which any ditch passes, obstructs or permits such ditch to become obstructed, or diverts the water from its proper channel, shall forfeit and pay to the county in which such ditch is situated, the sum of twenty-five dollars to be recovered before a justice of the peace or other court having jurisdiction of the matter, in the name of the state of Ohio for the use of said county, which action may be instituted and prosecuted by the commissioners of such county, or any citizen thereof, or by any person whose lands shall have been assessed for the construction of such ditch and shall also be liable for all damages that may accrue to any person, persons or corporation by reason of such obstruction, and each day that such obstruction shall be permitted to remain in such ditch after the person or persons have placed the same therein shall have had ten days notice to remove the same, either by the county commissioners of said county, the engineer in charge of said ditch, or by' any person whose lands have been assessed for the construction or improvement of such ditch, shall constitute a separate offense under this section, and shall subject such offender to a penalty of twenty-five dollars for each such offense, to be recovered in the manner hereinabove provided. And on failure of such person or persons to remove such obstructions forthwith upon being notified as aforesaid it shall be the duty of the board of county commissioners of such county forthwith to cause such obstructions to be removed, and charge the expense thereof to such person or persons, and collect the same from such person or persons by action in the name of said board of county commissioners.”

Assuming for the time being, that mandamus is the proper remedy in ease of obstruction of ditches, we consider the question of whether the water-course involved in this litigation is such a one as the commissioners are required to remove obstructions from. If it is, we apprehend it is because it is such as they were authorized to construct under Sec. 4447 R. S., already quoted. This section is the first in the chapter whose subject is county ditches. In the several sections of this chapter the words ‘ ‘ ditch, drain or water-course ’ ’ are used together in a number of instances, and the Supreme Court of the state, in Greene Co. (Comrs.) v. Harbine, 74 Ohio St. 318 [78 N. E. 521], has said, in the syllabus:

“The word ‘water-course,’ as used in the county ditch law, Title 6, Chapter 1, Eevised Statutes, is synonymous with the word ‘drain’ and the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a ditch.”

Without stopping here to read further, we reach the conelusion, from the case to which attention has just been called (and from the opinion as well as the syllabus), that because this work was done as alleged in the petition, “along the course of a stream,” it is not and never was a ditch in the sense in which that word is used in the statute; wherefore, it is not a part of the duty of commissioners to remove the dam therefrom under See. 4509 already quoted.

It is urged, however, that the commissioners are estopped from making this defense. This we regard as unsound. It is true that the petition shows that the work was done by the board of commissioners and was paid for by the property owners, and until lately, when it has been obstructed by the dam, it has been kept open. It does not follow that the commissioners may take upon themselves to interfere with riparian rights of those owning lands upon a stream, and they are required to perform an act, which, so far as appears, they have never before been asked to perform.

It does not follow that the relators are without a remedy for any injuries they have sustained because the commissioners refuse to do that which we are asked to compel them to do.

No opinion is here expressed as to whether mandamus is the proper remedy when commissioners fail to remove obstructions from a ditch, since we find this is not a ditch in the sense in which that word is used in the statute.

It follows from what has been said that we must refuse the alternative writ, and the petition is dismissed.

Winch and Henry, JJ., concur.


text:
    GIFT — EVIDENCE
    [Medina (8th) Circuit Court,
    1908.]
    Winch, Henry and Marvin, JJ.
    Warren J. Anderson v. Ida M. Allen.
    1. Facts Constituting Complete Gift of Horse.
    A father said to the husband of his daughter Ida: “Go up to the home place, get the little horse I gave Ida, take it off my land up there and turn it on the land I have given her, wjth your horses.” This the son-in-law did the next day. Held: A completed gift. /
    2. Objection to Improper Answer Saved bjj' Request to Takqfrom Jury.
    Objection to an incompetent answer! to a competent'’ question is saved by asking that the answer he taken from the consideration of the jury and not by objection to th^qaestion.
   MARVIN, J.

Suit was brought by Ida M. Allen in replevin before the mayor of the village of Medina in said county against Warren J. Anderson, to recover a certain horse, then in the possession of Anderson, which plaintiff claimed belonged to her. After trial before the mayor the case was appealed to the court of common pleas and was there tried; the result being a verdict and judgment that the horse was the property of said Allen. Error is prosecuted here to reverse the judgment of said last named court.

‘ A bill of exceptions is filed here, giving all the evidence which was produced and offered on the trial. From this it appears that the horse in question was formerly owned by one Abial Canfield, who was the father of said Allen; and that said Canfield died on April 8, 1905.

The claim of ownership of the horse made by Allen is that, previous to the death of her father, he made a gift to her of this horse.

On the part of Anderson the claim is made that he owns the horse by purchase from Charles and Albert Canfield, sons of the said Abial.

It is claimed that Abial had given the horse to these two sons, while he was still living, and if that should not be found to be true, then by the provisions of the will of Abial, he having died testate, the horse was bequeathed to them.

An examination of the will of Abial Canfield discloses that, after making devises and bequests to his several children and a grandson, the residue of his property is bequeathed to these two sons. Without expressing any opinion as to whether, under this residuary clause, the ownership of this horse would pass directly to Charles and Albert without administration, it is sufficient to say that, if Abial Canfield owned the horse at the time of his death, Ida M. Allen was not entitled to recover in this action. It is not necessary that Anderson show a good title in the horse which wg,s in his possession when the suit was begun, but only to show that'Allen had not tftle. A claim on the part of Anderson is that the horse, by reaso|j. of a gift to Charles and Albert made by Abial, before'an^ ^i-ff was attempted to be made by him to Ida, belonged to them, and so she acquired no ownership in the horse, whatever her father said to her about it. That is, that when it is claimed he gave the horse to Ida it was not his to give,as he had already given it to Charles and Albert.

- The evidence fails to show a completed gift to Charles and Albert.. Charles says his father said he made a will, and that what .he had given to him (Charles) and Albert was undivided, and that he was going to turn over all that was to go to them, at once, and that, in speaking of the horse he said “I will give you three horses; the work team I reserve the use of them for Unial Crow until after haying * * * the little bay horse” (the one whose ownership is involved in this case) “I do not want you to sell as long as I can drive him and then you can do as you wish with him.”

He states that hereafter he used the horse some, and when he used it he kept it at his place, and that- his father used him a part' of the timé, when he was kept at his father’s place. The testimony of Albert as to this gift is not stronger than that of' Charles, and from the testimony of neither does it appear that either of them took possession as against the father.

Thornton, Gifts, says, at Sec. 181:

“In all gifts a delivery of the thing given is essential to their validity, for although every other step be taken that is essential to the validity of a gift, if there is no delivery the gift must fail.”

Section 142, of the same work, reads:

“A gift to be valid must not only be delivered, but the delivery must be unconditional; it must be delivered absolutely and unconditionally.”

Under these rules, as already said, we can not find that the father gave the horse to Albert and Charles. On the other hand, the evidence is such that the jury might have found that he made a completed gift to his daughter, Ida.

She says he said to her, the evening after he had made his will, speaking of this horse, “I have given that to you.” She says that at another time, later on, it being her birthdáy he said to her, “I will give you that little driving horse today as your birthday present.” He did not, however, on either .of' these occasions, deliver possession of the horse to her, and so there was up to this time no completed gift to her.

Dr. D. R. Allen, the husband of Ida, testified, however, that on March 29, 1905, shortly before Mr. Canfield’s death,-he said to the witness, “Go up to the home place, get the little horse I gave Ida, take it off of my land up there and turn it on the land I have given her, with your horses.” He says that, pursuant to this instruction, he went the next morning and got the horse and turned it into the field on Ida’s premises, where it remained until after Mr. Canfield’s death. If the jury believed this testimony, they might well find a completed gift of the horse in Ida, and so we could not reverse the case on the weight of the evidence.

Thornton, Gifts, Sec. 143, uses this language:

“It is not essential that a delivery be made at the time the words of gift are used, ’ ’ or, in other words, ‘ ‘ at the time the gift is made; the delivery may follow at any time before the death of the donor and before he revokes the gift.”

It is urged that the court erred in overruling the objection made to a question put on behalf of Mrs. Allen, to Walter Can-field when he was upon the witness stand. This witness was the assessor in 1904, and called upon Abial Canfield to list his property for taxation, and stated that he had a conversation with him about his property at the time. He was then asked this question: “What did he say?”

This question was objected to on behalf of Anderson; the objection was overruled and exception taken. If any answer which the witness might give in response to this would be competent, then no error was made in the ruling. It was rightly held by the court several times during the trial that statements made by Abial Canfield as to what he intended to do with his property was competent as tending to show the probability or improbability of his giving it to any particular person. The witness might have answered this question, that he said he was going to give the horse to Ida, or to Charles and Albert; that answer would have been competent and would have been directly responsive to the question. It follows that the court properly overruled the objection. If it was desired to have the answer which was given taken from the jury, a motion to that effect should have been made; this was not done.

A similar question is made as to a question asked and answered by Howard Jones, when he was upon the witness stand, and, for the same reason, there was no error in the ruling of the court.

Without pausing to call special attention to other alleged errors, a careful examination of the entire record discloses no error to the prejudice of the plaintiff in error and the judgment is affirmed.

No penalty will be adjudged against the plaintiff in error.

Winch and Henry, JJ., concur.