text:
    DEDICATION — MUNICIPAL CORPORATIONS — PLATS.
    [Erie (6th) Circuit Court,
    1908.]
    Parker, Wildman and Kinkade, JJ.
    C. L. Wagner v. Frank Fitz et al.
    1. Private Proprietors cannot Plat Lands to Interfere with Work of Municipal Platting Commission.
    A municipal platting commission, for which provision is made by R. S. 2629 (Gen. Code 4347 et seq., in defining and locating the streets and alleys of a municipality, is required to secure uniformity and regularity therein, to eliminate jogs, twists, turns, pockets and haphazard contrivances against public interest; and having performed this important work and adopted plats, private proprietors of lands within a platted territory cannot interfere therewith even with the consent and cooperation of the municipal council.
    2. Amendment of Plat Adopted by Municipal Platting Commission Must be by Resubmission to Commission.
    A plat, adopted by a municipal platting commission, goes upon record without being submitted to the municipal council. Having been so adopted, amendment may be had only by resubmission to a regularly constituted platting commission as provided by R. S. 2636 (Gen. Code 4355). It is not subject to amendment by a council nor otherwise than upon regular statutory proceedings to vacate streets and alleys.
    3. Other Streets May be Laid Out if They do not Interfere with Platting Commission’s Report.
    Under R. S. 2601 (Gen. Code 3584) streets other than those laid down by a municipal platting commission may be laid out and established in the city notwithstanding R. S. 2633 (Gen. Code 4351) provides that no streets, except those laid down in such plat should be laid out; but such additional streets must not interfere with streets and alleys laid out by such commission.

      4. Essential to Dedication of Additional Streets.
    To lay out streets additional to those adopted by a municipal platting commission the plat must show the certificate of the municipal engineer that the streets do not interfere with the plat 'of the municipal platting commission, and the plat must have the approval of the municipal council.
    [Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]

      J. F. McCrystal, W. L. Fiesinger and Henry Hart, for defendants.

      John Ray and George Blackford, for plaintiffs.
   PARKER, J.

It is set forth, in the petition in this ease, and it has been made to appear to us, that in the year 1900, Charles L. Wagner and Chester L. DeWitt were owners of a certain tract of land in the city of Sandusky, which they caused to be surveyed and subdivided into city lots with a street funning through it. That they acknowledged the plat in due form; that a certain certificate of the engineer was written upon it; that it was accepted by the city council by a city ordinance, and then it was recorded in the plat record of the county. It further appears that prior to the time of making and recording said plat the city of Sandusky had duly and regularly appointed a platting commission, which commission had adopted plats and plans for the location and opening of streets, avenues, roadways, etc.; that such commission adopted a plat or plan providing for a uniform system of proposed streets, alleys and avenues in the city of Sandusky, and that said plat and plans were duly recorded in the office of the city civil engineer of the city of Sandusky and in the recorder’s office of Brie county, according to law. The plaintiffs in their plat designate a street running through this property as “Lockwood avenue.” It is a street lying nearly midway between two streets tbat had been laid out by the platting commission; and to the. westward of tion, perhaps due north, from First street, an east and west street. To the eastward of it was a street called Brie street, laid out by the platting commission; and to the westward of Lockwood avenue was a street laid out by the platting commission called Anderson street. A part of this lot of land subdivided by the plaintiffs extended over into this part of Erie street which had been laid out by the platting commission. Erie street was laid out fifty feet wide, and the plaintiffs’ land extended into Erie street forty-two feet; the other eight feet of what was laid out there as a part of Erie street belonged to another proprietor, to a man by the name of Fitz; that is to say, the easterly part. The easterly twelve feet of plaintiffs’ property was laid out as an alley, running parallel with Lockwood avenue, and running north from First street, and laid, .as it will be observed, within the limits of that part of Eric street as platted by the platting commission. In-lots in this subdivision were laid out by the plaintiffs; those lying upon the east side of Lockwood avenue extended through from Lockwood avenue to this alley, excepting three lots at the southerly side which faced upon First street. One of these three lots, the easterly of the three, was therefore (it being thirty-three feet wide) almost entirely in Erie-street as laid out by the platting commission — all but three feet of it; and thirty feet of the rear end of all of the other lots north of that, in that tier of lots— that is to say, the tier on the east side of Lockwood avenue— extended into that part of Erie street as laid out by the platting commission, north of First street.

Notwithstanding the conflict between the platting as done by the platting commission and that as done by the plaintiffs, as I have said, the plat was accepted by the city council, the ¡dedication of the street as there- platted was accepted, and the plat was then recorded.

On June 10, 1903, Mr. Fitz, the proprietor upon the east, eight feet of whose land would be taken by the northerly extension of Erie street, brought an action in the common pleas court of this county to have this plat made by the plaintiff-vacated, in so far as it did not. conform to the plat made by the platting commission, and to enjoin the city from expending funds, as it was said the city was threatening to do, in the improving of Lockwood avenue and this twelve foot alley. Plaintiffs were not made -parties, though they were then the owners of this tract of land, and, of course, would (if parties) be affected by the proceedings. They were not brought into court by publication or otherwise. The decree of the court in that ease was in accordance with the. prayer.

Now, the plaintiffs come and set up all these facts and pray that that decree may be set aside and vacated. Amongst their allegations as to the regularity of the action of the platting commission, which is very fully alleged by the plaintiffs, it is averred in the petition that the streets and alleys as laid out by the platting commission have not been altered or otherwise affected by this subsequent platting or by other proceeding. It is contended by the plaintiffs that in thus platting their land they have acted within the limit of their rights defined by statute, and that they have not violated any provision of the law respecting the regard that is to be had for the work of the platting commission.

"Without undertaking to read extensively from the statutes, I will say that our view of the statutory law upon this subject is, that -the work of a platting commission in defining and locating the streets, alleys and avenues of a city or village may not be interfered with by private proprietors of lands within the same territory, even with the consent-and co-operation of the city council. The work of the platting commission is naturally and necessarily very important. Its purpose is to provide uniformity and regularity in streets and alleys, so that they may not be narrow in one place and wide in another; so that they may be free from jogs, twists and turns; so that they may be open at either end, and not in the nature of pockets and all those miserable contrivances we find in villages that are built up haphazard to please the notion or to subserve the particular interests of the proprietors of little blocks of ground within the village who may desire to lay them out so as to get the greatest number of lots or the most money, without regard to the general interest.

The “plans” adopted by the platting commission in B. S. 2636 (Gen. Code 4355) “can be amended after adoption, by like proceedings by which they were originally adopted”; which means that they can be amended by the action of a regularly constituted platting commission. When a platting commission does its work, it is not required to submit it to the council; it at once goes upon record. It is not subject to amendment by the council, except that there are certain forms of proceeding which are authorized whereby the courts or the council may vacate streets and alleys under certain circumstances, none of which proceedings were' followed so as to vacate the streets involved in this controversy. In other words, none of which proceedings were followed by the council so as to vacate this northern part of Erie street as laid out by the platting commission.

Plaintiffs assumed that they had a right to plat their lands, laying out a lot within the limits of this northern extension of Erie street, and laying out other lots extending thirty feet over into Erie street’, without regard to the previous action of the platting commission; and the city council apparently assumed they had the right, and permitted them to do it, and endorsed and approved their action. We do not think they had that right.

With respect to the plans of the platting commission, after they have done their work and advertised it for six weeks so that objections may be made and heard, amendments made, etc., It. S. 2633 (Gen. Code 4356) provides as follows:

“At the end of the time aforesaid, the commission shall cause copies’of the plat, as finally adopted, to be prepared, and such monuments or marks as it may think proper to be placed on the grounds, and shall deposit one copy, certified to by it, in the office of the county recorder, and another in the office of the city engineer, and such plan shall be deemed and taken to be the regularly adopted plan for streets and alleys in such territory; and no streets or alleys, except those laid down on such plan, shall subsequently be in any way accepted as public streets or alleys by the municipal corporation, nor shall any of the public funds be expended in the improvement or repair of streets or alleys subsequently laid out, and not- on such plat: provided, however, that nothing herein shall be construed to prevent any municipal corporation from' exercising the power of condemnation, in any of the eases where it is now or may be hereafter by law authorized to condemn and appropriate property to public use, although it be not shown as a street on such plat.”

There seems to be some inconsistency in the provisions of that section; one part providing distinctly that there shall be no streets or alleys except such as are laid out by the platting commission, and the other providing there may be other streets acquired by condemnation proceedings.. The provision that there shall be no streets, except those laid out by or on such plans, we think was put in with a view of declaring distinctly, that the municipality should-not be deemed to have accepted, or to be bound for, the repair of, or in any way made responsible for streets and alleys not appearing upon such plan, unless such as might be otherwise regularly adopted. We think the qualification that there may be other streets regularly adopted, must be read into that statute in view of the provisions of R. S. 2601 (Gen. Code 3581).

’ It is under this' last mentioned section that the plaintiffs have undertaken to proceed. That section reads:

“A proprietor of lots or grounds in a municipal corporation, who subdivides or lays the same out for sale, shall cause to be made an accurate map or plat of such subdivision, describing with certainty all grounds laid out or granted for streets, alleys, ways, commons,' or other public uses; also, all lots sold, or intended for sale, by progressive numbers, or by the squares in which they are situated, and the precise length and width of each lot sold, or intended for sale; which map or plat shall be subscribed by such proprietor, or his agent, duly authorized by writing, acknowledged before an officer authorized to take the acknowledgment of deeds, who shall certify the acknowledgment of the instrument, and recorded in the office of the recorder of the county; and thereupon the map or plat so recorded shall be deemed a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons. or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended; provided, that no such map or plat of any addition within the limits of any municipal corporation, when there are (the word “no” is printed here, but it is pointed out that that is a typographical error; it should be “on”) “on record plats adopted by a platting commission or board of public works, shall be recorded until the engineer of the municipal corporation certifies that the streets, as laid down on the plats of such addition, correspond with those laid down on the recorded plats of the platting commission or board of public works, and when there are streets laid down in addition to those adopted by a platting commission or board of public works, or in any municipal corporation where no platting commission is or has been in existence, no such plat shall be recorded until the same shall have been approved by the council of such municipal corporation.”

Now, it is very apparent from the reading of that statute that streets other than those laid down by the platting commission are contemplated, but these other streets must not interfere with the plans of the platting commission. Streets may be laid through blocks, additional streets may be laid through the city, so long as they do not destroy or interfere with the streets as laid out by the platting commission. The certificate of the city engineer must show that this is true when the plat is presented. That was not done in this case; no such certificate appears upon that plat and no such certificate could have been made. The absence of such certificate may be unimportant here, but the important fact is that the certificate could not have been truthfully made as required by law.

When additional streets are laid out to those provided for by the platting commission, then the requirements are precisely the same as in a case where there has been no platting commission, namely, that the plat shall be accepted by the council. So that the plat we have under consideration, the plat of the plaintiffs, providing for streets, requires two things, to wit, it shall have the certificate of the city engineer that the streets and alleys as laid out upon the plat do not interfere with the work of the platting commission, and it shall also have the approval of the city council because of the new streets laid out. But that action is all the time subject to the qualification that the city council may not authorize such platting — may not do so regularly and legally — if it interferes with the work done by the platting commission.

From the foregoing, it follows that there was irregularity in the making, adoption and recording of this plat. It does not follow, we think, that all of the work was necessarily so irregular or illegal as to be utterly void .and of no effect.

Certain penalties are imposed by the statutes, R. S. 2602, 2603, 2605, 2606 (Gen. Code 3587, 3588, 3590, 3591), for platting lands in this way, recording the plat and selling the lots. It is quite apparent that it would breed great confusion in titles. Indeed, where a plat is not regularly adopted so that the numbering of the lots is authorized, it not only breeds confusion in title, but in matters of taxation also. And, therefore, penalties are imposed for attempting that kind of work, or doing that which would result in that kind of confusion.

Unplatted land must be described by metes and bounds, or otherwise, to get a pertinent description to convey anything. Lands lawfully and legally platted may be described by numbers. The law requires that the lots sold, or intended for sale, shall have progressive numbers, and that the precise length and width of each lot sold, or intended for sale, shall be set down. And, of course, that is quite important where platted lands are sold by numbers instead of by metes and bounds. In so far as this plat does not affect lands extending eastward from the east line of this extension of Erie street, of course there can be no objection to it; but in so far as it undertakes to plat land lying within the limits of this proposed extension of Erie street as defined upon the plat of the platting commission, we think it is utterly ineffective and must be regarded as void and of no effect. And the whole matter having been brought before the court, and all the facts laid before the court, we think it devolves upon this court as a court of equity to enter such a decree as will preserve the rights of the parties and the .rights of the public as far as we may be able to do so.

Some of.these lots in this eastern tier of lots have been sold and houses have been built upon the lots; one of the lots, the easterly lot of those fronting upon First street, has been sold and a house has been built upon it. This lot with the house on it fronts on First street and, with thé exception of three feet, stands entirely within this proposed extension of Brie street. The eastern extension of the other lots comes into this proposed extension of Erie street also. To be sure, the proprietor of these lots has a legal right to sell them so long as they are not required by the city for public streets. The proprietors’ right is not taken away by the delineation of streets upon them by the platting commission. The plaintiffs in this ease have not parted to the city and the public with their interest in these lots. They have a right to sell them, lease them, build upon them, or do with them as they please, subject to the right of the city (by condemnation proceedings) to acquire the property for the extension of the street; but they have no right to plat it and sell the property by lot numbers. They may plat up to the middle of the west side of this proposed extension of Erie street, and they may sell what remains outside the limits of the proposed extension of Erie street, by metes and bounds, or other pertinent description, but not as a part of these platted lots. And since the precise length and width of each lot sold, or intended for sale must be delineated upon the plat, we think that the plaintiffs before they sell any more lots should be required to furnish an amended plat, one in accordance with the statute, one to which the city engineer may truthfully and properly certify, and upon which he shall certify, that it conforms to the plans laid down by the platting commission; and that they shall do so will be a part of this court’s decree.

The city has accepted this street, Lockwood avenue, and the proprietors have dedicated it, and we think the proprietors and the city should be bound by that action, both as to the public and as to persons who have bought lots of these proprietors, and we should not interfere with that; but the amended plat should be filed. They should not be allowed to sell’ lots delineated upon this plat. What the rights of those who have bought lots under this plat may be against the proprietors who sold them, we are not called upon to say; they are not parties to this action.

In view of the mistakes that have been made from the beginning to the end of this controversy,, both by the proprietors and by the city, we have concluded that the costs should be divided'equally; half of the costs will be adjudged against the plaintiffs, and half against the city.

Hart. What is the court’s holding as to Lockwood avenue being a legal street or not? ’

Court. We hold that it is a legal street. It has beeD properly dedicated and accepted by the council; but both the proprietors and city council went too far in undertaking to accept the plat for the extension of lots over into Erie street. That part of their action is null and void.

It follows, of course, that the city will not be enjoined from improving Lockwood avenue.

Wildman and Kinkade, JJ., concur.


source: Caselaw Access Project

author: METCALFE, J.

license: Public Domain

text:
    GIFTS. -
    [Mahoning (7th) Circuit Court,
    1911.]
    Pollock, Metcalf and Norris, JJ.
    Gertrude McKelvey’s Admr. v. Wm. H. McKelvey et al.
    Title to United States Money Orders Payable to Prospective Donee as Gift does not Pass If not Delivered Before Death of Donor.
    Where one intending to make a gift of money to another purchased United States money orders in the name of the prospective donee but died before delivering them, and with the orders in her possession the gift was incomplete and the administrator is entitled to the money.
    [Syllabus by the court.]

      Wirt & Gunelfinger, for plaintiff.

      M. C. McNabb, for defendant.

      The delivery of the money to the attorney for transmission to defendant, Mrs. ITupfer, was accompanied by a valid declaration of trust in her favor; and the trust was perfected by the delivery of the money to the attorney for the use of Mrs. Hupfer, and this court is called upon to declare and execute the trust.
    1 Perry, Trusts Sec. 98; Connecticut River Sav. Bank v. Albee, 64 Yt. 571 [25 Atl. Rep. 487; 33 Am. St. Rep. 946], citing authorities. Marlin v. Funk, 75 N. Y. 134 [31 Am. Rep. 446] ; Sayre v. Weil, 94 Ala. 466; [10 So. Rep. 546; 15 L. R. A. 544] ; Atkinson, In re, 16 R. I. 413 [16 Atl. Rep. 712; 3 L. R. A. 392; 27 Am. St. Rep. 745]; Gaffney’s Estate, 146 Pa. St. 49, [23 Atl. Rep. 163]; Bath Sav. Inst. v. Hathorn, 88 Me. 122 [33 Atl. Rep. 836; 32 L. R. A. 377; 51 Am. St. 382]; Robertson v. McCarthy, 54 App. Div. 103 [66 N. Y. Supp. 327]; Millard v. Clark, 80 Hun 141 [29 N. Y. Supp. 1012]; Jenkins v. Baker, 77 App. Div. 509 [78 N. Y. Supp. 1074]; Beaver v. Beaver, 117 N. Y. 421 [22 N. E. Rep. 940; 6 L. R. A. 403; 15 Am. St. Rep. 531]; Fowler v. Bank, 113 N. Y. 450 [21 N. E. Rep. 172; 4 L. R. A. 145; 10 Am. St. Rep. 479]; Harris Bank. Co. v. Miller, 190 Mo. 640 [89 S. W. Rep. 629; 1 L. R. A. (N. S.) 790] ; Thurston, Petitioner, 154 Mass. 596 [29 N. E. Rep. 53; 26 Am. St. 278] ; Dickerson’s Appeal, 115 Pa. St. 198 [8 Atl. Rep. 64; 2 Am. St. Rep. 547] ; Keyes v. Carleton, 141 Mass. 45 [6 N. E. Rep. 524; 55 Am. Rep. 446] ; Minot v. Tilton, 64 N. IT. 371 [10 Atl. Rep. 682] ; Jones, Evidence Secs. 766-775.
   METCALFE, J.

This action was brought by the administrator of the estate of Gertrude McKelvey under favor of Gen. Code 10857 to obtain the judgment of the court as to certain matters about which controversy had arisen in the settlement of the estate.

The plaintiff’s decedent, Gertrude McKelvey, was an actress. While in the city of Manila in the Philippine Islands she sustained a loss by fire on some property which she owned, and upon which she held a policy of insurance. The amount due on the policy of insurance was collected for Miss McKelvey by O’Brien & Peoples, a firm of attorneys in Manila, and Mr. O’Brien was directed by her to purchase therewith a number of United States money orders payable to her sister, Mrs. Ilnpfer. Soon after the purchase of the money orders Miss McKelvey Went to Hong Kong, China, and Hvhile in that city she was murdered, and upon the person of the man arrested for her murder Were found these money orders. It is now claimed that Miss McKelvey made a valid gift of the money orders to Mrs. Hupfer, or that she by her actions and declarations with reference to them, created a trust which the court should enforce in Mrs. Hupfer’s favor. The only testimony we have as to how the orders came to be in the name of Mrs. Hupfer is that of the attorneys in Manila, O’Brien & Peoples.

In their deposition are related conversations between Mr. O’Brien and Miss McKelvey with reference to what she wanted done with the money and his advice to her. These conversations we think are clearly incompetent under Oen. Code 11494, which prohibits an attorney from testifying to a communication made to him by his client in that relation, and his advice to the client. Some facts áre related, however, which we think are competent. Mr. 0 ’Brien says that he took the money which was collected on the insurance policy and that heiwent to the post office, purchased the money orders in question, took them back to his office and delivered them to Miss McKelvey. The purchase of the orders in the name of Mrs. Hupfer was no doubt done under the direction of Miss McKelvey, and we think that It evinced an intention on her part to give the money to her sister. But the question is, did she carry out that intention so as to make it effective and pass the title of the property. Several things must concur to make a valid gift. First, there must be an intention on the part of the giver to part with his property. Such intention we are inclined to think appears here but there must be something more than an intention. The intention to give to be made effective must be carried out by the donor, relinquishing dominion over the property and delivering it to the donee either actually or constructively. Whatever Miss McKelvey may have intended tp do, there is no evidence tending to show a delivery of the property to her sister and she certainly did not relinquish her dominion, and control over it. Taking out the orders in the name of Mrs. Hupfer did not prevent her from returning them to the post office and having them cancelled and receiving back the money which she had paid for them. 4035 to 4039 U. S. Rev. Stat.

She could have done this any time she wished. The fact that the orders did not come to Mrs. Hupfer and that Miss Mc-Kelvey retained possession of them makes the transaction lack all the necessary elements of a gift save the intention alone. It is urged, however, that the facts in this ease constitute a trust in the money represented by the several orders in favor of Mrs. Hupfer, but we think the transaction will not bear that construction. The cases cited do not, in our judgment, support it. In Martin v. Funk, 75 N. T. 134 [31 Am. Rep. 446], money was deposited in a savings bank, the depositor declaring at the time that it was in trust for the plaintiff, and the account was so entered and a pass book made out which the donor held in her possession until her death. The court held that a trust was created. Here there was an express declaration of a trust, and so it is with the other cases cited. Either there was an express declaration of a trust or there were facts present which showed an intention to create one. Such intention, however, in our opinion does not appear here.

The unfortunate circumstances of this case prevent us from carrying out what we think was the probable intention of Miss McKelvey, and prevent us from finding in Mrs. Hupfer’s favor, but we cannot disregard the law as we see it, and therefore judgment is rendered for the plaintiff.

Pollock and Norris, JJ., concur.


author: SMITH, J.

text:
    EVIDENCE — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    December, 1909.]
    G-iffen, Smith and Swing, JJ.
    Cincinnati Traction Co. v. Irene Holliday.
    Miscarriage Resulting from Injuries must be Connected with Accident Complained of.
    In an action for damages causing injuries from which a miscarriage resulted, evidence relating to the miscarriage, to be competent,- must connect that fact with the accident.

      Error to common pleas court.
    On the trial below the plaintiff was awarded $300 damages for injuries sustained by her in being thrown to the ground by the premature starting of a summer car, from which she was attempting to alight, causing a miscarriage in consequence of her injuries.

      Smith Hickenlooper, for plaintiff in error.

      Darhy & Benedict, for defendant in error.
   SMITH, J.

While the evidence as disclosed by the record in the above case is quite conflicting, we cannot say that the verdict and judgment of the court is not sustained by the weight thereof, nor do we think that the verdict of the jury is a compromise. There is nothing in the record to indicate this except the question asked by a juror, and the court distinctly told him that anything of this kind would not be allowed to go to them and that the question was entirely immaterial. We see no error in the court admitting evidence as to the question of miscarriage by plaintiff in error, as he stated he would not permit it to go to the jury unless it was connected up with the accident and we think this is sufficiently done, as the doctor testifies that the first miscarriage would more than likely have some effect on plaintiff in error having the second miscarriage, and that the second miscarriage can be attributed to the first one so far as the accident caused the first and thus was created the habit or tendency to miscarry again. There was no error in the court overruling the motion of defendant in error to.make the petition more definite and certain in regard to the nature and extent of the serious internal injuries of a permanent nature alleged in the petition.

We find no error in the general charge of the court and believe that the case, as submitted thereon and the special charge asked by defendant in error, was properly decided by the jury.

Judgment affirmed.

Giffen and Swing, JJ., concur


author: SMITH, P. J.

text:
    NEGLIGENCE — PLEADING.
    [Hamilton (1st) Circuit Court,
    November 25, 1911.]
    Smith, Swing and Jones, JJ.

       Josephine Heils v. Cincinnati Traction Co.
    Joinder of City and Traction Company for Injuries Sustained by Passenger Stepping in Hole in Street Improper, Negligence not Being Joint, though Concurrent and Related.
    A traction company and a municipality are improperly joined as parties defendant in an action for injuries sustained by plaintiff in stepping from a car into a hole' in the street, the acts of negligence, though concurrent and related, not being joint.
    Error to common pleas court.
    An action was instituted in the court below for personal injuries, sustained by a passenger in stepping from a street car into a hole twelve inches deep in the street, and being thrown violently to the ground. She charged negligence against the traction company in stopping the ear directly over the hole, and against the city in failing to keep the street in repair and also in failing to have lighted a street lamp at that point, which if lighted would have disclosed the hole to plaintiff before she stepped from the car into it.

      M. A. Reeve, for plaintiff in error.

      Geo. H. Warrington, for defendant in error.

      Dismissed, no op., Hiles v. Traction Co., 57 Bull. 166.

   SMITH, P. J.

We think the demurrer of the Cincinnati Traction Company filed to the petition of plaintiff in error was properly sustained by the trial court.

While perhaps under the allegations of the petition the acts of negligence complained of against the traction company and the city of Cincinnati are such as constitute concurrent and related torts, yet the same are not joint, being independent in character, and therefore the defendants are not in law joint tort feasors. Morris v. Woodburn, 57 Ohio St. 330 [48 N. E. Rep. 1097]; Mineral City v. Gilbow, 81 Ohio St. 263 [90 N. E. Rep. 800; 25 L. R. A. (N. S.) 627].

The action of the court upon the demurrer is correct and the judgment is affirmed.

Swing and Jones, JJ., concur.


text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    April 15, 1911.]
    Smith, Swing and Jones, JJ.

      Cincinnati, G. & P. Ry. v. William E. Dameron, Admr.
    1. Verdict not Reversed on Weight of Evidence Showing Licensee on Tracks Run Down by an Interurban Car.
    Damages having been awarded against an interurban railway company for the death of a licensee upon its track who was struck by a car, the judgment will not be reversed on the weight of evidence, the testimony for plaintiff being to the effect that ’the deceased had caught his foot and could not get off the track and others with him were signalling the motorman to stop, and the motorman, that he saw persons on the track in ample time to stop the car but did not see any signal to stop or become aware of the peril of the decedent until too late to avoid the accident.
    2. Charge Broad but not Prejudicial.
    A charge to the jury in an action for wrongful death of a licensee on an interurban track, that it was the duty of the company to keep a lookout to see if there were licensees upon the track and if a licensee was on the track to use reasonable care not to run him down, may have been too broad, but in view of the testimony of the motorman in this case was not prejudicial.
    Error to common pleas court.

      Frank F. Dinsmore, for plaintiff in error.

      S. O. Bayless, for defendant in error.

      Affirmed, no op., Cincinnati G. & P. Ry. v. Dameron, 85 O. S. 000; 55 Bull. 119.

   SMITH, P. J.

The main error relied upon by plaintiff in error to secure a reversal of the judgment of the court of common pleas rendered in favor of defendant in error, is that the verdict is against the weight of the evidence and the court should have instructed a verdict in favor of plaintiff in error.

In this connection we can not agree with counsel for plaintiff in error. The evidence offered on behalf of plaintiff below not only would be sufficient to sustain the finding of the jury, but we think it is very materially strengthened by the evidence introduced by the defendant below through its agent, the motorman of the car that ran over the decedent.

It was distinctly admitted in this court that the decedent was a licensee upon the track of plaintiff in error, and the evi- , dence on his part shows that he and his companions were using all possible means to notify the motorman of the ear of the situation. It is further disclosed from the motorman’s own testimony, that he saw the boys some distance up the track as he approached them, that upon passing the station at Koehlers, the-speed of his car was fifteen miles an hour, that the power had been thrown off and he was coasting along the track, during all of which time he saw the boys. He says he did not see them make any sign of distress and did not know they were in distress until he got so near that when he saw_ the boy was caught it was too close for him to stop. This is the only material difference between the evidence of the plaintiff and defendant on this point, and we think that where Ihe evidence of the plaintiff below showed to such a marked degree the signalling to the motorman to stop, and under his own evidence, that he saw the boys'at such a great distance from them he must be mistaken in this statement; at any rate, this was the matter to be determined by the jury and it having come to a conclusion in favor of plaintiff in error, which we think justifiable, the verdict should not be disturbed.

The second ground of error urged is that the court in its general charge told the jury, that it was the duty of the traction company to keep a lookout to see if there be licensees on its track and in the event there be a licensee on its track be ready to use reasonable care not to run such licensee down.

It may be that this charge of the court is too broad as compared with the rule laid down in 3 Elliott, Railroads Sec. 1250, but if so, we do not think under the pleadings and the evidence disclosed in the record, that such charge, if erroneous, is prejudicial.

As said above, the evidence of the motorman was, that he saw these licensees upon the track quite a distance from the place where the accident occurred, therefore, according to the rule of Elliott, lie should not have willfully or wantonly injured them, but his duty was to use reasonable eare tq avoid injury to them after the danger was discovered. His evidence in this respect is, that when he got so near that he could see if the boy was caught, it was too close for him to stop, but he immediately pulled the sand-lever and reversed the car. The determination of this question of negligence on the part of the motorman was found by the jury against him, and we can not say but that this finding is correct.

As there is no error in the record the judgment will be affirmed.

Swing and Jones, JJ., concur.


author: PER CURIAM.

text:
    GAME LAWS.
    [Stark (5th) Circuit Court,
    February Term, 1910.]
    Donahue, Taggart and Marvin, JJ.

      State of Ohio v. Leo Abt.
    Sale of Plumage of Snowy or White Heron not Unlawful in Ohio.
    A snowy or white heron is a “water fowl” and as such is a game bird within the definition of Sec. 25 of act 99 O. L. 369 (Gen. Code 1412), the possession for sale of the plumage of which is not unlawful under Sec. 22 of said act (Gen. Code 1409); these statutes are designed to protect native and migratory birds crossing the state at regular intervals or finding a home therein during certain seasons of the year and do not apply to birds such as the white heron of a vagrant or transient species.

      Warren Thomas, for plaintiff in error.

      Shields & Pomerene and Oscar M. Abt, for defendant in error:
    History of section 25 of the game law. 73 O. L. 216; 80 O. L. 93; 82 O. L. 238; 83 O. L. 188; 84 O. L. 168; 85 O. L. 323; 87 O. L. 66; 92 O. L. 116; 93 O. L. 4; -94 O. L. 234; 95 O. L. 374; 97 O. L. 463, 471; 99 O. L. 364, 382.

      Snowy or ivhite heron not within contemplation of statutory inhibition, State v. Both, 51 Ohio St. 209 [37 N. E. Rep. 259; 46 Am. St. Rep. 566] ; People v. Eesterberg, 184 N. Y. 126 [76 N. E. Rep. 1032; 3 L.'R. A. (N. S.) 163; 128 Am. St. Rep. 528],
    Rules of construction, 26 Am. & Eng. Enc. (2 ed.) 598; Emted States v, Fisher, 6 U. S. 399 [2 L. Ed. 304] ; Levy v. McCartee, 31 U. S. (6 Pet.) 102 [8 L. Ed. 334]; Millard'v. Lawrence, 57 U. S. (16 How.) 251 [14 L. Ed. 925] ; Bishop, Stat. Cr. Secs. 218, 227; State v. Meyers, 56 Ohio St. 340 [47 N. E. Rep. 138] ; Winnett v. State, 10 Oirc. Dec. 245 (18 R. 515), affirmed, no op., State v. Winnett, 62 Ohio St. 650.

       Affirmed, no op., State v. Abt, 83 O. S. 451.

   PER CURIAM.

The state of Ohio prosecuted the defendant in error, Leo Abt, before Hon. L. M. Barrick, a justice of the peace of Canton township, on an affidavit charging him with having in his possession for sale the plumage of a snowy heron, a wild bird being other than a game bird, contrary to the provisions of the statute in such case made and provided.

The defendant was convicted before the justice and prosecuted error in common pleas court of this county to reverse that judgment and conviction; and the common pleas court on a proceeding in error did reverse the judgment of the justice, State v. Abt, 20 Dee. 517 (9 N. S. 311), and the state now prosecutes error to reverse that judgment of reversal.

There were quite a number of errors assigned in common pleas court, but we think that the principal one and the one controlling in this case, involves a construction of Sec. 22 and 25 of act 99 O. L. 369 (Gen. Code 1409, 1412) : Section 22 provides that no person shall catch or kill, injure, pursue, or have in his possession, dead or alive, etc., a large number of birds, specifying them by name, and adds: “Or any wild bird other than a game bird; no part of the plumage, skin or body of such bird shall be sold or had in possession for sale.” The snowy heron is not enumerated in Sec. 22 of this act; so that if it is included within that section, it must appear from the evidence that it is not a game bird.

We are clearly of the opinion that the evidence in this case does not show beyond reasonable doubt that the snowy heron is not a game bird, and for that reason alone the reversal was proper.

Section 25 provides, among other things, that no person shall catch, kill, injure or pursue a wild duck or water fowl on Sunday or Monday of any week, or catch, kill, injure or pursue such water fowl before sunrise or after sunset. This section also enumerates a great- many other birds, and concludes as follows: “The birds named in this section shalT be known and classed as game birds in contradistinction to all other birds.”

The evidence in this ease conclusively shows that the snowy heron is a water fowl, so that undoubtedly it comes within the provisions of Sec. 25; and for that reason also, the judgment of reversal of the common pleas court was right.

It also fully appears from the evidence in this case that the snowy heron is not a native -bird of Ohio; that it is a habitant of southern waters, and is never seen in a wild state in Ohio except very rarely. So that if it is found in the state at all it is only as a vagrant individual of a species, and is not amative bird. We think these statutes are designed to protect the native birds and migratory birds that find a home in this state during certain seasons of the year, as well as other migratory, birds that cross the state at regular intervals of each year; and not merely a transient or vagrant individual of a class whose habits are not to migrate either to this state or across it.

The judgment of the common pleas court is affirmed with costs.


author: ALLREAD, J.

text:
    BRIDGES — ERROR—MUNICIPAL CORPORATIONS.
    [Shelby (2nd) Circuit Court,
    October Term, 1910.]
    Sullivan, Dustin and Allread, JJ.

    Sidney (City) v. Franciska Schmidt.
    1. City as Well as County Liable for Maintenance of Culvert in Street
    A culvert forming part of a city street is, by virtue of Gen. Code 8714, under control of the city council; hence, the municipality under Gen. Code 7563, as well as the county commissioners, is responsible for maintenance of guard rails thereon.
    2. Refusal to Direct Verdict upon Retrial after Reversal upon Weight of Evidence.
    Upon a second trial of a case, wherein a judgment in favor of the plaintiff has been reversed as against the weight of evidence, it does not affirmatively appear in the record that the evidence is substantially the same as at the former trial, it is not error for the trial court to refuse to direct a verdict for the defendant upon the ground that the former judgment of reversal was an adjudication.
    3. Act 99 O. L. 454 Applies to Circuit Court where Reversal was Rendered and Error to Second Trial is Instituted after Enactment.
    Act 99 O. D. 454 (Gen. Code 11577), denying the right of the same court to grant more than one reversal in favor of the same party in the same cause of action, upon the ground that the verdict is against the weight of the evidence, applies in the circuit court where the judgment to be reviewed was rendered and the proceedings in error were brought after its enactment.
    4. Condition of Street over Culvert without Guard Rails Question for Jury.
    Whether one in the lawful use of that part of the street intended for pedestrians was guilty of contributory negligence in turning out upon the gravel and rough stones, which caused her to trip and fall over the side of a culvert which was not provided with guard rails, is a question for the jury which can be reviewed only by a court having jurisdiction as- to weight of testimony.
    Error to common pleas court.

      D. Finley Mills, city solicitor, and John F. Wilson, for plaintiff in error.

      Percy Tí. Taylor and Charles C. Marshall, for defendant ' in error.
   ALLREAD, J.

The defendant in error, Franciska Schmidt, recovered judgment in the court of common pleas for personal injuries resulting from a fall off: a culvert, thirteen feet in height and forming part of North Main street in the city of Sidney.

The basis of the cause of action is the alleged negligence of the city in maintaining the culvert, without guard rails or other safeguard, by reason whereof the plaintiff in the lawful use of the street without her fault,, in attempting to pass over the culvert, fell therefrom and was injured.

The city prosecutes error here to the judgment so recovered. Upon the admission of the petition that the culvert and highway of which it is a part was constructed by the county commissioners, and that the city received no part of the bridge fund, it is contended that there is no cause of action shown against the city.

In support of this contention counsel cite R. S. 4941-1 (Gen. Code 7563), requiring boards of county commissioners to maintain guard rails “on each end of a county bridge, viaduct or culvert more than five feet high.” But in such cities and villages as by law receive part of the bridge fund levied therein, such guard rails shall be erected by the municipality. The petition state's that this culvert ivas a part of the municipal street. It was, therefore, as a matter of law under control of the city council, who by the terms of R. S. 2640 (Gen. Code 3714), are bound to keep the streets and bridges forming part thereof reasonably safe for public travel. Troy v. Brady, 67 Ohio St. 65 [65 N. E. Rep. 616]; Cavey v. Cincinnati, 32 O. C. C. 397 (12 N. S. 285).

R. S. 4941-1 imposes a primary obligation upon county commissioners in the prescribed eases to construct guard rails, but does not limit nor supersede R. S. 2640. Both sections are available for protection of the traveling public.

The ease of Mineral City v. Gilbow, 81 Ohio St. 263 [90 N. E. Rep. 800; 25 L. R. A. (N. S.) 627], is not opposed to, but in harmony with this view. The distance, in that ease, of the dangerous excavation from the street, was such that the street itself was not defective nor unsafe.

There are, other objections to the petition, but in our view the petition states a cause of action. And it also follows that the trial court did not err in the charge, in stating that the culvert was under control and supervision- of the city.

Reliance -is placed upon the motion of the city for an instructed verdict offered at the close of plaintiff’s evidence and renewed at the close of all the evidence. This motion was overruled by the trial court.

The motion is supported here upon the claim (1) that the judgment of reversal of this court upon the former petition in error is an adjudication; and (2) that the evidence is insufficient.

As to the adjudication it is insisted that the case presented here is'substantially the same as upon the former hearing; that the decision of this court upon the former petition in error was binding upon the trial court in the second trial, if the evidence was substantially the same and called for an instructed verdict for the city. The case of Michigan Mut. Life Ins. Co. v. Whitaker, 29 O. C. C. 362 (9 N. S. 126), is cited.' In that case the transcript of evidence of the former trial was offered in evidence upon the second trial, thereby establishing in the view of the circuit court the identity of the case. But the Supreme Court, Whitaker v. Insurance Co. 77 Ohio St. 518 [83 N. E. Rep. 899], without denying the primary doctrine, as to the effect of the adjudication of the reviewing court, held that the record under review must affirmatively show the identity of the case to justify the application of the doctrine.

In the present case the plaintiff in error refiled in this court the former bill of exceptions with exhibits detached, and seeks thereby to differentiate the present case from the Whitaker case; but the former bill of exceptions was not presented to the trial court and is not embodied in the bill now under review. .

Confining our consideration to the present bill of excep- • tions, we find that the witnesses whose testimony appears in schedule “A” were called, sworn and examined.

In a stipulation appearing in th'e schedule in connection with the recital that the testimony of certain witnesses was read, it may be inferred that such testimony was thp same as upon the former trial.

Assuming that the certificate of the' bill is capable of reconciliation with the schedule, it still appears that Franciska Schmidt testified anew and it does not appear but that Otis McCreary and Dr. C. E. Johnston testified orally.

The cross-examination of Mrs. Schmidt contains reference to portions of her former testimony, and certain parts were offered by the city for impeachment. These extracts were referred to and offered to show contradiction, but nowhere in. the record now under review does it appear that the testimony; of Franciska Schmidt was substantially the same as on the former trial, nor are we advised by this record that the testimony of Otis McCreary and Dr. Johnston is identical.

The trial court was not in error, therefore, in rejecting the plea or contention of former adjudication of the law of the case.

Upon the claim of insufficiency of evidence, it follows from what .has been said as to the duty of the city, that the verdict so far as it establishes negligence in failing to maintain guard rails or other safeguards should not be disturbed. There is, therefore, left for consideration the question of contributory negligence.

Upon the question of the weight of the evidence, it is contended that the credibility of Mrs. Schmidt upon whose testimony the case mainly stood, as to contributory negligence is impeached by the former testimony, and this court upon the former review reversed the judgment for insufficiency of evidence. As the case was remanded for trial it is obvious that the reversal was upon the weight of evidence.

Under the act of May 9, 1908 (99 O. L. 454; Gen. Code 11577), the jurisdiction of the court to review the weight of evidence after one reversal is withdrawn.

This act being one relating to the remedy and having been passed before the proceedings in error .were begun and the judgment complained of rendered is applicable here. Halderman v. Larrick, 44 Ohio St. 438 [8 N. E. Rep. 177].

It is contended that plaintiff being familiar with the situation and having knowledge of the absence of a guard rail was negligent as a matter of law, and that it was the duty of the court to so instruct the jury. ¥e think, however, that the fact of the plaintiff going on the culvert ancl attempting to pass over the same along the portion intended for and used as a sidewalk is not negligence as a matter of law.

The cases cited by plaintiff in error can 'be distinguished. In case of Mineral City v. Gilboio, supra, the plaintiff carelessly or knowingly departed from a known safe way and went beyond the limit of the street into danger. In Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533], and Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480], it was decided that .•a traveler going into danger he can easily avoid, can not re•cover. In the cases of Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. Rep. 617], and Conneaut v. Naef, 54 Ohio St. 529 [44. N. E. Rep. 236], the qualification as to avoiding the danger is omitted from the statement of the rule, biit the cases under review and the citation and approval of previous cases, make it ■obvious that no departure was intended. See Smith v. Toledo, 30 O. C. C. 454 (11 N. S. 167).

The plaintiff was, therefore, lawfully upon the street and In the lawful use of it and upon the. portion intended and devoted to footmen, and whether it was negligence to suddenly stop and turn in the gravel and rough stones and to trip and stumble and fall over the coping, is a question to.be submitted to the jury, and can only be reviewed by a court having, jurisdiction to 'weigh the evidence.

Judgment affirmed.

.Sullivan and Dustin, JJ., concur.


author: RICHARDS, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    November 25, 1911.]
    Wildman, Kinkade and Richards, JJ.

       Standard Steel Tube Co. v. Walter Prusakicueicz.
    1. Act 101 O. L. 197 Introduces Doctrine of Comparative Negligence in Actions Between Employes and Employers.
    By the provisions of Gen. Code 6245-1, as enacted 101 O. L. 197, the doctrine of comparative .negligence is introduced into the law of Ohio in actions between employe and employer.
    2. Contributory Negligence of Employe Slight as Compared with Negligence of Employer does not Defeat Recovery.
    The effect of that section is to enlarge the right of recovery by an employe so as to include cases where he may have been guilty of contributory negligence, provided his contributory negligence is slight in comparison with the negligence of -the employer.
    [Syllabus by the court.]
    Error to common pleas court.

      Ralph 8. 'Holbrook and G. R. Banker, for plaintiff in error.

      Stephen Brophy, for defendant in error:
    Attainment of majority pending suit. Railway v. Hut-chins, 37 Ohio St. 282; Gard v. Neff, 39 Ohio St. 607.
    No reversal where defendant in error files remitter. Van Boskerck V. Torbert, 184 Fed. Rep. 419 [107 C. C. A. 383]; Niebling v. Lcddlaw, 32 O. C. C. 371 (12 N. S. 463).
    Legal presumption that plaintiff is of full age at the time he sues. Hanly v. Levin, 5 Ohio 228; Burkham v. Cooper, 1 Circ. Dec. 372 (2 R. 77) ; 2 Bates, Pleading p. 1782; Greenman v. Cohee, 61 Ind. 201; Swan, Plead. & Prac. 510.

      Res ipsa loquitur to cases of master and servant. Cincinnati Trac. Co. v. Holzcnkamp, 74 Ohio St. 379 [78 N. E. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980]; Cooley, Torts 799; Judson v. Powder Co. 107 Cal. 549 [40 N. E. Rep. 1020; 29 L. R. A. 718; 48 Am. St. Rep. 146]; Rose v. Stevens, 11 Fed. Rep. 438; Mooney v. Lumber Co. 154 Mass. 407 [28 N. E. Rep. 352]; Byrne v. Hose & Rubber Co. 191 Mass. 40 [77 N. E. Rep. 313] ; O’Neil v. Ginn, 188 Mass. 346 [74 N. E. Rep. 668] ; Packer v. Electric Co. 175 Mass. 496 [56 N. E. Rep. 704]; Gormo v.
      Bridge Works, 205 Mass. 366 [91 N. E. Rep. 313] ; Blanton v. Dold, 109 Mo. 64 [18 S. W. Rep. 1149] ; Towle v. Mill Co. 33 Wash. 305 [74 Pae. Rep. 471]; Huggard v. Refining Co. 132 Iowa 724 [109 N. W. Rep. 475]; Armour v. Golkoiuska, 202 111 144 [66 N. E. Rep. 1037] ; Hearn v. Quillen, 94 Md. 39 [50 Atl Rep. 402]; Winkelman v. Colladay, 88 Md. 78 [40 Atl. Rep. 1078] ; Barnowshi v. Helson, 89 Mich. 523 [50 N. W. Rep. 989; 15 L. R. A. 33]; La Farmer v. Lighter é Wrecking Co. 129 Mich. 596 [89 N. W. Rep. 353] ; Lentino v. Iron Ore Co. 71 App. Div. 466 [75 N. Y. Supp. 755] ; Womble v. Grocery Co. 135 N. C. 474 [47 S. E. Rep. 493]; Fearingion v. Tobacco Co. 141 N. C. 80 [53 S. E. Rep. 662] ; Fitzgerald v. Railway, 141 N. C. 530 [54 S. E. Rep. 391; 6 L. R. A. (N. S.) 337] ; Cox v. Gas Co. 17 R. I. 199 [21 Atl. Rep. 344]; Louisville <& N. Ry. v. Northington, 91 Tenn. 56 [17 S. W. Rep. 880; 16 L. R. A. 268]; McCray v. Railway, 89 Tex. 168 [34 S. W. Rep. 95]; Houston v. Brush, 66 Yt. 331 [29 Atl. Rep. 380] ; Mulcairns v. Janesville, 67 Wis. 24 [29 N. W. Rep. 565] ; Posey v. Scoville, 10 Fed. Rep. 140.

      Res ipsa loquitur, Kearney v. Railway, L. R. 5-Q. B. 411; Barnowshi v. Helson, 89 Mich. 523 [50 N. W. Rep. 989; 15 L. R. A. 33] ; Spellman v. Rapid Transit Co. 20 L. R. A. 316; Cleveland, C. C. & St. L. Ry. v. Berry, 152 Ind. 607 [53 N. E. Rep. 415; 46 L. R. A. 33] ; Mullen v. St. John, 57 N. Y. 567 [15 Am. Rep. 530] ; Grifen v. Manice, 166 N. Y. 188 [59 N. E. Rep. 925; 52 L. R. A. 922; 82 Am. St. Rep. 630]; Rose v. Transportation Co. 20 Blatehf. Rep. 411.
    Assumption of risk, Dayton Folding Box Co. v. Ruehlman, 31 O. C. C. 292 (11 N. S. 493) ; Labatt, Mast. & Serv. Sec. 459, p. 1283; Egan v. Lumber Co. 94 Wis. 137 [68 N. W. Rep. 756]; West v. Railway, 179 Fed. Rep. 801 [103 C. C. A. 293] ; Northern Pac. Ry. v. Altimus, 179 Fed. Rep. 275 [102 C. C. A. 631] ; Hitritz v. Brown, 180 Fed. Rep. 1019.
    Degree of care required of master and servant. Winters v. Railway, 16 O. F. D. 485 (8 O. L. R. 361) ; Philadelphia <& R. Coal & Iron Co. v. Barrie, 179 Fed. Rep. 50 [102 C. C. A. 618],
    Similar accidents, Findlay Brew. Co. v. Bauer, 50 Ohio St. 560 [35 N. E. Rep. 55; 40 Am. St. Rep. 686] ; Circleville v. Sohn, 11 Circ. Dee. 193 (22 R. 368); Ashtabula v. Bartram, 2 Giro. Dec. 372 (3 R. 640) ; Bussell v. Toledo, 10 Circ. Dec. 367 (19' R. 418) ; District of Cohimbia v. Armes, 107 U. S. 519 [2 Sup. Ct. Rep. 840]; Stair v. Kane, 16 O. F. D. 93 [156 Fed. Rep. 100],
    Evidence of witnesses who saw defective sidewalk on day following the injury, Monroeville v. Weihl, 6 Circ. Dee. 188 (13 R. 689]. ^ •
    Comparative negligence, Chicago v. Stearns, 105 111. 554.
    Charge of the court should be construed as a whole. Ohio Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 609 [56 N.- E. Rep. 457; 76 Am. St. Rep. 437],

       Affirmed, no op., Standard Steel Tube Co. v. Prusakicueicz, 87 O. S. 000; 57 Bull. 446.

   RICHARDS, J.

In this action Walter Prusakicueicz, commonly called, for the sake of euphony perhaps, Walter Brasa, recovered a verdict and judgment in the court of common pleas in the sum of $2,-900 for personal injuries claimed to have been received through negligence of the Standard Steel Tube Company. The injury occurred upon July 23, 1910, while the plaintiff was in the 'employment of said company and engaged in the operation of a certain punch press. This press was connected with power and was operated by ah employe by placing his foot on the treadle which' causes the plunger to descend and punch holes in or cut out pieces of sheet metal.

It was contended by the plaintiff that this machine was out of order and so defective that the plunger would drop without the treadle being pressed and as a result of such dropping, the plaintiff whose left hand was inserted for the purpose of removing a piece of sheet metal, was caught by the plunger and the fingers of that hand were cut off by the plunger descending.

The plaintiff claims that he was inexperienced in this kind of machinery and had only been employed upon the machine for a few hours and that the defendant failed to give him any' instructions or warn him of the dangers. It appears from the evidence that the plaintiff had reported the fact to the foreman that the machine was out of order and .was not working properly and that the foreman had attempted to repair the same and reported to plaintiff that it had been repaired. The defendant in its answer denies all negligence upon its part and asserts that the plaintiff himself was guilty of negligence contributing directly to his own injury. These allegations are denied by the reply. The proceeding was brought into this court by a petition _ in error and a bill of exceptions which contains all of the evidence.

Numerous errors are assigned but all of them which appear to be of importance involve the application to this .ease of the statute found in 101 O. L. 195 and following and especially of Gen. Code 6245-1 as amended in said act and found on page 197 of said volume. The contention as made by counsel for the defendant company would deprive that section of any value to the employe in cases of this kind. The manifest purpose of the general assembly in passing this act was to enlarge the right of recovery by an employe against an employer in an action for personal injury caused by negligence and to introduce into the law of Ohio to a limited extent and in a qualified way the doctrine of comparative negligence. It is an attempt to remedy, in so far as employes and employers are concerned, the condition not infrequently experienced by courts in the trial of personal, injury eases where the plaintiff fails because of his own negligence directly or proximately contributing to his injury, although the evidence may ¡show the defendant to have been guilty of a far greater degree of negligence.

This case casts upon the court the duty of construing Gen. Code 6245:1 already cited and that duty must be undertaken in the light of the legislative purpose just mentioned. So far as this court is aware, no reported decision has placed a construction upon that section. The section, so far as necessary to be quoted, reads as follows:

“That in all such actions hereafter ..brought, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison. But the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. ’ ’

Counsel for the defendant have insisted with much ability that even though the object of the legislature may have been to accomplish the purpose indicated by the court, that the-language used in the section quoted will not permit that construction. It is urged that the section does not say that in all cases contributory negligence shall not be a bar, and that it only provides that contributory negligence shall not bar a recovery where the contributory negligence of the employe is slight and the negligence of the employer gross in comparison. Counsel argue therefore that in all other cases contributory negligence shall be a bar. Counsel further contend that by the language found in the act, the negligence of the plaintiff is not placed in comparison with that of the defendant. The construction contended for is reached by a too literal and too rigid interpretation of the words used and by overriding the manifest legislative purpose. If this be the interpretation of the section, then it has added nothing to the right of an employe in a personal injury case. Under the law as it has heretofore existed, if a plaintiff’s only delinquency is that he is guilty of slight negligence, -he is not deprived thereby of the right to recover. Such has always been the law of Ohio and the principle is well enunciated in the case of Schweinfurth v. Railway, 60 Ohio St. 215, 220 [54. N. E. Rep. 89], and in Welleston Coal Co. v. Smith, 65 Ohio St. 70, 80 [61 N. E. Rep. 143; 55 L. R. A. 99; 87 Am. St. Rep. 547]. As we construe this statute the negligence of the plaintiff and the négligence of the defendant are to be compared each with the other, and upon such comparison, if it' shall appear that the negligence of the plaintiff is slight as compared with that of the defendant, and that the negligence of the defendant is gross as compared with that of the plaintiff, then the plaintiff is entitled to recovery if the other elements entitling him so to do, are present. The words ‘.‘slight” and “gross” are used as relative expressions. No fixed 'absolute degree of care is mentioned in the statute. The provision is to be construed as if it read, ‘ ‘ The fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison each with the other.”

We think it perfectly clear that the general assembly in this enactment used the words "contributory negligence” as meaning precisely the same as a failure to exercise ordinary care. It will be noted that no comma is found in the act after the word "slight” and this fact confirms the view which we have adopted. Again, if the construction contended for by counsel for the defendant company should be adopted, it would result that the statute enacted for the purpose of enlarging the right of recovery of an employe would actually operate to his prejudice, for it would not allow a recovery in any case where the employe was barred under the former law, and then in cases where he did recover, the amount of his recovery would by the language of the act, be diminished in proportion to the negligence attributable to him.

Counsel for the defendant company places much reliance upon numerous decisions of the courts of Illinois. We have examined those cases with care and many of them bear out the contention of counsel that a plaintiff can never recover in a case of this kind unless he has himself been in the exercise of ordinary eaj.’e. The courts in that state for. many years undertook to apply the requirement to the plaintiff that in order to recover he must have been exercising ordinary care, in connection with the i doctrine of comparative negligence but the later cases in Illinois repudiated the whole doctrine as construed and applied by their courts. We are not able to obtain much lig'ht in the interpretation and construction of 'this statute from the decisions of that state.

We have already stated that we are not aware of any reported case construing, the section involved in this case but a parallel statute may be found in Gen. Code 9018. The material parts of that section provide that the fact that the employe was guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer "greater” in comparison. v

In all material respects, so far as 'the question now under consideration is concerned, the two acts are entirely similar. This last section has been construed by the circuit court of appeals of the sixth circuit, Erie Ry. v. White, 187 Fed. Rep. 556. In the course of the opinion, the court .say: "No reason is assigned, and we observe none, why this statute does not, in the eases to which it refers, abolish entirely the defense of assumption of risk, and abolish also the defense of contributory negligence as an absolute and invariable defense in bar substituting therefor the rule of comparative negligence.”

It remains to apply this principle to the determination of the legal question raised in the case at bar. The defendant company asked the court to give to the jury in charge various instructions, all of which raise substantially the same question. I will quote No. 5 as asked to be given which will answer as a sample of the others:

“If the jury find from the evidence that the plaintiff and defendant were both negligent, and that the negligence of both directly contributed to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant.”

Manifestly the charge requested is at variance with the provisions of the statute under consideration, and the same applies to the other requests asked for by the defendant to be given to the jury. The instruction quoted could not be given to the jury in a case of this kind without being in some way qualified so as to indicate in accordance with the language of the statute, that the rule was not applicable if the jury should find that the negligence of the employe was slight and the negligence Of the employer gross in comparison with each other.

~We find no error in the case to the prejudice of the plaintiff in error except that the plaintiff below was. allowed to recover for certain wages which he lost during his minority by reason of this injury, he being slightly under twenty-one years of age at the time of his injury. ¥e find, however, that his counsel offered to remit from the judgment the amount of such wages, and the judgment of the court of common pleas will be modified to that extent and as so modified will be affirmed.

Wildman and Kinkade, JJ., concur.


author: HENRY, J.

text:
    TRUSTS AND TRUSTEES.
    [Cuyahoga (8th) Circuit Court,
    June 1, 1908.]
    Marvin, Winch and Henry, JJ:

       Joseph Uebbing v. Martin Koester (Tr.) et al.
    Trust Created by Deed and Will Pursuant to Parol Agreement not Allowed to Fail for Awkwardness In Conception and Defective Execution.
    An agreement between a mother, owning and having interests in family property, and her children by three marriages, unequally owning and having interests in the family property, to place all their property in trust so that all the children would share equally, to be evidenced by a deed and will, prepared by legal advisor, will, after her decease leaving such will, be deemed a trust supported by an executed consideration, and notwithstanding the plan was awkwardly conceived, the deed defectively executed, and the will without the deed defeats such agreement, the trust will be perfected according to agreement and then enforced.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Appeal from common pleas court.

      Hamilton & Smith, for plaintiff.

      Dawley & Meals, and L. I. Litzler, for defendants.

       Affirmed, no op., Uebbing v. Koester, 81 O. S. 564.

   HENRY, J.

This appeal presents the question of tbe enforceability of an alleged trust relative to a family arrangement of property interests, and the case is before us on exceptions to the report of the master heretofore appointed by this court. The evidence reported by the master shows the facts to be as follows:

Alida Bauman was survived by her third, husband and -by one child of her first marriage; six by her second, and three by her third marriage. There were four parcels of land, valued at $11,900, of which she owned one, she and her third husband jointly another, and the remaining two parcels were owned in common by her and the six children of her second marriage, who, however, allowed her to possess all the property as long as she lived. In her last sickness she employed an attorney to devise and carry out a plan by which all her children should share all the property equally after her death, save that her third husband should have the life use of one-third, and 'two of the children by her second marriage should each have $200 more than the others. The plan adopted was awkwardly conceived and imperfectly executed. She and all the children together with their husbands and wives became parties to a quitclaim deed of all the property, wherein two of her sons, one by the first marriage, and one by the second marriage, were the grantees. This deed, though absolute ih form, is admitted by all concerned to have been made in trust. It is, moreover, though perfect in form, admittedly defective in fact, because one of the two signatures purporting to be those of witnesses was written by bne who was not actually a witness to its execution. The terms of the intended trust are in dispute, and the master who took the testimony reports that he is unable to find whether any, and, if any, what trusts were declared at that time. Some of the children, including one of the trustees, assert that the trust was created simply to hold the property during the mother’s life and to facilitate its disposition and the distribution of proceeds after her death according to the legal rights of the parties. The other trustee and the other children say that it was not only for these purposes, but also to carry out their mother’s wish as above described and as émbodied in a will exhibited and explained in advance to all parties to the deed and subsequently executed by her. The will purports to. devise to her husband and children in this manner all of her property, which, as the will declares, is all “included” in the deed to her two sons as trustees.

It will be observed that if the deed were good, the testator had no property left to devise. The will in that case could at most amount to nothing but an exercise of her power to appoint the stipulated trusts upon which the deed was given. That power of appointment rested in parol if it was conferred upon her at all'. We think, contrary to the master’s conclusion, that such power was at least intended and agreed to be so conferred upon her.

But the deed, being defective, conveyed no legal estate to the trustees. Can this imperfectly executed deed of conveyance, whereon this parol trust was limited, be perfected and enforced as a conveyance in trust for the uses intended?

The six children of the second marriage had already acquired title in their own right to nearly one-half of the entire property. If, in addition thereto, they can acquire under their mother’s will, as her heirs at law, their distributive shares of the other half which she owned, they will fare much better than the children of her first and third marriages. She might have so devised her property, having regard to what each of the children already had, as to bring about the desired equality ■among them without the intervention of any trust. Shall her manifest intention be defeated merely because the means actually employed by her, under the advice of counsel, were not ■only awkwardly adapted but imperfectly executed for the accomplishment of the purpose which she had in view? She died supposing undoubtedly that the accomplishment of that purpose was assured. Had she been apprised of the improper attestation of the deed and properly advised in the premises, she could, and no doubt would, have so altered her will as to make the accomplishment of her purposes sure. Her will was made by her in pursuance of an agreement with her children, and the consideration moving to her in that agreement was the expected attainment of her object, namely, the equal distribution among them all of the entire property, theirs and hers alike. That will is now made irrevocable by her death and it has become effective by reason of its subsequent admission to probate. If it should turn out that it disposes only of the property which was hers, it creates inequality instead of the equality which she intended and which she supposed was accomplished. The consideration supporting the agreement in obedience to which the will was executed would thereby fail, for the object which she expected to gain would be lost. To overturn the trust and uphold the will would be to defraud the testatrix. We have, of course, no jurisdiction aver the will or the disposition which it makes of ber property, except to consider its effect in connection with the entire transaction.

The question was put from the bench on the hearing, whether the will should not be construed' and administered, to effect, such a disposition of the testatrix’s own property as to make, together.with the other property which is contemplated by its provisions and which some of the children, already owned, an equal apportionment of the aggregate property among them all. If thdt be accomplished, it is quite immaterial whether the trust shall be upheld or not. But we do not assume to answer the question thus raised. Neither can we assume the will to be a testamentary disposition of the mother’s property in exactly 'the same manner as the law would distribute it, had she died intestate, so that if the trust fails, the parties will be left -in precisely the status which they would have occupied if neither deed nor will had been made. The will’s provisions deviate in some degree at least from those of our statutes of descent and distribution. The distribution effected by the will, however con- . strued, is essentially a testamentary distribution and not the mere equivalent of intestacy or nonaction on her part.

We hold, therefore, that the agreement between the mother and her children to put all their property in trust, for the purpose already described, was made upon consideration executed by her when she made her will.

Equity therefore requires that the trust thus supported by an executed consideration be perfected according to the agreement, and that as so perfected, it be enforced.

A decree may be taken sustaining the .exceptions to the master’s report in the particulars indicated, and defining and enforcing the trust in accordance with this opinion.

Marvin and 'Winch, JJ., concur.


author: TAGGART, J.

text:
    ACTIONS — -REVIVOR.
    [Ashland (5th) Circuit Court,
    October 21, 1910.]
    Taggart, Donnelly and Yoorhees, JJ.
    (Judge Donnelly of the 3rd circuit sitting in place of Judge Donahue.)

      Catherine Glass v. Geo. W. Buzzard et al.
    1. Revivor of Action against Administrator, Entering Appearance, Sufficient.
    A cause of action revived without objection against the administrator of a deceased defendant, to which upon being served . with summons he enters an appearance and files a demurrer, nothing further appearing of .record gives the court jurisdiction and the revivor must be regarded as sufficient.
    2. Claim Involved in Action Need not be Presented to Administrator.
    No presentation or rejection of a claim against an administrator is necessary under Gen. Code 11261, where the claim was in suit at the time of the death of the defendant and the petition stated facts sufficient to constitute a cause of action; such a cause may proceed to judgment.
    Error to common pleas court.

      Clvapmaoj, & Taggart, for plaintiff in, error.

      McCray & McCray, for defendant in error.

      Affirmed, no op., Buzzard v. Glass, 85 O. S. 000; 56 Bull. 386.

   TAGGART, J.

By this proceeding in error, the plaintiff seeks to reverse the judgment of the court of common pleas.

In that court Catherine Glass was plaintiff and James Buzzard and Geo. W. Buzzard were defendants. In her petition the plaintiff sought to recover from James Buzzard, then in full life, the amount which she claimed was due and owing to her for care, food and clothing for the infant children of the defendant, James Buzzard. ^

The second cause of action alleged the indebtedness set out in the first cause of action, and then claimed that, in order to defraud his creditors, the defendant, James Buzzard, had conveyed to George Buzzard certain real estate for a colorable consideration, but in fact without any consideration, and prayed that the defendant, George Buzzard, might, be restrained from selling or incumbering said real estate, and that the conveyance so made might be set aside, and for such other relief as might be proper and equitable in the premises.

From the transcript of the docket and journal entries we learn that service was had upon both of these defendants, and while the action was pending James Buzzard died, which fact was brought to the attention of the court, and leave was granted to substitute' George* Buzzard, administrator, as party defendant. At whose -suggestion this action of the oourt was taken we are not advised. If it was upon the suggestion of George Buzzard, it was entirely proper and legal. If it was on the suggestion of the plaintiff, no exceptions were taken by any one to the action of the court in respect thereto, but we are advised by this, transcript that summons were issued and returned, serving the administrator- personally.

Later George Buzzard, as administrator, filed a demurrer. The ground of such demurrer is that the petition does not state facts sufficient to constitute a cause of action against him as such administrator.

This demurrer was sustained by the court, and upon plaintiff not desiring to plead further the action against the administrator was dismissed and final judgment rendered, dismissing the petition. The entry recites that the court sustained this demurrer because the petition does not state facts sufficient to constitute a cause of action and because said administrator was not made a party to this cause as provided by law.

We think it reasonably appears that this action was revived as against the administrator, without objection, and upon service of summons upon him he entered an appearance and filed a demurrer, which would give to the court jurisdiction of the person of the defendant, and nothing further appearing on the record would be sufficient revivor of the cause of action as against him.

As to the other ground, that the petition does not state facts sufficient to constitute a cause of action, we are advised the court adopted the view that the' petition did not aver an exhibition or presentation of the claim and the rejection by the administrator.

We think that where an action is rightfully grounded against an intestate in his lifetime and subsequently revived, no presentation or rejection of the claim is necessary, and that the action may proceed to final judgment upon the cause of action as stated against the deceased, provided the petition stated facts sufficient to constitute a cause of action against the intestate.

We are supported in this view of the law by State v. Kilgour, 19 Dec. 670 (8 N. S. 629), and by the case of Musser v. Chase, 29 Ohio St. 577, 586.

For the error of the court in sustaining this demurrer, the judgment of the court of common pleas is reversed, and this cause is remanded for further trial and proceedings according to law.

Donnelly and Voorhees, JJ., concur.


text:
    APPEAL — ESTOPPEL—PLEADING.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1908.]
    Marvin, Winch and Henry, JJ.

      Sleepy Eye Milling Co. v. E. M. Walsh.
    Defense of Discharge in Bankruptcy Instituted and Obtained Pending Appeal from Judgment in Attachment Subject to Facts of Estoppel in Record.
    A supplemental answer setting up a defense of discharge in ruptcy, the petition for which is filed and decree obtained pending appeal from a judgment of a justice of the peace in attachment, cannot upon judgment for defendant upon the bar of discharge operate to give recourse either upon the appeal bond or undertaking for release of attachment, unless the defendant is estopped to interpose such defense; hut neither the fact that no. exception is reserved to the order granting leave to file such answer, nor insufficiency of a reply to allege estoppel, can \ operate to prevent the assertion of estoppel on trial if the record discloses facts sufficient to constitute estoppel. Such record facts appearing the court should prevent the interposition of such defense.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]

      Error to common pleas court.

      B. H. Lee, for plaintiff in error.

      Klein & Harris, for defendant in error.

      Affirmed, no op., Welsh v. Milling Co. 84 O. S. 495.

   HENRY, J.

This litigation originated in a justice court, and in all the courts the parties have stood related as they stand here. In the justice court plaintiff sued out an attachment, but the attached property was restored to defendant upon bond given by him. Upon the rendition of judgment sustaining plaintiff’s claim and attachment, defendant appealed'to the court of common pleas. Pending this appeal he filed.his petition in voluntary bankruptcy and was discharged. Thereupon, he applied for and obtained leave to'file a supplemental answer setting up this fact. Plaintiff replying'to this supplemental -answer alleges that its claim was not scheduled by the defendant in his bankruptcy proceeding, and that no notice of the pendency of that proceeding- had ever been served upon it; but upon this point it is practically conceded that at the time of filing this reply the bankruptcy proceeding was still pending and open to the presentation of plaintiff’s claim. This, of course, is sufficient.

Plaintiff’s reply to the supplemental answer alleges further that if defendant is permitted to maintain his defense of discharge in bankruptcy, plaintiff’s claim, though just, cannot be put into judgment for the purpose of recourse to the liability of the sureties on the appeal bond. In argument it is urged that a similar' inequitable result will follow as to the security upon the bond for the release of the attachment. If judgment goes against plaintiff by reason of this defense the condition of neither bond is broken, and unless defendant is estopped to interpose the defense of discharge in bankruptcy, we see no escape from the reasoning and conclusion of the court in Merritt v. Pritchard, 17 Dec. 257 (4 N. S. 471), wherein Farrell v. Finch, 40 Ohio St. 337, and Hill v. Harding, 130 U. S. 699 [9 Sup. Ct. Rep. 725; 32 L. Ed. 1083], seem to us to.be properly distinguished.

It would have been entirely proper under the circumstances for the court to have refused leave to the defendant to file the supplementary answer, but the record does not disclose any objection made or exception reserved to the granting of such leave in this case. Holyoke v. Adams, 59 N. Y. 233. The reply does not sufficiently allege any estoppel; but inasmuch as the facts in regard to the attachment, filing of bond for release, the filing of bond for appeal, filing of a voluntary petition in bankruptcy, the discharge in bankruptcy, and the attempt by supplemental answer to set up the discharge of defendant are and were all disclosed upon the record, and inasmuch as it is thus plainly inequitable to permit defendant, under these circumstances, to have and maintain this defense and thereby deprive plaintiff of its recourse against the sureties on the attachment and appeal bonds, we think the court below should have so applied the doctrine of estoppel as to prevent the interposition of this defense. State v. Smith, 44 Ohio St. 348, 361 [7 N. E. Rep. 447]. The want of express allegation of such estoppel does not prevent it from being available when the facts are all on the face of the record. Castalia Trout Club Co. v. Sporting Club, 8 Circ. Dec. 693 (8 R. 194), affirmed, no op., Castalia Sporting Club v. Trout Club Co. 56 Ohio St. 749. Section 17 of the bankruptcy law should be construed with Sec. 16 thereof, so as to prevent, if possible, any discharge of a bankrupt’s sureties.

Without this defense we cannot say that the court would have rendered judgment for the defendant. If, upon retrial, judgment should be rendered against him, he can and no doubt will have his proper remedy against the enforcement of such judgment against him. Because, however, the judgment as rendered'is contrary to law, it is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    CONSTITUTIONAL LAW — HIGHWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 26, 1908.]
    Marvin, Winch and Henry, JJ.

      W. U. Noble v. Frank Clark.
    1. General Statute Requiring Labor on Highways not Rendered Unconstitutional by Special Act Exempting Certain Counties from its Operation.
    Act 98 O. L. 327 (Gen. Code 3375 et seq.), requiring labor on highways, is not rendered in contravention of Art. 2, Sec. 23, of the constitution, prescribing uniform operation for general laws, by act 95 O. L. 104 purporting to exempt certain counties from its uniform operation.
    2. Averring Nonattendance at Road Work Equivalent to Averment of Nonattendance of Defendant or Substitute.
    A petition in an action to recover a penalty prescribed by act 98 Ó. L. 329 (Gen. Code 3378) for failure of defendant to attend by .himself or substitute when notified to perform work on the highway, that avers his nonappearance when summoned, is sufficient and covers his delinquency both as to failing to attend himself and failing to send a substitute.
    3. Road Superintendent Proper Party to Sue for Penalties under Road Labor Act.
    A road superintendent under act 98 O. L. 330 (Gen. Code 3383, 3384) is the proper party to bring an action to recover penalties prescribed by that act.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.

      E. E. Reinhardt and H. A. Eauxhurst, for plaintiff in error.

      Hart, Canfield & Croke, for defendant in error.

       Affirmed, no op., Noble v. Clark, 83 O. S. 515.

   HENRY, J.

The action below resulted in judgment for the defendant, upon demurrer sustained to .the petition. It is founded upon the act of April 16, 1906, 98 O. L. 327, requiring labor upon highways. It is claimed that this act is unconstitutional, because it is a law of a general nature, not of uniform operation throughout the state, in violation of the constitution of Ohio, Art. 2, Sec. 26, in that Cuyahoga and Hamilton counties are, by reason of another law, specially applicable to them, exempted from its operation; and furthermore, because it infringes the inviolability of private property, guaranteed by Sec. 19 of the bill of rights, and denies the equal protection of the law, by allowing road superintendents to require persons summoned for labor upon the highways to bring teams of horses, if they have them.

Having recently upheld the constitutionality of this law in Lorain county, and having regard also to the case of Dennis v. Simon, 51 Ohio St. 233 [36 N. E. Rep. 832], in which the old law, R. S. 4717, which provided for two days’ labor on the public highways of this state, was held not to be in conflict with the constitution, and to be a valid law, we shall not discuss this question further than to say that the alleged exemption of Cuyahoga and Hamilton counties from the operation of the, present law, is not in accordance with the construction which we place upon.it, namely, that it is of uniform operation throughout the state and the act of April 4, 1902, 95 O. L. 104, purporting to exempt Cuyahoga and Hamilton counties and to repeal previous legislation, cannot be effective to prevent such uniform operation.

It is further contended that the petition is defective because it fails to allege that the defendant not only did not appear himself, but that he made no appearance l>y substitute, when summoned to perform labor upon the highway.

The language of the statute is that any such person shall appear “by himself or substitute,” whereas the petition does not expressly deny that he appeared by substitute. We think, however, that the averment of the defendant’s nonappearance, when summoned, is broad enough to cover his delinquency in both respects. If he failed to appear at all it is clear that he failed to appear either by himself or substitute.

It is urged in the third place that the road superintendent is not the proper party to maintain an action to recover the amount provided to be paid under the statute by any person who fails to respond to proper notice for the performance of labor on tbe highways; but Sees. 12 and 13 of the act seem clearly to authorize him to prosecute such action.

"We think that the petition below states a cause of action and that the demurrer thereto should not have been sustained.

For error in sustaining the demurrer the° judgment below is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    CHANGE OF GRADE — MUNICIPAL CORPORATIONS.
    [Lorain (8th) Circuit Court,
    April 29, 1910.]
    Marvin, Winch and Henry, JJ.

      Irvin W. Metcalf v. Elyria (City).
    Damages Lie for Change of tirade of Sidewalk Laid on Grade Heretofore Designated by City Engineer.
    Enactment by a municipal council of a resolution and ordinance directing a city' engineer to determine grades of streets and sidewalks in the municipality, and subsequent designation by such engineer of a grade for laying sidewalks, amount to such a permanent fixing of the grade of the street on which sidewalks were so laid as entitles an abutting owner. to improve his premises in relation to such grade,, and upon change of such grade an action for damages lies.
    [Proof of this decision was submitted to Judge Henry and corrected/ — Ed.]
    Error to common pleas court.

      Webber & Metcalf, for plaintiff in error.

      H. A. Pounds, for defendant in error.

      Affirmed, no op., Elyria v. Metcalf, 84 O. S. 501.

   HENRY, J.

The parties stand as they stood below. The action below was brought by the owner of property abutting upon West River street in the city of Elyria, for damages alleged.to have been sustained by the plaintiff by reason of a change .of grade of said street. A verdict for the city of Elyria was directed at the close of the plaintiff’s evidence. Prior to plaintiff’s purchase of said premises a stone walk was laid along the street in front of his lot, pursuant to a resolution of the city council requiring the same to be done. At that time the city engineer designated the grade for the sidewalk, as required and authorized not only by the said resolution, but also by an ordinance providing that he should determine the grades of the city streets and sidewalks. The street grade had not, however, been established by any other action of the municipality until July, 1907, when a grade was fixed by the city substantially differing from and out of accord with the grade of the sidewalk as previously established. This action of the city is alleged by the plaintiff to have amounted to a' change of grade of the street within the familiar rule, and he therefore seeks to recover the damages which he has admittedly sustained in consequence of such change of grade, if, in contemplation of law, it be a change.

The authorities which the city relies on and on which the court below founded its decision, are: Neubert v. Toledo, 6 Circ. Dec. 66 (9 R. 462); Taber v. Bowling Green, 28 O. C. C. 173 (7 N. S. 385).

The syllabus of the former case as reported in Neubert v. Toledo, supra, and quoted in Taber v. Bowling Green, supra, contains the following language:

“The fact that a city has left a street for many years with its natural grade, that the public has used the street at that grade for all that time, and that the city has even had sewers laid and sidewalks constructed in such street in that condition, does not preclude the city from afterwards finally adopting a different grade for such street, and a property owner has no right to assume that the city has adopted 'such original grade for the street.”

Upon examination of these cases, however, we find that the facts are not as in the case at bar such as to compel the inference that the municipality in connection with the laying of a sidewalk had intended to fix or had fixed permanently the grade of the street where such sidewalk was laid. The rule laid down in the second paragraph of the syllabus of the case of Akron v. Chamberlain Co. 34 Ohio St. 328 [32 Am. Rep. 367], and followed in various cases since, is as follows:

“The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of -the street as fairly indicated that the grade was permanently fixed, and the damage resulte l from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.”

In the opinion by Mcllvaine, J., at page 336, it is said:

‘ ‘ That the establishment of a grade whereby lot owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, so that the municipality will be liable for injuries to their improvements, resulting from a subsequent change of the grade, does not necessarily require the passage of an ordinance or other legislative action; but it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not; but otherwise, if the surface improvement indicates a mere temporary use or condition of the street.”

Not without some hesitancy we are of opinion that the ordinances before referred to and the acts of the city engineer in pursuance thereof at the time the sidewalk in question was laid, amount to such a permanent fixing of the grade of the street as entitled the abutting lot owner to improve his premises in relation to such grade, as was done in this case.

It follows-that the court below erred in directing a verdict in behalf of the city, upon the ground that no liability was indicated by the facts in evidence, and the judgment of the court of common pleas is therefore reversed and the cause remanded for further proceedings.

Marvin and Winch, JJ., concur.