text:
    BENEFICIAL ASSOCIATIONS
    [Cuyahoga (8th) Circuit Court,
    March 4, 1907.]
    Winch, Henry and Marvin, JJ.
    W. H. Schwartz, Adm., et al. v. St. Elizabeth Roman and Greek Catholic Union et al.
    In Mutual Benefit Societies Delinquency as to Dues does not Work Forfeiture. ,
    Where a suspension for nonpayment of dues is provided for in the laws of an association, the fact of delinquency alone, does not, ipso facto, work a forfeiture; a suspension by formal proceedings is necessary.
    Error.

      W. II. Schwartz and Hart, Canfield c& Crohe, for plaintiff in error.

      M. B. Putney, for defendant in error.
   MARVIN, J.

The administrator of the estate of Maria Kohanczo, deceased, her husband and children are the plaintiffs, and the defendants are the St. Elizabeth Roman and Greek Catholic Union, and the several officers of said union. The union is an incorporated beneficial association, organized in August, 1903, with the following constitution and by-laws:

“Chapter I.
“Name, Seat and Aims of the Union.
“Paragraph 1. The name of the union which can not be changed while the unión is in existence is St. Elizabeth Roman and Greek Catholic Union.
“Paragraph 2. The seat of the union is Cleveland, Ohio. The seal of the Cleveland Union contains the following inscription: ‘St. Elizabeth Roman & Greek Catholic Union.’
“Paragraph 3. The aim of this union is the Roman and Greek Catholics who emigrate to America from Hungary or who were born in this country from Hungarian parents, who keep these rites or who direct the rites according to the rules and regulations of the Catholic faith, to promote their attachment to the native branch, and to aid after the decease of its members their widows and orphans with a sum of money as specified in these by-Laws.
“Chapter II.'
“Bights and Duties of Members.
“Paragraph 4. Any Roman or Greek Catholic Hungarian man or woman will be admitted as a member of this union who has reached his or her age of 16 years and is not older than 50 years old.
“Such persons who have been punished before or who are fugutives from justice, he will not be elected as a member of the union.
“If a member got into the union by false allegations or false data, and it is found out that, for instance: he is a fugitive from justice can not be elected and will be expelled from the union.
“Paragraph 5. Local people, or people living in this city, can report their intention of joining the union by a regular member. Only branches consisting of at least 25 members will be accepted as out of town members of the union.
“The trustees of the out of town branches are the heads of such branches.
“The union reserves its rights always to supervise such trustees and officers of the union, and these trustees are responsible for their branches.
“Should there be any complaint against a prospective member or a branch this has to be taken before the meeting and the meeting will decide about this complaint.
“Paragraph 6. (Second section.)
“If the prospective member or branch fully answers the prescriptions of Paragraph 4, they may be admitted into the union.
“Paragraph 7. Every member after receiving two votes shall be a member and has the right to vote immediately after being admitted, but can only be elected officer after a membership of six months.
“Paragraph 8. The initiation fee shall be:
“From 16 — 25 years $1.30
“From 25 — 35 years $1.40
“From 35 — 45 years $1.50
“From 45- — 50 years (not reached).
“Paragraph 9. From the money paid in advance to the secretary, from the initiation fees one dollar shall constitute the capital of the union; the rest shall cover the expenditures of the union.
“Paragraph 10. Every member has to pay into the treasury of the union thirty cents semi-annuaily; the money so collected shall be used for the expenditures of the union; i. e., for the official organ, hall rent, fitting up the office, etc. The money left after such expenditures shall be added to the capital of the union.
“Paragraph 11. After the decease of any member of the union the heirs shall receive as many dollars as the union has members.
“In the case of total disability; that is if a member lost one arm, one leg or both eyes, such member has to report the accident to the board of officers of the union. The board of officers shall thoroughly examine the case and if the total disability was proved, such member shall get as half death benefit as many fifty cents as the union has members. Both the death and accident benefit will be paid by the members in such a way that if a member of the union died or was found totally disabled by the board of officers, every member must pay the one dollar death-assessment, respectively the 50 cents accident assessment to the treasurer of the union within fourteen days.
“Paragraph 12. Should a member fail to pay the death-benefit dollar after the decease of a fellow member, then, in case of his death, his heirs could not claim any death-benefit from the union.
“Paragraph 13. Should a member of the union remove from the seat of the union and should he want further to remain a member, then he must report his removing to the president or secretary. Anyone failing to do-so will not be considered a member of the union any longer.
“Paragraph 14. Members living remote from the seat of the union are submitted to all duties prescribed by the laws of the union.
“Paragraph 15. If a member quits the union and wants to join it again, he can only be accepted as a new member.
“Paragraph 16. If any member of the union, for any cause whatever, insults the union or causes any damage to the same, then he shall be expelled from the union, and only in such ease can he be retaken, if he acknowledges his mistake and apologizes to the union and if the apology was accepted, he reimburses the union for the damage caused l?y him.
“Paragraph 17. Expelled members lose all their rights against the union and can not even appear at the meetings of the union.
‘ ‘ The members who quit or were expelled, can not claim any damage whatever or the re-payment of the moneys paid in by them.
“Chapter III.
“Election of Members and Officers.
“Paragraph 18. Such persons who want to join the union must be recommended by regular member and must prove the state of their health by a physician’s certificate, which they must present to the secretary.
“Paragraph 19. The union shall hold a regular meeting every month and the members will be notified of the time of such meeting by the official organ.
“Paragraph 20. The officers shall be elected for one year and it is their duty to act with the branch organization according to the best conscience in the interests of the union. Should any officer go into business then he must resign his office.
“Paragraph 21. Only such persons can be elected officers who can read and write Hungarian and who are artisans or tillers of the soil of the old country.”

On December 6, 1903, Maria Kohanczo and her husband, George Kohanczo, became members of the union. At the time they so became members they each paid to the union $1.30.

On May 7, 1904, the said Maria Kohanczo died, and this suit was brought to recover the amount provided by the laws of the union to be paid to the families of those dying while members of the association.

Defense was made on the ground that Maria Kohanczo at the time of her death was not a member of the association :

First. Because it is said that she made false representations as to her age when she joined.

Second. That she was not a member of a Greek or Roman Catholic Church in good standing at the time she joined, and that she falsely and fraudulently represented that she was such member of the church.

Thirdly. That she was in arrears for dues to the amount of 30 cents, payable on January 1, 1904.

As to the first of these grounds, it was abandoned at the trial, as no evidence was introduced tending to support it.

As to the second, evidence was introduced tending to show that the deceased at the time of her death was not accorded the rites, and that she had neglected her obligations as a member of the church of which she had been a member. This evidence, however, is confined to the time of her death, or so near to it that it can not be said to establish that she was not such church member, or to make any such representations she made in that regard false at the time she joined the union.

As to the third, it is claimed by the plaintiff in error that at the time the deceased became a member of the union, the $1.30 paid was made up of $1 initiation fee and of 30 cents for semiannual dues, paid in advance. The deceased at the time she became a member of the union was more than 45 years of age, and it will be noticed that the amount to be paid as an initiation fee for one above the age of 45 years is not fixed by the by-laws, nor is the date of payment of the semi-annual dues fixed by such by-laws, the provision as to it simply being that 30 cents shall be paid semi-annually by each member; but the secretary testifies that at the time the husband of the deceased made application for membership for himself and his wife, he was notified that the $1.30 was all an initiation fee, and that the semi-annual dues would be payable in January and July of each year. It is claimed, too, on the part of the defendant in error, that a custom had been established by which the semi-annual dues became payable on the 1st day of January and July of each year; but as the union was organized in August, 1903, and this deceased joined the union in December of the same year, of course no custom could have puwn up at that time for payment in January and July, because the union had not yet been in existence sufficiently long, and at the time of her death but one of the dates on which these semi-annual dues would become payable, as claimed by the secretary, had passed, so that it could hardly be said that any custom had been established, nor does it appear anywhere that the union had authorized the secretary to say that these dues should be come payable on the 1st day of January and July, or that they were to be payable in any particular months. However, as the secretary was the officer to who the application was made, and as he says he notified the husband that these dues would be payable on the dates specified, the defendant in error is perhaps warranted in the claim that as to this decedent, those were the fixed dates on which payment should have been made.

Among the provisions of the by-laws, it will be noticed that an official organ for the union was established and that the members of the union were required to accept notices published in such official organ. The only action taken by the union looking to the expulsion of the deceased from the association, consists of the following:

On April 30, 1904, a letter was sent to George Kohanczo, the husband, which reads as follows:

“St. Elizabeth’s Roman and Greek Catholic Union,
“Organized July 12, 1903.
‘ ‘ Cleveland, Ohio, April 30, ’04.
“Dear Fellow Member, George Kohanczo:
“You and your wife were reported at the meeting of the union that you- joined the union by falsehood. You are not forty-eight years old, but surpassed the 51 years too. Therefore, clear yourself and your wife with birth certificate within eight days. If you fail to do so, then you will be scratched (expelled) by resolution adopted at the meeting; and therefore, you can not claim anything from the union, you have lost all your right.
“Joseph Nameth, Seer el ary,
“77 Bismark.”

. It will be noticed that this letter' charges that both the husband and wife were reported at the meeting of the union as having joined the,society by falsehood, bnt the falsehood applies to the husband alone, no suggestion being made that any misrepresentation was made as to the age of the wife.

On May 1, 1904, at a meeting of the union, the minutes show that “Nine members were elected in the union, two were scratched, George Kohanczo and his wife, because he declared in the presencce of one controller that he already was older than the by-laws prescribed.

These minutes were in the Hungarian language and the translator explains that the word “scratched” as used, indicates that these parties were either suspended or expelled, but, as has already been stated there was no evidence tending to show, nor was it claimed on the trial, that this woman was liable to expulsion because of her age, nor is it claimed that because of this resolution she ceased to be a member of the union, but really that she ceased' to be because of nonpayment of the dues for January, 1904; that this rule requiring payment, was not regarded as so inviolable, that one ceased to be a member simply because of the failure to pay at the date, it manifested from the further minutes of the meeting, at the date already named,' the language referred to being the following:

“Further the secretary was ordered to warn the members of the union who were in arrears, through the official organ by notice. This was done. ’ ’

The very day on which this resolution was passed the society recognized that one be in arrears for dues and still be a member until some further action was taken.

On April 7, 1904, notice was published in the official organ reading as follows:

“Such members of the St. Elizabeth’s Union who still had not paid the 25 cents semi-annual dues, which were due in the month of January are warned that they fulfill such obligation by all means until the meeting to be held on the 10th of this month, because, otherwise, they can not claim any benefit at ah.”

As to this notice, it will be observed that the amount specified as payable is 25 cents instead of 30 cents and also that there is here a recognition that one may be in arrears for dues and still be a member. It comes then to this: That either Mrs. Kohanczo was a member of this union' at the time of her death, or that she ceased to be a member for nonpayment of dues, without any action of the union expelling her on that account. The law does not favor forfeitures, and we do not understand that without some action of the union, one who was a member in good standing could cease to be such member without having an opportunity to justify himself or herself, and certainly not without some action taken by the union looking to the severing of the relations between the union and the member. See Grand Lodge A. O. U. W. v. Brand, 29 Neb. 644 [46 N. W. 95], and the 3 American and English Ency., pp. 1086 and 1087, note 1 of which reads:

“Where a suspension for nonpayment of dues is provided for in the laws of the association and it is also provided that such suspension shall work a forfeiture of benefits, the fact of delinquency alone does not, ipso facto, work a forfeiture; a suspension by formal proceedings is necessary.”

A large number of authorities are cited in support of this proposition.

The charge of the court in this case is complained of and is subject to the criticism that the court seemed to assume that because the husband acted for the wife in the matter of applying for membership and negotiated the joining to the union, that whatever he did with reference to his own membership applied equally to what he did with reference to his wife’s membership. An example of this is found in these words of the charge:

“So they then claimed that testimony had been offered tending to prove that the husband of Maria Kohanczo was not at the, time he applied for membership a Roman or Greek Catholic ’in good standing; that is, that he was not a practical member of the Greek and Roman Catholic Church. The plaintiff insists that she was. They say that her husband was not in good stanc’^ng at that time in either church, and testimony has been offers tending to prove that he had not performed his religious d- aties anc§ that he was not eligible and would not have been rer reived had the truth been lmown. In other words, that he fa’iSe]y reT)rP_ sented; that they relied on the representations; he T#as admitted to the society; they were deceived and injured thereby, > >

It will be noticed by this language that .the fact that the husband was not a member of the church or made false representation when becoming a member, might in some way affect the wife, which of course, could not be true, unless the false representations made were false representations as to the wife. What was said would be applicable if it were a claim based upon the husband’s membership, but this suit was based upon the membership of the wife, and if there is an objection to this, it is because it might mislead the jury to the extent that they think that the wife’s membership depended upon the membership of her husband, which would not be true. The judgment in this case is reversed, because the verdict is against the weight of the evidence; a motion for a new trial should have been sustained for that reason.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    JURY — TRIAL
    [Summit (8th) Circuit Court,
    October 8, 1903.]
    Hale, Marvin and Winch, JJ.

      Northern Ohio Traction Co. v. James J. Mitchell.
    New Trial Granted for Attempt to Influence Juryman by Intimidating Letter.
    The receipt by a juryman of an anonymous letter in which it is sought to intimidate him and influence his verdict, requires that a new trial should he granted, even though it does not appear that the juryman was influenced by the letter or that it was written by the successful party, his council, friend or anyone connected with the case.
    Error.

      Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.

      Billman & Billman and Wilcox & Grant, for defendant in error.

      Affirmed no opinion, Northern Ohio Traction Co. v. Mitchell, 74 Ohio St. 485.

   WINCH, J.

The Northern Ohio Traction Go. was the defendant below and files its petition in error to reverse a judgment for $4,000 recovered against it by Mitchell for injuries sustained by him while traveling as a passenger on a car of the traction company, and occasioned by another car of said company running into the car he was on.

At the hearing in thiá court it was conceded by counsel for the traction company that the latter was liable for the damages sustained by Mitchell, and that the case was tried in the court below simply to determine the amount of said liability. It was further conceded before us that the judgment for $4,000 is not excessive. The only error complained of is the overruling of a motion for a new trial based upon misconduct during the trial on the part of counsel for defendant in error and the jury, and irregularity in certain orders of the court and abuse of discretion on the part of the court.

It appears that during the trial one of the jurymen received an anonymous letter reading as follows:

“Akron, Ohio, March 19,1903.
“Mr. Thompson (one of the jurymen) I was greatly surprised to hear you last Wednesday tell the lawyers that you had never done any work for the N. O. T. Co. This is base deception and should be exposed. I propose to tell Judge Kohler and Lawyer Billings all about it.
“From one who heard you make the statement and who has the proof that you have done work for the N. O. T. Co.”

This letter the jurymen showed to the trial judge while the case was still on hearing, and continued in the jury, the trial judge making no order or public announcement with reference to the matter. After the verdict was rendered the jurymen exhibited the letter to counsel for the traction company, and no one but the trial judge had seen the letter prior to that time. Counsel for defendant in error was charged with writing the letter; and upon the hearing of the motion for a new trial the matter was exhaustively gone into, many affidavits were submitted, numerous exhibits were before the trial judge and oral testimony was produced at .the hearing. The trial judge found that Mitchell’s counsel did not write the letter. With this finding we will not interfere, for the reason given by this court and other courts when asked to review the finding of certain facts by juries, especially such facts as juries must find from the testimony of witnesses who are before them, and whose manner and conduct while on the stand affect their credibility. But our conclusions in this ease make it immaterial who wrote the anonymous letter received by the juryman, and it was also immaterial whether it was shown to have influenced the verdict in point of fact; for the letter speaks for itself and shows conclusively that it was intended to influence the juryman who received it arid the verdict. It was well said by the trial judge that courts must guard the purity of trial by jury with the utmost jealousy. Any attempt to tamper with the jury must be immediately rebuked. This is a duty which the courts owe the public, which is paramount to their duty to litigants. The trial judge in this case knowing the juryman who received the letter, having watched the conduct of the case from beginning to end, believing the verdict was just and warranted by the testimony, fully convinced that the letter had in no wise affected the verdict, considering the expense, delay and annoyance inevitably resulting from the granting of a new trial, permitted the interest of litigants to have decided weight with him. In this respect we feel that he erred. Writing and mailing the anonymous letter received by the juryman in this case was so flagrant an attempt to intimidate him and influence his verdict that public policy requires that the verdict should be set aside, although it does not appear that the letter did in fact influence the verdict, and irrespective of whether it was written by a party to the case, his counsel, friend or an intermeddling or malicious stranger. Our views on this matter are so clearly and forcefully expressed by Judge Steele of the Supreme Court of Vermont in his decision of the case of McDaniels v. McDaniels, 40 Vt. 363 [94 Am. Dec. 408], that I quote his language:

“The motion for a new trial was properly granted. It was not incumbent upon the moving party to show that the verdict was in point of fact influenced by the unlawful conversations. It is quite enough that in a doubtful case conversations were had with the jurors during the progress of trial for the purpose of influencing and directly calculated to influence .them to render just the verdict they wanted. There is no practical method to so analyze the mental operations of the jurors so as to determine whether in point of fact the verdict would have been the same if the trial had been conducted as both parties had a right to expect according to law and upon the evidence in court. If the court, in the instructions to the-jury erred with respect to the same proposition of law, it is well understood that the right of the defeated party on exceptions to a new trial does not depend on his showing that the error actually influenced the verdict against him, and such may reasonably have been the result. The right to a direct charge from the court is no more sacred or important than the right which in this case was violated. The analogy might be carried further. It is not essential to the right to a new trial on exceptions that the error of the court should have been intentional or by the fault of the prevailing party, so in this case the defendant was not any the less likely to be injured because the jurors did not appreciate the impropriety of listening to conversation intended to influence them, or because the plaintiff was unaware of the officious efforts of his friends in his behalf. The friends of the plaintiff who thus approached the jury were guilty of a flagrant violation of the law, and the jurors who suffered themselves to be so approached, though they may have meant no wrong, were guilty not only of a violation of the law, but also of the oath they had taken to say nothing of the business and matters in their charge but to their fellow jurors, and to suffer no one to speak to them about the same except in court. Both were liable to severe and summary punishment. The plaintiff, as he was unaware of these transactions, is not liable to punishment, but it does not follow from this that he can hold_ a verdict which is the result of a trial corrupted, though without his fault, by a shameful disregard of the familiar rules which are necessary to a decent administration of the law. The court set the verdict aside, not as a punishment to any one, but in justice to themselves as well as to the defendant, that the trial might be conducted fairly, so that the verdict when finally rendered may be entitled to the respect of both parties and the confidence of the court as the result of a trial substantially according to law and upon the evidence in court. It is true that a verdict should not be set aside for every trifling error of law by the court or for every trifling misconduct of a juror which occurs without the fault of the prevailing party, but it should be whenever the error or misconduct renders it reasonably doubtful whether the verdict has been legitimately procured. ’ ’

For error in overruling the motion for a new trial the judgment is reversed.

Hale and Marvin, JJ., concur.


author: MARVIN, J.

text:
    ACTIONS — DAMAGES
    [Cuyahoga (8th) Circuit Court,
    March 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Anna M. Hayes, Admrx. v. Cleveland Elec. Ry.
    Action for Damages for Personal Injuries does not Abate by Death of Plaintiff.
    An action for damages for personal injuries caused by wrongful act, does not abate by the death of the plaintiff, even though wrongful act complained of was the direct cause of death, but may be revived in the name of the administrator.
    Error.

      H. E. Parsons, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   MARVIN, J.

Edward Hayes brought a suit against the defendant for personal injuries which he claimed to have sustained through the negligence of the defendant.

While that suit was pending he died and the action was revived in the name of the administratrix of his estate. The railway company answered to the original petition denying liability.

When the case came to trial, counsel for the plaintiff admitted in open court that the original plaintiff died by reason of the injuries for which the suit was originally brought. The plaintiff then introduced a witness, and upon the motion of the defendant, all evidence on the part of the plaintiff was excluded, and a judgment was rendered for the defendant. The theory upon which the court acted was, that since provision is made by Sec. 6134 R. S. (Sec. 10770 G. C.), for the prosecution of an action for wrongful death,'there could be no revivor of a suit in the name of the administrator, where the death resulted •from the wrongful act for which the original suit was brought.

Error is prosecuted here to reverse this action of the court, and we are led to a consideration of certain sections of the statutes in order to determine whether or not error occurred.

Section 5144 R. S. (See. 11397 G. C.) reads:

“Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance; or against a justice of the peace for misconduct in office, which shall abate by the death of either party.”

If this section stood alone, and we find no section and there is none, providing that actions for personal injuries should abate by the death of the party injured, there could be no question, it would seem that this action did not abate, and that it could be revived in the name of the administrator, but it is urged that since See. 6134 (10770), provides for the bringing of an action for wrongful death by an administrator for the benefit of the widow and next of kin, and that if the action brought by the injured party in his life time for injuries which finally resulted in his death is to survive such death, then we should have two actions, one for the benefit of the estate of the deceased, and another for the benefit of his widow and next of kin, both maintainable. We do not think this follows.

Damages can be recovered but once on the same cause of action, and the cause of action in either of these cases supposed, would be the wrongful act of the defendant at the time the injury occurred.

Section 4975 R. S. (Sec. 11235 G-. C.), however, provides that:

“In addition to the causes of action which survive at common law, causes of action for mesne profits or injuries to the person or property or for deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.”

It can not be denied that there seems to be some difficulty in attempting to apply the provisions of these several sections of the statute; for, if the cause of action for the injury survives the death of the injured party, then after the death of the injured party an action could be brought for that injury by the administrator of his estate, and yet, by Sec. 6134 (10770), an action for the death may be brought if the death result from the injury, for the benefit of the widow and next of kin.

We think, however, the most reasonable construction to be placed upon See. 4975 (11235), is, that though the cause of action therein mentioned survives notwithstanding the death of the party injured, when the death results from the injury for which the party injured might himself maintain an action, the parties for whose benefit it may be brought after the death are fixed by Sec. 6134 (10770). It is said, however, that such construction should as well be given to Sec. 5144 (11397), and that, therefore, where death results from the injury, even though an action has already been begun by the injured party, such action must abate upon the death of the injured party. This is not without force, yet it seems to us that the reason for construing Sec. 5144 (11397) literally is so great that it is not overcome by the reasoning applied to Sec. 4975 (11235).

In the case of Ohio & P. Coal Co. v. Smith, 53 Ohio St. 313 [41 N. E. 254], the language of the syllabus is:

“A pending action to recover damages for injuries caused by the negligence of the defendant, does not abate by the death of the plaintiff. ’ ’

There is no suggestion in this case that the cause of the plaintiff’s death will in any wise affect the proposition stated in the syllabus. There is nothing in the report which indicates whether the death in that case was the result of the injury or not.

In Helman v. Pittsburgh, C., C. & St. L. Ry., 58 Ohio St. 400 [50 N. E. 986; 41 L. R. A. 860], it is said, speaking of Sec. 6134 (10770) (at page 408) :

“While at common law the party injured by the negligence of another had a right of action against such party for damages, such right of action does not survive, but abates at his death. The effect of this statute is to pick up this abated right of action of the deceased, and permit it to be prosecuted by the administrator, for the benefit of the next of kin. It is not a new right of action that is prosecuted by the administrator, but it is the same right of action which the deceased had until his death. Upon the death of the injured party, the right of action by the force of the statute passes by succession to the administrator for the benefit of the next of kin. ’ ’

.This supports what has already been said in this opinion, that there is but one cause of action against the party causing tbe injury, whether that injury results in death or not, and it would seem, therefore, that if- no action were pending at the time of the death of the injured party, none could be commenced by his administrator for the benefit of his estate. It is further said in this same ease:

“The right of action to recover damages in respect to such act rests in the injured party alone, so long as he lives, and should be he compensated in his lifetime no action can be maintained by his administrator or next of kin for damages, even though it should be clear the next of kin sustained a great pecuniary loss by reason qf the wrongful act.”

This same view is taken in the case of Solar Refining Co. v. Elliott, 8 Circ. Dec. 225 (15 R. 581).

It seems a curious thing that a settlement made by the injured party in his lifetime of a suit brought by him to recover damages for the injury should cut off the right to maintain an action under See. 6134 (10770), but yet, if such action having been brought, the injured party fails to settle and his action is pending at the time of his death, the administrator of his estate might not continue that action.

It is said in Helman v. Pittsburgh, C., C. &t. L. Ry., supra:

“In such cases the pecuniary loss sustained by the next of kin is deemed compensated by the increase of the estate of the deceased. ’ ’

We have read carefully the very able opinion of Judge Tilden in the case of Gallagher v. River Furnace & Dock Co., 15 Dec. 789 (2 N. S. 661), but fail to reach the conclusion reached in that case.

We hold that the action brought by the decedent in his lifetime did not abate by his death,, but was properly revived in the name of the administrator, and he was entitled to have the same proceed to trial.

There was, therefore, error on the part of the court in excluding evidence on the part of the plaintiff, and the judgment is reversed and the cause remanded for such further proceedings as are authorized by law.

Winch and Henry, JJ., concur.


text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    November 6, 1907.]
    Winch, Henry and Marvin JJ.
    Rosa Bondi v. Antonio Gambino.
    One Contracting for Lease of Premises May not Rescind because Use for Purpose Contemplated is Illegal.
    When the owner of premises agrees to equip them in a certain manner and rent them to plaintiff, the discovery that it will be illegal to use them for the purpose contemplated because of the manner of equipment, furnishes no ground for rescission of contract by plaintiff, when he has had full and exclusive control of the mode and method of making the equipment.
    Error.

      Harry F. Payer, for plaintiff in error.

      Myler & Turney, for defendant in error.
   WINCH, J.

Bondi owned property on Orange street in tbe city of Cleveland and agreed to lease the cellar thereof to Gambino for three years at a stipulated rental. Bondi also contracted to build in. said cellar “an oven for commercial use,” and have the same ready for use as a bakery by January 1, 1904. Gambino deposited $100 with Bondi to apply on rent and Bondi went ahead, built the oven and expended $400 in fixing up the cellar. About four days before the first day of January, both parties learned that the laws of the state Sec. 4364-71 R. S. et seq. (Sec. 1012 G. C. et seq.) regulate the building of bakeshops, and that the cellar did not comply with all the requirements of the statute, chiefly because it was only seven feet in height, instead of eight feet.. Both parties appear to have been wholly ignorant of this law until the time mentioned and on the day Gambino says that Bondi refused to make the cellar any deeper, and Bondi says that Gambino refused to take possession of the place, and rented another shop across the street. The contract which was in Italian, and crudely drawn reads: “In case Mr. Gambino fails he will lose $100. In ease Mr. Bondi fails he will pay $200. ’ ’ So Gambino claiming Bondi had failed to comply with the contract, brought suit against Bondi for the $200 penalty, and the court limiting the recovery to $100 and interest, submitted the case to a jury, which brought in a verdict for the plaintiff.

The defendant below has brought the case here on error complaining of certain rulings on evidence, and the charge of the trial judge.

We think this charge a model as to clearness and brevity simplifying the issues to the jury, so that they could understand the dispute between the parties. The court advised the jury that the regulations of law regarding bakeshops should be read into the contract, it containing no specifications as to how the cellar should be fitted up. That the evidence showed clearly that on the 26th day of December, the cellar or basement was not completely equipped in accordance with the statute of the state, and that if on that day, the defendant refused to complete the cellar according to law, they should find for the plaintiff, but if they found that on that day the plaintiff had told the defendant that he had rented another bakery across the street and would not take the defendant’s cellar in any event, as was claimed by the defendant then they should find for him.

This was good law, so far as it went, but we think there was another element in the case, which the judge failed to submit to the jury, principally because he had erroneously ruled out evidence upon it.

The construction put upon the contract by the court, that it provided for a bakeshop to be built according to the statutory requirements, was correct, unless the parties themselves had put a different construction upon the contract.

The defendant, in her third amended answer, alleged: “that from the very inception of performance thereunder and through out performance by defendant, the plaintiff assumed and exercised full and exclusive control of the mode and method of doing said work, as well as the character of said work. ’ ’ Evidence was offered by the defendant, tending to establish this allegation, but it was all either ruled out or withdrawn from the consideration of the jury. We think this was a mistake. If Gambino directed the work, or by his conduct induced the defendant to believe that the cellar was being equipped just as he wanted it, so that the defendant expended his money upon a practical construction of the terms of this contract, it would amount to the same as if the contract in express words has said: “said cellar shall be seven feet in height.”

With such a clause in the contract, Gambino could not re-over any money paid to Bondi on it, notwithstanding the place could not be used as a bakeshop, no more than he could from the mason, if he had hired one himself to do the work. There was nothing unlawful about building “an oven for commercial use” in that cellar. It might afterwards be unlawful to run a bakeshop there, but that would go to the- executory part of the contract, with which this case has nothing to do. See Hooker v. DePalos, 28 Ohio St. 251; Patrick v. Littell, 36 Ohio St. 79 [38 Am. Rep. 552].

Taking this view of the ease, the judgment must be reversed for error in the charge and in excluding evidence offered by the defendant.

Henry and Marvin, JJ., concur.


author: HENRY, J.

text:
    MASTER AND SERVANT — WITNESSES
    [Cuyahoga (8th) Circuit Court,
    October 27, 1905.]
    Marvin, Winch and Henry, JJ.
    Charles H. Prescott et al. v. Albertina Albrecht, Admx.
    1. Cross-Examination of Witness Hostile to Party Calling Discretionary.
    It is within the sound discretion of the trial court to allow, or refuse to permit the cross-examination of a witness upon the ground that he is hostile to the party calling him.
    2. Assumption of Risk Applies when Employe has Knowledge Express or Implied.
    The doctrine of assumed risk applies when an employe either has knowledge of his employer’s alleged negligence, or has equal means .of knowing of the alleged dangerous condition, and it is error to charge that the doctrine does not apply unless he had both knowledge and equal means of knowing.
    3. Employe Assumes Risks of Which He has Knowledge, Express or Implied.
    An employe assumes the risks of which he knows or with which he is chargeable with knowledge, irrespective of whether they are ordinarily and usually incident to the employment.
    4. Want of Knowledge of Employe not Presumed.
    The mere fact that a certain condition is new to that locality raises no presumption that an employe is ignorant of its dangers.
    Error.
   HENRY, J.

This is a proceeding in error whereby it is sought to reverse a judgment for $5,000 recovered March 1, 1905, by the defendant in error against the plaintiffs in error, partners as the Saginaw Bay Company, in an action for death by wrongful act.

The decedent, Albert Albrecht, was killed July 16, 1902, while in the employ of the Saginaw Bay Co., in whose service he had been engaged for many years, at their lumber yard at Cleveland. This yard includes a certain dock or docks, on the Cuyahoga river, alongside of which the schooner Oneonta lay discharging her cargo of lumber on said date. One of her lines was made fast by her crew to a lumber pile in said yard and slanted upwards from the edge of the dock to a point some distance away, and about 9 or 10 feet above the floor of the dock, being a foot or two below the top of the lumber pile.

The defendant’s duties were to assort the boards that were laid by the stevedores on the dock, in order that the workmen in the yard might put them into proper piles. These duties brought him from time to time under the schooner’s line and near the lumber pile to which it was fastened. It is claimed, however, that such was the urgency of his work while the schooner was being unloaded, and so constantly was his gaze directed downwards upon the lumber which he was measuring and marking, that he can not be presumed to have noticed the schooner’s line overhead, or the manner in which it was fastened.

While the decedent was thus occupied, a vessel moving rapidly along the river, by its wash, caused the Oneonta to strain at her moorings so that the top of the lumber pile was pulled down on Albrecht’s head and killed him, and it is claimed that his employers are liable therefor because they permitted the schooner to be thus moored.

The record which we are called upon to review exhibits all evidence by means of a bill of exceptions. The first error alleged is that the court below erroneously ruled that one Fred Glauser, a witness for the plaintiff below, was hostile to the party calling him, so that the latter was held entitled to cross-examine him; and that, in the cross-examination which ensued, the substance of the coroner’s previous examination of the same witness was gotten before the jury, and permited by them to be considered as independent evidence of facts thereby disclosed, notwithstanding that some of it was originally opinion and hear- . say, and was further incompetent because not reiterated by the witness under oath before the jury.

From our examination of the bill of exceptions we are not prepared to say that the trial judge, who had opportunity to observe the demeanor of the witness on the stand, was guilty of any abuse of discretion in permitting him to be cross-examined by the party calling him, notwithstanding that the record discloses but the meagerest grounds for ruling that he manifested hostility to the plaintiff below. Nor do we find anything prejudicial to the plaintiff in error in the disclosure to the jury of those portions of the coroner’s record concerning which the witness was interrogated. True, they were admissible only as affecting the credibility of the witness and not as independent evidence of the facts so disclosed, and the court should so have instructed the jury as asked in the plaintiff’s fourth request (Elliott v. State, 36 Ohio St. 318, 320, 324). But the opinions and hearsay contained in the coroner’s examination, as well as the matters therein which, on the trial, the witness qualified, or refused to confirm, all related to uneontested or unimportant circumstances which, we think, could not possibly harm the defendants below before the jury.

The second assignment of error is upon the granting of the plaintiff’s first request to charge as follows:

‘ ‘ If you find from the evidence that at or just prior to the accident which caused the death of the plaintiff’s decedent, a boat, steamer or vessel, passed through the river, going towards the lake, and opposite the Oneonta, and that the passing of said boat created a swash, or other disturbance in the river, which caused the Oneonta to swerve outward from the dock and thus pull down the lumber pile to which the one part of the Oneonta had been made fast by a rope, and that Albert Albrecht, deceased, had no notice and did not know that such vessel was then passing through the river outside and beyond the Oneonta, and that the passing of such vessel would create a swash or disturbance in the river that would cause the Oneonta to swerve outward from the dock and pull down the lumber pile near which he was working, then I say to you that he did not assume the risk which was created by the passing of said vessel; and you must find from the testimony that the said Albert Albrecht just prior to Ms injury had knowledge and equal means of knowing with the defendants that owing to the passing of a vessel opposite the Oneonta, as said Oneonta was then tied to said lumber pile, an unsafe condition would be created, and that said unsafe condition would endanger his life or limb, before he can be charged to have assumed the risk of working as he was working at the time he was injured, and in the place he was injured.

It may well be doubted whether the question of Albrecht’s assumption of the risk of injury, from the wrongful conduct complained of, should be made to turn merely on his notice or want of notice of the fact that a vessel was passing along the river at the time of or just prior to the accident. That was an event which was likely to occur at any time, and he may have had notice of the likelihood of its occurring at any time without having notice that it then was in fact occurring. The real fact, on which this issue of assumption of risk should have been made to turn, is Albrecht’s notice or want of notice of all the circumstances which together constituted the continuing danger there menacing him. But, in any event, this request is technically erroneous because it exonerates Albrecht from the assumption of risk of defendant’s alleged negligence unless he had both “knowledge and equal means of knowing with the defendants” that 'such risk existed; whereas the law is that either actual knowledge or equal means of knowing, suffices to show such assumption in the case of an experienced employee. We hold that it was error to grant this request. Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. 857]; Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. 585].

The second request of plaintiff below, as given, is also complained of here. It reads as follows:

“Albert Albrecht, the plaintiff’s decedent, at and just prior to the time he was injured had a right to assume and rely upon the assumption that the defendants would discharge their duty towards him fully, as to keeping the place where he was working in a safe condition and free from danger, and he was only chargeable with such risks as were ordinarily and usually incident to the business in which he was employed.”

This proposition is perhaps correct so far as it goes, but it lacks this essential qualification, viz: that risks, of which the employee has, or is chargeable with, notice, are also assumed by him, irrespective of their being ordinarily and usually incident to the business Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. 725]. And if particular risk in controversy in this case was assumed by Albrecht, it was not because it was usual, but because it was obvious. We think this request was misleading and that it should have been refused.

Error is predicated also of the allowance of plaintiff’s third request, which reads:

“Unless you find from the testimony that the conditions existing at and before Albert Albrecht was injured and killed were so obviously dangerous that with the use of ordinary care and skill, danger was so imminent that none but a careless and heedless man would incur it, then the defendant would be liable, if such dangerous conditions were created by them or permitted by them to exist at and before the time that Albrecht was injured and killed.”

This request is far from clear, but apparently it is an attempt to apply the doctrine of Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 [55 N. E. 998], to the facts of this case, which do not admit of such application. In that case, Sehelies was injured while attempting to obey the peremptory order of his foreman, and without time or opportunity to reflect upon or realize the danger of such obedience. The doctrine does not apply to dangers encountered by an employe in the discretionary performance of duties, enjoined upon him by a superior, who is not personally present, directing the means and manner of such performance. Northern Ohio Ry. v. Rigby, 69 Ohio St. 184 [68 N. E. 1046]. We hold that the charge thus requested was misleading and erroneous, and should have been refused.

A further claim of error relates to the granting of the fourth request of plaintiff below, viz:

“The plaintiff’s decedent, Albert Albrecht, assumed only the ordinary and obvious or known risks incident to the service in which he was engaged. He can not be said to have taken all the risks of the service. Such as are usually incident thereto and such as he ought to have known were incident thereto, or such as came to his knowledge and of which he made no complaint, and to which he did not object may fairly be said to have been assumed by him.”

The law is that, as already stated, an employee of experience assumes the ordinary and obvious and known risks, including not only those which come to his knowledge but those of which he has equal means of knowledge with his employer. The granting of this request was also error.

The giving of the seventh request of plaintiff below is also alleged as error. It reads:

“If you find from the evidence that before the time the plaintiff’s decedent was injured by the falling of said lumber pile, boats discharging lumber had not been tied to the lumber piles on the dock, and you further find that the said Albert Albrecht was not aware that a vessel was passing at the time or just before he was injured, and did not know that the passing of said vessel would cause the Oneonta to leave the dock and pull down the lumber pile upon him, then I say to you that the danger of the pile of lumber falling was not assumed risk or hazard that can be charged against the said Albert Albrecht and I say to you further, if you find from the evidence that vessels were not before the day that Albrecht was injured, tied to the lumber piles of the defendant or' fastened to them, and that tying or fastening a vessel or boat to a lumber pile created a new danger, such danger was not ordinarily incident to the business, and the fact that it has never before occurred, if you find that to be the fact, creates a presumption that the said Albert Albrecht had no knowledge and was not aware that said lumber pile would fall as it did upon the occasion that he was injured. ’ ’

What has been said as to the first request of plaintiff below, applies also to the first branch of this request. As to the second branch, we think no presumption of Albrecht’s ignorance of the effect of tying a vessel to a lumber pile arises from the fact that he had never seen a vessel so tied before.

His long experience there must have taught him that vessels must be securely tied, or else the swash of other passing craft will cause them to strain af their moorings, and perhaps break away. We hold that the charge thus requested was erroneous.

It is claimed further that the court erred in charging the jury, in substance (pages 70 and 71 of the bill), that if Albrecht, being aware of the dangerous conditions surrounding him, had reason to believe that defendants or their foreman would keep a lookout and give him timely warning of what was going on, at the time, in the river and upon the docks, he might recover notwithstanding his knowledge. There was no evidence to submit to the jury upon this theory of plaintiff’s right to recover, and it was a misleading test of the existence of such right. The charge of the court in this particular was erroneous.

And this brings us to the final assignment of errors, viz: the court’s refusal to grant the motion of the defendants below, made at the close of plaintiff’s evidence for the direction of a verdict in their favor. Defendants below offered no evidence whatever. The whole case presented by the evidence in this record turns upon the question whether Albrecht, an experienced and intelligent employe familiar with those docks, had equal means with his employers of knowing the source of danger to which he fell victim.

There is evidence that one of the ■ defendants below was present on the dock, so that he must have seen the manner in which the vessel was tied. If the foreman, who was also there, was superior in authority to Albrecht, his knowledge of the situation, afforded them, through him, additional notice.

Had Albrecht equal means of knowing? There is no averment in the petition that he was without such constructive notice. But waiving that, we think he must have known as much about the situation as either his employers or their foreman. True, he was intent upon his work, but the schooner was tied to the lumber pile for some hours. He could not have passed and repassed beneath the line during that period of time without observing it. He surely knew, quite as well as his employers, how much strain a lumber pile would stand. He must have known, too, that vessels strain at their moorings. Doubtless neither he nor his employers expected that he would be killed. But they had substantially equal means of knowing that he might be. We think the motion to direct a verdict should have been granted.

For these reasons, the judgment below is reversed and the cause remanded for new trial.

Marvin and Winch, JJ., concur.


text:
    ASSAULTS — EVIDENCE
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    Thomas Jones v. J. S. Ankey.
    Infirmities Presumed to Result from Only Cause in Evidence.
    When it is shown that plaintiff was assaulted and that he after-wards suffered infirmities which might have resulted either from external violence or from disease, there being no evidence of plaintiff’s having been diseased, it will be presumed that his injuries resulted from the assault proven.
    Error.

      Meyer & Mooney, for plaintiff in error.

      Vessey, Davis & Manak, for defendant in error.
   HENRY, J.

The parties here stood in the relation opposite to that in ■which they stood in the common pleas; and this proceeding was begun to reverse a judgment for $1,100 recovered at the April, 1905, term of said court, for injuries sustained by» the defendant in error, in consequence of being kicked by the plaintiff in error, in an altercation between them, March 4, 1902.

The medical testimony discloses that the defendant in error’s bodily infirmities may have been caused either by external violence or by disease. The defendant in error testified to the kick and to the subsequent bodily infirmities, but was not permitted to testify that the latter actually resulted from the former, and there was no direct testimony to that effect. On this state of the evidence it is claimed, that the rule of the Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. 26], applies, viz:

“In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a more natural inference than any other.”

This rule might well be applied here if the evidence had shown that the defendant in error had suffered not only the external violence complained of, bnt also from disease such, that the bodily infirmities in question might equally well have resulted from either alone. Then, indeed, it would have been necessary for the defendant below to show affirmatively that the former was the true cause rather than the latter. But in the absence of evidence that he had such disease, it is a legitimate and a more natural inference, that the external violence, of which there was proof, and which was proved to be an adequate cause, did, in fact, result in the bodily infirmities that ensued than that they were caused by disease, whereof there was no evidence.

It was therefore perfectly competent for the plaintiff after proving that he was kicked, and that the injury thus inflicted was adequate to produce the infirmities complained of, to give evidence further that, after the injury, he suffered from such infirmities. And it appearing that he had not so suffered before, and no other adequate cause thereof being shown, the jury were justified in concluding, as they manifestly did conclude, that the infirmities were caused by the kick. We find no error, either in the admission of evidence, or in the sufficiency thereof.

A further‘assignment of error is made upon the court’s charge to the jury, permitting them to award punitive damages if they found that defendant in error was maliciously injured by the plaintiff in error. No exceptions were taken to the charge at the time and it is not now claimed that the rule was inaccurately stated by the trial judge. The claim is that as the evidence disclosed no malice, the court erred in interjecting the subject of punitive damages into the case.

From an examination of the evidence, in which there is much conflict of testimony, we are not satisfied that the defendant below used only such violence as was reasonably necessary to repel an assault. It is not enough that he did not pick the quarrel, if such was the fact, and we think the court’s charge was not erroneous.

Judgment affirmed.

Marvin and Winch, JJ., concur.


text:
    MASTER AND SERVANT — PLEADING
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    MArvin, Winch and Henry, JJ.

      Lake Erie Iron Co. v. John Karpinski, Admr.
    Plaintiff Must Plead Ignorance of Defects or Dangerous Conditions.
    In an action for death by wrongful act, caused by a defect in the appliances, places or ways which the employer has furnished for his employe, it is necessary to aver want of knowledge of such defect or danger on the part of the employe, and an averment that the employe did not know or appreciate the danger of the particular casualty by which he was in fact overtaken is not sufficient.
    Error.

      Kline, Tolies & Goff, for plaintiff in error.

      J. M. Pindras and Herrick & Hopkins, for defendant in error.

      Affirmed no opinion, Karpinski v. Lake Erie Iron Co., 76 Ohio St. 621.

   HENRY, J.

This was an action for death by wrongful aet, in which plaintiff below recovered a verdict and judgment.

We think it should be reversed because the petition does not state a cause of action.

The decedent, a boy, had been in the employ of the plaintiff in error but a few days, and, while on night turn at his employer’s factory, fell into a cistern between two buildings and was drowned.

Under the rule of Chicago and Ohio Coal & Car Co. v. Norman, 49 Ohio St. 599 [32 N. E. 857],, “the plaintiff must aver want of knowledge on his part of the defects causing the injury,” instead of using the evasive language of this petition, to wit, “not knowing or understanding nor appreciating the danger of falling into said tank.” The two forms of expression are not identical.

It is the settled law of this state that where, in the appliances, places or ways, which an employer furnishes to his employe for the latter’s work, a defect exists, consisting either of an isolated condition or of a combination of related circumstances, which the employer negligently creates or continues, no recovery can, in general, be had for the injury, or death, of such employe, in consequence thereof, without averment and proof that he was without knowledge of such defect and that, by reason of youth, inexperience, or otherwise, he had not the means of knowing thereof, or that, being aware of it, he complained to his employer and continued in the service on the faith of the latter V promise, express or implied, to remedy such defect. It is not an equivalent to aver that he did not know or appreciate the danger of the particular casualty by which he was in fact overtaken.

For error in admitting any evidence in support of this petition the judgment is reversed 'and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    LANDLORD AND TENANT — NUISANCE
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    Benjamin Freyer et al v. Thomas White.
    1. Tenant Liable for Nuisance of Continued Existence.
    When there has been a nuisance of continued existence both the lessor and lessee of the premises may be liable therefor, and in an action against the lessee for damages it is no defense that the premises were received from the lessor in the same condition.
    2. Two Years Tenant Charged With Notice of Defective Coal Hole.
    When a tenant has been in possession of premises for two years, he will be charged with constructive notice of a defect in the covering of a coal hole in the sidewalk which has existed during all of that time.

      Frank Wade and M. B. Putney, for plaintiff in error.

      Willis Vickery, for defendant in error.
   HENRY, J.

This a personal injury damage ease, wherein the defendant in error recovered a verdict for $949.37 and judgment thereon after a remittitur of $300. The facts are briefly these: the defendant in error while walking along a public sidewalk in this city, February 11, 1903, stepped on the cover of a certain coal hole therein. The cover tilted and he fell astride of it. The premises, in front of which this accident happened, were, and for more than two years before had been, in the exclusive possession of the plaintiffs in error as tenants under a written lease. On the trial it appeared that the pin, by which the coal-holq cover should have been fastened underneath, was not in place; but plaintiffs in error sought to shift responsibility therefor upon their landlord, by showing that no use had ever been made of that particular coal hole by or for them, during their tenancy, that they had no knowledge of its condition, and that it had been in the same condition before and ever since their tenancy began.

The court refused to permit this showing to be made, and charged the jury substantially that notice to the plaintiffs in error of this defect was under these circumstances presumed. These rulings are here assigned as error.

Whatever liability rests on the abutting owner, or occupier, in such a case as this, arises not from his creation or maintenance of a nuisance. Morris v. Woodburn, 57 Ohio St. 330, 334 [48 N. E. 1097]; Wilhelm v. Defiance, 58 Ohio St. 56, 64 [50 N. E. 18; 40 L. R. A. 294; 65 Am. St. 745].

“And where there has been a nuisance of continued existence, lessor and lessees may both be liable for damages resulting therefrom. The lessee in actual possession of the premises, if he continues the nuisance after notice of its existence, and notice to abate it; the lessor, if he at first created it and demises the premises with the nuisance upon them, and at the time of the damage done is receiving a benefit therefrom by way of rent or otherwise.” Shindelbeck v. Moon, 32 Ohio St. 264, 268 [30 Am. Rep. 584].

It thus appears that the liability or nonliability of the landlord, who is not a party to this case, has no bearing on the question of the tenant’s liability herein; and it was therefore not error to refuse to permit the latter to show that the defect existed when the landlord demised the premises. Nor was there any error in refusing to permit the plaintiffs in error to show that they were without actual notice of the defect, if the admitted circumstances were such as to effect them with construct-, ive notice.

In Timlin v. Standard Oil Co., 126 N. Y. 514 [27 N. E. 786; 22 Am. St. 845], it was held that:

“A lessee of premises does not become liable for a nuisance existing thereon merely by accepting the lease; but to render him liable it must be shown that he had notice of its existence, or that enough time had elapsed in which he could, by the exercise of proper care, have obtained such knowledge.”

The time so elapsed in this case was over two years. Ordinary care in a case of this character would be great care First National Bank v. Gillen, 27 O. C. C. 609, 612 (7 N. S. 33). The slightest care — the most cursory inspection — with respect to the security of the cover to this coal hole, would have revealed the absence of the pin which had been provided for the purpose of fastening it. And we hold that the court below did not err in ruling that the plaintiffs in error were chargeable with knowledge of this condition under the circumstances of this case.

Newly-discovered evidence was one of the grounds on which the motion for a new trial was predicated, and it is said that the remittitur of $300 was required on account of the affidavit which was filed in support of this ground and which tended to show that the disability of the defendant in error may not have been so great as the testimony on the trial had indicated. It also tends to contradict his testimony in one or two other particulars. The affidavit is not that of a new witness to be called, if another trial should be granted; but that of one of the attorneys for plaintiffs in error, as to what certain persons, not under oath, had told him they would testify if called. Moreover, there is no such diligence shown to have been exercised, at and before the time of trial, for the discovery of the evidence in question, as would warrant us in finding that the court below erred in overruling the motion, so far as that ground is concerned, particularly after the remittitur was entered.

It is claimed further that the judgment is even now excessive, notwithstanding the remittitur. Our review of the evidence convinces us that the contrary is true. The judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch and Henry, JJ.
    Wm. M. Raynolds, Taxpayer v. Cleveland (City)
    Renewal of Street Railway Grant Must be to Original Company.
    The power of a municipal corporation to renew a grant of permission to use the streets of the municipality for street railway purposes under the provisions of Sec. 1536-184 R. S. (Sec. 3768 G. C.), is limited to the renewing of such grant to the original party thereto, and such renewal may not be made to a stranger to the original contract.
    Appeal.

      'C. W. Collister, for plaintiff.

      N,. D. Baker and Garfield, Howe & Westenhaver, for defendant.
   HENRY, J.

This canse is a tax-payer’s action wherein the main relief sought is an injunction prohibiting the Forest City Ry. from exercising the right, attempted to be granted to it by the ordinance of the city of Cleveland of January 11, 1904, to use, for street railway purposes, certain portions of Erie street, Central avenue, and Quincy street in said city, from and after March 22, 1905, and to acquire for the same purposes the Cleveland Electric Ry’s fixed property then and now located on said streets.

It is claimed that said ordinance is void, as being an abuse by the city of its corporate powers in three particulars, to wit:

1. That it is a violation of the city’s subsisting contract obligations to the Cleveland Electric Ry. with respect to said streets, by attempting prematurely to terminate the same; 2. That it provides for the taking of the Cleveland Electric Ry. property on said streets without due process of law; 3. That it attempts to renew the city’s grant of permission for the use of said street for street railway purposes to a corporation which is a stranger to the original grant.

For convenience we shall consider the last claim first.

The power, which the city has sought to exercise, is defined in the last clause of Sec. 1536-184 R. S. (See. 3768 G. C.):

“No corporation, individual or individuals, shall perform any work in the construction of a street railroad, until application for leave is made to the council in writing, and the council by ordinance shall have granted permission, and prescribed the terms and conditions upon, and the manner in which the road shall be constructed and operated and the streets and alleys which shall be used and occupied thereof, but the council may renew any such grant as it expires upon such conditions as may be considered conducive to the public interest.”

The plaintiff contends that the renewal of a grant can only be made to a part-/ to the original grant, this being the ordinary and natural meaning of the words used in the statute, and in accord with the purpose of the legislature, frequently manifested to favor the unification of different street railway routes in the same city into a system that will enable passengers, by means of transfers and without additional fare, to ride whithersoever they will upon such system, irrespective of the termini of its original or constituent routes. And because the length of such original routes is apt to be rendered inadequate by reason of the city’s natural growth and spread, and because the grants for such original routes may expire at different times, the Legislature has provided for the extension of routes and for the renewal of grants by a city, without its having to jeopardize the unity of its street railway system by a general summons to the bidding post.

In other words, plaintiff’s contention is that the very reason for permitting non-competitive extensions and renewals is to enable cities to encourage and preserve the unity of their respective street railway systems for the convenience of the public.

The defendants, however, claim that Sec. 1536-184 (3768) is not a donation but a mere limitation of power, and that the full effect of the sentence, “But the council may renew any such grant at its expiration upon such conditions as may be considered conducive of public interest,” is exhausted when it is construed to mean that the restrictions imposed by the preceding sentence shall not be held to apply to the situation at the expiration of the grant. It is suggested also that a city’s grant of permission to use its streets for street railway purposes does not, of itself, constitute a contract implying a particular grantee, even though it necessarily results in such a contract; but that the granting of permission-is essentially impersonal, and may inure to anyone qualified to make use of it, though, in fact, it does inure only to the one ascertained by the selective process provided in Sec. 1536-185 R. S. (Sec. 3769 G. C. et seq.). And if this be true, it is argued further, that the renewal of such grant of permission is likewise impersonal in its nature and may inure to the foi’mer grantee, or to a stranger, as the city may elect. In other words, it is claimed that a grant, or renewal, is a mere right or res, and not essentially a relation between parties.

And it is urged that this construction is not only wan-ranted by the letter of the law, but that it is clearly in the public interest; for otherwise a city’s existing street railway system has an unfair advantage in negotiating the terms and conditions of renewals. But if the law may be construed to mean that a city in providing for the renewal of an expiring grant is given a free hand for negotiation as to both terms and parties, it may drive a better bargain in its attempt to secure better terms and conditions without sacrificing the unity of the existing system or producing an interregnum, unless and until the latter becomes the more desirable course for the public interest.

Before resorting to considerations of this sort in aid of our interpretation of this statute, we must first consider whether its meaning is fairly open to doubt. At the outset it may be said that we entertain no doubt that Sec. 1536-184 (3768) is to be construed as a donation of power to municipal corporations rather than as a limitation of plenary power elsewhere donated. It is true that Secs. 1536-66 (3584) and 1536-131 (3714) confer upon municipal corporations plenary powers of control over their streets and vest in them the fee thereof, in trust for and to the use of the public for street purposes subject to the right of the state to direct the mode of administering that trust, or even to administer it for itself. So far as the state has undertaken to do this, its action is, of course, binding on the corporation. And it has so undertaken with respect to certain phases of the general street purpose, notably in the case of the right of the telephone companies to use city streets. This right the state has seen fit to confer by direct grant upon the companies themselves, without the agency or even the consent of its municipal corporations. Farmer v. Columbiana Co. Tel. Co., 72 Ohio St. 526 [74 N. E. 1078]; State v. Toledo Rome Tel. Co., 72 Ohio St. 60 [74 N. E. 162]; Zanesville v. Zanesville Telegraph & Telephone Co., 64 Ohio St. 67 [59 N. E. 781; 52 L. R. A. 150; 83 Am. St. 725].

Por reasons hereinafter more clearly appearing, we have reached the conclusion that, in a somewhat analogous manner, the state has also excepted from its general grant to municipal corporations of the power of control over their streets, that other phase of the general street purpose here under consideration, viz: the use thereof for street railway purposes. And Sections 1536-184 et seq., operate by way of a new and distinct grant of power to municipal corporations to deal with that subject to the extent and in the manner therein prescribed.

The fact that, in the exercise of that power, they may contract with street railway corporations as to the terms and conditions of the latter’s use of the streets, makes possible paving, sprinkling and the like. But Secs. 1536-184 et seq., can not properly be construed as mere limitations on the general power conferred by Secs. 1536-66 and 1536-131. This we take to be the true bearing of the decision in Cincinnati Street Ry. v. Smith, 29 Ohio St. 291. And hence we must consider the last clause of Sec. 1536-184 not as a determination of the force of previously prescribed limitations, but as a further donation of power to municipal corporations, to deal with the subject of renewal grants.

The nature of the power thus conferred is a nearly related question of equal if not greater difficulty. What is it that the city is empowered to grant, as regards the use of its streets for street railway purposes?

If a corporation organized for street railway purposes under the laws of Ohio can be deemed to derive its interest in the public easement of city streets and its power to construct and operate a street railroad thereon, from the city itself, then clearly the city’s grant of such interest and power must imply a grantee as well as a grantor. The relation of parties is in that event an element necessarily involved, and the action of the city is clearly not impersonal in its nature, inuring merely to whom it may, but a relation wherein a grantee is as essential as a grantor.

On the hearing, however, one of the learned counsel for plaintiff pressed upon our attention a different interpretation of the laws of Ohio with respect to the general relations subsisting between street railway and municipal corporations, respectively in this state — an interpretation which, indeed, was urged not to this point, but to the one already discussed. As already intimated, we conceive this may have an important bearing upon the point now under consideration. It is this, that a corporation organized for street railway purposes in this state may be deemed to derive, its interest in the public easement of city streets and its power to construct and operate a street railroad thereon from the state itself under Revised Statutes, Section 3437, and an interest and power, the enjoyment of which is, however, conditioned upon the city’s yielding its permission therefor under the regulations prescribed by law. See Sims v. Brooklyn Street Ry., 37 Ohio St. 556; State v. Columbus Ry. 24 O. C. C. 609 (1 N. S. 145). But see also Cincinnati Street Ry. v. Smith, supra; Citizens’ Electric Ry. v. Richland Co. (Comrs.), 56 Ohio St. 1 [46 N. E. 60].

We have been much impressed with this view, and with the suggestion that, although the granting of such permission by a city is so regulated by law that it must result, if granted at all, in the city’s assumption of contract relations with the successful applicant, who is ascertained to be such by the selective process already mentioned, and to whom alone such permission can inure, yet this permission, being the essential thing, may be deemed to be in its nature impersonal, and the resultant contract relations merely an adventitious circumstance. The consent of the municipality would thus be assimilated to the consents of abutting owners. On this view, is the permission which the city grants, in its essence, a mere assent to the use of certain streets for street railway purposes by whoever may duly be authorized to exercise such use; or, is it a permission the award of which necessarily implies a definite grantee! If it were an original question, we should find its solution fraught with some doubt and uncertainty; but we are constrained to regard it as settled and put beyond our power to re-examine, by the decision of the Supreme Court of Ohio, in State v. Bell, 34 Ohio St. 194. That case construes Secs. 411 and 412 of the then existing municipal code. Section 411 afterwards became Sec. 2501 R. S. (Sec. 3678 G. C.) Section 412 afterwards became Sec. 2562 R. S. (Sec. 3769 G. C.). The alterations that have meanwhile taken place in these sections do not, we think, alter the construction to be placed upon them. The syllabus of State v. Bell, supra, is as follows:

“1. Under Secs. 411 and 412 of the municipal code (66 O. L., 217; 67 O. L. 77), a grant by the council of a municipal corporation to build a street railroad must be made by ordinance directly to a corporation, individual, or individuals to be therein named; and the authority to make the grant can not be delegated by the council to any officer or board.
“2. The consent of property owners provided for in the act of 1866 (63 O. L., 55; S. & S., 137), as amended in 1868 (65 0. L. 112; S. & S., 139), to the construction and operation of a new street railroad, is not required since the amendment of Sec. 412 of the municipal code (67 0. L. 77), and the consent mentioned in the last mentioned section, by whomsoever obtained, inures to the benefit of the lowest bidder.”

In the opinion by Okey, J., it is said:

“When all these preliminary steps are taken and facts ascertained, that is, when, on such application, council has fixed the terms and condition on which a railway may be constructed and operated, and notice has been given, bids received, the lowest bidder as to fares ascertained, the board of public works assents to the grant, and such lowest bidder complies with the terms and condition prescribed then, and not until then, the council may pass the ordinance granting the right, as provided in Sec. 412. And that ordinance is not a general authority inuring to the benefit of the companjr which, or person who, may thereafter receive the award to construct and operate the railway ; but the grant by the council directly to the corporation to which, or the individual to whom, the contract is then awarded. There can, in such case, be no grant without a grantee expressly named therein.
“This being the view of the Supreme Court concerning the nature of the grant made by a municipal corporation, we are bound to hold that a renewal of such grant, like the renewal of a note or of a lease, must be made to and with the opposite party to the contract, and not to or with a stranger, and that the renewal, in this case, being an attempt to deal with a stranger to the original grant, is therefore void.” '

It thus becomes unnecessary to pass upon the other questions made in this case.

It is suggested on behalf of the defendants that the construction which we have given to Sec. 1536-184 is inconsistent with the construction put upon the next succeeding sections by this court in State v. East Cleveland Ry., 3 Circ. Dec. 471 (6 R. 318). But a careful reading of the latter section will, we think, demonstrate the contrary. The first clause of Sec. 1536-186 R. S. (See. 3775 G. C.) clearly does not mean as much as, upon a merely cursory inspection, it would seem to indicate.

The plaintiff may take a decree in accordance with the prayer of his petition and with this opinion.

Marvin and Winch, JJ., concur.


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    APPEAL-TIME
    [Cuyaboga (8th.) Circuit Court,
    December 1, 1905.]
    Marvin, Winch and Henry, JJ.
    Max Pfister v. F. G. Botsford et al.
    Time for Filing Appeal Bond Expiring Sunday, Next Day too Late,
    Section 4951, R. S. (Sec. 10216 G. C.), does not apply to practice in justices’ courts, and when the date upon which an appeal bond may be filed falls upon Sunday it can not be filed on the following day.
    Error.

      A. E. Martin, for plaintiff in error.

      J. Moore and F. C. Friend, for defendants in error.
   HENRY, J.

An inspection of the transcript from the justice’s court discloses that the appeal bond was not filed within the statutory period. The time for filing expired on a Sunday and the bond was filed the next day. It was therefore too late, and was without efficacy to perfect an appeal. Section 4951 R. S. (Sec.. 10216 G. C.) does not apply to practice in justices ’. courts. McLees v. Morrison, 29 Ohio St. 155; Kerr v. Keil, 60 Ohio St. 607 [54 N. E. 1104].

The judgment of the court of common pleas is reversed, and the cause remanded to that court with direction to dismiss the appeal.

Marvin and Winch, JJ., concur.


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    MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    W. H. Gates v. Adeline Stebbins et al.
    1. Doctrine of Inverse Order of Alienation Purely Equitable.
    The doctrine of ‘‘inverse order of alienation” as applied to the subjection of mortgaged property to the payment of a mortgage, is purely equitable and not applicable to a case when equity and natural justice would be defeated by so doing.
    2. Mortgagee May Enforce Mortgage on Two Lots One-Half against Each Property Regardless of Order of Alienation.
    When a father had devised houses of equal value to each of his two daughters and later executed deeds of the properties to the daughters; Reid: That the husband of one daughter, to whom the father had given a mortgage prior to the execution of the deeds, might enforce the mortgage, one-half as against each property, and the fact that the deed to his wife had been delivered subsequent to that to the sister did not compel him to subject the properties in the inverse order of their alienation.
    Appeal.
   HENRY, J.

Plaintiff’s wife and the defendant, Mrs. Stebbins, are sisters. Their father having made a will by which he gave each of them a house and lot, subsequently conveyed to them respectively the property so devised. The two properties were adjacent and of substantially equal value. Both deeds were executed the same day, but Mrs. Gates’ deed was delivered later than the other, with the intention, as is claimed, to discriminate against the latter. Both were warranty deeds given for a nominal consideration, and evidently for the purpose, as we think the evidence indicates, of treating both daughters equally in this distribution of his real estate.

Prior, however, to the making of these deeds, the father borrowed money of Mrs. Gates’ husband and gave to him a mortgage on both properties. This suit is brought to foreclose the mortgage. At the outset, however, the plaintiff released his wife’s property from the lien of the mortgage, by which he admits that he has reduced the amount thereof one-half, but claims the right to enforce the lien for the remaining half on Mrs. Stebbins’ property.

The defendants seek to apply the doctrine of inverse order of alienation, whereby the entire burden of the mortgage would be made to rest on the property of Mrs. Gates, which is admittedly worth enough to respond thereto, if such be the law of this case.

The doctrine referred to is purely equitable, and is applied to save a purchaser for .full value, who is prior in time and in equity, from having to pay an additional consideration for his purchase. Sternberger v. Hanna, 42 Ohio St. 305.

It is not applicable to a case where equity and natural justice would be defeated by so doing (Patty v. Posee, 8 Paige’s Ch. 277 [35 Am. Dec. 683]. And we think it should not be applied in this case.

It is objected further that plaintiff and Mrs. Gates were incompetent to testify to facts antedating the death of the father. But the Ohio case before cited is authority to the contrary so far as Mrs. Gates is concerned, and no testimony of Mr. Gates to such transactions was introduced. There are other questions presented which we have examined but do not deem it necessary to discuss. Plaintiff may take a decree in accordance with this opinion.

Marvin and Winch, JJ., concur.


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    HIGHWAYS — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    James J. Petro v. Mary Mihalek.
    No Duty of Pedestrian to Stop, Look and Listen for Vehicles.
    There is no duty on the part of a pedestrian to stop, look and listen for vehicles before crossing a highway.
    Error.

      W. H. Schwartz and Hart, Canfield & Crohe, for plaintiff in error.

      E. Waite and A. Green, for defendant in error.
   HENRY, J.

This was a personal injury damage case in which defendant in error recovered judgment in the common pleas court ■against plaintiff in error.

It seems that as Mary Mihalek was crossing Holton street, in the city of Cleveland, she made use of the planking put down by the Cleveland & Pittsburgh Ry. at its crossing over said street. She was run down and struck from the rear by a spirited horse hitched to a wagon, both owned by plaintiff in error, and alleged to have been driven in a careless negligent manner by his servant.

Certain special findings, submitted by defendant below, with their answers, are as follows:

“Did the plaintiff upon approaching the crossing carefully look up and down the street? Answer. Yes.
“Did the plaintiff cross the street in a diagonal direction? Answer. Yes.
“Did the plaintiff change her course while crossing the street and go toward the horse and wagon driven by John Petro, the agent of defendant? Answer. No.”

The case is here on petition in error with a bill of exceptions giving all the evidence.

The errors claimed are:

First. That the court erred in overruling defendant’s motion made at the close of plaintiff’s testimony, to direct^, verdict for the defendant.

As the defendant did not stand upon this motion, but went forward and introduced evidence in his defense, we shall consider this claim of error in connection with the second claim, which is as follows:

Second. That the verdict was against the evidence.

The claim is based upon alleged contributory negligence of plaintiff. It is negatived by the special findings of the jury. We have carefully read all the evidence and are not disposed to say that said special findings, or the verdict, is against the weight of the evidence or unsupported by sufficient evidence. That the driver of the wagon was clearly negligent is shown by his own testimony appearing on page 48 of the record.

Third. It is urged that the court erred in charging the jury that the burden was upon the defendant to show that plaintiff’s injuries resulted from her own negligence which proximately contributed thereto. This is the general rule and we see no error in charging it. The authorities cited by plaintiff in error in support of his contention go only to the extent that where the plaintiff’s own evidence in support of her cause raises a presumption of contributory negligence on her part, the burden rests upon her to remove the presumption. There was no such presumption raised by plaintiff’s evidence in this case, and the court’s charge on this subject was therefore applicable and sound.

Fourth. It is claimed that the court erred in not giving certain of defendant’s requests to charge.

Such of them as embodied the law of the case were fully covered by the charge as given. The first, second and fourth requests were properly refused, as they do not correctly state the law; they declare that it is the duty of a pedestrian to look carefully up and down the street before crossing it so as not to put himself in the way of approaching vehicles, and to look, listen and watch, practically the care required of one crossing a railroad track.

Pedestrians have equal rights with those driving, in all parts of the street; it is the duty of pedestrians in the roadway to exercise reasonable care to avoid. danger from passing vehicles. Ellioft Roads and Streets, Secs. 834 and 835.

The requests called for a higher degree of care than that exercised by ordinarily prudent persons under similar circumstances and were therefore properly refused.

The fourth request embodied defendant’s claim as to the burden of proof of contributory negligence, considered in connection with the charge as given, and for the reason there stated, was not applicable to the ease.

Finding no error in the record, the judgment is affirmed.

Marvin and Winch, JJ., concur.


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    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    James Shields v. Cleveland (City).
    Municipal Corporation Liable for Injury Caused by Dangerous Condition of Streets, Notwithstanding Plaintiff’s Knowledge.
    When a dangerous condition exists in a street due to repairs of pavement being made by the city, and plaintiff, who has knowledge of the conditions, while alighting from a car at night thinking he was alighting upon a crosswalk a short distance from the place being repaired, is injured by stepping into a hole which he could not see by reason of the city’s neglect to place red lights or to keep an arc light overhead burning, the city will be liable.
    Error.
   HENRY, J.

This was an action for damages for personal injuries sustained by James Shields at the corner of Euclid avenue and Fair-mount street, in Cleveland, on the evening of November 21, 1902. He was a conductor on one of the lines of street cars passing that point, but was then off duty, being on his way home and in the act of getting off the west bound car in front of the block in which he lived at the northwest corner of said street intersection. He alighted in a hole, or depression, in the pavement, and, falling forward, broke both knee caps. From Fairmount' street eastward, the city, for a week or two, had been carrying on extensive park and street improvements, which involved the shifting of the street railway tracks and the temporary removal of the paving stones in Fairmonnt street. Shields was aware of this bnt he says that when he left home after luncheon that day, the pavement north of the tracks was intact for a few feet east of the west cross-walk. It was dark when he came home that night, and there were no red lights, or other warning signals, to show just where the pavement was torn up. Moreover, the are light overhead, which had been somewhat out of order for several weeks, was not burning, and the store rooms opposite were not illuminated. The car, on which he was riding, came almost to a standstill and he stepped off at the place where, from such landmarks as he could see (including the outlines of the block in front of him)., he supposed the west cross-walk to be located, but which proved to be a few feet east of the cross-walk. Even there he thinks the pavement had been intact when he saw it last.that day. But the city on cross-examination brought out evidence tending to show that no work was done there that afternoon and that, if any paving stones there were in fact removed during the interval, it was the work of an intermeddler whereof the city had no notice and for which it is not liable herein. The case went to the jury and they found for the defendant. The city now contends that, whatever errors there may be in the charge (and several are assigned), the judgment should nevertheless be affirmed. For, if Shields is right in •Hiinlring that the pavement where he was injured had been removed that afternoon, the city, being clearly without notice of the defect, is not answerable in damages, and, if Shields is wrong as to the place where he fell, he can not escape the imputation of negligence, in view of his previous knowledge of the situation there.

A majority of the court is unable to concur in the view that this dilamma. is a real one. The darkness and absence of danger signals, under all the circumstances, may well have misled Shields as to the precise location of the cross-walk. Whether he was misled and whether he was himself negligent were questions for the jury under proper instructions. We may apply to the situation of this cross-walk the language of McCauley, J., in Kelley v. Columbus, 41 Ohio St. 263, 268, in reference to the location of a street:

“If the surroundings misled the plaintiff into the belief that he was still on the street, and if he walked upon it not thinking and having no reason to think he was beyond the street, the liability of the city would doubtless continue.”

And so here, though Shields knew there was danger a little distance from this cross-walk, but was misled by the city’s negligence to suppose that he was alighting on the cross-walk, the city’s liability, as for negligent disrepair of the cross-walk itself, would continue outside of and beyond it.

If, on the other hand, the hole was a new one and nearer the cross-walk than that with which Shields was familiar, it would still be for the jury to determine whether it was part of the work being done there for the city, or under its license, and whether or not, if caused by an intermeddler on the afternoon of the accident, the city was then chargeable with notice thereof, in view of the vigilance necessarily required for the performance of the special duties it then and there owed the public, by reason of the improvements under way and the dangers incident thereto.

It follows therefore that our decision must turn upon the charge of the court. Was it erroneous? The city does not seriously contend that it is free from error. We think it presents some serious defects, which we shall merely mention without discussing them at length. The charge absolutely debars plaintiff from recovery; so also, if the stones were removed by a wrongdoer without the city’s authority or consent, irrespective of any notice with which the city may have been chargeable under the circumstances. The charge informs the jury moreover that “the city was bound to exercise ordinary care; but if it had only one street to look after, that would be one thing; but with all the streets of the city it would be different.”

It further declares that if plaintiff “knew there was no red light at the place where he was injured and that the electric light was not burning, he can not claim anything for that; the darker the night the more care he should use.”

Each of these propositions unqualified is clearly erroneous. And the charge as a whole is obviously misleading also. For these errors the judgment below is reversed and the cause remanded.

Our brother Winch dissents on the sole ground that the court should have granted the city’s motion to take the case from the jury because of plaintiff’s contributory negligence.

Marvin, J'., concurs.

Winch, J., dissents.


text:
    DEATH — RES ADJUDICATA
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    Abbie A. Johnson, Admix, v. Cleveland, C. C. & St. L. Ry.
    Action for Wrongful Death not Barred by Prior Action for Personal Injury.
    Although it appears that an action for wrongful death is based upon the same state of facts upon which a former action by dev : cedent for personal injuries was based, the doctrine of res adjudioata does not apply unless it further appears that the issues are identical in the two actions.
    Error.

      Myer cfe Mooney, for plaintiff in error.

      E. A. Foote, for defendant in error.
   HENRY, J.

- - Judgment in this case was rendered for the defendant railway company upon the pleadings. It was an action for death by wrongful act and the defense succesfully raised below was that of res adjudicata. The decedent had in his lifetime brought suit for the injuries which, pending the action, are said to have resulted in death. The action was reviewed and terminated in a verdict and judgment for defendant. The answer in this case sets up, and the reply admits, that the negligent injury complained of in the former action is the same as that averred in the petition here. But it is not alleged in this action what matter of defense was averred by the answer in the former action. For aught this record shows the issue in the former action may have been raised by reply to an answer which confessed and avoided the averments of the petition therein. It may, for example, have turned upon an issue properly joined as to whether the decedent had not, for value, covenanted not to sue his employer for a certain period after his injury not then elapsed, and not to sue him at all in case he should then be recovered and restored to his position. It is enough to show the possibility of such an isue in the former action. We can not speculate as to what the issue in fact was. The pleadings here assert merely the identity of the causes of action, not the identity of issues. But the rule of res ad judicata can be applied only where the issues are identical. Koelsch v. Mixer, 52 Ohio St. 207, 211 [39 N. E. 417].

For this error in rendering judgment on the pleadings against the plaintiff in error, said judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.