author: Houck, J.

text:
    Larwill et al. v. Farrelly.

      Deeds — Declaration as to purpose of grant without effect, when — Presumption that whole title passed — Conditions lessening estate conveyed must be strictly construed.

    The use in a deed of general warranty of the words, “for the use , and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church,” does not constitute a condition subsequent or engraft a limitation upon the title, but at most is a mere suggestion or unenforceable request or desire.
    (Decided March 22, 1918.)
    Error: Court of Appeals for Wayne county.

      Mr. L. R. Critch field, Sr., and Mr. A. D. Metz, for plaintiffs in error.

      Mr. John McSzveeney and Mr. M. P. Mooney, for defendant in error.
   Houck, J.

The error complained of in this case is in quieting the title to certain real estate located in the city of Wooster, Ohio, claimed to be owned in fee simple by John P. Farrelly, defendant in error here, who was plaintiff below.

The trial judge in the common pleas court granted to the said Farrelly all the relief prayed for in his petition, thereby holding that John Fawcett Larwill and the other defendants below, the plaintiffs in error here, had no interest either legal or equitable in and to the real estate in question.

The contention in this lawsuit is as to the legal effect of the following words, “for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church.”

This language appears, in the granting clause of a deed made on the 27th day of May, 1857, by Joseph H. Larwill and wife, Nancy Q., to the Reverend Amadeus Rappe and others. These grantees and all subsequent grantees by a series of deeds conveyed all their interest in and to said lands described in the said Larwill deed to the said John P. Farrelly, who is now in possession of same, claiming to be the owner thereof in fee simple.

The granting clause in the Larwill-Rappe deed reads:

“That the said Joseph H. Larwill and Nancy O. Larwill, his wife, for and in consideration of the just sum of $1,100.00 in hand paid, the receipt whereof we do hereby acknowledge, have given, granted, bargained, sold, released and conveyed, and do by these presents give, grant, bargain, sell, release, convey and confirm unto the said Reverend Amadeus Rappe, Frederick Buchholtz and Michael Carroll, and their heirs and assigns forever, for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of the said Catholic church, a certain tract or parcel of land situate in said Wayne county, and described as follows:” (Here the premises are described.)

The habendum clause reads:

“To have and to hold the said described premises hereby sold as aforesaid, or meant or intended so to be, with all the privileges and appurtenances thereunto belonging or in any wise pertaining unto the said Amadeus Rappe and Frederick Buchholtz and Michael Carroll, and unto their heirs and assigns forever, for the sole use and benefit of said Catholic church and said other erections as aforesaid, and the said Joseph H. Larwill and Nancy Q. Larwill, his wife, for themselves and for their heirs, executors and'administrators, do covenant, promise and agree to and with the said Reverend Amadeus Rappe and Frederick Buchholtz and Michael Carroll, their heirs and assigns, that they, the said Joseph H. Larwill and Nancy Q. Larwill, his wife, are lawfully seized of the premises aforesaid, and that the said premises are free and clear of and from all encumbrances whatever, and further that the said Joseph H. Larwill and Nancy Q. Larwill, his wife, will well and truly warrant and forever defend the premises herein and hereby granted unto the said Reverend Amadeus. Rappe and Frederick Buchholtz and Michael Carroll, and to their heirs and assigns, from the lawful claims and demands of all and every person whomsoever.”

The conceded facts are that the property described in said deed is not used by the Catholic church for church purposes, but its. use for same has entirely ceased; that Joseph H. Larwill and Nancy Q. Larwill, his wife, have departed this life; and that the plaintiffs in error are their- only surviving heirs at law.

The proper solution of one question will determine the rights of the parties to this controversy, namely: What is the legal effect, as used in said deed, of the language, “for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church,” and does it constitute a condition subsequent ?

A condition will not be raised by implication from a mere declaration contained in an instrument that the grant is made for a particular or certain purpose, unless it is coupled witlf words clearly showing upon their face such a condition.

In a warranty deed, such as the one now before us for construction, which contains the usual words of warranty and alienation of title of grantors, the law presumes that all of the grantor’s title and interest in the real estate described in said instrument passes to the grantee, unless by some plain language used therein the contrary is shown.

Conditions which in any way have a tendency to destroy or lessen estates are not favored by the law, and thus, are strictly construed, and all doubts are resolved against restrictions.

While it is true that no precise form of words is necessary or essential to create a condition subsequent, nevertheless, if in a deed, it must be created by such terms as to leave no doubt of the intentions of the grantor so to do.

The language used by the grantors in the deed in the case at bar is clear, plain and unambiguous, and there is no doubt about its meaning, but, as we interpret and construe it, falls far short of being sufficient to create a condition subsequent.

So far as creating limitations upon the title conveyed, it certainly does not do so.. In legal effect it has no force, and the most that can be claimed for it is that it might be construed as a mere wish or desire on the part of the grantors to have the property used for the purposes indicated by the language; but in effect it is a mere suggestion, an unenforceable request or desire.

An examination of the deed nowhere discloses any language that could be construed as intended to create a.ny limitation upon the fee simple title in the grantees, their heirs and assigns, and we find no reservations or limitations contained in said deed.

It is generally known that, when an estate granted is intended to be terminated or forfeited, certain terms are used in the granting clause, or somewhere in the deed, declaring that the estate conveyed is' to be forfeited “in the event that” certain conditions are not complied with. But in the deed now before us there is an utter absence of any such provisions.

Courts, in construing deeds and like written instruments, must be guided by the intention of the parties to them, and this must be determined by the language us.ed in the instrument, the question being not what the parties meant to say, but the meaning of what they did say, as courts can not put words into an instrument which the parties themselves failed to do.

The deed in this case is regular upon its face. It conveys certain lands, for a valuable consideration, to the grantees, their heirs and assigns forever, and warrants the title to same against the claims of all others. It contains no words of forfeiture or limitation, nor is there any provision for reentry. Thus, it follows that the mere fact that the present owner of the lands has ceased to use same “for the use and sole purpose of the Catholic church,” etc., would not in law vest the plaintiffs in error with the title to said real estate.

It follows from what we have already said that the judgment below is right. We have examined all of the alleged errors, as claimed by plaintiffs in error, and we find none of them of that substantial nature that would warrant a reversal of the judgment below.

The judgment of the common pleas court is affirmed and the case is remanded to that court for execution.

Judgment affirmed.

Powell and Shields, JJ., concur.


source: Caselaw Access Project

author: Jones, E. H., P. J.

license: Public Domain

text:
    The American Chemical Co. v. Smith.

      Negligence — Contributory negligence — Master and servant— Workmen’s compensation act■—•Fellow-servant rule — Assumption of risk — Degree of care required of employer.

    1. While the workmen’s compensation act (102 O. L., 524) takes away the defenses of the fellow-servant rule, contributory negligence and assumption of risk, it does not enlarge the basis for recovery on the grounds of negligence beyond what existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case.
    2. The only test of liability under such act is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances.
    3. Where a petition contains two allegations of negligence but no evidence is offered supporting one of the allegations, it is error to permit both questions to be submitted to the jury.
    (Decided February 5, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Healy, Ferris & McAvoy, for plaintiff in error.

      ■ Messrs. Littleford, James, Ballard & Frost, for defendant in error.
   Jones, E. H., P. J.

This action was brought in the superior court of Cincinnati by Robert H. Smith, as plaintiff, against The American Chemical Company, defendant, for damages on account of injuries sustained by the plaintiff while in the employ of the defendant.

The second amended petition, upon which the case was submitted to the jury, alleged that the defendant was a corporation, and that it “employs and did at the times hereinafter referred to employ more than five workmen as employes regularly in its said business and had not at the time of the injury complained of herein paid any premiums into the State Insurance Fund in accordance with the laws of the State of Ohio relating to the compensation of injured employes.”

Said second amended petition further alleged in substance that on December 4, 1913, the defendant was engaged in the business of manufacturing a chemical known as sal soda; that in the course of the manufacture of the said product it was necessary to carry it in iron pans, of great weight, which had to be carried by two men from one portion of the cellar where it was stacked to another part of the cellar where it was dumped out; that by reason of the caustic properties of the sal soda the said pans had to be carried with hooks to protect the hands of the men; and that the floor of the cellar was very slippery with the liquid from the pans so that it was dangerous to stand upon it—particularly so as the floor was sloping. The amended petition then goes on to state that on the 4th day of December, 1913, the plaintiff was engaged with another man in carrying one of said pans, and that when they reached the point where the pan was to be dumped they undertook to fling the pan so that it would fall face downward upon the floor, as it was their duty to do; that defendant had negligently allowed the floor to become unsafe and slippery; that defendant had negligently allowed the handle of the pan into which plaintiff had caught his hook to become bent, and the rivets by which said handle was attached to the pan to become insecure, so that, when the men undertook to fling said pan, the end of the pan which plaintiff held came loose from the hook and fell upon plaintiff’s left foot, bruising and crushing the foot and the toes thereof; and that on account of the slippery condition of the floor, caused by the liquor from the pans, plaintiff was unable to maintain his footing, or to get a firm footing, so that the above described fall of the pan was caused partly because the handle was bent and the rivets insecure, as aforesaid, and partly because he could not maintain a proper footing. The plaintiff in said second amended petition then sums up the negligence charged, thus:

“The said injury was directly and proximately caused by the negligence of the defendant in permitting the said handle of the pan to become bent and said rivets to become insecure as aforesaid and furthermore in permitting the floor to become slippery and in requiring plaintiff to work with a defective and unsafe contrivance and in an unsafe place, and said injury was caused without any fault or negligence whatever on the part of the plaintiff.”

The answer to this second amended petition admitted that the defendant was a corporation, and that it had not on said date, nor at any time prior thereto, paid any premium into the state insurance fund; and denied each and every other allegation contained in the petition.

The issues thus raised were tried to a jury, the trial resulting in a verdict and judgment in favor of the plaintiff for $2500, which judgment the plaintiff in error here seeks to reverse.

The effect of the so-called Workmen’s Compensation Law upon the rights and duties of the parties to this action was a subject of controversy during the trial. The question was raised from time to time in various ways, but chiefly by requests for special instructions on the part of defendant, and objections thereto, and by exceptions on the part of the defendant to the general charge of the court.

It has been held in the case of Gerthung v. The Stambaugh-Thompson Co., 1 Ohio App., 176, as follows:

“1. The workmen’s compensation act, Section 1465-60, General Code (102 O. L., 529, Section 21-1), which provides that an employer of five or more workmen, who has not paid the premiums prescribed by said act, shall be liable in damages to any employe for injury caused by ‘the wrongful act, neglect or default’ of such employer, his officers, agents or other employes, takes away the defenses of the fellow-servant rule, contributory negligence and assumption of risk, but does not enlarge the basis for recovery on the grounds of negligence beyond what existed at common law, and the employer is only required to exercise or-, dinary care under all the circumstances of the case.
“2. The only test of liability under such sections is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances ”

It seems to us that there can be no doubt but that the court in the above case correctly interpreted the language of the compensation law. It also appears that in the trial of this case the learned judge who presided recognized this as the law, and correctly charged the jury in clear and unequivocal terms, that the defendant by reason of its not having contributed to the state fund could not avail itself of the defenses of contributory negligence, fellow servant or assumed risk. This being the correct view of the law, the rulings of the court upon special instructions asked by the defendant were correct.

We have reached the conclusion, however, that the judgment in this case must be reversed for want of evidence in support of one of the charges of negligence made in the second amended petition. It will be noted that this petition contains two allegations of negligence on the part of the defendant. They are briefly stated: first, the defective handle of the pan; and, second, the slippery condition of the floor caused by the liquid from the pans. The trial court permitted both of these questions to be submitted to the jury, and charged it fully upon the law with respect to each. We fail to find any evidence of want of ordinary care on the part of the defendant with respect to the condition of the floor or with respect to the cellar being an unsafe place to work. The evidence shows that the escape of the liquid from these pans by overflow arid splashing was unavoidable, and that the only thing defendant could have done when the floor became wet was to have ceased the operation of the plant, or at least to have removed the workmen from the cellar until the floor became dry. In view of the lack of any real, apparent danger from the wet and slippery condition of the floor, it seems to us such action would be requiring the defendant to exercise more than ordinary care; in fact it would be exacting a very extraordinary degree of care on his part.

A motion was made by defendant, at the close of plaintiff’s evidence, and also at the close of all the evidence, for an instructed verdict.

Evidence in support of the other allegation of negligence, viz., the defective condition of the handle, was properly submitted to the jury.

In our view of the case the motion that counsel for defendant should have made was one to withdraw from the consideration of the jury the question as to the unsafe and slippery condition of the floor. However, an exception was taken by the defendant to the general charge, in which, as said before, the court dwelt at length upon and submitted to the jury this issue with respect to which we find there was no evidence of actionable negligence.

In the view that the case was submitted to the jury we think the court below erred in refusing to give special instruction No. 9, requested by the defendant, as follows:

“I charge you as a matter of law that before the plaintiff can recover in this case he must show by a preponderance of the evidence either, first, that the handle of the pan in question was defective and that such defective condition was the proximate cause of the injuries sustained by plaintiff, or, second, that the floor of the cellar at the point where the plaintiff was walking when he claims to have received the injuries in question was in an unsafe condition and that- said unsafe condition was the proximate caus,e of said injuries so sustained.”

Also that the court erred in refusing to propound to the jury special interrogatory No. 3, submitted by counsel for defendant, as follows:

“Did the defendant exercise ordinary care as to the condition of his cellar on the afternoon of December 4th, 1913, in view of the nature of the sal soda business which was being conducted therein?”

But as both the special charge and the interrogator y relate in whole or in part to the condition of the floor, these errors become immaterial, and have no bearing upon the action of this court in reversing the case.

Interrogatory No. 1, submitted to the jury at the request of the defendant, and the answer thereto, were as follows:

“Was that part of the defendant’s cellar where the .plaintiff claims the pan fell on his foot a reasonably safe place to work on the afternoon of December 4th, 1913?”

Answer: “No.”

It follows, from what has already been said, that this answer is not supported by the evidence.

For the reason that the trial court erred in submitting to the jury the question as to negligence with respect to the cellar and the floor thereof, and for the further reason that substantial justice was not done, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

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


author: Farr, J.

text:
    White v. Smith.

      Landlord and tenant—Abandonment of premises by tenant—Landlord not legally bound to relet.

    Where a tenant abandons the leased premises the landlord is under no legal obligation to relet such premises, and in an action to recover the rentals accruing after such abandonment the tenant cannot interpose as a defense want of reasonable diligence to re-rent the same.
    (Decided October 11, 1917.)
    Error : Court of Appeals for Mahoning county.

      Messrs. McKain & Ohl, for plaintiff in error.

      Mr. William Zimmerman, for defendant in error.
   Farr, J.

This is a proceeding in error prosecuted in this court from the judgment of the court of common pleas of Mahoning county. The parties sustain the same relation here as in the court below.

On the 28th day of January, 1916, plaintiff in error, Kate E. White, began an action in the municipal court of the city of Youngstown against defendant in error, George M. Smith, to recover the sum of $168 and costs; the principal part of said sum for which recovery was sought was for installments of rentals falling due by the terms of a certain agreement in writing made and entered into between said parties for the period of one year beginning on the 1st day of May, 1915, for the use and occupancy of certain premises belonging to plaintiff in error and situated at 360 Crescent avenue, Buffalo, N. Y.

To the statement of claim of plaintiff below the defendant filed a statement of defense, claiming that on or before the 31st day of October, 1915, he surrendered his lease to plaintiff and delivered possession of said premises to her, that such surrender was duly accepted, and that thereupon plaintiff rented or could have rented said premises to another tenant at a rental equal to that specified in the lease. Trial was had and a judgment entered for plaintiff in the sum of $158.50. An appeal was taken to the court of common pleas, of this county, where said cause was tried to a jury and a verdict rendered for the defendant, upon which judgment was entered, and from which error is now prosecuted.

There are two principal assignments for error: First, that the court erred in its charge to the jury; second, that the verdict is against the weight of the evidence. That part of the charge of the trial court for which error is assigned reads, as follows:

“If he left the premises, then there was an obligation resting upon the plaintiff, and that obligation was in law that she should, in good faith, exercise due diligence in attempting to find a tenant; but, if she in good faith, exercised due diligence to obtain a tenant and failed to obtain one, then she can recover for this amount if she could not obtain a tenant until the first day of April, 1916. But, if, on the other hand, she did not exercise good faith, and exercise reasonable diligence to obtain a tenant, then I say to you from the time she could have obtained a tenant, then she is not entitled to recover.”

The record discloses, and it is conceded, that the defendant Smith vacated said premises on or about the 22d day of October, 1915, but paid the rent to the 1st day of November following; that on October 25, 1915, James R. White, who in the rental of said premises had acted as the agent of his sister Kate E. White, wrote Mr. Smith inquiring as to what he purposed to do in regard to said lease, stating that as the same did not expire until the first of the next May he had no other alternative than to hold him to the terms of the lease. The record discloses that an effort was made by Kate E. White or her agent to secure a suitable tenant, but none was obtained,, and that said premises were not relet until April 1, 1916, after which no rentals are claimed. Testimony was offered by the defendant for the purpose of showing that plaintiff consented to the surrender of said premises by defendant, and that plaintiff failed to use reasonable diligence to relet or re-rent the same; and it is also urged in argument, and in fact is the principal issue raised, that when the defendant vacated said premises it was the duty of plaintiff to use reasonable diligence to re-rent the same, or, in other words, it is claimed that if a lessee abandons the leased premises before the expiration of his term it is the duty of the lessor to use reasonable diligence to relet said premises and that if he fails to do so he cannot recover the installments of rental accruing after such abandonment.

In 3 Sutherland on Damages (4 ed.), Section 844, page 3111, it is provided that: “The landlord is under no obligation to rent premises which have been abandoned by a tenant,” Numerous cases are cited in the note in support of the foregoing tdxt.

Likewise it was held in Gray v. Kaufman Dairy & Ice Cream Co., 41 N. Y. Supp., 73, as follows: “Where a tenant abandons the demised premises, it is not the duty of the landlord to relet, in order to reduce his claim for damages against the tenant.”

To the same effect it is held in Merrill v. Willis, 51 Neb., 162, 70 N. W. Rep., 914; Becar v. Flues, 64 N. Y., 518; Wm. Knabe Mfg. Co. v. Dinwiddie, 116 N. Y. Supp., 716; Milling v. Becker, 96 Pa. St., 182; Underhill v. Collins, 132 N. Y., 269, 30 N. E. Rep., 576. See also 24 Cyc., 923, note 18, and Goldman v. Broyles, 141 S. W. Rep., 283, paragraph 6 of syllabus.

And in Ran v. Baker et al., 118 Ill. App., 150, it was held:

“Where a tenant wrongfully abandons demised premises, he cannot interpose the want of diligence of his landlord in failing to re-rent the premises as a defense to an action for the rent accruing after such abandonment.”

The foregoing is well in point with the instant case, in which the want of diligence on the part of the landlord to relet is sought to be interposed as a defense.

In the well-considered case of Higgins v. Street, 19 Okla., 45, 13 L. R. A., N. S., 398, it is held:

“If a tenant wrongfully abandons leased premises before the expiration of the term, the landlord may, at his election, at once enter and terminate the contract and recover the rent due up to the time of abandonment, or he may suffer the premises to remain vacant and sue on the contract for the entire rent, or he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given, and sublet the premises for the unexpired term for the benefit of the lessee to reduce his damages.”

The foregoing is clear and explicit and is supported by many cases of favorably recognized jurisdictions. And why not? A lessor and lessee enter into a valid binding contract for a fixed and definite period, during all of which the lessee is for some purposes the owner of the demised premises and may exercise dominion and control over them, even to the exclusion of the lessor; therefore it is but fair that the les.sor should rely upon him to do so. The lessee may rely and rest upon the letter of his contract, and occupy without let or hindrance to the end of his term; the lessor has equal rights and may depend upon the lessee to do so or pay his rentals just the same. The lessor may elect to do otherwise, and if able to secure a suitable tenant should relet such premises; and under such circumstances it might be said would be morally bound to do so, as observed in Shipman v. Stone, 16 C. C., N. S., 468, as follows:

“It is the landlord’s moral duty, if not his legal duty, to ease the tenant by reletting for the best rent he can get, and his so doing does not of itself work a surrender of the lease.”

However, the landlord is in no wise legally obligated so to do. He may rest upon the terms of his rental agreement and leave the disposal of the demised premises, for the remainder of the term, at the option of the less.ee.

Therefore, the above instruction by the trial court was prejudicial error. Application of the foregoing principles would necessarily work a reversal on the weight of the evidence, and the judgment is therefore reversed.

Judgment reversed.

Pollock and Metcalfe, JJ., concur.


author: Hamilton, J.

text:
    Jones v. The Ferger Grain Co.

      Negligence — Personal injury — Master and servant—Workmen’s compensation law — Res ipsa loquitur doctrine.

    1. Prior to the enactment of the Workmen’s Compensation Law the res ipsa loquitur doctrine as a rule did not apply as between master and servant, but with the common-law defenses denied an employer, the employer and employe are placed in the position of strangers to each other, in so far as that rule is concerned.
    2. The breaking of an elevator rope when bearing a load, which, ■when in proper condition, it would have borne without breaking, is some evidence that the rope had become defective and is sufficient to require the submission of the case to the jury.
    3. Attempted explanations by the defendant of the breaking of the rope may be found by the jury to be unsatisfactory, and the jury may find for the plaintiff by applying the doctrine of res ipsa loquitur.

    (Decided March 26, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. B. F. Graziani and Mr. Thos. L. Michie, for plaintiff in error.

      Mr. Jno. C. Hermann and Mr. Sherman T. McPherson, for defendant in error.
   Hamilton, J.

This cause comes into this court on a petition in error to the superior court of Cincinnati.

The plaintiff below in his amended petition alleges that the defendant is a corporation organized under the laws of Ohio, engaged in operating a grain elevator and storage room for grain, feed and other material of like character; that in March, 1912, he was employed by defendant company as a common laborer to work in and about defendant’s place of business, and was so engaged until about October, 1913, when the defendant ordered and directed the plaintiff to run and operate an elevator or lift, from the first floor to the third floor in said elevator and storage building; and that pursuant to said orders and directions plaintiff operated and ran said elevator or lift, and on the 26th day of December, 1913, while plaintiff was operating said elevator or lift, the rope operating the elevator or lift broke without notice or warning, causing the elevator to fall, carrying plaintiff with it, from the third floor to the first floor of the building, some eighty feet descent, causing serious and permanent injuries. The amended petition further states that said defendant corporation at and before the time of said injury employed five workmen regularly in the same 'business and had not paid into the state insurance fund the premium provided by the law known as the Workmen’s Compensation Law. The petition further alleges negligence on the part of defendant in not furnishing a safe place for plaintiff to work, with proper safeguards, and in furnishing unsafe appliances and attachments; that the rope was unfit for the purpose, and defective in certain respects. Other acts of negligence are alleged, but they are not necessary to the consideration of the question of error involved.

The defendant’s answer admits that it is a corporation engaged in the business of operating a grain elevator, etc., as stated in the amended petition. It further admits that the plaintiff was employed by it upon the 26th of December, 1913; admits the operation of the man-lift by the plaintiff, and the breaking of the rope, thereby causing said lift to fall as alleged in the petition. The answer also admits that at the time of the injury to plaintiff it employed more than five men regularly in the same business and in and about the same establishment, and that it had not paid into the state insurance fund any premium provided by the act of the general assembly of Ohio known as “The Workmen’s Compensation Law,” which act was in full force and effect at said time. The answer then denies the allegations of permanent injury to the extent of the injuries complained of; avers that the lift and all its appliances were in first-class condition and proper working order; and denies any negligence on the part of defendant, but alleges that the breaking of the rope was due to the carelessness of the plaintiff.

Plaintiff in his reply denies that said lift and all its appliances were in first-class condition; denies that the breaking of the rope which permitted the elevator to fall was caused by the carelessness and negligence of the plaintiff; and denies any act of negligence on the part of the plaintiff.

At the close of all the evidence the defendant moved to arrest the case from the jury, which motion the court granted, and the jury was instructed to return a verdict for the defendant, which was done; to which the plaintiff duly excepted. A motion for new trial was overruled, and judgment was entered accordingly.

Several grounds of error are stated in the petition in error, the first three of which relate wholly to the question of the instructed verdict, which is the ground chiefly urged for reversal of the judgment.

It is admitted by the pleadings that the Workmen’s Compensation Law was in force at the time of the happening of the injury; that the defendant company employed more than five men regularly in the same business and had not paid into the state insurance fund the premium provided for in that law. It therefore follows that defendant cannot avail itself of the defense of the “fellow servant” rule, the defense of “assumption of risk,” or the defense of “contributory negligence,” and the consideration of the questions involved must be had under this law.

The lift, or man-lift, was used in the defendant’s place of business for the purpose of carrying only one man, the employe of the defendant company, from the lower to the upper floors of the warehouse. The lift was operated by a hand rope, with the help of the weight attached to the rope which ran over a pulley at the top of the elevator shaft.

Prior to the enactment of the Workmen’s Compensation Law it must be conceded that the res ipsa loquitur doctrine as a rule did not apply as between master and servant, but, with the common-law defenses denied defendant, the employer and employe are placed in the position of strangers to each other, in so far as that rule is concerned. The question then is: In the light of the Workmen’s Compensation Law does the res ipsa loquitur doctrine apply to the instant case?

The defendant relies, mainly on the case of The Julian & Kokenge Co. v. Wm. Panter, decided by the Hamilton county court of appeals, reported in the Cincinnati Court Index under date of January 14, 1914. In that case the question of error upon which reversal was had was the overruling by the lower court of a motion to make the petition more definite and certain by stating in what respect said staple which pulled out was insecurely and defectively fastened and in what respect the manner in which plaintiff was required to do said work was dangerous, and unsafe. In determining that question the court followed the case of Egan v. N. Y. C. & St. L. Ry., 5 C. C., N. S., 482, which decision was rendered long prior to the passage of the Workmen’s Compensation Law and would not be controlling in a case where this law is applicable; and, while the reason in that case might well apply to the motion to make the petition more definite and certain, it would not obtain in applying the scintilla rule, applied with reference to Section 6243, General Code, and the Workmen’s Compensation Law.

An examination of the authorities leads us to the conclusion that the doctrine of res ipsa loquitur may well be applied to the case at bar.

In the case of Dahlen v. N. Y. Life Ins. Co., 109 Minn., 337, where the plaintiff was injured in defendant’s elevator, of which defendant had control, the court say, at page 340:

“It follows that, if the accident did'occur by reason of the elevator not working properly while the plaintiff was operating it, without any fault on his part, proof of such fact would be sufficient prima facie to establish the negligence of the defendant.”

In Green v. Banta, 48 N. Y. Super. Ct., 156, affirmed 97 N. Y., 627, it was held that the fact that the scaffold gave way was prima facie evidence of negligence.

In Solarz v. Manhattan Ry. Co., 8 Misc. N. Y., 656, it was held that the unexplained breaking down of the scaffold made out a case sufficiently strong to go to the jury on the subject of negligence.

In the case of Golden v. Mannex, 214 Mass., 502, the second and third paragraphs of the syllabus are as follows:

“In an action for personal injuries caused by the breaking of a cable when it was bearing a load which, if it had been in proper condition, it would have borne under the circumstances without breaking, the mere fact that the cable broke is some evidence that it had become unsound.
“If, under the circumstances in evidence at the trial of an action for personal injuries caused by the breaking of a cable, the mere breaking of the cable is evidence that it had become unsound, the jury, although the plaintiff attempts to explain the cause of the breaking, may find such explanation to be unsatisfactory and still may find for the plaintiff by applying the doctrine of res ipsa loquitur.”

It is claimed by counsel for defendant in error that this last case cited should not apply, as it does not show that the hoist was operated by the plaintiff who was injured. This position is not tenable, as the defenses of assumed risk and contributory negligence are eliminated from the case at bar.

The evidence in this case discloses that the plaintiff in the discharge of his duty as an employe of the defendant was going up in the man-lift, when, about at the third floor, on account of some unexplained cause, the lift rope broke, causing the lift to fall with plaintiff, resulting in the injuries complained of. Under the authorities above cited we are of the opinion that the very fact that the rope broke as it did was some evidence that it had become unsound, and was sufficient to go to the jury. It follows that the trial court erred in arresting the evidence from the jury and instructing a verdict for the defendant.

We do not think the witness W. R. Todd qualified as an expert on elevators or man-lifts of the kind in question, as he testified he had never seen but one of this character. No doubt he was an expert on passenger elevators and electric elevators, but we do not think that he was sufficiently familiar with the kind in question to properly qualify as an expert, and the objection to his testimony was properly sustained.

Judgment reversed, and cause remanded.

Jones, P. J., and Gorman, J., concur.


author: By the Court.

text:
    The Union Reduction Co. v. Story.

      Contempt—Intention to violate injunction — Statutes governing contempt proceedings — Nuisance—Injunction.

    1. In proceedings for the punishment of a defendant charged with violating an order of injunction Sections 1188? and 11888, General Code, relating to contempt for violation of an injunction, are the proper sections to apply, and not the sections providing for‘the punishment generally of contempt of court.
    2. If a person or corporation cannot carry on his or its business •without making it so offensive and annoying to others who have property in the neighborhood as to deprive them of the enjoyment and healthful use of their own property, courts of equity should enjoin the continuance of the business entirely.
    3. The intention to violate an injunction is not to he considered, if the injunction is actually violated.
    (Decided July 9, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Healy; Ferris & McAvoy and Messrs. Peck, Shaffer & Peck, for plaintiff in error.

      Messrs. Kelley & Remke, for defendant in error.
   By the Court.

This case is here on error to a judgment of the superior court of Cincinnati.

The action was brought by defendant in error, John Story, three years ago last October to enjoin the plaintiff in error from committing a nuisance by casting upon the premises of plaintiff, in and about his house, offensive and noisome odors and gases arising from the operation of a reduction plant in the western part of the city. Upon the hearing of the cause in the superior court the defendant was enjoined as prayed for in the petition. Upon error being prosecuted to this court the judgment of the lower court was affirmed. Thereupon counsel for The Union Reduction Company made application to the supreme court for an order directing the court of appeals to certify its record to the supreme court. This application was denied on May 29, 1916. On October 9, 1916, an application was filed in the superior court of Cincinnati, in the original case, for an order on the defendant to show cause why it should not be punished for contempt for its repeated violation of the injunction which had theretofore been entered by the court. A hearing was had, and at the conclusion of the evidence the court found the defendant, The Union Reduction Company, guilty of contempt of court for disobeying the injunction; and imposed a fine of $200 and costs upon it in such contempt proceedings. Error is prosecuted to this court from that judgment

It was claimed by counsel for The Union Reduction Company, in the case filed in the court below, that the proceedings to punish for contempt in the case should have been brought under Section 12137, General Code, which section provides generally for the punishment of indirect contempt for:

“1. Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer.
“2. Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions.
“3. A failure to obey a subpoena duly served. or a refusal to be sworn, or to answer as a witness, when lawfully required;
“4. The rescue, or attempted rescue, of a person or of property in the custody of an officer by virtue of an order or process of court held by him.
“5. A failure upon the part of a person, recognized to appear as a witness in court, to appear in compliance with the terms, of his recognizance.”

The trial court ruled that the proceedings in contempt in this case did not fall under the provisions of Section 121.37, but under the special provisions in Sections 11887 and 11888, General Code, providing for the punishment, as for a contempt, of the violation of an injunction or a restraining order.

In this holding we are of the opinion that the trial court did not err, but that these special provisions, Sections 11887 and 11888, relating to contempt for violation of an injunction, are the proper sections to apply to this case, and not the sections providing for the punishment generally of contempt of court. It is elementary law that where there are special statutes relating to a matter they will govern to the exclusion of a general statute touching the same subject-matter.

It is further claimed by plaintiff in error that the rule of evidence to be applied in cases of this kind is the rule applied in criminal cases, to-wit: that it must be established beyond a reasonable doubt that the person charged with the commission of the contempt was guilty. We think it is very doubtful, to say the least, that this rule should be applied in case of a charge of contempt for the violation of an injunction. However that may be, the trial court ruled with the plaintiff in error,—that the evidence must show beyond a reasonable doubt that the plaintiff in error was guilty of contempt,—so that whether or not that was the proper rule to apply, plaintiff in error cannot complain, as it had the benefit of the rule which it invoked.

The only other question in the case is whether or not the judgment of the court below was against the weight of the evidence. There were nineteen witnesses heard on the charge of contempt, many of them living near this reduction plant and others living as far away .as two or three miles. Without undertaking to analyze the testimony, suffice it to say we are clearly of the opinion that the court-was warranted, under the evidence, in finding that' the plaintiff in error beyond a reasonable doubt had violated the injunction. We think the evidence clearly established that the plaintiff in error had not done all that it could to eliminate the noxious and nauseating vapors which rendered the property of plaintiff, Story, almost uninhabitable.

It may be said in passing, as has been frequently said in nuisance cases, that those businesses which cannot be conducted without being so obnoxious and noisome to the property owners in the neighborhood as to amount to a nuisance should not be permitted to be conducted at all. If a person or corporation cannot carry on his or its business without making it so offensive and annoying to others who have property in the neighborhood as to deprive them of the enjoyment and healthful use of their own property, courts of equity should enjoin the continuance of the business entirely.

It is further claimed in the case that the plaintiff in error showed no intention to violate the injunction issued by the court and for that reason should not be punished as for contempt of court. We think the intention to violate the injunction is not to be considered, if the injunction was actually violated. The thing forbidden was the operation of the plant in a manner to create an injurious nuisance to the plaintiff Story, and this nuisance might well arise from the failure of the reduction company to do all that it could to operate its plant in a proper manner, by its passive negligence; or it might result from the commission of active wrongs in the operation of its plant. It was bound to take precaution to prevent the nuisance which the court had enjoined, and if the nuisance actually resulted from the operation of the plant it could not be a defense or an excuse that the defendant did not intend to create a nuisance. 2 High on Injunctions (4 ed.), Section 1418, lays down this rule:

“The violation of an injunction constitutes a contempt of the court from which it issued, and will be punished accordingly. Nor does the question of the motive or intent with whicji-the' writ was disobeyed alter or vary the responsibility for the violation.”

See also Indianapolis Water Co. v. American Strawboard Co., 75 Fed. Rep., 972, where it is said at page 975:

“The breach of the injunction consists in doing or failing to do the thing commanded, and not in the intention with which the act was done.”

Upon a careful review of the case, we are of the opinion that there was no error committed by the trial court prejudicial to the plaintiff in error, and the judgment is therefore affirmed.

Judgment affirmed.

Jones, Gorman and Hamilton, JJ., concur.


text:
    McDonald & Frazier v. Schervish.

      Reviewing court—Cannot reverse a second time on weight of evidence — Notwithstanding adherence to correctness of its former action — Not error to refuse to give special instructions to the jury, when.

    1. A reviewing court is without authority to reverse a second time on the weight of the evidence a judgment against the same party and based on the same evidence, notwithstanding the court adheres to its former opinion that the judgment is one which ought to be reversed.
    2. It is not error for a trial judge to decline to submit to the jury special written propositions of law upon request of counsel after argument to the jury, where, in the court’s general charge, the law necessary for determination of the issues involved has been given in clear, plain and unambiguous language, applicable to the case as made by the proof.
    (Decided May 5, 1918.)
    Error: Court of Appeals for Muskingum county.

      Mr. E. R. Meyer and Mr. A. A. George,- for plaintiff in error.

      Mr. John C. Bassett, for defendant in error.

       For previous opinion in this case, see 6 Ohio Appellate Reports, page 88.

   Houck, J.

The case now before us for judicial determination is one in error and comes from the common pleas court of Muskingum county. The parties stand in this court in the same relation to each other as in the court below.

The suit of plaintiff was based on a promissory note on which it claimed judgment for $152, with interest at six per cent, from April 9, 1914. The petition set forth that said note was executed by the defendant, payable to McDonald & Wagner, and bore the date of February 9, 1914, falling due in two months, with interest at six per cent, after maturity; and that plaintiff was the successor of the firm of McDonald & Wagner and. was, at the time of filing suit, the owner and holder of said note and entitled to recover on same.

The answer of defendant set up the following defenses:

1. That there was no consideration for the note.

2. That the note was given without interest until after due, which was done for the purpose of inducing the defendant to take an insurance policy on his life, for which the note in question was given in settlement of the first year’s premium.

3. That the defendant was induced to take said insurance by reason of certain false and fraudulent statements made to him by McDonald & Wagner, namely, that said policy, at its maturity, which was twenty years, would yield in cash about $5,000, providing the annual premiums were paid as provided- in the policy; that said representations and statements were false and known to be so by the original payees at the time they were made and at the time of the execution and delivery of said note.

Plaintiff filed a reply to the answer, being, in effect, a general denial of all the material averments in the answer.

Trial was had to a jury and a verdict returned for the defendant. The usual motion for a new trial was filed and overruled by the court and judgment entered accordingly. The errors complained of, and for which a reversal of the judgment is sought, are two:

1. That the verdict and judgment are against the manifest weight of the evidence.

2. That the trial judge erred in his refusal to submit to the jury, after counsel had argued the case to the jury, certain written propositions of law, as requested on the part of plaintiff.

As to the first alleged error, we will state that this is the second time this case has been before us for review. The first time we reversed it for the reason that the verdict of the jury was clearly against the manifest weight of the evidence. (McDonald & Frasier v. Schervish, 6 Ohio App., 88.)

We have made a careful examination of the record now before us and find that the verdict of the jury was based upon the same evidence and proven facts as the verdict in the former trial, and, if we were not precluded from so doing, by the statute, and the decisions of our courts thereon, we would reverse it a second time for the same reason as in the first instance.

Section 11577, General Code, reads:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the s.ame case.”

This court as now constituted has passed upon this question and construed the above statute in the case of Fruit Dispatch Co. v. F. Lisey & Co., 4 Ohio App., 300. The supreme court of our state has also passed upon the same question, and. construed this statute, in the case of The Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53, where, at page 61, the court say:

“The sole and exclusive purpose of Section 11577 is to limit the number of reversals on the weight of the evidence by the same reviewing court. * * *
“By the constitution it.is said three must concur before you can reverse on the weight of the evidence. By the statute it is provided that you can thus reverse on the weight of the evidence but once. In this view of the case the constitutional provision and the statutory section are not only fairly reconcilable by a fair course of reasoning, but on the contrary there is no semblance of conflict or repugnancy between them.”

It is apparent from what we have already said that by statutory enactment and judicial decision the same court shall grant no more than one new trial on the weight of the evidence against the same party, and but one judgment of reversal on the weight of the evidence against the same party in the same case. It therefore follows that we are wholly without authority of law to reverse the judgment in the present case upon the ground that it is against the manifest weight of the evidence.

Coming now to a discussion of the second ground of alleged error, we think the rule is well settled that all of the parties to a lawsuit are entitled to have the law, necessary for a proper determination of the issues presented, given to the jury in clear, plain, and unambiguous language applicable to the case' made by the proofs. And where the trial judge fully complies with this rule in his gene'ral charge to the jury, it is not error to refuse to give, after argument of counsel, special charges, if the substance of such charges is given in the court’s general charge.

From our examination of the general charge of the trial judge in the case at bar, we are convinced that he fully and completely submitted to the jury every proposition of law essential to the case, as raised by the pleadings and facts, necessary for a correct and proper determination of the rights of the parties to the case under review.

Further discussion of the errors complained of seems unnecessary. The record presents no errors prejudicial to the rights of plaintiff in error, and for that reason the judgment below is affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.


text:
    In re Robinson.

      Habeas corpus—Crimmal law — Abrogation of workhouse contract by commissioners — During period of imprisonment of defendant — Power of sheriff to transfer'defendant to workhouse provided by county commissioners — Power of court to modify judgment after expiration of term at which made.

    1. 'A-court of common pleas has no power or authority to modify its judgment after the term at which it was made has expired, except in a manner pointed out by statute.
    2. Where a defendant is sentenced by a common pleas court to pay a fine and costs and to stand committed to a certain workhouse until the fine and costs are paid or until he is discharged by due process of law, the subsequent abrogation by the county commissioners of their contract with such workhouse and the notification by the workhouse authorities to the commissioners to remove such defendant, do not authorize the court after the term at which such defendant was sentenced to modify the judgment entry 'by finding the amount of fine and costs not worked out and ordering the defendant committed to another workhouse until such sum shall be paid by the labor of the defendant or until the balance of the fine and costs should be paid by him.
    3. Under such a state of facts the sheriff of the Ciranty is authorized to transfer the defendant to the workhouse which the county had provided for the incarceration of prisoners sentenced by its courts, regardless of the lack of authority of the common pleas court to modify its judgment.
    (Decided January 7, 1917.)
    Error: Court of Appeals for Clinton county.

      Messrs. Hayes & Hayes, for Ben Robinson.

      Mr. Joe. T. Doan, prosecuting attorney, for State of Ohio.
   By the Court.

This proceeding w'as originally one in habeas corpus brought by Ben Robinson, claiming that he is unlawfully restrained of his liberty by the sheriff of Clinton county.

It appears that at the October term of the common pleas court of Clinton county Ben Robinson was indicted on two separate indictments, one charging him with unlawfully selling intoxicating liquors to a minor, and the other charging him with keeping a place where intoxicating liquors were sold contrary to law. These indictments were numbered separately 3325 and 3326. Upon being arraigned Robinson pleaded guilty to both indictments; and the court adjudged him to pay a fine of $100 and costs in each case, and to stand committed to the Cincinnati workhouse to be kept at hard labor until the fines and costs were paid, or until he should be discharged by due process of law.

Robinson was taken to the Cincinnati workhouse and turned over to the authorities of that institution. He continued there until March 31, 1916, at which time the authorities of the Cincinnati workhouse notified the county commissioners of Clinton county to remove Robinson from the Cincinnati workhouse and that they would no longer be responsible for his care.

The commissioners of Clinton county had, prior to the October term, 1915, a contract with the workhouse authorities of the city of Cincinnati for the receiving and maintenance of the prisoners committed thereto by the courts of Clinton county. This contract the commissioners of Clinton county abrogated and rescinded February, 1916, and thereupon entered into a contract with the authorities having control of the workhouse of the city of Xenia.

The sheriff of Clinton county, on being notified that Robinson would not be longer retained in the Cincinnati workhouse, took possession of him and turned him over to the authorities of the Xenia workhouse. Before his doing so, however, the court of common pleas made an entry on or about April 5, 1916, modifying the judgment entry of the October term, 1915, in which entry the court found the amount of the fines and costs not worked out by Robinson in the Cincinnati workhouse to be $32.94 in one case, and $114.54 in the other, and ordered that he be committed to the workhouse of the city of Xenia until said sums should be paid by the labor of Robinson at the rate of sixty cents per day, or until the balance of the fines and costs should be paid by him. The court of common pleas dismissed the plaintiff’s petition in habeas corpus, and Robinson prosecutes error to this court to reverse this judgment.

The claim, and practically the only claim urged by Robinson’s counsel, is that the court of common pleas was not authorized in April, 1916, to modify an entry made at the October term, 1915; and that, therefore, Robinson is not held under any sentence or judgment of the court and should be discharged.

Manifestly the court of common pleas had no power or authority to modify its judgment after the term at which it was made had expired, except in a manner pointed out by statute. The reason for modifying the judgment by the court of common pleas in April, 1916, does not fall within any of the grounds set out in the statute, and therefore the court had no power or authority to modify this judgment as to Ben Robinson in either of the cases in which he pleaded guilty. But Robinson having been confined in the Cincinnati workhouse, which was the institution to receive him under the provisions of the contract between the authorities of that institution and the commissioners of Clinton county, the state of Ohio and the county of Clinton had a right to retain Robinson in custody until he complied with the judgment of the court requiring him to either pay his fine and costs or work the same out at the rate of sixty cents per day as .provided in the judgment of the court. From the fact that the county of Clinton had no contract with the authorities of the Cincinnati workhouse which would compel that institution to keep Robinson in custody when this situation presented itself, and had a contract with the authorities of the workhouse of the city of Xenia, the sheriff of Clinton county was authorized and warranted under the law, in our opinion, in transferring Robinson from the Cincinnati workhouse to the workhouse which the county of Clinton provided for the incarceration of prisoners sentenced by its courts; and, therefore, regardless of the power and authority of the common pleas court to modify its judgment, we hold that the sheriff of the county was warranted in taking Robinson from the Cincinnati workhouse and transferring him to the workhouse of the city of Xenia.

In this view of the case the modification of the entry made by the court of common pleas of Clinton county was not prejudicial to Ben Robinson. He was lawfully in the custody of the sheriff at the time the writ of habeas corpus was sued out, and the sheriff was authorized to take him to the workhouse of the city of Xenia until the judgment of the court which sentenced him in the October term, 1915, had been complied with.

For the reasons stated the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Jones, E. H., Jones, Oliver B., and Gidrman, JJ., concur.


author: Middleton, J.

text:
    Kress v. Wilson, Treasurer.

      Taxation — Limitation of levy — Road repair.

    A levy for the repair of roads under favor .of Section 7419, General Code, when no emergency exists, is controlled by Section 5649-2, General Code, and must be within its limitations.
    (Decided July 17, 1917.)
    Error: Court of Appeals for Brown county.

      Messrs. Young & Barnes, for plaintiff in error.

      Mr. R. E. Campbell and Mr. John M. Markley, for defendant in error.
   Middleton, J.

This action was instituted in

the court of common pleas of Brown county by the plaintiff in error, George Kress, for himself and others as taxpayers, to enjoin the collection of a levy of two mills on the dollar of all the taxable property situate in said county, said levy having been made for the year 1916 by the board of county commissioners, for the repáir of certain public highways, under favor of Section 7419, General Code.

The petition sets forth in detail the' resolution adopted by the board of county commissioners, under which said levy was made, and this resolution shows that in every instance it was found and declared that each public highway to be affected by the levy had been damaged by freshets, and that by reason thereof, and by reason of a large amount of traffic thereon, and from neglect and inattention to the repair thereof, said highway had become unfit for travel and caused difficulty, danger and delay to teams passing thereon. The petition further alleges that said public highways “had not been damaged by freshets, land-slides, wear of water courses or other casualties, but that the condition thereof was caused from neglect and inattention and by reason of a large amount of traffic thereon, and that by reason thereof the said county commissioners had no authority of law to make said levy of two mills and the same is void.”

To this petition the defendant in error, the county treasurer, filed an answer, which contains three defenses, the first of which may be considered merely a denial of the operative facts in the petition. In his second defense, however, the treasurer alleges that the aggregate tax rate in the taxing district in which the plaintiff in error resides, including the levy involved in this, action, was and is less than fifteen mills on the dollar of the taxable property therein; and in his third defense he pleads that in no taxing district in the county does the tax rate exceed said fifteen mills, including this levy of two mills.

The plaintiff filed a demurrer to the second and third defenses aforesaid; upon consideration whereof the court of common pleas held that said defenses were sufficient, but that the petition itself did not state a cause of action. The plaintiff not desiring to plead further a judgment of dismissal was entered, to reverse which these proceedings are now prosecuted.

It appears from the facts stated in the petition, and from the claims now made by plaintiff in error, that he launched this case upon the theory, that, if no emergency existed requiring the levy in question, the board of county commissioners, under the provisions of said Section 7419, were without any authority to make said levy.

Whatever doubt and uncertainty have heretofore obtained in the courts and with the taxing authorities of this state in respect to the construction to be given Section 7419 are now removed by the very recent case of State, ex rel. Menning, v. Zangerle, 95 Ohio St., 1. In that case it is held that roads affected by the provisions of said section are of two classes; and Judge Matthias,, who announced the majority opinion of the court, in discussing this phase of the case, says at page 8:

“Roads requiring reconstruction or repair are of two general classes, the first embracing those roads which have been destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty, any one of which conditions comes within the term ‘emergency’ as -above defined; the second, those roads which by reason of the large amount of tráffic thereon or from neglect or inattention to the repair thereof have become unfit for travel or cause difficulty, danger or delay to teams passing thereon.”

The resolution adopted by the commissioners aforesaid, as before observed, finds and declares conditions to exist in respect to each turnpike which places it within both classes as above enumerated and defined. In other words, it is found and declared by the commissioners in said resolution that an emergency exists as to each road, and, further, that all the other conditions set forth in said section, which, under the definition above given, may be said not to constitute an emergency, also exist in respect thereto. We are now dealing with what this resolution contains only as an abstract proposition of law, and are, therefore, not concerned with any apparent conflicting and inconsistent findings that may appear therein. It therefore follows that the plaintiff, when he adopts the whole resolution without question, and bases his petition upon its declarations, and does not attempt to dispose of any of the facts alleged therein, except those which refer to the existence of an emergency, has met only one phase of the situation. If it be true, as he alleges in his petition, that no emergency may be shown to exist as to any of the roads named, this, fact will only remove them from the first class as specified in State, ex rel., v. Zangerle, supra, and as roads of the second class they still may be repaired by a levy under favor of this section within certain limitations. The only distinction between the two classes of roads which may be repaired under favor of this, section is that a levy for the repair of the first, or emergency class, may be made independent of the so-called Smith one per cent, law (Section 5649-1 et seq., General Code), while a levy for the second class, or for roads which are out of repair by reason of the large amount of travel thereon, or from neglect and inattention, must be made within the limitations of said law. State, ex rel., v. Zangerle, supra.

The material matter now to be considered, however, is that the plaintiff does not in his petition in any manner whatever question, challenge or deny that conditions obtain, as stated in said resolution, which will authorize a levy if the roads named have become and are out of repair and dangerous by reason of the large amount of travel thereon or from inattention and neglect. We are, therefore, impelled to conclude that in this respect the petition is defective, and does not cover the whole situation as presented by the facts stated therein, and, therefore, is insufficient to sustain an action for an injunction.

The judgment of the lower court, therefore, in sustaining a demurrer to the petition will be affirmed.

As before observed, a demurrer was filed to the second and third defenses of the answer, which was overruled by the learned trial judge, which ruling must now be affirmed, for the reason that any answer to a defective petition must be held good as against a demurrer. But in thus affirming this entry we do not thereby sustain the sufficiency of the facts stated in the defenses aforesaid, were they pleaded in answer to a good petition. The theory of these defenses is that so long as the aggregate tax rate, including the levy under Section 7419, aforesaid, does not in any taxing district in the county exceed fifteen mills, any of the conditions specified in said section, when found to exist, will sustain this levy. A§ we have already indicated, we do not question the proposition that a levy may be made under favor of Section 7419, which is within the limitations of the Smith one per cent, law, if conditions are shown to exist other than emergency as defined in State, ex rel., v. Zangerle, supra, but we can not adopt the contention that a limitation of fifteen- mills may apply to such a levy. Upon the contrary, the limitation of the Smith law, applying to this levy, is ten mills, as provided by Section 5649-2, which section controls and fixes the aggregate amount which may be levied under the facts as shown here, and which must include this levy of two mills, if it is to repair only such roads as have become dangerous by reason of neglect and inattention or because of a large amount of travel thereon.

In the case of State, ex rel., v. Sanzenbacher, 84 Ohio St., 506, the relative bearing of Sections 5649-2 and 5649-3a on the aggregate amount of taxes that may be levied was considered and determined by the court, and the former section was held to be the controlling law, while the latter section was considered as having only to do with interior limitations. While taxing authorities, therefore, may levy the full amount specified in the latter section for any one, or even more, of the purposes specified therein, yet they may not make such levy for all, for in that event the aggregate amount levied would exceed the ten mills prescribed in the former section and would impose upon the budget commission the duty of eventually reducing the levy so made to conform to the provisions of said last-named section. (Rabe v. Board of Education, 88 Ohio St., 403, 418, and State, ex rel., v. Patterson, 93 Ohio St., 25, 34.) We are, therefore, of the opinion that the facts stated in the second and third defenses of the defendant’s answer would not constitute a valid defense to a good cause of action.

While the pleadings do not disclose the actual tax rate in the taxing district in which the plaintiff in error resides, it appears from one of defendant in error’s briefs that it is made up as follows:

County (Other than road under Cass highway law) ................. 2.8 mills

Township (Other than road under Cass highway law)..............95 mills

School .......................... 5.0 mills

Making a total of................ 8.75 mills

Manifestly, if these figures are true, the addition of two mills, on the levy herein, will make the aggregate rate 10.75 mills, which is in excess of the limitations of said Section 5649-2 and contravenes its provisions. If, therefore, no emergency may be shown in this case to sustain this levy, and the foregoing facts are true, the levy, is without authority of law and void.

We are, therefore, of the opinion that it is our duty in affirming the judgment herein of the lower court to remand this case to that court for further proceedings according to law, which would include leave in said court to the plaintiff iri error to file an amended petition setting forth in full the facts in respect to the aggregate amount of the tax rate in the district involved.

Judgment accordingly.

Walters, J., concurs.

Sayre, J., not participating.


author: Jones, P. J.

text:
    Crane, Exr., v. McCarthy et al.

      Taxation—Warnes law—Board of complaints—State tax commission— District assessor, duty of—Correction of erroneous tax return—■Listing and valuation of personal property—■Appeal from action of district assessor.

    1. Under the act known as the Warnes law (103 O. L., 786) it is the duty of the district assessor to list and value for taxation all personal property subject to taxation in the county constituting his assessment district, and if he finds any statement or return to be erroneous either in the amount of property listed or in the valuation of any item or items to correct such statement or return.
    2. Under the Warnes law no particular method is pointed out as to how the district assessor arrives at the amount of the property or its value, and no provision is made as to taking evidence by the district assessor in regard thereto, or as to making any record of such evidence. He acts as an assessing officer, and if he assesses property that is not owned by the person against whom it is listed, or if the valuation made by the assessor is in excess of its true value, relief is provided by an appeal to the board of complaints, and from that board to the state tax commission, and an appeal can ultimately be had to the courts.
    (Decided February 26, 1917.)
    Appeal: Court of Appeals for Hamilton county.

      Mr. Wm. F. Fox, for plaintiff.

      Mr. J. V. Campbell, prosecuting attorney, for defendants.
   Jones, P. J.

Plaintiff as the executor of the estate of William J. Grew seeks to enjoin the collection of taxes on the personal property of said estate as listed on the 1914 tax duplicate of Hamilton county by the district assessors. It is admitted that Mr. Grew, who died August 30, 1914, was a resident of Cincinnati, and had made no return ,of his personal property for taxation for the year 1914, although he had at the time of his death personal property as detailed in an inventory filed by his executor in the probate court, a copy of which was certified to the district assessors.

After notice to the executor, and conferences with his attorney, the district assessors on January 22, 1915, placed upon the tax list for the year 1914, in the name of said executor, as the value of the personal property of said estate subject to taxation, the amount of $44,250.

Plaintiff claims this action was illegal and void on two grounds:

1. Because the district assessors acted without any evidence.

2. That they failed to comply with Section 5401, General Code, and file a statement of the facts or evidence upon which such correction was made.

The petition contains an allegation that said W. J. Grew had no such an amount of personal property subject to taxation on February 1, 1914. The proofs show that 150 shares of United States Steel common stock was acquired by Mr. Grew February 14, 1914, and therefore was not owned by him on tax-listing day; but no evidence was produced to show that he was not the owner of any other part of his said personalty covered by the inventory. It did appear, however, that he was not in active business, having been retired about three years, and spending his time in travel and in efforts to improve his failing health. One of the district assessors of taxes testified that he was personally acquainted with Mr. Grew and knew him as a man of reputed means, but that he was largely guided by the list of property shown in the inventory in the action of the assessors in making this correction in the tax list.

Under Sections 4 and 9 of the act known as the Warnes law, 103 O. L., 787, 789 (Sections 5582 and 5587, General Code), it is the duty of the district assessor to list and value for taxation all personal property subject to taxation in the county constituting his assessment district, and if he finds any statement or return to be erroneous either in the amount of property listed or in the valuation of any item or items to correct such statement or return.

Under this law it was undoubtedly the duty of the. district assessors of Hamilton county to list the property of the estate of William J. Grew for taxation. No particular method is pointed out in the statute as to how the district assessor arrives at the amount of the property or its value, and no provision is made as to taking evidence by the district assessor in regard thereto, or as to making any record of such evidence. He acts as an assessing officer, and if he assesses property that is not owned by the person against whom it is listed, or if the valuation made by the assessor is in excess of its true value, relief is provided by an appeal to the board of complaints, and from that board to the state tax commission, and an appeal can ultimately be had to the courts, under Section 12075, General Code. No appeal to the board of complaints was made or attempted in this case, for the reason, as stated, that it was not in session at or after the time of the correction complained of.

Counsel for plaintiff assumes that the action of the district assessors was taken under authority of Section 5 of the Warnes Law (Section 5583, General Code), such district assessors acting as the county auditor acted under the terms of Section 5401, General Code, which requires the filing of a statement of facts and evidence on which the correction is made. It is a serious question whether, notwithstanding the terms of the law, an appointed officer such as a district assessor could assume and take over the dutites of an elected county official such as the county auditor. If, however, it is conceded that the district assessors could act as the county auditor did, they would act under the terms of Section 5399 rather than 5401, as the first-named section applies strictly to omitted property, while the latter applies to corrections where a return has actually been made. In this case no return was made.

The cases relied upon by plaintiff, Fratz v. Mueller, 35 Ohio St., 397, and Ratterman, Treas., v. Niehaus & Klinkham, 4 C. C., 502, do not therefore apply. Both of these cases relate to the action of a board of equalization whose functions were somewhat the same as those provided for a board of complaints in the act under consideration.

. Evidence was also introduced in this case showing that the same property had been listed for taxation by the county auditor for the years .1911, 1912 and 1913, and that taxes upon it had been paid for those years. These facts taken in connection with the fact that there is no evidence to show that the district assessors acted without authority in making this charge upon the tax list, except so far as the U. S. Steel stock was concerned, require the court to find against the plaintiff as to the other property.

A decree may be taken enjoining the collection of so much of the tax as relates to the United States Steel stock, which will require a reduction of $7500 from the total valuation listed and the corresponding reduction in the tax charge, and refusing further relief.

Judgment accordingly.

Gorman and Hamilton, JJT., concur.


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    Musselli v. The Industrial Commission of Ohio.

      Workmen’s compensation — Benefits — Dependency — Legal wife — Bigamous marriage.

    The fact that one killed in the course of his employment had contracted a bigamous marriage does not bar his legal wife living in Italy' from receiving benefits under the Ohio workmen’s compensation law, where there is no evidence that she had been other than a faithful wife.
    (Decided July 5, 1917.)
    Error: Court of Appeals for Delaware county.

      Messrs. Paxton, Warrington & Seasongood, for plaintiff in error.

      Mr. E. C. Turner, attorney general, and Mr. D. M. Cupp, for defendant in error.
   Houck, J.

The error complained of in this case is to the sustaining of a general demurrer to the petition of the plaintiff below, Marie Placide Bellomo Musselli.

The following are the material allegations of the petition:

That plaintiff is the lawful widow of one Raphael Musselli, who on or about the first day of December, 1913, received an injury, while in the course of employment with the Delaware Blue Limestone Quarry, from which injury he died; that the wages earned by the decedent at the time of the injury were three dollars per day, and that application was made by the plaintiff for compensation to the Industrial Commission of Ohio; that plaintiff’s application for compensation was disallowed by the said commission for the reason that the plaintiff herein was not a dependent of the deceased at the time of the injury causing his death; that the decedent came to the- United States of America about the year 1901, leaving plaintiff and a child in Italy; that after the decedent’s arrival in America correspondence was continued with the plaintiff from time to time, and that the decedent sent plaintiff money at various times; and that two attempts were made by the decedent and plaintiff to have plaintiff come to the. United States of America, but said plaintiff was refused the right of immigration, the last attempt being made in 1908.

The petition further alleges that the last money received by plaintiff from her husband was in January, 1909; that shortly after this time Raphael Musselli married a woman, in the state of West Virginia, with whom he lived for about one year and a half, after which time he left the woman he had married in West Virginia and came to Piqua, Ohio, later locating in Delaware, Ohio; that the decedent often spoke affectionately of his family in Italy, and that he had given some money to a friend, which was placed in a letter, addressed to plaintiff, and mailed in New York City, the reason given for this peculiar action being that the decedent did not desire to have it known where he was located; that the decedent while in this country had never made application to become a citizen of the United States, and that he always expected and looked forward to returning to the kingdom of Italy; that plaintiff is extremely poor, and that since the death of the decedent she has not remarried, and that she is dependent for her livelihood upon labor in the fields, when such employment can be obtained.

The petition further alleges that the plaintiff is the lawful wife of the decedent, and dependent upon him within the meaning of the workmen’s compensation law, and asks the court to determine her rights under said law, and for the compensation to which she is entitled under the provisions of said law.

The rights of the parties hereto must be determined from the proper construction to be placed upon Section 35 of the workmen’s compensation act of 1913, as found in 103 Ohio Laws, page 72, being the law in force at the time the alleged cause of action arose. The statute reads as follows:

“In case the injury causes death within the period of two years, the benefits shall be in the amounts and to the persons following:
“1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof.
“2. If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent, of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date of the injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars.
“3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent, of the average weekly-wages, and to continue for all of such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars.
“4. The following persons shall be presumed to be wholly dependent for support upon a deceased employe:
“(A) A wife upon a husband with whom she lives at the time of his death.
“(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.
“In all other cases question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employe; but no person shall be considered as dependent unless a member of the family of the deceased employe, or bears to him the relation of husband or widow, lineal descendant, ancestor or brother or sister. The word 'child’ as used in this act, shall include a posthumous child, and a child legally adopted prior to the injmy.”

It is contended by counsel who filed the demurrer that under the allegations of the petition and a proper construction of the word “dependent,” as found in the statute under consideration, the plaintiff is not entitled to compensation, because at the time of the injury and death of the decedent, who was the husband of plaintiff, they were not living together, actually or constructively, and that the husband must have contributed to the support of his wife at or near the time of his death in order in law to make plaintiff a dependent and entitled to participate beneficially under the workmen’s compensation act.

Let us first inquire what is meant by “dependent,” as the word is used in this statute. The commonly accepted meaning of the word is, one who looks to another for support, help or favor.

The crux of the case seems to center in the word “dependent,” as used in the statute heretofore referred to. A wife is a natural dependent — a fact that is universally conceded — and the dependency of the wife on the husband is continuous while the marital relation exists, unless by some act of herself or by operation of law such dependence ceases.

Then let us inquire whether or not the claim of defendant’s counsel is sound, that because the wife was several thousand miles away from her husband she is not entitled to benefits under the statute, although she had made two attempts to cross the Atlantic ocean, leaving her home in Italy to come to America and join her husband, but for some reason not being permitted to do so, and although her husband had sent her money from time to time, and as a matter of fact and law she was his wife at the time of his death. In the face of these facts we can not agree with the claim of counsel for defendant.

Learned counsel for defendant in their brief say:

“In March, 1912, after living with wife number two in the state of West Virginia for about three years and three months Musselli left her and came to the state of Ohio. He had contributed nothing to the support of his wife and child in Italy since the month of January, 1909, and nothing toward the support of his West Virginia wife and child since March, 1912.
“The question involved in this case, and the question which was submitted before the Industrial Commission of Ohio, is whether or not the wife and child residing in the kingdom of Italy, at the time of the death of Raphael Musselli, the husband and father, are dependents of said decedent under the Ohio Workmen’s Compensation • Law, and whether they were dependent upon said decedent for their support at the time of the injury which caused his death. * * *
“The facts in this case clearly indicate that there was neither, a voluntary or mutual agreement to live separate and apart, but that there was an abandonment of the marital relations, both legal and moral, by the husband of this plaintiff, and that there existed no reasonable expectations that the relation of husband and wife would ever be resumed, and that under no circumstances under the facts in this case could the plaintiff and the decedent be considered to be either actually or constructively living together. We think that the fact that the decedent had contracted a bigamous marriage is conclusive proof of abandonment of the wife and child living in Italy.”

We are unable to subscribe to this doctrine and .do not believe it to be sound from a legal standpoint, and it most certainly has no foundation upon which to stand from a moral point of view.

It must be conceded that the provisions. of the law under review are wise and humane, and that they were enacted for the purpose of furnishing the means of support for the widows, children and dependents of employes who might lose their lives while engaged in some labor or work in an endeavor to obtain the means of support for those near and dear to them. This law is for the benefit of the dependents of employes, and in view of this fact how can it be claimed with any force that the surviving widow in the present case should be barred of her rights under the law because her husband contracted a bigamous marriage, or because for a period of time he failed and neglected to send her money? What act has she done or failed to do that should prevent her from receiving the benefits of this law? Are the wrongful, unkind, unfaithful acts and misconduct on the part of her husband to be charged against the dutiful wife and mother, thereby preventing her from reaping the benefits of the statute that was specially enacted to take care of just such unfortunate persons? Certainly not.

We. find no allegation in the petition that could be construed as an admission on the part of the plaintiff that she knew of any misconduct of her husband.

Courts have no function of legislation, but simply seek to ascertain the will of the legislature in its enactment of a law and to give the language used that plain meaning which the words and sentences upon their face imply.

If we are to determine the intent of the legislature in its enactment of the workmen’s compensation law by the rule herein laid down, and apply the law as thus interpreted to ascertain whether or not the petition in this case is sufficient in law, we must and do say that it is.

Having so found, the judgment of the common pleas court is reversed, and this cause is remanded to that court with instructions to overrule the demurrer to the petition.

Judgment reversed.

Powell and Shields, JJ., concur.


text:
    Lucking v. The Mutual Benefit Life Insurance Co. et al.

      Insurance—Beneficiary — Surrender of policy—■Effect of death of beneficiaries—Beneficiaries interested in policy, who are.

    A policy of life insurance was issued December 3, 1880, upon the life of L, payable to his wife within ninety days after due notice and satisfactory proof of his death, or in case she should die before the decease of her husband then the amount of said insurance should be payable to their children or their guardian. The wife died December 6, 1913. L and his wife had in all five children. Two died in infancy, one on June 30, 1876, and one on March 31, 1882. One is still living. One died February 24, 1914, without issue, leaving a widow. One died July 11, 1912, leaving three children, one of whom died July 16, 1914, and two of whom are still living. On November 27, 1914, the policy of insurance was cancelled and annulled by the insurance company upon the written release of the insured and his surviving child. Held: That the child surviving at the time of the surrender was the only beneficiary then interested in the policy.
    (Decided February 4, 1918.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Matthews & Klein; Mr. John A. Scanlon; Mr. Chas. M. Leslie and Mr. Clarence M. Smith, for plaintiff in error.

      Messrs. Vorys, Sater, Seymour & Pease; Mr. Wilbur E. Benoy; Mr. A. C. Gallagher; Mr. John K. Kennedy and Mr. Clarence M. Smith, for defendants in error.
   Jones, P. J.

A policy of life insurance for $5,000 was issued by the defendant company December 3, 1880, upon the life of Joseph Lucking, payable to his wife, Elizabeth Lucking, within ninety days after due notice and satisfactory proof of his death, or in case she should die before the decease of her husband then the amount of said insurance should be payable to their children or their guardian.

Elizabeth Lucking died December 6, 1913.

Elizabeth and Joseph Lucking had in all five children as. follows: Alexander and Gertrude C., who died in infancy, without issue, on June 30, 1876, and March 31, 1882, respectively; Leo Lucking, who is still living; Joseph Lucking, Jr., who died February 24, 1914, without issue, leaving a widow, Barbara Lucking; and Lawrence Lucking, who died July 11, 1912, leaving three children, one of whom, Homer, died July 16, 1914, and two of whom, William Lucking and DeWitt H. Lucking, are still living.

Plaintiffs allege that on November 27, 1914, in violation of their rights in said policy of insurance, same was cancelled and annulled by the said defendant company upon the written release of the insured, Joseph Lucking, and his son, Leo Lucking, said company then paying to them the sum of $2666.75, in cash, as consideration for the release and'delivering up of said policy of insurance.

William Lucking and DeWitt H. Lucking, infants, by their next friend, and Barbara Lucking, are the plaintiffs, and cross-petitions were filed by the administrators of Joseph Lucking, Jr., Lawrence Lucking, Alexander Lucking and Gertrude C. Lucking. The petition and all of said cross-petitions allege that all of the conditions of the policy of insurance had at the time been performed upon the part of the plaintiffs and cross-petitioners, and that they have been damaged by the action of said defendant company in cancelling and annulling said policy of insurance; said parties claiming that they should have participated in the surrender value thereof, which, instead, was improperly paid in full to said Joseph Lucking and Leo Lucking.

Demurrers were filed by the defendant to plaintiffs’ petition and to the several cross-petitions, and upon argument said demurrers were each sustained and final judgment was entered below in favor of the defendant.

Plaintiffs in error seek reversal of that judgment.

Exhaustive and elaborate arguments have been made in this case as to the question of the respective interests of the parties in this policy and the vested rights that accrue to a beneficiary of such an insurance policy.

The case was decided-upon the technical wording of the policy — that Elizabeth Lucking being dead and Leo Lucking being the only surviving child at the time of the surrender he was the only beneficiary then interested in the policy.

So far as the administrator of Alexander Lucking is. concerned there is no question but that he had no interest at any time in said policy, because it was issued several years after his death.

Gertrude C. Lucking also, who died before her mother, could in no way participate in said policy.

So far as the claim of the administrator of Joseph Lucking, Jr., is concerned, the case of Ryan v. Rothweiler et al., 50 Ohio St., 595, is conclusive, and no interest can be allowed on his behalf.

The claims that are not disposed of by Ryan v. Rothweiler are those made on behalf of the children of Lawrence Lucking, who survived their grandmother, Elizabeth Lucking, and are still living, namely William Lucking and DeWitt H. Lucking.

This court had occasion to look into this question — although it was not there necessary to decide it — in the case of Schuermann, Exrx., v. Twachtman et al., 24 C. C., N. S., 459, wherein it was stated that, in the absence of Ohio decisions, if it were necessary to construe such policy, we should be inclined to follow the rule laid down in the case of Continental Life Insurance Co. v. Palmer, 42 Conn., 60, and other cases there referred to, as carrying out the natural intention of the parties and being- more in accord with the law of descent and distribution. As a matter of principle we see no reason to change that view.

Two unreported cases were referred to in the Schuermann opinion: Frank, Admr., v. Baumann et al., 54 Ohio St., 621, and Dovel v. Dovel et al., 69 Ohio St., 576, which are relied upon here on behalf of defendants in error. Both of these decisions are without report other than the statement that they are decided on the authority of Ryan v. Rothweiler.

Certain notes in regard to Frank v. Baumann are published in 35 W. L. B., 59. An examination of the .record, however, in that case, shows that while one of the parties, Bessie Frank, was a granddaughter, occupying a position similar to that of William Lucking and DeWitt H. Lucking in this case, no cross-petition in error was filed in her behalf, and the only error proceeding before the supreme court was that of her mother’s administrator; so that the question in that case as it was presented to the supreme court was strictly within the facts of Ryan v. Rothweiler.

The record of the case of Dovel v. Dovel clearly shows that Lizzie O. Dovel was a grandchild, occupying a position similar to that of William and DeWitt H. Lucking in this case, and there the question was. squarely put to the supreme court in the same manner in which this case is presented to this court. The judgment of the circuit court was there affirmed by the supreme court, adjudging that she was not entitled to participate in the proceeds of the policy.

While the Dovel case, so far as we have been advised, has not been reported in either the circuit court or the supreme court, through the industry of the librarian of The Cincinnati Law Library a published copy of the record and briefs which were used in the supreme court has been made available to this court. We understand, from its repeated declarations, that the attitude of thé supreme court as to the binding force of unreported cases has not been modified, yet in the recent case of Bumiller v. Walker, 95 Ohio St., 344, the following language is used at page 351 of the opinion of the court:

“Ordinarily this court does not regard its unreported cases as judicial authority, for the reason that it is generally impossible to ascertain the concrete legal propositions involved and decided; but where a single question is involved, and that succinctly stated and decided, it cannot be said that such unreported case is wholly without influence.”

This Dovel case having been brought to our attention by the briefs of counsel, and the same question having apparently been the basis of the supreme court’s decision there, we feel bound under the rule of judicial subordination, regardless of any contrary view of the law we might otherwise be inclined to hold.

We therefore hold that no error was-committed by the court below in sustaining the demurrers, and its judgment is therefore affirmed.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.