author: PER CURIAM.

text:
    EVIDENCE — ERROR—LICENSES.
    [Wayne (5th) Court of Appeals,
    February Term, 1914.]
    Voorhees, Powell and Shields, JJ.
    H. F. Evans v. Wooster (City).
    1. Reviewing Court Without Authority to Consider Validity of Ordinance not Incorporated in Record.
    A court in reviewing the decision of a mayor upon demurrer to an affidavit of complaint, involving the validity of the ordinance under which the affidavit is drawn, is not at liberty to consider the ordinance unless it has been put into the record in the trial before the mayor and has thus become a part of the bill of exceptions. ,

    2. Statutes Giving Authority to Compel Transient Dealers to Take Out Licenses Invalid for Indefiniteness.
    Secs. 3673 and 3676 G-. C., in so far as they purport to authorize the requirement of licenses from transient dealers as a condition to their doing business within the municipality are unconstitutional and void, and ordinances based on these statutes are therefore without effect.
   PER CURIAM.

The plaintiff in error was arrested on an affidavit sworn out before the mayor of the city of Wooster charging him with the violation of one of the city ordinances in that:

“On or about the 20th day of February, A. D. 1913, at the city of Wooster, county of Wayne and state of Ohio, opened up and conducted a store for the temporary sale of goods, wares and merchandise in a store-room on South Market street, in said city, which goods, wares and merchandise consisted of pianos. He, the said H. F. Evans, being then and there a transient dealer in said goods, wares and merchandise without getting a license or paying a license fee so to do. Said H. F. Evans at said time and place not selling by sample only nor was he a producer offering or exposing for sale agricultural articles or products, nor a manufacturer of said goods, wares and merchandise nor were they products of his own raising, contrary to Secs. 253, 254 and 255 of the Revised Ordinances of the city of Wooster, Ohio.”

After certain preliminary motions and demurrers to the affidavit had been filed a trial was had before the said mayor resulting in the' conviction of plaintiff in error for the offense charged, and upon such conviction he was ordered to pay a fine of $25 and costs, and to stand committed until the fine and costs are paid. A bill of exceptions was prepared embodying the testimony that was offered before the mayor and the case was taken by a petition in error to the court of common pleas where the finding and judgment of the mayor were affirmed.

A petition in error was then filed in this court seeking to reverse the judgment of the court of common pleas and of the said mayor. No copy of the ordinance appears in the record, and it is claimed that in testing the sufficiency of the affidavit under the ordinance of the city, the court is without authority to look to the ordinance itself, or to take judicial notice of its existence, and therefore that it must be presumed that the affidavit and ordinance were sufficient to sustain the conviction. And this seems to be the law in Ohio, so held in Nelson v. Berea,, 12 Circ. Dec. 329 (21 R. 781), which was afterwards affirmed by the Supreme Court without opinion, Nelson v. Berea, 66 Ohio St. 668. But it is urged as error to this court that the statutes authorizing cities and villages to pass ordinances such as the ordinance must have been, under which this defendant was convicted, were and are unconstitutional by reason of being in conflict with the provisions of both the state and federal constitutions.

While we can not look to the ordinance itself we can look to the statute that authorizes a city or village to pass such an ordinance, and as the ordinance itself defining certain acts as offenses against the municipality can not rise higher than the source which authorizes it to be passed as part of the law of the municipality, if the statute or source from which it is derived is violative of the provisions of the constitution, the ordinance itself must be so.

The statutes authorizing cities and villages to pass ordinances making such offenses as the plaintiff in error was charged with, punishable are Sees. 3673-3676 G. C. These sections provide that municipalities shall have the general power to license transient dealers or persons who temporarily open stores or places for the sale of goods, wares or merchandise, and in granting such license may exact and receive such sum of money as it may think expedient and delegate to the mayor thereof authority to grant, issue and revoke such licenses.

Certain exceptions are made to the authority thus given, such as that the provisions of these sections shall not apply to persons selling sample only, and excusing persons from being required to have a license to sell their own product. It is held in Flatau v. Mansfield, 7 Circ. Dec. 39 (14 R. 592 j, in the second clause of the syllabus that the act of March 25, 1890, authorizing the licensing of transient dealers in cities and villages violated Secs. 1 and 2 of the bill of rights and is therefore invalid. It was further held by the circuit court of Licking county that the statute authorizing the passage of an ordinance similar in its provisions and making the same acts complained of in this proceeding criminal and punishable by fine, was unconstitutional and void. This judgment of the Licking county court was afterward affirmed by the Supreme Court of Ohio. These two judgments having been given by the circuit court of this appellate district of which this court is the successor, we feel that these decisions are the law so far as this district is concerned, and that we are bound by them and therefore bound to hold that the sections of the statute referred to authorizing the ordinance under which this prosecution is held are at least unreasonable in the authority granted, and for that reason the ordinance passed under the provisions of such statute is unauthorized and void. Further the matters and things which are held in Flatau v. Mansfield, supra, to render the ordinance under discussion in that case void apply with equal force to any ordinance such as would authorize the prosecution of an offense such as is prosecuted in this case, that is, there is no provision either in the statute authorizing municipalities to license transient dealers and those who temporarily open stores for the sale of goods, wares and merchandise, or defining what is meant by opening a store for the temporary sale of goods, or what constitutes a transient dealer. That is, there is no limit fixed in the statute, and therefore no limit could be fixed by ordinance under the statute which defines what length of time shall constitute a temporary sale of goods or the temporary opening of a store for the sale of goods, and because these things are so held to be unconstitutional we feel that any ordinance such as the one under which this plaintiff in error was prosecuted, would be an unreasonable exercise of the authority granted by the legislature to municipalities and would therefore be void. Sipe v, Murphy, 49 Ohio St. 536 [31 N. E. 884; 17 L. R. A. 184].

It will therefore be the judgment of this court that the judgment of the court of common pleas affirming the judgment of the mayor of Wooster shall be reversed and the prisoner will be discharged. The defendant in error will pay the costs.


source: Caselaw Access Project

author: METCALFE, J.

license: Public Domain

text:
    BAILMENTS.
    [Ashtabula (7th) Court of Appeals,
    December 2, 1917.]
    Pollock, Parr and Metcalfe, JJ.
    Triangle Film Corporation v. Helen Saks.
    Cause of Action Stated Without Averring Negligence in Case of an Agreement to Pay for Goods Lost or Destroyed.
    Where in an action on a contract of bailment which provides, “That persons * * * taking; the service specified in the order shall pay for any property * * * lost, destroyed, or damaged, general wear and tear excepted,” the petition avers that the article bailed was destroyed by fire while in the possession of and under the control of the bailee, such petition states a cause of action without averring any negligence on the bailee’s part.
    [Syllabus by the court.]
    Error.

      Squire, Sanders <& Dempsey, for plaintiff in error.
   METCALFE, J.

A demurrer was sustained to the plaintiff’s petition in the common pleas court, and the correctness of that ruling is the only question that we have here.

The petition recites that the plaintiff is a corporation engaged in the business of furnishing moving picture films to various theaters; that the plaintiff and defendant, Helen Sabs, entered into a contract by the terms of which the plaintiff agreed to furnish the defendant, for use in her theater called the Strand in the city of Conneaut, Ohio, 900 linear feet of films each week; that the contract was in writing and contained the following provision, “That persons, copartnerships, or corporations taking the film service specified in the order shall pay for any property of Triangle Film Corporation lost, destroyed, or damaged, natural wear and tear excepted, at the rate of $.20 per linear foot for all films. ’ ’ On March 14,1916, a quantity of films which plaintiff furnished to defendant were destroyed by fire while in the defendant’s possession and control. No negligence on the part of the defendant is averred in the petition.

Defendant in error contends that the furnishing of the films by the plaintiff to the defendant for hire the defendant can only be held liable for any loss or damage which occurred through their negligence. We do not think there is any question but that the contract stated in the petition is a contract of bailment, but such a contract is governed by its specific terms just the same as any other contract.

The provision of the contract in question is not a contract to return goods, natural wear and tear excepted, but is a contract to pay for them if, lost, or destroyed, except by natural wear and tear. It makes no other exception. Under it the bailee became the insurer of the property, if lost or destroyed while in her possession or under her control, and the burden would be upon her to prove any circumstances which might relieve her from that liability, if any such exists.

This provision of the contract is too plain to be construed in any other way. The law upon this subject is very clearly stated in the 3 R. C. L. 105, Sec. 30:

“While in the absence of a special agreement the law of bailments outlines definitely the degree of responsibility imposed on a bailee for the care of the thing bailed, this does not prevent the parties from making their own contract in reference to their mutual rights and liabilities under bailments of property as well as in reference to other subjects, and generally speaking it seems that they may, by express contract, enlarge, abridge, qualify, or supersede the obligation which otherwise would arise from the bailment by implication of law. Thus where a bailee, enters into a special contract to return the .property in good condition, or to pay its value, he is an insurer, and if loss occurs while, it is in his possession, he is liable for its value.”

Grady v. Schwinler, 16 N. D. 452 [113 N. W. 1031; 14 L. R. A. (N. S.) 1089; 125 Am. St. 674; 15 Ann. Cas. 161]; Seevers v. Gabel, 94 Iowa 75 [62 N. W. 669; 27 L. R. A. 733; 58 Am. St. 381]; Marks v. Cold Storage Co. 107 La. 172 [31 So. 671; 57 L. R. A. 271; 90 Am. St. 285]; Geisweiler v. Railway Co. 83 Mo. 112 [53 Am. Rep. 558]; Canfield v. Railway Co. 93 N. Y. 532 [45 Am. Rep. 268]; Johnson v. Miller, 96 N. Y. 93 [48 Am. Rep. 609]; Browning v. Hanford, 5 Hill (N. Y.) 588 [40 Am. Dec. 369],

The rights of the parties are to be determined by the express provisions of the contract and not by the common law.

The judgment is reversed.

Pollock and Farr, JJ., concur.


author: JONES (E. H.), J. GORMAN, J.,

text:
    TAKE DEPOSITIONS.
    [Hamilton (1st) Court of Appeals,
    March 18, 1915.]
    Jones, Jones and Gorman, JJ.

      Schott, Sheriff v. Benckenstein et al.
    Commissioner to Take Deposition Appointed by Court of Another State Has Power to Commit Witness Refusing to Answer.
    A commissioner, hearing a commission from a court of another, state authorizing him to take depositions in this state, comes within the term, “officer” in Sees. 11510, 11530, 11543 G. C., and can compel the giving of testimony by committing to Jail for contempt a witness who refuses to be sworn.
    Error.

      Maxwell & Ramsey, for plaintiff in error.

      Bruce & Bruce and 8. A. Headley, for defendants in error.

       Affirmed, Benckenstein v. Schott, 92 Ohio State 29.

   JONES (E. H.), J.

The sole question presented to this court in this case is whether or not a commissioner bearing a commission from a court in the state of New York, authorizing him to take depositions in this state, can compel the giving of testimony by committing to jail for contempt a witness who refuses to be sworn.

It is well settled by the case of DeCamp v. Archibald, 50 Ohio St. 618 [35 N. E. 1056; 40 Am St. 692], that a notary public of Ohio before whom depositions are being taken for use in Ohio can commit to jail a contumacious witness. This authority is unquestionably conferred upon such notary by Sec. 11510 G. C. which reads as follows:

“Disobedience of a subpoena, a refusal to be sworn, except upon failure to pay fees duly demanded, and an unlawful refusal to answer as a witness or to subscribe a deposition, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required.”

And Secs. 11529 and 11530 G. C. provide:

“Depositions may be taken in this state before a judge or the clerk of the Supreme Court, a judge or clerk of the court of appeals, a judge or clerk of the court of common pleas, a probate judge, justice of the peace, notary public, mayor, master commissioner, official stenographer of any court in this state, or any person empowered by a special commission.
“Depositions taken in and to be used in this state, must be taken by an officer or person whose authority is derived within the state; but, if for use elsewhere, they may be taken before a commissioner or officer who derives his authority from the state, district or territory in which they are to be used. ’’

The answer to the question propounded to us depends wholly upon the construction of these and other sections contained in Part Third, Tit. 4, Div. 3, Chap. 3 of the G. C. and particularly upon the meaning to be ascribed to the word “officer” as used in Secs. 11510,11530, 11543 and others of said chapter. In the latter section the word “officer” certainly includes one appointed under a special commission to take testimony in another state for use in a court in this state. It follows that the word “officer,” used in Sec. 11510 of the same ehaptei’, in like manner includes the commissioner who may be appointed under See. 11530 to take depositions to be used elsewhere. The word “officer,” as used in this chapter, can not be limited to magistrates and others who have taken an oath, given bond, etc., as argued by counsel. In order to make the statutes on the subject consistent and effective, it is obvious, we think, that the word “officer” must be held to include all persons authorized to take depositions.

We are therefore of the opinion that the word “officer” as used in Sec. 11510 was intended to and does embrace a commissioner appointed by a court of another state to take testimony in Ohio. Such being our construction of this section, it follows that the commissioner so appointed has power to punish as a contempt an unlawful refusal to answer as a witness or to subscribe to a deposition.

It is argued that, adopting the above construction, the law is unconstitutional for the reason that the power to punish for contempt is a judicial power which under our .Constitution can be conferred only upon a court. This point has been passed upon by our Supreme Court in the case of DeCamp v. Archibald, supra. We quote from the syllabus, as follows:

“The power conferred by Sees. 5252 and 5254 R. S. on a notary, or other officer, in taking depositions, to commit a witness to the jail of the county for refusing to answer a question, is not judicial in the sense of the constitution, conferring all judicial power upon the courts of the state.”

The judgment of the lower court will therefore be reversed and the defendants in error remanded to the custody of the sheriff.

Judgment reversed.

Jones (O. B.), J., concurs.

GORMAN, J.,

dissenting.

I find myself unable to concur in the conclusions of my associates as to the right of the commissioner in this case to commit for contempt.

Section 11510, G. C. provides that a refusal to answer may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required. This section provides, therefore, only for the punishment by the court or an officer. An officer within the meaning of this section means an officer of the state of Ohio; and under Sec. 2 G. C. a commissioner who derives his authority from a state other than this state is not an officer of the state of Ohio.

"While a commissioner appointed by authority of another state may take depositions in this state, under favor of Sec. 11530 G. C., I am of the opinion that the legislature has simply recognized his right to take depositions in this state when the witnesses appear voluntarily and consent to give their testimony. I do not think that any person can have the power and authority to deprive a citizen of this state of his liberty, unless he be an officer of this state duly authorized so to do or a court of this state.

The appellate division of the supreme court of New York, in the case of People v. Leubuscher, 34 App. Div. 577 [54 N. Y. Supp. 869], held: That under the constitution of the United States (Amendment. 14, Sec. 1), providing that no state shall deprive any person of life, liberty, or property without due process of law, Sec. 920 Code Civ. Pro., providing that a person who refuses to testify before a commissioner appointed to take depositions “is liable to the penalties which would be incurred in a like ease if he was subpoenaed to attend the trial of an action in a justice court; and for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon the trial, ’ ’ — who, under See. 3001, has power to imprison a witness for refusal to testify before him — is unconstitutional as applied to a commissioner appointed by a court of another state to take depositions in that state, and who seeks thereunder to imprison for contempt.

It is also true that Judge Sayler, while on the common pleas bench, in the case of Goodman, In re, 1 Dec. 360 (7 N. P. 201), took the same view of the ease pending before him as I take in this case. In the Goodman case he discharged on habeas corpus a witness who was committed by the commissioner appointed by the surrogate court of New York to take testimony in this city. He was of the opinion that the commissioner was not an officer of Ohio, and therefore not authorized to commit for contempt.

The supreme court of Kansas, in Huron, In re, 58 Kans. 152 [48 Pac. 574; 36 L. R. A. 822; 62 Am. St. 614], laid down the same rule as the New York appellate division of the Supreme Court in the case above cited.

Our Supreme Court in the ease of DeCamp v. Archibald, supra, held that a witness before a notary public, where depositions were being taken to be used in an action pending in this state and in this county, could be committed by the notary, and that the notary'had power to commit for contempt of court. But we think that case is distinguishable from the one at bar because a notary public is an officer of this state. He is duly appointed and commissioned by the governor, is obliged to give bond and take an oath of office, as all officers are required to do under See. 2 G. C.

For the reasons stated I am of the opinion that the judgment of the court of common pleas in discharging defendants in error should be affirmed.


author: JONES (O. B.), J.

text:
    EVIDENCE — MALICIOUS PROSECUTION.
    [Hamilton (1st) Court o£ Appeals,
    February 28, 1916.]
    Jones, Jones and Gorman, JJ.
    David J. James v. Hotel Honing Co.
    1. In Malicious Prosecution Fact of Dismissal Proper to Admit.
    In an action for malicious prosecution resulting from the arrest of plaintiff, caused by defendant, in the municipal court of Cincinnati, on the charge of defrauding an innkeeper, evidence was introduced by the testimony of the deputy clerk of the municipal court, who produced and identified the judge’s and clerk’s dockets of the municipal court, each of which showed the notation as to said case: “Dismissed for want of prosecution. Costs of warrant.” The trial court refused to permit the plaintiff to answer the question: “Were you actually dismissed from that court?” Held: That it was error in the trial court to refuse to permit the plaintiff to testify as to the fact of his dismissal, considering the equivocal or ambiguous entry found in the journal.
    2. Equivocal Entry in Record Explainable by Parol.
    An equivocal or ambiguous entry appearing upon the docket or journal of a court may be explained by parol evidence.
    [ Syllabus *by the court.]

      Error.

      Philip & S. G. Boettinger and Harry B. Street, for plaintiff in error.

      Cogan, Williams & Ragland and Horace A. Reeve, for defendant in error.
   JONES (O. B.), J.

The parties stand in this court in the same position they held in the court below. The action is one by David J. James for malicious prosecution, resulting from the arrest of plaintiff in April, 1914, caused by defendant, in the municipal court of Cincinnati, on the charge of defrauding an innkeeper.

At the close of plaintiff’s testimony, the court, on motion of defendant, directed a verdict in its favor. These error proceedings are brought to secure a reversal of that judgment.

While it was said in Fortman v. Rottier, 8 Ohio St. 548, 550 [72 Am. Dec. 606], that it was essential in an action for malicious prosecution that it must be shown not only that the prosecution complained of was at an end, but that “it must also appear that the plaintiff was acquitted of the charge, ’ ’ the later eases of Douglas v. Allen, 56 Ohio St. 156 [46 N. E. 707], and Gaiser v. Hurleman, 74 Ohio St. 271, 275 [78 N. E. 372; 113 Am. St. 953], hold that it is sufficient to show that the prosecution was legally terminated before the commencement of the action.

The final journal entry in the case in the municipal court, which was produced in evidence, is as follows:

“This cause coming on for hearing upon the affidavit and warrant filed herein, defendant being in open court and arraigned, and after examination the court do order said defendant to pay the costs of warrant. Costs paid. ’ ’

The court refused to permit the plaintiff to answer this question: “Were you actually dismissed from that court?” To this ruling plaintiff excepted and made tender of proof that plaintiff, if permitted to answer, would have stated that he was dismissed. Evidence was introduced, however, by the testimony of the deputy clerk of the municipal court, who produced and identified the judge’s and clerk’s dockets of the municipal court, each of which showed the notation as to said case to be: “Dismissed for want of prosecution. Costs of warrant. ’ ’

Defendant below and the trial court evidently relied upon the case of Grosse v. Oppenheimer, 30 O. C. C. 831 (11 N. S. 374). That case was decided upon demurrer, the petition alleging “that the said cause was terminated # * * by said plaintiff being obliged to pay the costs of said prosecution, ’ ’ and the court there held that such an entry must be construed to mean “that she was found guilty of the charge and fined the costs. ’ ’

That case however is not identical with the instant ease. Here, while the journal entry is indefinite and ambiguous as to whether the court found that the defendant was guilty or not guilty of the charge made, the explanation given by the evidence offered, especially the entries in both the judge’s and clerk’s dockets, shows that the defendant was dismissed. This evidence was admitted without objection or exception from the defendant, and it was competent.

“Although the usual method of proving the proceedings of a court is by the record as completed and extended, it has frequently been held that the minutes or memoranda upon the docket of the clerk of the court or the magistrate are competent evidence of an order or proceeding in court, in case the extended record has not been made. The docket is the record, until the record is fully extended; and the same rules of verity apply to it as to the record. Every statement therein is deemed to have been made by the direction' of the court. ” 3 Jones, Commentaries on Evidence, Sec. 621.

See also Washington, A. & G. Steam-Packet Co. v. Sickles et al. 65 U. S. (24 How.) 333 [16 L. Ed. 650].

In the opinion of this court it was error in the trial court to refuse to permit the plaintiff to testify as to the fact of his dismissal, considering the equivocal or ambiguous entry found in the journal. It seems well settled that such an entry may be explained by parol evidence. 1 Freeman on Judgments (4 ed.), Secs. 273, 274 and 275; Russell v. Place, 94 U. S. 606, 608 [24 L. Ed. 2141 : Leopold v. Chicago, 150 Ill. 568, 574 [37 N. E. 892]; Lyman v. Becannon, 29 Mich. 466; Walker v. Chase, 53 Me. 258, and Foye v. Patch, 132 Mass. 105.

As to the right to explain a judgment by parol evidence, see also Parsons v. Ohio Pail Co. 27 O. C. C. 162 (6 N. S. 116).

The court erred in directing a verdict for the defendant, and the judgment is therefore reversed and the cause remanded for a new trial.

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


author: GORMAN, J.

text:
    EXEMPTIONS.
    {Hamilton (1st) Court of Appeals,
    June 6, 1915.]
    Jones, Jones and Goman, JJ.
    John M. Bolan v. Mitchell Brick Co.
    Debtor Concealing Property Not In Custody of Court Denied Claim of Exemption in Property In Court.
    Thurber & Browning, partners, entered into a contract with the State of Ohio to build a Toad known as the New Richmond Turnpike for the sum of $12,000, and thereafter assigned this contract to Mary B. Bolán. The assignment was not made a matter of record, and $1,183.40 was paid to Thurber & Browning on account of work done on the road by Mary B. Bolán. Under the contract the state was to retain 15 per cent, of the estimates until the work was finally completed, and under this provision $208.85 was retained by the state. Held: In a proceeding in aid of execution to reach the property of John M. Bolán, husband of Mary B. Bolán, the $208.85 retained by the state was the property of Mary B. Bolán. Under the above stated facts, the doctrine — that where a debtor entitled to exemption In lieu of a homestead conceals money and property which he has a right to have at the time of the examination, and has other property in the custody of the court, his conceal ment of property not in the custody of the court should be deemed to be an election on his part to take that property as a part of his claim in lieu of a homestead — has no application.
    [Syllabus by the court.]
    Error.

      Frank E. Wood and Charles Sawyer, for plaintiff in error.

      Froome Morris, for defendant in error.
   GORMAN, J.

The defendant in error at the April term, 1913, of the common pleas court recovered a judgment against the plaintiff in error, John M. Bolán, for $755.49. Execution was issued and returned milla bona. The judgment remained unpaid and unsatisfied. Thereafter, in the October term, 1914, defendant in error instituted proceedings in aid of execution against the plaintiff in error, making the German National Bank, the Gordon Engineering Co. and Mary B. Bolán, wife of the plaintiff in error, parties as garnishees, and the court enjoined the parties from disposing of any property in their hands belonging to plaintiff in error.

A referee was appointed to take the testimony and report to the court, all of which was done, and the report filed. Among other things the report of the referee found that there was a credit due to John M. Bolán from the German National Bank of Cincinnati, of $283.05; and from the Gordon Engineering Co. $250.80. The referee further found that John M. Bolán had been carrying on a contracting business all his life, and during the last four years had been apparently carrying on his business in his wife’s name. The referee further found that the defendant John M. Bolán, and Máry B. Bolán his wife, sought to make it appear that there was either no money due from the Gordon Engineering Co. or that such as was due was due on account of work done by the wife under her individual contract; and he found that both these contentions were utterly false.

After the report of the referee was filed there was a further hearing of evidence in the common pleas court, and it then developed that Thurber & Browning, partners, had entered into a contract with the state of Ohio to build a road known as the New Richmond Turnpike for the sum of $12,000; that Thurber & Browning had assigned their contract to Mary B. Bolán for the consideration of $800 and that she had given her note to them for $800, payable when the work should be completed; that $1,183.40 had been paid by the state on account of this contract; and that Thurber & Browning had paid this money to Mary B. Bolán. The assignment of the contract was not made a matter of record by the state, and the money was therefore paid to the original contractors, Thurber & Browning, and by them turned over to Mary B. Bolán. Under the contract- the state was to reserve 15 per cent of the estimates until the work was finally completed, and on account of the work finished there was retained by the state the sum of $208.85, which sum was not due at the time of the hearing, and would never be due unless the work was. completed — or until the work should be finally completed and accepted by the state.

The common pleas court held that this $208.85 not yet due was the money of John M. Bolán, and the court further found that there was a credit due Bolán in the German National Bank, $283.05, and from the Gordon Engineering Co. $250.80. Bolán made demand during the progress of the trial to have the money on deposit in the German National Bank and the money due from the Gordon Engineering Co. set off to him as exempt from levy and execution — he being a married man, the head of a family, and not the owner of a homestead. The court of common pleas held that the $208.85, the retained percentage of the state, belonged to Bolán, and that he had concealed this asset and by that act had elected to select that $208.85 as a part of his exemption in lieu of his homestead. The court allowed Bolán his exemption of $500 under the statute, but made the allowance as follows:

Retained percentages . to o CO CO OX
Due from Gordon Engineering Co. to ÜX O CO O
Making .$459.65

In addition thereto the court allowed from the amount of money on deposit in the German National Bank the sum of $40.35, to make up amount of the exemption in lieu of a homestead, $500.

We are of the opinion that the $208.85 was not the money of John M. Bolah, but'that under the contract between his wife Mary B. Bolán and Thurber & Browning these retained percentages under the contract with the state of Ohio belonged to Mary B. Bolán, if they ever became due, which they were not at the time of the hearing. Mary B. Bolán may never realize anything out of these retained percentages; she can secure the retained percentages only if she completes the work on the New Richmond Turnpike, and there remains more than $10,000 worth of work yet to be done on that job. Complications may arise which would prevent her from recovering these retained percentages even if the work were finished. We are of the opinion that even if this contract were John M. Bolán’s the retained percentages, not being yet due, would not be available for him as part of his exemption in lieu of a homestead.

There is no question but that Bolán is entitled to his $500 exemption in lieu of a homestead, and that amount should have been set off to him, as he selected, out of the funds in the German National Bank and the money due from the Gordon Engineering Co. As to the retained percentages, if when they become due' it should be found that the money belongs to John M. Bolán, the defendant in error is not precluded by the judgment and finding in this case from subjecting that fund to the payment of its claim.

For the present it is sufficient to say that there should be allowed to Bolán, out of the moneys due from the Gordon Engineering Co. and The German National Bank, $500. There will remain $33.85. which can be applied by the defendant in error upon its indebtedness.

The case cited by counsel for both plaintiff in error and defendant in error, Haslage v. Hoover, 9 Circ. Dec. 404 (16 R. 570), we think holds that where the debtor entitled to exemption in lieu of a homestead conceals money and property which he has a right to have at the time of the examination, and has other property in the custody of the court, that his concealment of property not in the custody of the court should be deemed to be an election on his part to take that property as a part of his claim in lieu of a homestead; but we do not think "that case has any application to the facts developed in the case at bar.

There being no dispute as to the facts in this case we are of the opinion that a judgment should be entered in-this court such as should have been entered in the court below, allowing Bolán $500 exemption, in lieu of his homestead, out of the moneys in the German National Bank and due from the Gordon Engineering Co. tbe excess over and above $500 to be allowed to the creditor, the defendant in error.

As to the retained percentages, under the contract for the construction of the New Richmond Turnpike, the court is of the opinion that the judgment of the court below should be reversed.

Jones (E. H.), and Jones (O. B.), JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Butler (1st) Court of Appeals,
    January 13, 1917.]
    Jones, Jones and Gorman, JJ.
    Middletown (City) v. Doty.
    Burden on Abutting Owner to Show Unreasonableness of Change of Grade of Sidewalks.
    In an action against a municipality for damages for change of grade in a street, the plaintiff must show either that his buildings were constructed in accordance with a grade regularly established, either by ordinance or user, and that the improvement of the street had been made to a different grade and damages caused thereby; or that while no grade was then established, the buildings were originally erected to conform to what would be a reasonable grade for the unimproved street when it should be improved, and that instead of establishing such reasonable grade the city authorities had adopted one entirely unreasonable.
    [Syllabus by the court.]
    Error.

      W. G. Palmer, for plaintiff in error.

      Andrews <& Andrews, for defendant in error.
   JONES (O. B.), J.

This proceeding in error is brought to reverse the judgment of the court of common pleas in favor of Charles G. Doty, plaintiff below and defendant in error here, for damages to his property caused by the grading and construction of sidewalks on Bellemonte avenue in front of same.

The amended petition alleged that prior to the improvements put upon said lot Bellemonte avenue had an established grade, which was a reasonable grade and afforded reasonable access to said lots, and that after the grade was established and so existed the streets were improved with reference to the grade then existing; that the city has changed the grade of this street so that the grade in front of plaintiff’s property has been lowered about 8 feet; that plaintiff’s dwelling is about 14 feet from the sidewalk line of the street, and that in cutting down the street the ingress and egress of plaintiff’s property is greatly interfered with, making it necessary for plaintiff to construct steps and retaining walls, or to grade and rearrange said property.

The city as defendant denied that, prior to the improvements upon the lots of plaintiff, Bellemonte avenue had an established grade or that the lots were improved with reference to that grade, and averred that the buildings and improvements of plaintiff were made before any grade whatever had been established by the city of Middletown, and were made without reference to a reasonable grade for Bellemonte avenue, and that by the use of ordinary care plaintiff or his grantor could have anticipated the grade which has since been established. The city further averred that the established grade of Belle-monte avenue is a reasonable and proper one, and necessary for its proper use as a public street of said city.

These averments were denied by plaintiff in his reply.

The evidence shows that Bellemonte avenue is a street but two squares long, extending from Third street .to North street; that the dwelling house on plaintiff’s lot was built and other improvements made in the year 1908, the house being opposite the end of Second street, which terminated at Bellemonte avenue; that at that time Bellemonte avenue was simply a platted and dedicated street upon land which had not been graded but was at the time fenced and temporarily used as a pasture; and that no grade had been fixed by user because no public travel passed over same.

By ordinance passed in 1910 the city established the first grade for Bellemonte avenue, and, subsequently, in 1915, two ordinances were passed by the city authorities establishing a grade for the east curb and for the west curb, respectively. Both of the grades established by these ordinances provided for a descending grade from the level of Third street, at its intersection with Bellemonte avenue, to the level of North street, at its intersection. There was in front of plaintiff’s property a change, by the second ordinance, of less than six inches; and no improvements were made to conform to said first grade of 1910, nor were any improvements made between the passage of the first grade-ordinance and the second grade-ordinance.

The evidence of Charles Goldman, plaintiff’s grantor, who built the house, shows that he made no application to the city for the establishment of a grade for Bellemonte avenue at the time of building, and that he located the house at the particular place at which it was built because he regarded it as a beautiful site for a home, having the outlook at the head of Second street. There is nothing in the record to show that there was .any effort to anticipate the reasonable grade at which Belle-monte avenue would be improved, nor does the record contain any evidence showing that the grade established by the city, upon which improvements have been made; is in any way unreasonable. The record also fails to show that any claim for damages was filed by plaintiff under the provisions of either Sec. 3823 or Sec. 3830 G. C.

As is well known, the law of Ohio, in compensating property owners for damages to improvements caused by change of grade, or by the establishment of an unreasonable grade in the construction of streets, is different from that of most of the states of the Union, in that it is deemed inequitable to permit the whole burden to fall upon the owner of property, which has been improved with reference to an established grade, rather than to have it borne by the public which is benefited by the new grade. The rule in Ohio is well stated in the syllabus in Akron v. Chamberlain Co. 34 Ohio St. 328 [32 Am. Rep. 367], as follows:

“The owner of a lot abutting on an unimproved street of a city or village, in erecting buildings thereon, assumes the risk' of all damage which may result from the subsequent grading and improvement of tbe street by the municipal authorities, if made within the reasonable exercise of their power.
“The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damage resulting from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.
“Whether a grade be unreasonable or not, must be determined by the circumstances existing at the time the gradé was established, and not by the circumstances existing at the time abutting lots may have been improved. ’ |

If plaintiff had been able to show that his buildings were constructed in accordance with a grade regularly established, either by ordinance or by user, and that the improvement of the street had been made to a different grade, and damages caused thereby, he would be entitled to recover such damages; or if he had shown that while no grade was then established the buildings were originally erected to conform to what would be a reasonable grade for the unimproved street when it should be improved, and that instead of establishing such reasonable grade the city authorities had adopted one entirely unreasonable, then he might have recovered. As stated by Judge McIlvaine, in Akron v. Chamberlain Co. supra, in the opinion of the court, at page 335:

“Whatever latitude there may be in the exercise of discretion in fixing the grade of a street is lodged in the municipal authorities, and not in the adjacent lot-owners.”

In other words, the duty of establishing the grade rests primarily with the municipal authorities, and the city can only be held for an unreasonable grade when they have failed to perform that duty and made the grade so unreasonable as to amount to an abuse of discretion. Plaintiff failed to produce any witnesses to show such abuse of discretion in this case. The only evidence as to the reasonableness of the grade came from witnesses produced by the defendant, and there is nothing to show that the grade to which Bellemonte avenue is improved could be considered an unreasonable grade.

The verdict of the jury and the judgment of the court below is contrary to the evidence and to the law. The judgment is therefore reversed and the cause remanded for such further proceedings as are authorized by law. Judgment reversed.

Jones (E. H.), and (Joman, JJ., concur.


author: CARPENTER, J.

text:
    ESTOPPEL — PLEADING.
    [Cuyahoga (8th) Court of Appeals,
    March 6, 1916.]
    Meals, Carpenter and Grant, JJ.
    Katherine Engel v. M. L. Rothman.
    Right of Defendant to Set Up Counter-Claim or Waive It and Bring an Independent Action Thereon:
    A defense in which the same facts constitute a counter-claim, may be withheld without precluding the defendant from asserting his claim later, and having waived it at the expense of having the costs assessed against him, he may proceed upon his . counterclaim in a separate action for equitable relief.
    Appeal.

      B. J. Selzer, for plaintiff.

      F. C. Scott and M. L. Koblitz, for defendant.
   CARPENTER, J.

It appears that the defendant, on May 14, 1915, recovered a judgment against the plaintiff, Katherine Engel, for $1,000, being the amount stipulated in her contract with the defendant Rothman as liquidated damages.

In her answer‘in that case she set up as her sole defense a denial of her ownership of the premises which she had refused to convey. Thereafter said defendant instituted an action in the court of common pleas to subject plaintiff’s property on Dennison avenue to the payment of said judgment. The present •suit is brought by plaintiff to restrain the defendant from proceeding to enforce the collection of said judgment, and from issuing any order of sale, and that said contract may be declared null and void.

In her petition plaintiff sets forth the recovery of said judgment'; that her answer to the petition was solely a denial of her ownership of said premises, and alleges that the contract upon which said judgment was obtained and action thereupon founded, was procured by a conspiracy entered into by said defendant and one A. L. Simons, a real estate agent, acting in behalf of said defendant.' That said. Simons made various false representations to her which she was induced to believe, and relying thereon signed said instrument. The court below sustained the motion of said Rothman to dissolve the restraining order granted plaintiff upon the filing of her petition, and also sustained the general demurrer of said defendant to the petition, and the plaintiff not desiring to plead further, dismissed plaintiff’s petition.

The question which accordingly arises is whether the plaintiff is barred from maintaining this action by failing in her answer to set up as defensive matter the allegations in her present petition.

It is true that the general rule is that a party when sued is bound to set up every defense, legal or equitable, or both, which he may have to an action, and effectually waives those not pleaded, but it is also true that a party having a counter-claim is not compelled to set it up in the same action. He may waive it, and at the expense of having to pay the costs as provided by the G. C., may institute an independent proceeding.

It will be remembered that plaintiff in her answer in the former suit pleaded only that she was not the owner of the premises, thereby bringing herself squarely within the rule.

In the case of Loraine v. Long, 6 Cal. 452, the court say:

“Although a party may set up an equitable defense to an action at law, he is not confined to that proceeding. He may let the judgment go at law, and file his bill in equity for relief, Our practice while it enlarges the field of the remedy does not take away pre-existing remedies by implication.”

In the ease of Hill v. Cooper, 6 Ore. 181, 186. the court say:

“But we understand that respondent’s counsel do not strenuously contend that Hill might not have obtained the relief he now seeks in this suit, had he interposed the same as a defense by the way of a cross bill in equity to the action by Cooper against him to recover the possession of this land. But counsel for respondent now insists that having a right under the statute to interpose this equity in that action, appellant having failed to avail himself of such a defense, can not now, after having asserted in his answer in that action that he was the owner of the fee simple title, and that having been determined against him, come and assert his equity derived through the deed from Strat-ton to Patton. It is insisted by the counsel for respondent that it is the duty of a party defendant, who has an equitable defense to an action at law, to interpose the same by way of cross bill, as allowed by the code, and if he fails to do so, his right is lost and the determination of the action at law against him, will forever bar his equity. * * * We think it was not the intention of the statute to place defendants in a worse position by giving them a right to interpose equitable defenses in legal actions than they were before. It was the intention of the statute to simplify legal proceedings and save expenses to litigants and at the same time save to them all their former remedies, if they saw fit to omit them. And such a construction has been given to a similar statute in other states. We think the proper construction of this statute is that it confers on a defendant in an action at law, the privilege to interpose an equitable defense if he has one, but that if he fails to so interpose, he may avail himself of his equity after a judgment against him, in the same manner as before this statute was enacted.”

In the case of Witte v. Lockwood, 39 Ohio St. 141, the syllabus is as follows:

“1. The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and waives those not pleaded; but where the facts claimed to afford a defense are sufficient to constitute a counterclaim, there is an exception to such general rule.
“2. A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under wbicb tbe parties to snob action respectively claimed. He bas his election to rely on such equitable title as a defense of a counter-claim, or he may maintain an action thereon. ’ ’

In its opinion the court say, at page 144:

‘ ‘ The inference that a defense, where the same facts constitute a counter-claim, may also be withheld without estopping the defendant, seems to be irresistible. It follows that Witt had his election to plead his equitable title as' a counterclaim or a defense, or reserve it as be has done, for a separate action. The New York code of civil procedure, from which ours is largely borrowed, had received a construction in accordance with the view here expressed, before the adoption of our code (Halsey v. Carter, 1 Duer. 667). Mr. Pomeroy in his able work on the modern codes of civil procedure, states the rule in the same way (Remedies- & Rem. Rights, Section 804); and we are led to the conclusion, after a laborious examination of the cases, that the position is impregnable.”

Under the foregoing authorities, we regard the rule as pronounced therein, as applicable to the facts of the case at bar, and fully answers the question at issue in favor of the plaintiff, and the demurrer will be overruled.

Meals and Grant, 33., concur.


author: JONES (E. H.), J.

text:
    CHARGE TO JURY — STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    May 16, 1914.]
    Swing, Jones ancl Jones, JJ.
    Cincinnati Trac. Co. v. William F. Weber.

      1 Instruction Requiring Finding That Conductor Expressly or 1m-oliedly Knew of Passenger’s Boarding Street Car to Hold Company. Liable for Premature Starting, Properly Refused.
    One is a passenger in a street car who is in the act of stepping on the step or platform, the car having stopped for him; and in case of an accident when stepping on, his rights are those of a passenger. Hence, in an action for damages on account of personal injuries due to the sudden starting of a street car under such circumstances, it is not error for the trial court to refuse to incorporate in the charge to the jury a statement that to warrant a finding that the plaintiff was a passenger the jury must find that the conductor knew, or by the exercise of ordinary care should have known, that the plaintiff was about to board the car while it was at a standstill.
    2. Charge Incorporating Petition Setting Forth Element of Damages not Supported by Evidence not Prejudicial When Proper Elements Given Jury.
    The trial court may read to the jury an entire petition, notwithstanding it sets forth an element of damage not supported by any evidence, if that portion of the charge which followed the reading of the pleadings, did not make any-allusion to the element of damage which was unsupported by evidence, but on the contrary mentioned the different elements of damage which would go to make up the verdict of the jury in case they should find in favor of the plaintiff.
    ERROR.

      Kitiredge <& Witty and B. E. Simmonds, for plaintiff in error.

      Bettinger, Schmidt & Kreis, for defendant in error.
   JONES (E. H.), J.

In the action below the defendant William F. Weber was plaintiff, and in his petition sought damages on account of personal injuries alleged to have been sustained by him on the afternoon of October 23, 3910.

In his petition it is alleged that on said day *£ one of defendant’s North Norwood cars being operated over Montgomery pike, inwardly bound for the said city of Cincinnati, stopped on the bridge which crosses the tracks of the Baltimore & Ohio Southwestern Ry., in said city of Norwood, which said point is a regular stopping place for the purpose of taking on passengers to be conveyed to Cincinnati.

“That while said car was standing still, after having stopped as aforesaid, this plaintiff started to board the samev and took hold of the rear post with his left hand and put Ms right foot on the step of said car, and was attempting to board the same for the purpose of being conveyed to Cincinnati, when said car, through the negligence and carelessness of the agents and servants of said defendant, and before this plaintiff had ample opportunity to board the same and reach a place of safety, suddenly and without any notice or warning to this plaintiff:, started with a violent and unusual jerk or motion, whereby this plaintiff, without any fault or negligence on his part, but solely through the negligence of said defendant, was violently thrown to the street,” etc.

The trial resulted in a verdict in favor of the plaintiff below, and this proceeding in error is prosecuted for the purpose of reversing the judgment in his favor entered upon said verdict.

Two assignments of error are relied upon by plaintiff in error in the brief and oral argument of counsel.

The first error assigned is in the charge of the court. The plaintiff in error in its brief says:

“We submit that there is error in the charge of the court to the jury with reference to whether or not the plaintiff at the time the accident occurred, was a passenger, and, as such, entitled to demand from the defendant that it exercise toward him the highest degree of care as defined by the court below in his charge to the jury.”

The brief then quotes the following portion of said charge:

“Now, coming down to this particular case, if the plaintiff was in the act of getting on the ear, taking hold of the car, and was in the act of getting upon the car, he was then entitled to the rights of a passenger and the obligations existing between the company and the plaintiff are those to which I have already referred; ordinary care on the part of the passenger to take care of himself and avoid dangers, and the highest degree of care on the part of the defendant, if, as I say you find from the evidence that the plaintiff had become a passenger. In other words, that he had laid hands upon the car, and had endeavored to get upon it. Also it must be before the car was in motion. ’ ’

Counsel for plaintiff in error point out that this portion of the charge was erroneous in that the trial judge did not incorporate in it something to the following effect:

“And if the jury should find that the conductor knew, or by the exercise of ordinary care should have known, that the plaintiff was about to board the ear while it was at a standstill.”

It is admitted in the answer of the defendant below that the place where the accident occurred was a regular stopping place for taking on and letting off passengers. There is no question, from the evidence, but that the car stopped for the purpose of taking on a group of persons who were waiting for the car. It is also uncontradicted that the plaintiff below was among those who were waiting to board the ear. These facts having been proven, and there being no evidence tending to rebut the same, it is unnecessary, in the opinion of the court, for the trial court to incorporate in its charge any condition with reference thereto sueh as that quoted above from the brief of counsel for plaintiff in error. The motorman and conductor both testified that the car stopped at this regular stopping place for the purpose of taking on these would-be passengers, thus extending to them an invitation which was accepted by several persons as soon as they respectively laid hold upon the car for the purpose of entering the same.

This principle of law seems to be well established, and. is concisely stated in 1 Nellis, Street Railways (2 ed.), Sec. 252, as follows:

"One is a passenger in a street car who is in the act of stepping on the step or platform, the car having stopped for him, and in case of an accident wrhen stepping on, his rights are those of a passenger.”

Under the undisputed facts as stated above, we conclude that the charge of the court, or the portion thereof above quoted, contains a complete statement of the law .as applicable to this case.

■ The second and last assignment of error complained of is stated in the brief for plaintiff in error as follows -.

"We submit that the court below also erred in submitting to the jury, by reading the petition, elements of damage claimed in the petition which were not supported by any evidence. We refer to' the following portion of the petition as included in the charge: ‘ That he was unable to attend to his grocery business but has had to employ extra help in order to carry on the same, during which time, because of the lack of his personal attention, he has lost several customers and has otherwise sustained losses in said business. ’ ”

The bill of exceptions shows that the court read to the jury the entire petition, including the language just quoted. It is conceded that there was no evidence to support in any way this allegation in the petition. It is not claimed that the court in the portion of the charge which followed the reading of the pleadings made any allusion to this element of damage which was unsupported by evidence; on the contrary, the court mentioned the different elements of damage which would go to make up the verdict of the jury in case they should find in favor of the plaintiff, and nowhere did it make any mention of the loss of business complained of in the petition. It would be a sad reflection on the intelligence of the twelve men who made up the jury to assume, in the face of the charge of the court upon the elements which constituted the damage and upon the necessity of proof to support each of the claims, that they would proceed to award damages upon a claim in the petition which was abandoned by the plaintiff in the trial of the ease and which had no evidence whatever in its support.

After a careful examination of the record, and a consideration of the points advanced by counsel for plaintiff in error, we are persuaded that there is no error in any manner prejudicial to the plaintiff in error; that substantial justice has been done; and that the judgment below should be affirmed.

Jones (O. B.) and Swing, JJ., concur.


author: JONES, J..

text:
    DIVORCE AND ALIMONY,
    [Hamilton (1st) Court'of Appeals,
    June 17, 1918.]
    Jones, Hamilton and Wilson, JJ.
    L. C. Black and James B. Swing v. Woodford T. Stewart.
    1. Error not Prosecutable by Counsel inOwn Name and Motion, to Reverse Order Refusing Attorney Fees in Divorce Proceedings Dismissed by Client.
    Attorneys in their own names and on their own motions, by having interposed to set aside an order of dismissal of divorce proceedings filed by the wife without their knowledge, and for allowance for counsel fees and expenses and making such allowance a charge against the property of the husband, do not become parties to the action and, as such, have no authority to file a petition in error to review such order of dismissal and denial of motion interposed.

      2. Allowance of Attorney Fees in Divorce Proceedings Limited to Motion by Wife.
    While it is proper and the court has full power to make, on the motion of the wife, an allowance for her sustenance and necessary expenses, including reasonable counsel fees, such a motion does not lie where made, not by the wife but by counsel'acting in their own behalf, and without leave of court.
    ERROR.

      George B. Goodhart, Samuel L. Hagans, John W. Peek, for plaintiffs in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   JONES, J..

In this proceeding- in error it is sought to review and set aside the action of the court of common pleas, division of domestic relations, in an action for alimony brought by Madge May Stewart, a wife, against Woodford T. Stewart, her husband, wherein it denied a motion filed .by the attorneys of plaintiff on their own behalf for an allowance of counsel fees and expenses to be paid them by defendant and to be made a charge against his property, and granted a motion made by the defendant to dismiss said case upon the payment by him of costs and enter a judgment of dismissal of said cause.

The facts of the case are stated in the opinion of the trial court which is reported under the name of Stewart v. Stewart, 28 Dec. 173 (20 N. S. 273), where the language of the motions upon which the court acted is given in full.

A motion to dismiss the petition in error was interposed here by defendant in error on the ground that plaintiffs in error were not parties to the case in the court of common pleas, and have therefore no right to file a petition in error to reverse any judgment or order made in said case in that court.

As the same questions are involved, the motion to dismiss was argued and submitted along with the error proceeding itself.

According to the established practice no one can appeal from a judgment or decree, or bring a writ of error to review it, unless he was a party to the action below, or was made so either by an express order of the court to that effect or by being treated as such, or unless be is a legal representative of a party, or bis privity of estate, title or interest appears from tbe record. 2 Cyc. 626.

In Hanover v. Sperry, 35 Ohio St. 244, in tbe opinion of the court MeIlvaine, J., said (p. 245):

“In general, a petition in error must be prosecuted by a party to tbe record. ’ ’

Section 5226 R. S., now See. 1224 G. C., which has been held unconstitutional in Wagner v. Armstrong, 93 Ohio St. 443 [113 N. E. 397], allowed appeals to be taken “by a party or other person directly affected, from a judgment or final order,” but there is no such provision as to error cases, and the rule is that error can ordinarily be prosecuted only by parties to the original action or their privies.

An exhaustive note with the citation of many cases on the right to prosecute error or appeal is found in the report of Switzer, In re, 201 Mo. 66 [98 S. W. 461; 119 Am. St. 731]. In it appears the following language:

“Both by the common law practice and that obtaining in chancery, a writ of error could be prosecuted or an appeal taken only by a party, and this is the rule both in the courts of the United States and in those of all the states purporting to give a right to appeal or to prosecute a writ of error to any party aggrieved. Under these statutes third persons no matter how much they may be prejudiced by the judgment, decree or order, can not obtain its review by appeal or writ of error.”

Among the many cases cited to sustain this position is Reid v. Quigley, 16 Ohio 445.

The general rule is that an attorney can not, in his own name and on his own motion, appeal from a judgment or decree affecting the interest of his client. 2 R. C. L. 735; 2 Cyc. 639; Switzer, In re, supra; National Bk. v. Lanahan, 60 Md. 477; Besancon v. Brownson, 39 Mich. 388; Edwards v. Seaford (Pereyra, Appeal of), 126 Pa. St. 220 [17 Atl. 602]; Steger v. Steger, 165 Ill. 579 [46 N. E. 888]; Anderson v. Steger, 173 Ill. 112 [50 N. E. 665].

“A proceeding for alimony does not invoke the equity powers of the court, but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives, and such, as is necessary to make its orders and decrees effective.” Marleau v. Marleau, 95 Ohio St. 162 [115 N. E. 1009].

While the court is controlled by statutes and does not exercise general equity jurisdiction in alimony cases, Dewitt v. DeWitt, 67 Ohio St. 340 [66 N. E. 136], it has full power under See. 11994 G. C. to provide for the wife’s sustenance and her expenses during the suit, but the allowance should be made to the wife. It is proper to include reasonable counsel fees — which may be fixed by the court for her attorneys — in the expenses allowed to. her for their benefit. A motion for such allowance, however, should be made by the wife as a part of her necessary expenses, and in such event it is the province of the court and a duty owing by it to its own officers to see that their interests are protected.

A motion for the allowance of counsel fees and expenses was filed in this case without any leave of court, not on behalf of the plaintiff but, as its terms clearly set out, it asked an order from the court to allow a reasonable sum to be paid by said defendant direct to them as compensation for their necessary and proper legal services, to be made a charge upon his real and personal property, and also for certain necessary expenditures made by them as attorneys for plaintiff. The motion first stated that the plaintiff and defendant had agreed upon a settlement of the ease — such statement being made possibly as a reason for filing the motion in their own names, although no leave was asked or given by the court — and the motion finally . asked that the cause be not dismissed until such attorney fees and expenditures had been so determined and paid. No claim was made that counsel were at that time acting on behalf of plaintiff but, although there is nothing in the record to show any direct communication to them from their client to such effect, they seemed to regard the notice of' plaintiff’s desire to dismiss the cause, received by them from counsel for defendant, as an effective withdrawal by her of their power to further act in plaintiff’s behalf

The motion to dismiss the ease was filed not by the plaintiff but by the defendant, but the record shows that an order or request was addressed to the clerk of the court of common pleas by plaintiff directing the dismissal of the cause upon the payment of court costs by the defendants or either of them, and directing further that the property attached by virtue of said suit be released without any charter of claim or lien against it. Plaintiff’s order was dated November 12, 1917, but was not filed in the case until November 30, 1917, the motion to dismiss having been filed November 15, and the motion for allowance of counsel fees was filed November 14, 1917. Under the. provisions of Sec. 13586 G. C. plaintiff had power to dismiss her case at any time before its final submission.

An exhaustive and able brief has been filed by plaintiffs in error, citing 2 Nelson, Divorce and Separation, Secs. 875 et seq., and many cases from other jurisdictions, to sustain their position that an attorney who appears for the. wife and does not look to her for compensation for his services has a right to proceed with an action for alimony with the assurance that a suitable fee will be awarded him by the court, unless his case is without merit or probable cause. This position is sustained by the text and by numerous cases from other states, notably Indiana and New 'York, but these cases are dependent upon the statutes of those states, which differ from the'statutes of Ohio.

It is not deemed necessary to review the cases cited or to farther discuss the question involved, inasmuch as the trial court has rendered a complete and admirable opinion which has been reported as above stated, and which fully meets the approval of this court.

In a case brought by a Avife against her husband where the attitude of the parties is dependent upon the varying moods of persons of opposite sex in the intimate relations brought about by marriage, and conditions make it impractical for counsel to secure themselves reasonable compensation, it would be the part of wisdom to protect their interests by any early application for an allowance of alimony pendente lite sufficient to afford them some remuneration for professional services, always more or less unpleasant for lawyers, but which Avhile of great benefit and necessity to the client are often too lightly appreciated after results have been obtained.

It appears unfortunate that in this case the motion for such allowance was not duly presented on behalf of the wife before, her determination to dismiss the case had been concluded, but under the circumstances of the ease as presented it would appear that the plaintiffs in error have a clear right as against the wife herself, and that the court below was without power to grant the order prayed for.

This court is forced to the conclusion that plaintiffs have no standing here to review the judgment of the court below by their error proceeding in this case, and the motion to dismiss must therefore be granted.

Hamilton and Wilson, JJ., concur.


author: HOUCK, J.

text:
    SCHOOLS AND SCHOOL HOUSES.
    [Ashland (5th) Court of Appeals,
    October 17, 1917.]
    Powell, Houck and Shields, JJ.
    Montgomery Tp. (Bd. of Ed.) et al. v. Ashland Co. (Bd. of Ed.) et al.
    Right of Electors to Withdraw Their Names from Remonstrance to Proposed Action for Rearrangement of School Districts.
    Electors signing a remonstrance against the rearrangement of school districts are at liberty to withdraw their names at any time within the thirty day period, or until official or judicial action has been taken.
    [Syllabus by the court.]
    Appeal.

      G. H. Workman, for plaintiffs.

      Mykrahtz & Patterson, for defendants.
   HOUCK, J.

The plaintiffs seek to enjoin the county board of education of Ashland county from creating what is known as the Nankin rural school district, the same being created out of certain territory lying and being in Orange and Montgomery townships in said county.

Waiving the question as to whether or not the theory upon which the case was presented to this court by counsel is a correct and legal one, we will pass upon the case as thus presented, which was submitted upon a transcript of the evidence taken in the common pleas court. Counsel for plaintiffs insists—

First. That under the facts as established by the evidence submitted and the law governing them, the county board of education was without power or authority to create the school district in question.

Second. That there was an abuse of discretion on the part of the county board of education in the creation of said school district.

Third. That within thirty days after the filing of the notice to the boards of education in the territory affected a majority of the qualified electors thereof filed a written remonstrance with the county board against the arrangement of the school district so proposed.

We do not deem it necessary to discuss the first two claims further than to say that we have examined the evidence offered in the case, and from the undisputed facts we hold that these claims are not well taken, and are entirely without evidential facts or law to support them or either of them.

The third question raised by counsel for the plaintiffs, arises on the referendum part provided by See. 4736 G. C., as found in 106 O. L. 397, -which reads:

“The county board of education shall arrange the school districts according to topography and population in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement; which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed. The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof. . The county board of education is authorized to appoint a board of education for such newly created school district and direct an equitable division of the funds or indebtedness belonging to the newly created district. Members of the boards of education of the newly created district shall thereafter be elected at the same time and in the same manner as the boards of education of the village and rural districts.”

The facts in the case at bar are that in said proposed Nankin rural school district there were 220 qualified electors on the date of the filing of the remonstrance, which remonstrance against said proposed district, contained the names of 120 qualified electors.

It is further conceded as a fact that 15 of the electors who had signed the remonstrance withdrew their names from same, which was done within the thirty day period, being the period within which the remonstrants could file a remonstrance.

It is earnestly urged by counsel for plaintiffs that after the remonstrance was filed the signers thereof were without power to and as a matter of law had no right to withdraw their names therefrom. In other words, that the signers had lost their power of recall and the board of education its authority or jurisdiction in the premises.

We can not agree to this principle of law claimed by learned counsel for the plaintiffs in this respect, because we are of the opinion that it is too narrow a construction placed upon these facts, Avhich would in effect bar an elector from withdrawing his signature from a remonstrance, although the full period in which the remonstrance could be filed with the board of education had not elapsed. We hold the rule of law to be in such a ease that the electors signing the remonstrance had the right, or as many of them as so desired, to withdraw their names from same at any time within the thirty day period, or until of-, ficial or judicial action had been taken upon the remonstrance; and neither of these having occurred in the present case, in our-judgment, the withdrawal of the fifteen electors who signed the remonstrance was not only their privilege but a legal right which they could exercise under the conceded facts in this ease.

It therefore follows that if fifteen of the electors have withdrawn from the remonstrance, wbicb left only 105 legal remonstrants, and this not being a majority of the electors in the proposed new school district, that no claim can legally be made by plaintiffs that a remonstrance such as could be claimed under the above section was presented or before the board of education.

Therefore, assuming that such remonstrance, if signed by the proper number of electors and presented within the time prescribed by law would, in effect, invalidate the proposed new school district, it will be observed that inasmuch as this provision of the statute had not been complied with, plaintiffs can not thereby claim any legal rights thereunder.

We do not deem it necessary to discuss further the facts nor the law of the case other than to say that many of the questions here involved have heretofore been determined by this court in other cases, as well as by the Supreme Court of our state. It therefore follows, from what we have already said, that the plaintiffs are not entitled to the relief prayed for in their petition, and it is the judgment of this court that the petition of plaintiffs be dismissed and that the injunction heretofore allowed be dissolved, and that the costs of this case be paid by plaintiffs.

Powell and Shields, JJ., concur.


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    APPEAL — DIVORCE AND ALIMONY — ERROR.
    [Hamilton (1st) Court of Appeals,
    January 8, 1917.]
    Jones, Jones and Gorman, JJ.
    Pappalardo et al. v. Pappalardo.
    1. No Appeal or Review by Error of Divorce Decree.
    No appeal or review by error proceedings of a divorce decree can be had.
    2. Appeal or Error to Alimony Decree Not Precluded by Divorce Decree.
    In the prosecution of error or appeal in a suit involving the right to alimony on the part of the wife, the parties are not concluded by a decree of divorce, previously rendered, so far as the validity of the marriage is concerned.

      3. In Suit for Alimony Exclusion of Evidence of Former Marriage Erroneous.
    In a suit for alimony where the defendant claims that he ■ was never legally married to the plaintiff, for the reason that he had a first wife still living at the time plaintiff claimed the marriage took place and that no divorce had been had between such first wife and the defendant, it is error to refuse to permit the defendant to testify as to his former marriage and to exclude the testimony of witnesses who were present at the church and witnessed the former wedding.
    [Syllabus by the court.]
    ERROR.

      Charles Ginocchio, Jesse M. Simon and Hachett, Yeatmam &■ Harris, for plaintiffs in error.

      Joseph B. Derbes and Gideon C. Wilson, for defendant in error.
   JONES (O. B.), J.

This is a proceeding in error in which it is sought to have this court review the judgment of the court of common pleas, division of domestic relations, granting a divorce and alimony.

Previous to the recent amendment of the constitution, under which the jurisdiction of the court of appeals was fixed, it has consistently been held, under the different forms of the divorce statute, that no appeal or review by error proceedings of a divorce decree could be had and this rule was established as a matter of public policy, because of the inherent nature and effect of the decree of divorce, rather than because of the terms of the statute. Bascom v. Bascom, 7 Ohio (pt. 2) 125; Laughery v. Laughery, 15 Ohio 404; Tappan, Jr. v. Tappan, 6 Ohio St. 64; Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482], and Mulligan v. Mulligan, 82 Ohio St. 426.

The terms of Art. 4, See. 6, of the constitution, as amended September 3,1912, as construed by the supreme court in the case of Cincinnati Polyclinic v. Balch, 92 Ohio St. 415 [111 N. E. 159], broadly taken, might authorize and require a review even of a decree of divorce, as was indeed suggested in the. dissenting opinion of Nichols, C. J., at page 424; but considering the uniform rule that has existed in this state up to this time we are loth to hold that such change was intended by the amendment to the constitution, and therefore declare that in our opinion the judgment for divorce is not subject to reyiew by' this court.

The same rule, however, has not obtained with respect to a judgment for alimony, and this court in the instant case has jurisdiction to consider that part of the judgment below which related to the subject of alimony.

The amount and method of payment of the alimony allowed by the court below is not criticised by plaintiffs in error, but the contention is made that no valid marriage between the defendant in error, Louise Pappalardo, and the plaintiff in error Joe Pappalardo, was established by the evidence, for the reason that said Joe Pappalardo had a first wife still living at the time defendant in error claimed the marriage took place, that such first wife was living at the time of the judgment below, and that no divorce had been had between her and said plaintiff in error Joe Pappalardo.

It is however contended by the defendant in error that the question as to the marriage has been conclusively settled by the decree of divorce rendered in the court of common pleas, and that, if that decree cannot be disturbed by review in this court, the parties are concluded by it so far as the validity of their marriage is concerned, upon which is predicated the right to alimony on the part of the wife.

We are unable to grant this contention, however, because if this court is authorized to review the matter of the judgment below so far as it related to alimony, which review could in no way disturb the divorce, the judgment below must not be deemed conclusive in any way as to the right of defendant in error to secure alimony. The point contended for, as to the eon-clusiveness of the divorce judgment fixing the right to alimony, was raised in the case of Cox v. Cox, 19 Ohio St. 502. The only difference between that case and the one under consideration here is that that case came into the district court from the common pleas court by appeal, while the instant case comes into this court on error. In Cox v. Cox, supra, the Supreme Court held that the effect of the appeal was to reopen for trial in the appellate court all the issues of fact upon which the rights of the parties with respect to alimony depended. The same rule would apply here and permit the court to review all of the -issues between the parties upon which the right to alimony depends. It is not necessary, however, for this court to determine the weight of the evidence or the question as to whether or not plaintiff below might, under all the facts shown by the record, consideration being given the rule laid down in Vanvalley v. Vanvalley, 19 Ohio St. 588, be entitled to alimony.

The record clearly discloses that the court below erred in regard to the admission of evidence, in refusing to permit the defendant Pappalardo to testify as to his former marriage, and also in refusing to admit the testimony of Angelo Zappulla and Dominick Bosca, offered to show that they were present at the church and witnessed the former wedding of Pappalardo.

In the case of Wolverton v. State, 16 Ohio 173 [47 Am. Dec. 373], it was held that the admissions of the defendant to a prior marriage might be given in evidence to prove the fact of such marriage in a trial for bigamy. Birchard, C. J., on pages 177 and 178, used the following language:

“It is said on behalf of plaintiff that the ruling of the court was in conflict with the well-established rule requiring the best evidence to be produced of which the nature of the ease admits, and that, by the law of the state of Michigan, records are required to be kept of all marriages, and that the prosecutor should • have been required to produce the record. Upon this theory, it would follow that the marriage could not be proved by a person present at the ceremony; and yet such proof is always admissible. ’ ’

In Miles v. United States, 103 U. S. 304 [26 L. Ed. 481], it was held that the trial court, on an indictment for bigamy, properly admitted the declarations and admissions of the husband to prove the facts of his first marriage, and the Supreme Court approved the charge of the trial court to the effect' that the declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage; that such marriage might be proven, like any other fact, by the admissions of the defendant or by circumstantial evidence; and that it was not necessary to prove it by witnesses who were present at the ceremony. In the opinion of the court, at page 311, it is said:

1 ‘ To hold that, on an indictment for bigamy, the first marriage can only be proven by eye-witnesses of the ceremony, is to apply to this offence a rule of evidence not applicable to any other.
‘ ‘ The great weight of authority is adverse to the position of the plaintiff in error.”

In Umbenhower v. Labus, 85 Ohio St. 238 [97 N. E. 832], which was a case involving the validity of a common-law marriage and the legitimacy of a child, it was stated at page 244 of the opinion of the court, rendered by Judge Price, that the state recognizes marriage as a civil contract, and that “it may be proved by competent parol proof and circumstances when the degree of proof is clear and satisfactory to the court or jury. ’ ’

In 1 Bishop, Marriage, Divorce and Separation, Secs. 1047, 1048 and 1049, the rule is laid down that it is competent to prove the fact of a marriage by the clergyman or other official person by whom it was solemnized, by the testimony of one who was present, or by either of the parties, when they are not incompetent witnesses. In See. 1050 it is stated:

“.Proof by witnesses present has been deemed better than by record. Yet in law either will in any case suffice.”

The record in'this case fails to show the state of the law in Italy, where defendant claimed to have been first married, in regard to the essentials of a ceremonial marriage and its record. Defendant’s counsel, however, stated that they had endeavored to procure a record of the marriage, but had failed to do so because of the existing European war seriously interfering ■with shipping and communication with Italy, thus furnishing an excuse for their failing to obtain and produce record evidence of the marriage.

Because of these errors in regard to the admission of testimony, the judgment below, so far as it relates to the matter of alimony, must be reversed, and the cause remanded for further proceedings.

In order, however, that the plaintiff below may not fail to secure any relief to which she may ultimately be found to be entitled, the temporary restraining order against the Union Savings Bank & Trust Co. will be continued, subject to the further order of the court of common pleas.

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


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    CHARGE TO JURY — STREET RAILWAY.
    [Hamilton (1st) Court of Appeals,
    June 21, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Trac. Co. v. William Frank, By Next Friend.
    1. Failure to Afford Passenger Sufficient Time to Alight From Street Car Before Starting It Is Negligence.
    If a street car stops and a passenger is attempting to alight from the car, and while in the act of alighting the agent of the company in charge of the car suddenly puts it in motion without giving the passenger sufficient time to alight, and by reason of such starting of the car the passenger is injured, then the company is guilty of negligence.
    2. Scintilla Rule Precludes Instruction As Fact Unless No Evidence Presented.
    While it is the duty of the court to inform the jury, if requested, when there is no evidence of a material fact, nevertheless, the slightest evidence, from which the jury may properly infer the fact, is enough to preclude such an instruction.
    Error.

      Joseph Wüby and James G. Stewart, for plaintiff in error.

      Galvin & Bauer, for defendant in error.
   GORMAN, J.

William Frank, a minor about 17 years of age, brought an action through his father as next friend, in the common pleas court of Hamilton county, to recover damages from the plaintiff in error for injuries which he claimed to have sustained about December 7, 1909, as he was alighting from a street ear on Harrison avenue near McLean avenue, in the city of Cincinnati. He claims in his petition that the car had come to a stop at a point on Harrison avenue, about a hundred feet west of Spring Grove avenue, and. that there was a crossover at this point where the eastbound ear running on the south or eastbound track on Harrison avenue was to cross over to the north or westbound track on Harrison avenue because of some street repairs that were being made on McLean avenue. He claims that as he was alighting from the ear after it had stopped and before he had an opportunity to do so in safety, the conductor gave the signal to the mortorman to start the car; that the ear started with a sudden jerk and threw him to the ground; that he was rendered sick and dizzy and nervous, and continued to be in that condition for a long time.

The evidence tends to show that the car upon which the boy was a passenger stopped at a point about 100 or 150 feet west of the intersection of Harrison and Spring Grove avenues, as claimed in the petition; that 8 or 10 persons alighted from the ear; that the boy was the last one; and that while he was alighting from the car and before he had an opportunity to do so in safety, he was thrown to the ground and was injured. He claims that as a result of these injuries appendicitis developed, and that about four months from the date of the injuries an operation was performed by Dr. Paul to remove the appendix, which operation was successful.

The jury returned a verdict for $1,200 in favor of plaintiff, and error is now prosecuted to reverse that judgment.

There are but two grounds of error presented in argument and in the brief of counsel for plaintiff in error.

It is claimed, first, that the court erred in its general charge to the jury on the question of the duty of the plaintiff in error with reference to the starting of the car. The court in substance charged Ibe jury that if the car upon which William Frank was a passenger had stopped at the place alleged in the petition and in the proof, and he was attempting to alight from the car, and while in the act of alighting the agent of the defendant in charge of the car suddenly put it in motion, without giving him sufficient time to alight, and by x-eason of said starting of the ear the plaintiff was caused the injury as alleged, then the defendant was guilty of negligence.

We think this charge is substantially correct, and follows the rule laid down by the Supreme Court in the case of Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio St. 153 [65 N. E. 877], The first paragraph of the syllabus in that case is as follows:

“If a street ear comes to a full stop for any purpose and a passenger is in the act of alighting, it is negligence for the conductor to start the car before such passenger has had a reasonable opportunity to get off safely.”

The same language employed in this paragraph of the syllabus is used by Judge Davis in the opinion of 'the court on page 155.

The evidence in this case shows that several passengers got off at this point, and the boy, William Frank, testified that it was customary for the car to stop at this place while the crossover was laid in the street and the repairs were being made, and that the passengers usually got off at the point where he undertook to alight on this morning, during the time when repairs on the street were being made. The boy came in on the Westwood ears every day to attend Hughes High School.

We think that the allegations as to the stopping of the car and the starting of the same, and the accident to the boy, were amply sustained by the proof, and that the court did not err in the general charge in the particular complained of by plaintiff in error.

The second ground of error urged by plaintiff in error is the refusal of the court to give a special charge requested, before argument, by counsel for the traction company, as follows:

'“I charge you that there is no evidence in this ease which you are entitled to consider, that the appendicitis of the plaintiff, for which he-was operated on in April, 1910, was caused by or in any way connected with a fall .of the plaintiff, if any, from the car of the defendant, in December, 1909, as testified to by the plaintiff; and the defendant is not responsible for such appendicitis of the plaintiff. ’ ’

Counsel for plaintiff in error excepted to the refusal of the court to give this charge.

Upon an examination of the record we are of the opinion that there is evidence from which the jury might infer that the appendicitis of the boy, William Frank, resulted from the injury sustained at the time he was. thrown from the car in December, 1909. The boy testified that the same day, and generally almost every day, after he was hurt as the result of this fall, up to the time when his appendix was removed, April, 1910, he suffered great and excruciating pains in his stomach and the lower part of his abdomen and in his right side. His father and mother testified that he continually complained of the pain in the lower part of his body about the abdomen. Dr. Paul removed the appendix in April, 1910, about four months after the boy was injured. He said he saw no evidence of the appendix having been affected as a result of a traumatic injury, that there was no sear on the appendix, and that in his opinion appendicitis did not result from the traumatic injury. Upon cross-examination he did say that appendicitis could result from a blow or injury about the region of the appendix on the right side of the abdomen. Dr. Musebamp, who attended the boy, testified that appendicitis could, and did frequently, result from an injury or a blow or a fall. Dr. Webb, who made an examination of the boy after the operation, testified that he had never heard of a case of appendicitis resulting from a blow or an injury. Dr. Paul testified that manifestations of appendicitis frequently occurred in persons, continuing over a period of a year or two years, or longer, and that treatment for these manifestations consisted in applications of ice on the parts of the body adjacent to the appendix, and that frequently it was necessary to perform the operation of removing the appendix.

We think that the court would not have been warranted in charging the jury that there was no evidence from which they could infer that appendicitis in this boy resulted from this injury, and that it would have been error for the court to have given such a charge.

While it is the duty of the court to inform the jury, if requested, when there is no evidence of a material fact, nevertheless, the slightest evidence from which the jury may properly infer the fact is enough to preclude such an instruction. Bond v. Warren, 53 N. C. 191; Kansas City, M. & B. Ry. v. Burton, 97 Ala. 240, Syl. 10 [12 So. 88] ; Central Ry. v. State, 82 Md. 647 [33 Atl. 265] ; Pomeroy v. Boston & M. Ry. 172 Mass. 92 [51 N. E. 523], and Warren v. Halley, 107 Mich. 120.

In Bisewski v. Booth, 100 Wis. 383 [76 N. W. 349], a charge similar to the one requested in this case was given, and the Supreme Court held that it was error to have given such a charge.

In the case of Sullivan v. Boston Elevated Ry. 185 Mass. 602 [71 N. E. 90], the plaintiff, Sullivan, recovered for injuries sustained by him while driving a wagon, from the seat of which he ivas thrown by a collision with a car of the Elevated Railway Company. He testified that before the accident his health was good, and he claimed that as a result of his injuries appendicitis followed. There was the evidence of an expert surgeon who testified that such a fall could be an adequate cause of appendicitis. The trial court was asked to charge the jury as follows:

“If the jury find that the plaintiff Sullivan is entitled to recover damages the jury are instructed that there is no sufficient evidence that the appendicitis from which the plaintiff suffered at a time subsequent to the accident was a result of the accident or that the accident in any way contributed to the existence of that disease or in any way affected it.
“If the jury find that the plaintiff Sullivan is entitled to recover they are instructed to disregard, in the assessment of damages, all the evidence introduced in the ease in regard to appendicitis or the operation for appendicitis. ’ ’

The trial court refused to give this charge and it was alleged that th's refusal was error. The Supreme Court held that it was not error to thus refuse it, and on page 606, the court-says :

“Dr. Bottomley’s testimony warranted the jury in finding that the inflammation of the appendix ivas caused by the collision. He properly was found qualified to testify as an expert, and testified ‘that such a fall as Sullivan testified to receiving could be an adequate cause of the appendicitis.’ That was sufficient, taken in connection with the plaintiff’s testimony that his health was good before the accident.” Citing the eases, Mc Garrahan v. New York, N. H. & H. Ry. 171 Mass. 211 [50 N. E. 610], and Houston v. Traphagen, 47 N. J. Law 23].

In the case at bar, the boy, his father and his mother testi’fied that he had had perfect health prior to his injuries; that he had never had a physician or the services of a physician; and that after the accident he lost weight, was nervous, complained of pains, and was obliged to be removed from school and could not finish his education in the high school. There was evidence tending to show that he was permanently injured.

We are not prepared to say that the evidence before the jury was not of such a character as to warrant the jury in inferring that the cause of the appendicitis was the injury sustained by this boy when he was thrown from the -ear. Notwithstanding the fact that Dr. Paul testified that in his opinion this was not the cause of the appendicitis, it was -proper to submit the question to the jury for their determination, and this was especially true in view of the fact that the mother of the boy testified that Dr. Paul had told her after the operation was performed that the appendicitis was the result of a bruise on the appendix. It is true that Dr. Paul denied that he had made such a'statement, but this evidence was all proper to go to the jury to enable them to determine whether or not appendicitis was one of the results of the injury sustained by the boy.

The court in his charge to the jury did not allude to the question of appendicitis, but made a proper charge to the effect that if plaintiff was entitled to recover the jury was to take into consideration, in determining the amount of damages, the pain and suffering he had endured as the natural and probable consequences of the injury, the impairment of his health, and the question of whether or not he would be permanently injured after he attained his majority, twenty-one years. We think the charge was as full and fair as should have been asked by the plaintiff in error. It was certainly proper to allow evidence to be admitted as to the nature of the boy’s injuries, the complaints he had made, the location and character of the pains he had endured, and the fact that an operation had been performed for appendicitis. We think there was a scintilla of evidence in the case from which the jury might reasonably infer that appendicitis was one of the consequences resulting from this injury, and if that be true it would have been manifest error for the court to have given the special charge requested by the defendant below.

The amount of the verdict, $1200, would not be excessive even if the question of appendicitis were not in the case at all. The boy suffered pain for four months before the operation was performed, and thereafter continued to be nervous and to suffer pain and loss of sleep.

Upon a review of the whole case we think that the verdict and judgment in this case represent substantial justice, and that no reasonable grounds exist for complaining of either the verdict or the judgment. The judgment, therefore, will be affirmed.

Jones (E. H.), and Jones (O. B,.), JJ., concur.