text:
    DAMAGE TO LAND FROM DIVERSION OF WATER. BY NEW BRIDGE.
    Circuit Court of Richland County.
    The Baltimore & Ohio Railroad Company v. M. Elizabeth Simpson.
    Decided, January Term, 1906.

      Negligence — Alleged, in Construction of Bridge — Whereby Water was Diverted upon Plaintiffs Land — Proximate Cause.

    Recovery for damages to land by flood waters can not he had from a railway company for negligence in the construction of a bridge, where it appears that the flood was unprecedented, and also that other causes to produce the injury intervened and the building of the bridge was therefore not the proximate cause.

      Cummings, McBride & Wolfe, for plaintiff in error.

      Kerr & LaDow, contra.

      Donahue, J.; McCarthy, J., and Taggart, J., concur.
   Mrs. Simpson commenced her action against the Baltimore' & Ohio Railway -Co. for- alleged negligence in that the company-had, in the year 1899, changed the railroad bridge- across a stream, and substituted therefor á new bridge, lowering the structure so as to obstruct the flow of water at flood times under the bridge; and so changing the character of the bridge from an open frame work to one with solid sides, that it narrowed or contracted the space through which the water could flow under said Bridge, causing it to back, and turning it to one side of the stream, and thence across to the other’ side of the stream, upon the Other side of. the bridge, throwing it against plaintiff’s land;' cutting a channel through her land and causing her great damage.

The situation as shown in the record is substantially as’ follows : The railroad right-of-way extends in a northwesterly direction. The public road runs for a distancie parallel with the said railroad right-of-way, turns abruptly to the south, and crosses the s-tream in question. This fork of the Mohican creek runs in an easterly direction south of the field which was claimed to be injured, and turns to the east of said field. The railroad bridge, which was rebuilt in 1899, with the solid sides, the record shows rests upon the same abutments or piers that the old bridge with the open work rested upon, except that it is claimed, and the testimony tends to prove, that the pedestal stones or abutments were lowered about twenty-two inches; and that the solid sides of the new bridge extended down toward- the bottom of the creek about the same distance that the rods of the old bridge extended.

The proof in this case unquestionably establishes the fact that this was an extraordinary flood. Plaintiff’s own testimony convinces-the court-that such was- the case. The defendant’s testimony tends to establish the fact that it was an unprecedented flood. The defendant could only be held to the exercise of- such judgment in building its- bridge as could reasonably and fairly, anticipate the extent of the flood waters that had before that time been known along the line of that stream, and could not be called upon to build its structures so as to anticipate extraordinary or unprecedented floods. The defendant can not be called upon to respond for any injury resulting to plaintiff’s land which was not occasioned by its acts or failures to provide against matters'which it could not have reasonably anticipated'. The defendant can only be held liable and responsible for such injuries as approximately flow from its acts or omissions.

.We have examined this record with exceeding care, and we are unable to see how the results are necessarily attributable or in any wise attributable to the acts of the defendant' in building and erecting the bridge with the solid sides as claimed in 'the plaintiff’s petition or as shown in this record. Assuming that the plaintiff’s ease shows that the bridge with its solid sides did retain the water and hold it back, prevented it from passing under the bridge as freely as the former bridge, yet we fail to see the casual connection between the damming of this.water and the retarding of the flow of the water as shown in plaintiff’s case, and the injury that resulted to plaintiff’s land in consequence of the flowing of the water below the bridge after it had gone through and under the bridge; nor do we discover in this record that-the evidence sustains' the theory upon which it can be claimed that the building of this bridge in the manner it was constructed, was the proximate cause of the damages complained of' by the plaintiff

We think that a clear and explicit definition of the proximate cause and the proof essential to be submitted to a jury is found in the case of Laidlaw v. Sage, 158 N. Y., 173. The proximate cause of an event is that which in a natural and continued sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person can not be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it.

An accident or injury can not be attributed to a cause unless, without i'ts operation; it would not have happened.

We can not say from the record in this case that this injury complained of. by the plaintiff might not have happened even had the old bridge remained, nor can we attribute the accident or injury to the new bridge as built and maintained by the railroad company; nor do we think the evidence sustains plaintiff’s claim in that behalf; and all such theory in reference thereto must be but mere conjecture, so far as this record is concerned and this conjecture, the jury can not be permitted to indulge in.

We also call attention to the fourth paragraph of the syllabus in the case of Laidlaw v. Sage, supra:

“To justify the submission of any issue to the jury, there must be sufficient proof to sustain the claim of the party upon whom the onus rests; and mere conjecture, surmise, speculation, bare possibility, or a mere scintilla of evidence, is not enough.”

And this is the holding of our own Supreme Court in the 63d O. S., at 236:

‘ ‘ To establish negligence there should be either direct proof of the facts constituting such negligence or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either the court or the jury. ’ ’

It appears in this record, and it is uncontradicted, that the bridge,over the county road by this flood was washed-out and lodged against the abutments of the railroad bridge, and that it in some way interfered or retarded the flow of the water, and diverted it, and turned it in the direction claimed by plaintiff. Here was an intervening cause, and we are unable to see how, from the evidence in this ease, the injury could be attributed entirely to the defendant’s negligence, if there was negligence, and for this intervening cause, the defendant was in no wise responsible. Reading again from the 158th N. Y., the eighth paragraph of the syllabus:

“When damages claimed in an action are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show the damage produced by the former cause, and the jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the act of the defendant is not sufficient. ’ ’

Finding that the verdict in this case is contrary to the manifest weight of the evidence and contrary to law, we reverse this judgment at the cost of the defendant in error.

Judgment reversed. Exceptions entered, and £he cause remanded to the court of common pleas for further proceeding according to law.


source: Caselaw Access Project

license: Public Domain

text:
    EXAMINATIONS OF MEDICAL STUDENTS.
    Circuit Court of Hamilton County.
    State of Ohio, on the Relation of Benjamin Gaines, v. State Medical Board of Ohio et al.
    Decided, June 5, 1909.

      Examinations of Applicants for Certificates to Practice Medicine and Surgery — Times and Places for Holding Such Examinations — Official Discretion — Mandamus—Pleading—99 O. L., IfiH.

    It is the duty of the state board of medical registration and examination to cause examinations for admission to the practice of medicine and surgery to be made in Cincinnati, Cleveland and Toledo, as well as in Columbus; but inasmuch as the act creating the board is silent as to the time when this shall be done and the duty of determining the dates and places of examinations devolves on the board in the first instance, a writ of mandamus will not be granted in the absence of a showing of an abuse of discretion on the part of the board with reference to the selection of times and places for the holding of such examinations.

      Sanford Brown, for relator.
    The relator in this ease filed the following petition in this, court praying for a writ of mandamus directed against the defendant board and its individual members:
    The relator, Benjamin Gaines, is a resident of the city of Cincinnati, in the county of Hamilton and state of Ohio, and is a duty matriculated student of the Ohio Medical College of the University of Cincinnati, where he has been pursuing his studies for four years.
    The relator has complied with all the rules of said college and university and with all the requirements of the law of Ohio relative to students of medicine and surgery, and is now entitled to enter upon his final examination for graduation from said college and university and for his professional degree, and to be examined for his certificate or license to practice medicine in this state, under the law of Ohio.

      The defendant, the State Medical Board of Ohio, is an official body of this state, whose duty among other things is to hold examinations for certificates or licenses to practice medicine and surgery within this state of all proper applicants for such examinations; such' examinations to be held in the cities of Cincinnati, Cleveland, Columbus and Toledo.
    The individual defendants named herein are the duly constituted members of the board, the defendant August Ravogli, M. D., being the president of said board,'residing in the city of Cincinnati, Ohio; -the defendant S. M. Sherman, M. D.v residing at Columbus, Ohio; the'defendant E. J. Wilson, M. D.,-residing at Columbus, Ohio; the defendant IT. IT. Baxter, M. D., residing at Cleveland, Ohio; the defendant Thos. A. McCann, M. D., residing at Dayton, .Ohio; the defendant James A.' Duncan, M. D., residing at Toledo, Ohio; the defendant, J. M. Stephenson, M. D., residing .at Chilliccthe, Ohio; and the defendant, G. IT. Matson, M. D., residing at Columbus, Ohio, being the secretary of said board.
    Relator states' that the defendant board and the individual defendants have fixed and prescribed, under .the laws of Ohio, an examination to be held in the city of Columbus solely and exclusively on the 8th, 9th and 10th of June, 1909, and have so notified the relator and other medical students in the said city •of Cincinnati and vicinity thereto, and have failed and refused to fix and prescribe such an examination under said law in ’the city of Cincinnati on such dates or any other date or dates reasonably near thereto and still fail and refuse só to do, although requested so to do by the relator and others entitled to such éxamination in the city of Cincinnati.
    Relator states that said action on the part of the defendants will entail upon him and many other medieial students in the same situation with him in the' city of Cincinnati and throughout the state of Ohio great vexation and expense, requiring the relator and them to journey to and from Columbus, Ohio, from •great and unreasonable distances therefrom, and pass there several, days in taking said examinations; that said action on the 'part of defendant is arbitrary and discriminating against the relator and others in the sanie situation with him undbr said law; that'an examination held at Cincinnati, Ohio, under said law at any other-time or times than on said dates'June 8th, ,9th and 10th-, 1909, or other date or dates' reasonably near thereto, would be an unjustifiable discrimination and hardship against the relator and .others in the same situation -with him under said law of Ohio,, -in that it would require him and them to present themselves for such examinations long after the close of. their medical college course, and is without legal justification and is contrary to the law.
    Relator further ;says that .he is without any adequate remedy at law. ■
    . Wherefore, your relator, prays that a writ of mandamus may issue out of this court to the defendant board, and .to the individual defendants, requiring it and them to hold said medical ex7 aminations as required by the law of -Ohio, in the city of Cincinnati, on-the 8th, 9th and 10th of June, 1909, or other date .or dates reasonably near thereto, or to show cause to this court at a date -to be fixed- for refusing to do so.

      Giffen, P. J.; Swing, J., and Smith, J., concur.
   Section 30 of the act “To revise and consolidate the laws .relating to the powers and duties * * * of the state board of medical registration and examination” (99 O. L., 492) provides as follows:

“The examinations of applicants for certificates to practice medicine or surgery shall be conducted in the cities of Cincinnati, Cleveland, Columbus and Toledo, under rules prescribed by the state medical board.”

This provision needs no construction to determine that it is the duty of such board to cause an examination to be conducted in the city of Cincinnati as well as. in Columbus; but the act is entirely silent as to when it shall be done, and hence a reasonable time will be implied, which must in the first instance be determined by the board from all the circumstances of the case. State v. Board of Education, 76 O. S., 297.

It may be assumed that Section 30 of the act was intended to accommodate students of medicine completing the course of instruction. in or about the respective cities named — not a particular class, but the student body of each city and vicinity. There is no allegation in the petition when the current school year ends at the Ohio Medical College of the University of Cincinnati, or at any other college if there be such in or near the city. Nor is the pleader aided by the averment of the conclusion that the relator and others in the same institution with him would be required to present themselves for examination “long after the close of their medical college course.”

The welfare of the majority is superior to that of a minority, and there is no allegation in the petition that all or a majority of the Cincinnati students arc demanding or would be benefited by an examination on June 8th, 9th and 10th or near thereto. Plow then can we say that the board has abused the discretion vested in it and grant relief, when the rule of law justifying interference by the courts requires that such abuse be clearly shown ? Board of Education v. State, 80 O. S., -.

It may be that a majority of such applicants may prefer to and will attend the examination at Columbus on the days named, and while this result would not relieve the board from holding an examination in Cincinnati, it would have much weight in determining whether the board had abused its discretion in declining to hold it on or about June 8th, 9th and 10th.

We are constrained to hold therefore that the allegations of the petition fail to show a clear abuse of discretion and do sustain the motion to quash the alternative writ.


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    ARBITRATION WHICH EXCLUDES JURISDICTION OF THE COURTS INVALID.
    Circuit Court of Tuscarawas County.
    Guy Tilden v. Christian Bernard.
    Decided, 1909.

      Arbitration ancl Award — Contracts Providing for — Agreement Rendered Invalid by Depriving the Courts of Jurisdiction.

    A clause of a contract providing that “should any dispute arise regarding the provisions of this contract * * * the same shall be submitted to three arbitrators * * * and the decision of such arbitrators shall be final and binding on all parties,” is rendered illegal is so far as it ousts the courts of jurisdiction; or at least it-is inoperative in that arbitration is not made a condition precedent or bar to the bringing of an action upon the contract itself.

      J. M. Blake, for plaintiff in error.

      Hostetler & Hostetler and P. S. Olmstead, for defendant in error.
    Taggart, J.; Donahue, J., and Voorhebs, J.,- concur. •
    Error to Tuscarawas Common Pleas Court.
   The question in this case is as to the sufficiency of the second amended petition. The court of common pleas sustained a .general demurrer to the second amended petition, dismissed the action, and rendered judgment for the defendant. The plaintiff below prosecutes error to this court. • •

The action below was on an architect’s contract for services in preparing plans and specifications for the remodeling of a hotel. In the contract, which was embodied in the petition, was the following provision:

“Should any dispute arise regarding the provisions of this contract, or any question arise thereunder, or the value of the work done in case of abandonment, the same shall be submitted to three arbitrators. Each of the disputing parties shall choose one, and these two the third, and the decision of such arbitrators shall be final and binding on all parties,”

The contention of the defendant was, that this provision was a part of the contract, and that the plaintiff could not recover thereon, until he had first complied with this part or at least offered to perform, or had a sufficient excuse for non-performance.

The claim of the plaintiff was two-fold: 1. That this clause is void, because it is general in its terms, and ousts the courts of jurisdiction. 2. This clause is not enforcible, because arbitration is not a condition precedent to the bringing -of a suit on the contract.

From the authorities we may deduce the following rule: That a condition in a contract that disputes arising out of it shall be referred to arbitration is good, when the amount of damages sustained by the breach of the contract is to be ascertained, or when a safe or speedy manner of fixing definitely some fact is to be determined before any right of action accrues; but that it is illegal when all matters in dispute, of whatever sort, are to be referred to arbitrators and to them alone.

The above rule seems to be supported by the opinion of Burket, J., in the case of Balt. & O. Ry. v. Stankard, 56 Ohio St., 224, 232.

But, assuming that the provision of the contract is valid, is it a condition precedent to maintaining an action? Or may an action be maintained on the contract, leaving the parties to such relief as they may have for a breach of this part of the condition of the contract?

The defendant below contends that this part of the contract must be observed, or an excuse given for failure to comply with it, before' an action can be maintained on the contract. In support of this contention, we are cited to the cases of Graham v. Insurance Co., 75 Ohio St., 374, 405; Fire Assn. of Phil. v. Appel, 76 Ohio St., 1; Phoenix Ins. Co. v. Carnahan, 63 Ohio St., 259, 268.

There are very essential differences in the terms of the contract of insurance under review in these cases, and the contract involved herein.

1.' The insurance policies contain the express provision,' that no suit shall be brought until the amount of loss shall have been ascertained by arbitration, .

2. The arbitration shall be limited to the ascertainment of the loss only, and does not refer any other matter or thing to the arbitration. .

It will be observed that, in the contract in-suit, there is no provision that suit shall not be brought until there is an award, or that the award shall be the basis of a judgment.

What, then, is the purpose of the arbitration, if the court in which suit is brought may ignore the award and render such a judgment as the facts of- the case warrant, independent of the arbitration and award? We think that this determines that this clause of the contract-is a mere agreement to submit to arbitration, which may be revoked by either party, at any time, before final submission or award. That it is merely executory, and, because executory, does not furnish a bar to an action on the contract.

In the case of State v. Jackson, 36 Ohio St., 281, 283, 284, Judge Okey uses the following language:

“Arbitration is a method which has long existed at common law for the settlement of disputes and controversies. No particular form is required in the proceedings. Neither the arbitrator nor the witnesses are required to be sworn, though the parties may stipulate that such oaths shall be administered. The submission may. be revoked by either party at any time before the award is actually delivered, and the award itself has no legal effect whatever except that it furnishes foundation or cause of action or defense against the party who fails to. perform or abide by the award. "

The circuit court of Montgomery county, in Dayton & Union Ry. v. Railway, 6 C. C.—N. S., 537, as a part of the syllabus, deduces the following rule:

“The agreement to arbitrate does not preclude a resort to a court of justice to protect rights growing out of the contract, neither can it be pleaded in bar to such action. Such agreement to arbitrate will not be specifically performed, nor the arbitrators compelled to act.”

This court quotes with approval from the case of McGunn v. Hanlin, 29 Mich., 476, 480:

“The agreement to submit to arbitration contains no covenant or agreement not to sue or that the award shall be made the foundation of a judgment. Without this condition it is a mere common law arbitration and enforcible only by action in case either party fails to comply with it. The statute refers to such agreement as fixed upon some designated court in which judgment shall be entered on the award.
“Whatever force may be given to an award actually made under an agreement and not impeached for fraud or any other infirmity, there is no authority for holding that parties who have agreed to arbitrate have by their agreement precluded themselves from resorting to a court of justice. Such agreements will not be specifically enforced nor will the arbitrators be compelled to act. 2 Story, Eq. Jurisp., Sec. 1457, and notes. And it is well settled that they can not be pleaded in bar. Mitchell v. Harris, 2 Ves. Jr., 131; Nicholas v. Chalie, 14 Ves., 265; Conter v. Dawson, 2 Bland, 264; 2 Daniels Ch. Pr., 768, and note.
“The reason given by Mr. Daniels is that such an agreement is only executory and an executory agreement can be no more than a cause of action and can not be pleaded in bar to another action. ’ ’

We are of the opinion, that this part of the contract, in terms providing for the submission to arbitration, is in its terms so general as to render it invalid; or, if it is not invalid, then inoperative, at the election of either party; or, at least, not constituting a bar to the bringing and maintaining an action upon 'the contract itself.

The judgment of the court of common pleas is reversed, for error in the court in sustaining a demurrer to said second amended petition, and is remanded, with direction to said court to overrule the demurrer.

Exceptions will be noted.


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    CONFESSIONS OBTAINED UNDER. DURESS IN CRIMINAL CASES.
    Circuit Court of Hamilton County.
    Harry Kohn v. State of Ohio.
    Decided, August 2, 1909.

      Criminal Law — Duress in Obtaining Confessions — Circumstances under Which, Admissions by a Suspect are not Voluntary — Prejudicial Error in the Admission of Testimony.

    1. Where a person suspected of crime is taken to a private office and questioned for two days and nights regarding circumstances surrounding the crime, and is kept under restraint until released by habeas corpus, and is repeatedly told that if he would tell the truth he would he allowed to go, his interrogators assuming to be the final arbiters of what was the truth, it is evident that his statements were influenced by fear of further restraint or the hope of regaining his liberty, and such statements can not be regarded as voluntary.
    2. The claim that .the statements made by an accused person under such circumstances were not confessions, but were mere admissions, does not make them competent evidence against him where they constitute conclusive evidence with reference to the crime charged, and to receive such statements as evidence constitutes prejudicial error.
    3. It is also prejudicial error to admit a statement of a conclusion by a witness, who has stated no facts from which the conclusion can be drawn, and as to which the jury are quite as competent as the witness to draw a conclusion.

      William Littleford and Harry L. Gordon, for plaintiff in error.

      Henry T. Hunt, Denis F. Cash and Coleman Avery, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Tbe plaintiff in error, Harry Kohn, was indicted, tried and convicted of unlawfully, willfully and maliciously setting fire to and burning certain goods with intent to prejudice, damage and defraud certain insurance companies. One of the errors alleged is the admission as evidence of certain testimony given by Kohn before the State Fire Marshal, who was holding an official investigation of the origin and cause of the fire. He was taken by the fire marshal and two of his deputies under a subpoena to the Andrews Building, in Cincinnati, duly sworn, examined and re-examined at 'intervals during two days and nights and continued under restraint until released upon writ of habeas corpus. During the examination he was repeatedly told by the fire marshal that if he would tell the truth about it (the fire) they would let him go. The evidence is plain that he was suspected of the crime, and he himself so understood it. Iiow then can testimony given under such circumstances be said to be voluntary as it must be to make it admissible? Spears v. Stale, 2 O. S., 584.'

In the case of Schoeffler v. State, 3 Wis., 823, one proposition of the syllabus is as follows:

“Confessions or .statements extorted from a person by duress, or made under circumstances which are equivalent to arrest or duress, or any other circumstances, which show that they are not voluntary, are inadmissible.”

The time and manner of detaining Kohn indicated that the fire marshal was not satisfied that he was telling thqs whole truth, and when he told him that if he would tell the truth about it they would let him go there was an implied threat to restrain him until he did tell the truth, the fire morshal of course being the final arbiter of what was the truth. The statements were evidently induced by fear of being deprived of his liberty or by hope of being released so that he might obtain the advice of his relatives and counsel'.

It is said, however, that these statements were not confessions but mere admissions which can not be excluded; but the admissions embraced the preparation of certain fictitious bills of goods presented to the insurance companies as proofs of loss, which fact was conclusive evidence of intent to defraud, the essential element of the crime charged in the second'count of the indictment, and of which he was convicted. The prosecutor admits that it was a most damaging admission, and wc think its effect was the same as a confession of guilt. ■ The prosecutor says in brief if all the admissions were eliminated entirety from the record, the fact- remains that the Stuhlburg bill was forgery. This does not cure the error, as the accused is entitled to have the jury determine his guilt or innocence upon competent evidence alone, and further shows that zeal for conviction should be subordinate to legal procedure. It was error to admit the statements as evidence and was prejudicial.

One of the witnesses for the state in describing the condition of the rooms after the fire testified as”follows:

“Room 3 didn’t seem to have any remnants of anything; everything was quité clean. The shelves were scorched, but there didn’t seem as if there ever had been any stock on those shelves. ”

A motion to rule out “there didn’t’seem,” etc., was overruled and exception taken.

The witness had recited no facts from which the conclusion could be drawn, and if hé had the jury were quite as competent and'should have been allowed to draw their own inference. The question of what stock was in the room and whether consumed by fire was vital. Hence the error in overruling the motion to strike out was prejudicial. A like statément and erroneous ruling appear on page 999 of the bill of exceptions. The same objection may be urged against the question: “State whether or not she come back willingly if you know ? ’ ’ put to one witness concerning another who had gone out of the jurisdiction of the court and was returning.

On pages 158 and 845 witnesses were permitted to testify that the fire started in a certain cupboard, although their investigations were made after the fire, and the facts upon which the opinion was based could have been and were partly submitted to the jury.

The answer given at page 845 was objectionable also because not responsive to any question put to the witness.

Counsel says in his brief that there was no evidence that the place was set on fire. Of course there is no direct evidence, but there are circumstances and admissions besides those made before the fire marshal that fully sustain the verdict, and we therefore hesitate in reversing the judgment, but as said by Price, J., in Geiger v. State, 70 O. S., 400: “The law of a fair trial must be upheld.”

Many other errors are assigned in the record, but we find none requiring special notice or that would justify a reversal.

Judgment reversed and cause remanded for a new trial.


text:
    STATUS OF POLICIES ISSUED BY UNLICENSED INSURANCE COMPANIES.
    Circuit Court of Richland County.
    The Bankers Casualty Company v. The Richland County Banking Co. et al.
    Decided, 1908.

      Insurance — Policies Issued by Unlicensed Companies — Payment of Premiums not JSnforcible in Ohio — Policies may be Collected in State of Issue.

    Where an insurance company, which has not complied with the Ohio law requiring that a license be issued to do business within the state, evades this requirement by issuing policies outside of the state on property located within the state, an action can not be - prosecuted in the courts’of the state for the recovery of premiums on such policies; but payment on a policy so issued may be en- ' forced within the jurisdiction of the state in which it was issued, and an action for recovery of premiums may be maintained within such state provided jurisdiction can be obtained over the person of the policyholder.

      Kerr & LaDow, for plaintiff in error.

      Cummings, McBride & Wolfe, contra.
    Donahue, J.; McCarthy, J., and Taggart, J., concur.
   The question in this case is whether the Bankers Mutual Casualty Company, plaintiff in error, is entitled to prosecute an action for the recovery of premiums in the courts of this state, it not having complied with the laws of the state in respect to obtaining a license to do business within the state.

This policy of insurance was issued by the casualty company, in the city of Detroit, insuring property within the state of Ohio. The premiums on this policy of insurance not having been paid, an action was brought in the courts of Richland county to recover the same.'

Upon the trial in the court of common pleas, on the issues made up in the pleadings the plaintiff sought to introduce certain testimony which was objected to on the ground that the plaintiff was not entitled to do business in the state and can not properly bring this suit in court. The court thereupon sustained the objection and plaintiff excepted; and the court refused to allow the introduction of any other evidence and directed the jury to return a verdict for the defendant.

We think that this judgment ought to be affirmed. The general law in force at the time, and the statutes subsequently enacted, prohibited this class of insurance and other classes of insurance from prosecuting business within the state until they shall have obtained a license to do so.

As to these requirements, if within the provisions of the Constitution, the courts can not inquire as to their justness or equity. They have been uniformly upheld and sustained as proper. If companies are not permitted to transact business within the state, and by the evasion of issuing the policy outside of the state the courts within the state should enforce these contracts, it would nullify all legislation on the subject. The purpose of the courts is to enforce contracts and to enforce the law’s, but not by their rulings ánd judgments to nullify the properly enacted laws of the state. This policy was not void, nor was the liability of the defendant in any way determined by the action of the court. The policy could be enforced within the jurisdiction of the state where the same was issued, if issued according to law. The premium could be collected within the jurisdiction of the state in which the policy was issued, provided jurisdiction of the person was had. The mere fact that the jurisdiction of the person is difficult to secure is not material.

Finding no error in this record to the prejudice of the plaintiff in error, the judgment is affirmed with the costs without penalty and the cause remanded. Exceptions on behalf of the plaintiff in error will be noted.


text:
    AS TO APPOINTMENT OF COUNSEL FOR COUNTY OFFICERS.
    Circuit Court of Hamilton County.
    Ireton et al v. State of Ohio, Ex Rel Hunt.

    Decided, May, 1909.

      Legal Counsel — Prosecuting Attorney is, in five First Instance — Legality of Appointment of Assistants — Sections 81/5 and 1271.

    In an action in which the board of county commissioners is a party and in which the prosecuting attorney says he is willing and able to prosecute, the board of county commissioners is without authority to employ other legal counsel.

      Frank F. Dinsmore and Stanley Struble, for plaintiff in error.
    Hunt, Bettman & Merrell, Prosecuting Attorneys, contra.
    Swing, J.; Gieeen, P. J., and Smith, J. concur.

       Affirming State, ex rel Hunt, v. Struble et al, County Commissioners, 8 N. P.—N. S., 281, which see for statement of case.

   Reading Sections 845 and 1274, Revised Statutes, together, it seems clear that either the prosecuting attorney or legal counsel employed by the commissioners upon the request of the prosecuting attorney under Section 845, must prosecute and defend all suits and actions to which the commissioners are a party. No legal counsel having been employed by the commissioners under Section 845, the statute (Section 1274) says that these duties shall be performed by the proséeuting attorney. He can not refuse to perform the duties imposed by this section, nor is it in the power of the commissioners to employ other counsel to supplant him in the performance of these duties without overruling the clearly expressed intention of the Legislature.

Ireton and Schoenle were employed by the commissioners to defend the suit of Eberhardt v. the Commissioners, a suit pending in the court of common pleas.

Reading Section 1271 with Sections 845 and 1274, it is manifest that the Legislature intended in the first instance that the prosecuting attorney should be the legal counsel of the commissioners, and perform thd duties required to be performed by legal counsel under Section 845, and this is done in all the other counties of this circuit, and no doubt it is done in almost all the counties of the state, the prosecuting attorney being able himself to perform not only the primary duties pertaining to his office, which duties are of a criminal nature, but also to perform the duties of legal counsel for the commissioners, which duties are of a civil nature.

Under the provisions of Section 1271, the prosecuting attorney may appoint such assistants as he shall deem necessary for the proper performance of the duties of his office. These duties primarily are to prosecute all complaints, suits and controversies on behalf of the state, but this provision does not contemplate that he is to appoint assistants to perform the duties of legal counsel for the commissioners. It is clear from Section 845 that, if the prosecutor himself can not perform the duties of legal counsel required' by this section, he shall make this fact known to the commissioners and request them to employ' legal counsel to act for them. ' ,

The reason for this is plain. The commissioners are the executive officers of the county. They make all contracts and represent the county in all actions, and if the legal counsel, the prosecuting attorney elected by the people, can not perform the duties, the expressed intention of the Legislature is that the commissioners should choose whoever they may think best fitted to attend to the business pertaining to the “legal counsel” contemplated by the statute.

In this case it does not appear from the record but what the prosecuting attorney is able and willing to perform »the duties of legal counsel for the commissioners, nor does the record show that the prosecuting attorney has requested the county commissioners to appoint legal counsel, and as the statute requires that all suits or actions for or against the commissioners shall be prosecuted by the prosecuting attorney or legal counsel employed by the commissioners as such, it follows that the employment of Ireton and Sehoenle. as counsel to defend the suit in question was not authorized by law, and the judgment must therefore be .affirmed.

Decision on Rehearing.

A rehearing in this case was granted on account of the Supreme Court having decided Section 845, Revised Statutes, unconstitutional. After a full argument and careful consideration we are of the opinion that the une.onstitutionality of this section does not make invalid the provision of Section 1274 as to .the powers .and duties of the prosecuting attorney. We are further of the opinion that Section 1274 authorizes the commissioners to employ counsel in cases where from any cause the prosecuting attorney can not or will not act as counsel for the commissioners. But the intention of the Legislature seems clear that the prosecuting attorney' shall act as legal counsel for the commissioners in all suits, since Section 845 is no longer valid.

In this case the prosecuting attorney says he is willing and able to prosecute the case in question, and the necessity for the employment of other counsel by the commissioners does not exist. The former judgment will therefore be adhered to.


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    NOT NEGLIGENCE PER. SE TO ALIGHT FROM A STREET CAR AT A SAFETY STOP.
    Circuit Court of Lucas County.
    City of Toledo v. Fidelia McNamara.
    Decided, July 2, 1909.

      Municipal Con-porations — Injury to Woman■ from Defect in Street — Not Negligence to Alight from Car at Safety Stop, When — Charge of Court — Ordinary Care — Error—Evidence.
    1. The accepted definition of ordinary care, that it is that degree of care which a person of ordinary prudence would use under like circumstances and conditions, applies to a class rather than to a particular individual, and a judgment will not he disturbed on the ground that the use of this definition of ordinary care in the charge of the court was unfair to the plaintiff in that particular case.
    2. Inasmuch as an ordinance providing that street cars shall stop on the further cross-walk is a requirement which applies to the street car company, and in no way controls passengers in boarding or alighting from cars, it is not error to exclude such an ordinance in an action against a municipality for damages on account of injuries to the plaintiff from stepping into a hole in the street after alighting from a car.
    3. It is not negligence per se for a passenger to alight from a street car which has made a safety stop, but has not yet reached its regular place for stopping.
    Kinkade, J.; Parker, J., and Widdman, J., concur.
   We have examined with care every assignment of error that is made in this case, and without attempting to refer to them in the order in which they were made, I will say that we think the petition states a cause of action, especially as it is, amended. We think it sufficiently states that the city had time to know of this defect, and had time to remedy it after it knew of it. We think that the petition is sufficient in that regard.

On the questions of error, we find no error in the refusal to charge requests numbers 1 and 2 before argument, neither do we find any error in the refusal to give No: 1 and 2 after argument. No. 3 after argument was given. The point is made that the court has erroneously stated the definition of ordinary care. The same point has been made in another case that we have heard here, and after the fullest consideration of it I want to say to counsel that we think that the point is not well taken. We find in almost every decision of the Supreme Court Ave have examined, Avith one exception, that this language is found in defining ordinary care, viz., that it is such care as a person of ordinary care and prudence uses under the same or similar circumstances, referring evidently to a class instead of to an individual man, and we think the argument that this 'is unfair to the plaintiff in' error for the reason that in the jury room one juror might say: ‘ ‘ Now the court has said that this ordinary care .is the care which a man of ordinary prudence would exercise under the' same or similar circumstances. Now I am a man of ordinary prudence and care and in this case I would have done precisely as the plaintiff did here, and therefore under the charge of the court you should vote with me and return a verdict.” We think the other eleven, if not agreeing with him, wouRl probably say to him: ‘ ‘ The court stated that it was the kind of care that a man of ordinary care and prudence would use under like circumstances, and we are likewise also men of ordinary care and prudence, and we conclude that you are not a man of ordinary care and prudenfee if you say you would do that.” I think the other eleven would point out to him that he didn’t fall in the class, and point it out very quickly. At any rate it seems to.us that it is entirely too close to say that the trial court, who has charged the jury that ordinary care is the care that a man of ordinary care and prudence is accustomed to exercise under the same or similar circumstances, is stating the rule erroneously. We think the rule, is fairly stated and the jury could not have been misled in that regard.

We have also examined this charge of Judge Kumler with care as to the notice and the time within which the city could repair after notice and so forth, and we think if counsel will re-read it they must agree that this charge fairly states the law upon all points in this case. We fail to see anything wrong in the charge of the court in this regard.

It is-said that the court was wrong in not permitting ordinances to be introduced in evidence, or rather permitting them to be first introduced and then excluding them from 'the consideration of the jury; the ordinances relating to the stopping of street cars, that the car must be stopped on the further crosswalk, and that the defendant was entitled to have that evidence in and have it considered in connection with the contributory negligence alleged as to the plaintiff in the case. ’ We think there would have been no error in excluding the evidence when first offered, and there was no error in withdrawing it. It is not material here. It was a requirement by the city as to where cars should stop, if it is anything. It certainly had nothing to do with the plaintiff. It did not pretend to control the conduct of parties in getting on and off a car. We call attention also to the fact that there is nothing in this bill of exceptions to show that these ordinances were in effect at the time they were offered in evidence. The title of the two ordinances is given, and a resolution to codify is given, and the date of the ordinance is given, the date when it was read in evidence; but when it was passed or whether it is in effect at this particular time does not appear. We think it is a matter of no moment anyway. We would hold that the court was justified in excluding it.

It is said that the plaintiff having left the car at a safety stop instead of the regular stop, and stepped off in the street, must take the consequences, or, as one of the requests says, “she assumed the risk of whatever that happened to her, ’ ’ whatever that may be. We think this can not be the law.

The Supreme Court has said in one case, 67 O. S., 153, Rapid Transit Co. v. Holmes, that if a car stops any place, comes to a full stop, and a party is attempting to alight, that it would be negligence on the part of the street car company to start the car before the party had an opportunity to alight. Of course that is not decisive of this question, but we call attention to the language used by the court in the opinion in that case. We think if a car comes to a full stop, any place, standing still long enough so that a party is without any danger to himself in the act of get-, ting off he may get off the ear, if it is more convenient for the purposes he has in mind for him to alight at that point than to ride to a cross street and alight there and walk back. A car might stop in a very long block in the middle, might stop by reason of a loaded wagon going in front of it, or the power giving out, or for any one of a number of causes which might be mentioned, immediately in front of a man’s house, and it does not seem reasonáble to hold that unless he stays on the ear and rides down to the cross-walk and gets off there and walks back, that he must assume all defects that he finds in the street and if he is injured he can not recover. We think that is not the law. We think the party here had right, if this car came to a full stop long enough to allow her to alight from the car, and she saw fit to do so, to alight from the car wherever that ear may have been.

The question arises as to the sufficiency of 'the evidence in the case. We have read that and read it with a good deal of care. The verdict is not so clearly against the evidence in this case as to justify a reversal on that ground. We find no prejudicial- error in the case, and. the judgment of the court of common pleas will be affirmed.


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    NEGLIGENCE — UNGUARDED BELT — PROXIMATE CAUSE.
    Circuit Court of Hamilton County.
    Edwin Slaline v. Cincinnati Sand Blast Company.
    Decided, March 22, 1909.
    Where an employe while standing upon a stool is thrown by the toppling over of the stool upon an unguarded belt and injured, the fact that the belt was unguarded was not the proximate cause of the injury, and recovery can not be had against the master because of the unguarded belt.
    W. H. Schweikert, George J. Slaline and Stanley Matthews, for plaintiff in error.

      Guido Gores, contra.
    Giffen, P. J.; Smith, J., and Swing, J., conur.
   It appears from the evidence as well as the amended petition that the proximate cause of the injury complained of was the toppling over of the stool upon which the plaintiff was standing, and there is no averment that the defendant negligently failed to provide a ladder instead. The averment is that the stool threw him upon said unguarded belt and by reason of said fall upon said unguarded belt (not by reason of said belt being unguarded) he received a fracture of his right leg.

It is equally clear from the evidence that the unguarded belt or shafting was not the proximate cause of the injury. The negligence, if any, was that of plaintiff.

Judgment affirmed.


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    LIABILITY FOR. DAMAGE TO THE APPAREL OF A GUEST AT AN INN.
    Circuit Court of Hamilton County.
    Sherman R. Miller, Jr., v. The Auburn Private Hotel Co.
    Decided, May, 1908, and July, 1909.

      Inns mid Inn-Keepers — Negligence ancl Presumption of Negligence— Whereby the Apparel of a Guest was Damaged — Pleading—Charge of Court — Misconduct of Counsel.

    1. Negligence on the part of an inn-lteeper can not be presumed or inferred from the mere fact that water flowed from a tank or pipe upon the apparel of a guest and damaged it.
    2. Controversial remarks between counsel within hearing of the jury, in regard to an alleged offer by the defendant to, compromise the claim sued on, do not constitute such misconduct as would warrant a reversal of the judgment which followed in favor of the plaintiff, where it appears that the statement regarding an offer to compromise was withdrawn and no ruling of the court or admonition of the jury by the court was asked then or thereafter by counsel for the defendant.

      Roettinger & Kinney and Dempsey & Nieberding, for the plaintiff in error.

      Charles B. Wilby, for the Hotel Company.
    The plaintiff filed a petition in the common pleas court, alleging that the defendant is an Ohio corporation, organized for the purpose of conducting the business of an inn-keeper, and was on March 12, 1905, and still is operating the Auburn Private Hotel, in Cincinnati, for the entertainment and accommodation of the general traveling public; that on said date the plaintiff was a guest at the defendant’s hotel, and placed his wearing apparel in the care and custody of the said defendant, and that a part of said wearing apparel consisted of a broadcloth overcoat lined throughout with seal fur lining and having a Persian lamb fur collar and cuffs, the said coat being of the value of $1,000; that in the closet of the room to which plaintiff was assigned, and which he occupied on the day in question, there was placed by the defendant a hot water tank connected with the heating apparatus of said building, and that by reason of the defective and improper construction' of said heating apparatus and tank, the said tank became out of repair, and leaked and discharged hot water upon plaintiff’s coat, spoiling and destroying.the fur thereof, to plaintiff’s damage in the sum of $400; that the said defective and "improper construction was due to the negligence of the defendant company, and was unknown to the plaintiff, and the damage aforesaid was entirely without fault on his part, but due to the negligence of the defendant. Wherefore he prayed judgment in the sum of $400 with interest and costs.
    At the trial the court refused to give the following special charges:- .
    “ 1. I charge you that if' you find from the evidence that the plaintiff before the accident had seen the tank in his closet in his room, and knew that the tank was • connected with the heating apparatus or system, and with that knowledge of the use of the tank put his valuable overcoat in that closet in preference to the other closet, there being another closet in the room, then the plaintiff was guilty of contributory negligence and can - not recover- in this action, and your verdict should be for the defendant.”
    “9. I charge you that the mere fact that the hot water flowed from this tank, or from a pipe connected with it, upon plaintiff’s coat and damaged it, is not any presumption of negligence by the defendant, nor can negligence be inferred from that fact.”
    The jury returned a verdict for the plaintiff for $206.91, upon which judgment was rendered and the present error proceedings prosecuted thereto.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   We are of the opinion that special charge No. 1 was properly refused by the trial court.

Special charge No. 9 ought to have given and being refused the court should have covered it in the general charge. This upon examination we find the court failed to do.

In regard to that portion of the general charge relating to an explosion of the tank and the want of repair of the heating apparatus, we can not say that the same were prejudicial > as' the evidence is not before us. These matters are not set up in the pleadings, the ground of negligence complained of being a defective and improper construction of the apparatus in question.

• Judgment reversed and new trial granted.

After a second trial, resulting in a verdict against the hotel company, the case was again taken to the circuit court, where the following opinion was rendered:

Smith, J.; Giffen, P. J., and' Swing, J., concur.

The only error complained of is that,' in the course of the closing'argument of attorney for defendant in error, he referred to an offer of compromise having been made by the defendant to the plaintiff before suit was brought, and in that connection the sum of fifty dollars was mentioned by him as the amount which had been offered. Whereupon the attorney for plaintiff in error objected and before the court could make any ruling, some controversal re'marks passed between the attorneys in the - hearing of the jury, whereupon counsel for .pláintiff said that he would withdraw what he had said as to compromise. No ruling of the court or admonition of the court to the jury was asked then or thereafter by either of the attorneys.

It is urged that this was such misconduct on the part of counsel for plaintiff as of itself would necessitate a new trial of the cause..

We have examined the evidence in the record, and are of .opinion that the judgment -is fully sustained thereby, .and the.jury in answer to special interrogatory submitted, found that the plaintiff .in error “was negligent, inasmuch as it allowed a faultily constructed and badly connected old tank to be placed in the building.” This being so, is misconduct of counsel as claimed arid disclosed by the record such, as would' justify the setting aside of the judgment ?

We are of the opinion that it is not. We do not think the case comes within the ruling of Gas & Electric Company v. Coffelder, 11 C. C.—N. S., 289, or Dayton Folding Box Co. v. Ruhlman, 11 C. C.—N. S., 493.

Under the general and special verdicts we may assume that when counsel withdrew his remarks and did not further persist in making similar statements, that no prejudice resulted to plaintiff in error, and particularly so when as the record shows such withdrawal was made before the court could make any ruling upon the matter, and no exception was taken and no ruling or admonition of the court to the jury was asked by either 'óf the attorneys, from which it would appear from the record that neither the court nor counsel regarded the remark as in any way serious or prejudicial to the rights of plaintiff in error.

This is the second trial .of the case, both trials resulting in a verdict for defendant in error, and as it appears' from the record that the jury was not influenced in arriving at its verdict by mis-státements of counsel made in its presence, we think the judgment of the court below should be affirmed.


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    INJURIES ALLEGED TO HAVE BEEN SUSTAINED ON • A DEFECTIVE SIDEWALK.
    Circuit Court of Lucas County.
    City of Toledo v. John Strasel.
    Decided, June 26, 1909.

      Sidewalk- — Allegation that a Defect in had Existed “for a Long Time’’ —Objection on the Ground of Indefiniteness too Late when First Made on Review — Charge of Court — Definition of Ordinary Care — ■ Qualifications of a Juror Who had Himself Recovered a Verdict in a Similar Case — Weight of Testimony.

    1. In an action for damages for injuries resulting from a defective sidewalk, the objection that because of the indefinite allegation that the defect had existed “for a long time” the petition does not state a cause of action, comes too late when deferred until the case reaches the reviewing court.
    2. The fact that one of the jurors in a similar action l'or damages against a municipality had recovered a ¡verdict, does not constitute ground for a reversal of the judgment in the present case, where it appears that counsel for the municipality made no examination. of the juror before going into the trial,

      3. Where there is an allegation in the answer of the city that the plaintiff having full knowledge of the condition of the walk voluntarily went upon and used it and thereby contributed to his alleged injury, the city is entitled to a more definite charge as to the plaintiff’s negligence in so doing that is found in the statement that if he was negligent in going upon the walk he could'not'recover.
    4. The evidence being evenly balanced as to whether there was a walk at the point where the plaintiff claimed to have been injured, affidavits to the effect that on the night of the accident and while he was being helped home he had stated that the place where he had fallen was more than a block distant' from the point alleged in the petition are a sufficient warrant for granting a new trial, and the overruling of the motion was error of a character that makes it necessary to reverse the judgment.

      C. A. Northup, City Solicitor, C. H. Masters and Ralph Emery, for plaintiff in error.

      Harold W. Frazer and John A. Price, for defendant in error.
    Kinkade, J.; Wildman, J., concurs.
   The errors presented and relied upon in this case were: First, that the petition did not state a canse of action; second,' excluding evidence on cross-examination of the plaintiff as to where he got acquainted with Mr. Burt, etc.; third,' the charge of the court with reference to notice, and the charge of the court in its definition of ordinary care; fourth, misconduct of Juror Duden; fifth, matters relating to the juror Logee; sixth, that the verdict is against the weight of the evidence; and seventh, overruling a motion for a new trial, and particularly on the ground of newly-discovered evidence.

Taking up these alleged errors in their order, the first being that the petition did not state a cause of action, we think it is reasonably apparent that this is a recent discovery. It would be doing violence to the intelligence of counsel who tried the case on behalf of the city, to assume that they discovered it during the trial or before the trial and failed to fortify 'the situation in the manner in which they could easily have fortified it by a motion to exclude all evidence, on the ground that the petitiou did not state a cause of action, and further by a motion to direct a verdict at the close of the plaintiff’s testimony on the same ground, neither of which was filed. And it would be doing violence to their integrity to assume -that they knew it all through the trial, and when they were presenting the motion for a new trial and never called the. court’s attention to it in any other way than to state that the verdict was contrary to law, which, of course, does state it, but does not state it as openly as counsel would formally state it'if'they had then apprehended it.

It is said that this petition does not state a cause of action for the reason that it only states that the defect alleged in the,.sidewalk had existed for “a long time,” and it is claimed that the term “long time” does .not mean anything and that: it is not helped out because the petition also states that it was negligently and carelessly permitted to exist for a long time. This might be- a question .of great importance in this situation had a motion been made to exclude all evidence and the court’s attention been directed to the fact that the petition did not state a cause of action other than merely stating it in the motion for a new trial in the form it is. We call attention in this regard to the case of Pepper v. Sidwell in 36 O. S., page 454, which cites the 12 O. S., 252, which is a similar case, and in the 12 O. S. it is held that a petition against an administrator which does not allege that the proper statutory time has elapsed before the- bringing of an action is demurrable in that form, that it does not state a cause of action, but it is also held that this defect may be waived- b.y going to trial. We think in this ease that although the language that the defect had existed for a long time is very, indefinite, and some decisions are to the effect that it is without very much meaning, that the city, having gone to trial on this petition without any motion to make it more definite and certain, without any objection to the petition or evidence under this petition, without calling the court’s- attention to it in any way, should not now be permitted to take advantage of the fact that the petition did not state .with more care the cause of action. As .Judge. Wildman says, the language used in the petition that it had been negligently permitted to remain in this condition for a. long period of time we think was sufficient, not being attacked by .motion as we have indicated.

The second error complained of was the excluding of evidence in 'cross-examination of the plaintiff himself. It was said in argument that this evidence was sought to be put in without disposing to the plaintiff just what counsel was leading'up to, in order that they might test his habits and his whereabouts and thereby bring out what he knew about this case and what his own condition was on this evening of the accident, without apprising the-witness directly of what they were at, and that the court should have admitted the evidence in that regard. We have examined this part of the record referred to with care and without commenting on it further we think, in the form that it is, there was no prejudicial errors in the rulings of the court in that regard.

It is now said that there was error in the charge of the court as to the notice, that the court did not tell the jury in. plain terms that the city must not only have notice, but that after it received notice, either actual or constructive, such time must elapse as in the exercise of ordinary care the city would have an' opportunity to repair the walk. There is no doubt about that being a correct proposition of the law as stated by our circuit court sitting in Cincinnati, to which our attention has- been called. But we think when the charge is read as a whole that no jury could misunderstand the language of the trial court in that regard. We think that the jury must have understood the language of the trial court, taking the charge as a whole, that the city was to have notice, and was to have an opportunity after notice to make the repair within a reasonable time, and we find no error in the charge considering it as a whole in that regard.

It is how said that the charge is erroneous in this: that it stated the definition of ordinary care entirely wrong. We are cited to the 8 O. S. in this regard, where the language is found on page 581:

“Ordinary care is not defined in the charge copied in the bill of exceptions, but it is well known to mean that degree of care which persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances in order to conduct the enterprise in which they are engaged to a safe and successful determination, having due regard to. the rights of others and the objects to be accomplished. ’ ’

It is said that in this case the charge of the court is wrong because the court did not define ordinary care as the care used by any class of persons, but defined it as the care used by a prudent person, putting it in the singular, and that that .is clearly erroneous. There are some circuit court decisions tending to sustain this proposition. But we call counsel’s attention to the 50 O. S., which is a later decision than any of the circuit court-decisions cited, and of course considerably later than 8 O. S., being the case of Railway Co. v. Murphy, the case beginning on page 135, and the language to which I now call attention beginning on page 144, the opinion being by Judge Spear:

“Fault is found also that what the court said as to ordinary care, and especially with the statement that ‘no general rule can be given as to what in law constitutes ordinary care. ’ A general definition of ordinary care is such care and vigilance as a person of ordinary prudence and foresight would usually exercise under the same or similar circumstances. Taken as' a whole we see no valid objection to this part of the charge. Had the company desired a more definite instruction it Was its privilege to ask it.”

We think that under this authority of the 50 O. S. we would not be justified in this case in holding that the language used by the trial court was prejudicial error in this case, there being no request from the city for any more specific, instruction in this regard.

It may be a question, as Judge Wildman suggests, whether any change should have been made by the court in its charge in this regard had the attention of the court been called to it. It is evident that the expressions of the. Supreme Court are not altogether uniform in this definition of ordinary care; neither are the expressions used in the text books uniform in this regard. We would not feel justified, as I have ‘said, in reversing the case in that regard.

I call attention to another matter at this point in the general charge, not because we find it prejudicial error, but because we think attention shóuld be directed to it in its present form. The answer in this case, which seems to be considerably out of its place in this record, but it is here, says:

“For its second defense to the petition defendant says that at and prior to the- date of the alleged injury complained of said plaintiff had full knowledge of the condition of said sidewalk, and with this knowledge voluntarily went upon and made use of the same, thereby directly contributing to his alleged injury.”

The court in its general charge seems to have said nothing to the jury as to this particular defense set up in the answer in the form that it is here. True, the court charged the jury if plaintiff was negligent while going over the walk he could not recover, but there is nothing in the charge that he might be. defeated of a recovery for the reason that he elected to take this walk if there was another safe way. convenient, that he could have used. We direct attention again to the case of Smith v. City of Toledo, 30 Circuit Court, from which Judge Wildman has quoted in deciding another case. We think it would be well in cases of this kind for the court to keep this in mind.

Another thing about the charge that we find needs attention, and that is, it is said in the charge that the plaintiff could not recover if he knew of the dangerous condition of the walk, and so forth, but nothing is said as to his inability to recover if he by the exercise of ordinary care would have known of its condition. We think this should be in the charge, as has been mentioned by Judge Wildman in another case decided this morning, citing the case of Smith v. Toledo. But in these matters, there being no request for any more definite instruction than was given,'we do not find any of the omissions which I have mentioned as prejudicial error in this case.

This brings us to the charge of misconduct of juror Duden. We have examined the record fully in all that it presents in this regard, and while it may be that the juror would have been more in accord with correct proceedings in court had he not made the statements ¿t the time that he did make them, we fail to see anything in this that would justify disturbing the decision below.

The next matter complained of is the fact that there was upon this jury a juror by the name of Logee who had himself prior to this time recovered a judgment for a personal injury somewhat of a like nature to the injury of plaintiff in this case, but that is not disclosed during his examination as to his fitness as a juror. In addition to this it is said that a member of the firm of Kohn & Northup, Mr. Boey, had prosecuted a case against Mr. Logee, and that that was not made known by. Logee when he was examined as to his qualifications. We have read all that has been said in this record, and we think there is nothing in this transaction that should disturb this verdict. No examination seems to have been made by counsel for the city of Mr. Logee as to whether he ever had a personal injury case, or failed in it if he had, or recovered. There is nothing of this kind in his examination. Of course it was entirely competent for counsel to make that examination, and whether it furnished a ground of challenge for cause or not is a matter of no moment, because counsel might make it the basis of a motion to disqualify the juror for cause and if not allowed they might have dismissed him on a peremptory challenge. Wé think the omission to examine the juror as he might have been examined disposes of the_ contention with reference to Mr. Logee.

The sixth matter to which our attention is directed is that the verdict is against the evidence. We have examined the evidence in this case with very great care. It is very greatly and positively in conflict. The city in this case contends that no walk existed at this point and asked the instruction of the court and secured it to the jury that if no walk existed the plaintiff could not recover. The city offered its evidence tending to prove that in the year 1907, long before this accident, that the walk had been taken up preparatory to putting down a cement walk, and that at the time of this accident there was no board walk on the north side of Starr avenue between Plymouth and Willard streets where the man claimed to have been hurt, and particularly immediately adjacent to the the corner property. The plaintiff on the other hand offered his evidence on the subject, and we have examined the evidence in this record on both sides. We think it is fairly evenly balanced, but the evidence in behalf of the city that no walk was there we regard as very strong. However, we do not think it is so clearly against the weight of the evidence as to justify reversing the judgment of the court of common pleas on that ground.

This brings us then to the only other matter that was urged upon our attention seriously for the reversal of this judgment, and that .is the overruling of the motion for a new trial on the ground of newly-discovered evidence. Much that was put in on the hearing of the motion for a new trial might well be said to be purely cumulative, but in the evidence presented in support of this motion is found the affidavits of parties to the effect that the plaintiff in this case immediately after the accident on the same night and while he was being helped to his homé, at the solicitation of a friend of his, stated positively that he fell upon the walk more than a block from the point where it is. alleged in the petition and where plaintiff testifies in the ease he fell. .In-response to this, affidavits are offered by other parties to the effect that they were present at those times, that they did not hear this conversation, and that they would have heard it had it taken place. We have read these affidavits, each of them, with care and compared their statements, and in view of the fact that the evidence upon the question as to whether a walk was there or not at this time is as strong as it is in behalf of the city’s claim, and is so evenly balanced as a whole, we are of opinion that this- evidence as to plaintiff’s own statements as to where he fell would have justified the court in sustaining the motion for a new trial on this ground. We think the overruling of the motion is such error in this casé as makes it necessary to reverse the judgment of the court of common pleas, and that will be the decision.


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    CHANGE IN THE FLOW OF SURFACE WATER.
    Circuit Court of Hamilton County.
    The City of Cincinnati v. Patrick McLaughlin et al.
    Decided, February 3, 1909.

      Municipal Corporations — Liability of, for Injury to Property — By Increased Flow upon it of Surface Water — Measure of Damages— Negligence not Necessary as a Basis of Action — Discretion as to the Order of Admitting Testimony — Charge of Court.

    1. Where damages are claimed on account of an increased flow of surface water upon the premises of the plaintiff, it is immaterial whether or not the wrong was due to negligence or otherwise.
    2. The measure of damages to property due to increasing the flow upon it of surface water is the cost of restoration to its former condition, and where cost of restoration and necessary repairs are both allowed the latter should he eliminated from the verdict.
    3. It is not an abuse of discretion to permit the admission of evidence out of order, when the court at the time states to opposing counsel that they may offer evidence to meet it.
    4. Where in the charge to the jury the eourt speaks of damages resulting from or by reason of the acts complained of, other acts are necessarily excluded.

      Dudley V. Sutphin, Assistant City Solicitor, for plaintiff in error.

      Peck, Shaffer & Peck, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The consequences of the acts of the defendant in causing an increased flow of. water upon plaintiff’s property, and not the manner of performing such acts, constitute the wrong inflicted, and it is immaterial whether, the acts were done negligently or otherwise.

The admission of evidence out of order is not reversible error, unless abuse is shown, and none appears in allowing the deposition of Mr. Critchell to be read. The court at the time stated to counsel for defendant that he might offer such evidence as he had to meet anything contained in the deposition.

The refusal to give special instruction No. 1 requested by defendant, if erroneous, was cured by giving special instruction No. 3 requested by defendant, and by the general charge of the court upon the subject of extraordinary and unprecedented storms.

Special instructions Nos. 2 and 4 requested by the plaintiffs correctly state the law of the case. The evidence discloses no necessity for emptying the eight-inch pipe on the hillside back of plaintiffs’ premises; but on the contrary at least two of defendant’s witnesses testify that with little expense such pipe could have been connected with an existing sewer.

These two charges restrict the liability of the city to damage directly caused by its own wrongful acts. As said in the case of the City of Hamilton v. Ashbrook, 62 O. S., 511, at 518:

“A city may be held in damages for failure to perform its contracts, for wrongs which it prepetrates and for omissions of duties imposed upon it by law. ’ ’

The wrong in this case consists in unnecessarily collecting and casting upon plaintiffs’ premises more surface water than would naturally flow thereon.

The objection to that part of the general charge beginning in the middle of page 374 of the bill of exceptions was afterwards answered and satisfied by the court at the request of counsel for plaintiffs, as appears- on page 377.

It is further claimed that the court did not limit the right to recover for injury resulting from the acts complained of in the petition, but included all acts within twenty-one years that tended to increase the flow of water upon plaintiff’s premises; but it does not so appear in the charge, as the court expressly refers to damages “resulting from” or “by reason of” the acts complained of, which excludes necessarily all other acts. The plaintiffs were entitled to use and enjoy their property in its natural state, unless changed by contract or prescription, and if the acts set forth in the petition increased the flow of water over the natural flow, and damage resulted thereby, they were entitled to recover.

Of course if other acts of the city or of a third party caused the increased flow of water, and the acts complained of were not the direct' cause, there could be no recovery, and we do not understand the charge to be open to any other construction. •

The charge of the court, on the measure of damages, that plaintiffs could recover cost of necessary repairs between February 19, 1906, and April 11, 1907, and the cost of restoring the property to the condition it was in at the time the injuries they 'complain of began, would seem to permit a recovery of the cost of restoration in double measure, first, under the head of repairs; second, under the general head of restoration. If the court had told the jury to allow all repairs necessary during the period named to preserve the property and also the further cost- of restoring the property to its condition before the injuries were sustained, not exceeding the difference in value of the property, there could be no objection;, but the charge reads as follows:

"You have a right to take into consideration the age of the building and repairs necessary to place it in the condition the house was at the time before the' acts from which it suffered occurred. The sound rule to guide you as to damages is, he is entitled to the cost of restoring the property to the condition it was in at the time that the injuries he complains of .began.” .

The cost of repairs necessary to place the house in its former condition, and the- cost of restoration to that condition are one and the same thing. If both are allowed, then a recovery is twice had for the same injury.

The special findings of the jury indicate that they were misled by this charge, as they found the cost of restoration to be $525, while the difference in the market value of the property'" on Febraary 19, 1906, and. on April 11, 1907, was only $400,'and rendered .a general verdict for $925. They probably' included in the cost of restoration repairs necessary to preserve the property from further injury; and we think the amount of the verdict should be reduced to $525, the cost of restoration found by the jury, and unless such reduction be consented to by defendants in error the judgment will be reversed. The evidence as'to the proximate cause of the injuries sustained is conflicting,' but not to that extent that would justify us in holding that the verdict in favor of plaintiffs is not sustained by sufficient evidence. .

The remarks of counsel for plaintiffs in his argument to the jury charging the suppression of a deposition and deception in reading only half of an answer in a deposition are not justified by the evidence, and therefore, reprehensible; but we think that justice in this ease does not require a reversal of the judgment on that ground.


author: Per Curiam.

text:
    IDENTIFICATION OF AGREED STATEMENT OF FACTS AS PART OF RECORD.
    Circuit Court of Van Wert County.
    York-Ridge Oil Co. v. W. O. Innis et al.
    Decided, November Term, 1904.

      Bill of Exceptions — Filing Agreed Statement of Facts Does not Make it Part of the Record — Proper Identification — Error—Evidence.
    The mere filing of an agreed statement of facts in the trial court does not make it a part of the record; nor does a reference in the bill of exceptions to an agreed statement of facts as having been offered in evidence and as bearing the file-marks of the trial court without further identification or being attached to the bill of exceptions.

      E. G. Guthery, H. G. Richie and C. O. Richie, for plaintiff in error.
    O. S. Brumback and Saltzgaber, Hoke & Osborn, contra.
    Error to the Common Pleas Court of Van .Wert County.
    Counsel for defendants in error cited in support of the proposition that an agreed statement of facts', although filed in a ease, is not an “original” paper: Garner v. White, 23 O. S.. 192; Young v. State, 23 O. S., 577; Montgomery v. State, 12 C. C., 679; Brock v. State, 22 C. C., 364; Cleve. & E. Elec. Ry. Co. v. Hunter, 10 C. C. — N. S., 564; State v. Speigel, 4 C. C. — N. S., 255.

      Not even when copied in the record by the clerk: Sleet v. Williams, 21 O. S., 82; Goldsmith v. Slate, 30 O. S., 208; Schultz V. State, 32 O. S., 276.
    A deposition on file, but not attached to the bill of exceptions, is not a part of the record. Hicks v. Person, 19 Ohio, 426.
    An agreed statement of facts must be made a part of the record by bill of exceptions. Bank of Virginia v. Bank, 16 Ohio, 170; Clark v. Lane Seminary, 8 Am. L. Rec., 488.
   Per Curiam.

The document which purports to contain and to be an agreed statement of facts in this ease, does not become part of the record by being filed in the trial court. The reference to it in the bill of exceptions, as having been offered in evidence and declaring that it is a part of thS record, and that it bears the file-marks of the common pleas court with the date of the filing, without further identification and without being physically attached to the bill of exceptions, does not make it a part of the bill, or a part of the record. The bill of exceptions showing that such an agreed statement of facts was received in evidence, .but the same not being a part of the record, and not being made a part of the bill of exceptions, it conclusively appears that the bill of exceptions does not contain all the evidence, and this court is preeluded from reviewing the case upon the weight of the evidence.

The assignments of error in the petition in erfor are all dependent upon the facts as found from consideration of the evidence. This being the situation, this court is without power to review, and so must of necessity affirm the judgment.

The judgment is affirmed at the cost of plaintiff in error without penalty. Judgment for costs, execution awarded, and case remanded for execution.


text:
    MISTAKE IN DESCRIPTION OF LEASED PROPERTY.
    Circuit Court of Hamilton County.
    Marmet Company v. City of Cincinnati et al.
    Decided, July 10, 1909.

      Lease — Rescission of, for MistaTce in Description — Lessee not Entitled to Recover Rents Paid, When — Circumstances Warranting Rescission of Lease — Description by Metes and Botmds and by Occupation — Intended Use of Property not Material, When.

    1. Where a mistake has occurred in the description ■ of land held under lease, it is immaterial that in the advertisement offering the land for lease it was described by both metes and bounds and by occupation, while in the lease as afterward executed it was described by metes and bounds only, since the description by metes and bounds would control that by occupation.
    2. A mistake in the description of leased premises may be material notwithstanding the lessee has not used the property for the purpose intended at the time the lease was executed, and where it appears that the mistake was mutual and that the lessee acted immediately upon discovering it, he is entitled to a rescission of the lease; but there can be no recovery of rents' paid while the lessee was in possession and enjoyment of the premises previous to the discovery of the mistake.

      Kramer & Kramer, for plaintiff.

      John B. Schindel, for the city.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The plaintiff seeks to recover rents paid under a lease from the city and to cancel the lease, upon the ground of a mutual mistake in including in the description a piece of land not owned by the city, and which was material and essential to the use intended by the plaintiff.

The four tracts of land conveyed being each described by metes and bounds in the advertisement for proposals as well as in the lease, it is immaterial that the lease failed to show as did the advertisement that the property is “now occupied by the Winifrede Coal Co.,” because the particular description by metes and bounds would control that in general terms by occupation.

In the case of Smith v. Galloway, 5 B. & Ad., 43, the syllabus is as follows:

“Under a lease of all that part of the park called B situate and being in the county of 0 and now in the occupation of S, lying within certain specified abuttals, with all houses and etceteras belonging thereto, and which now are in the occupation of S, a house on a part which is within the abuttals, but not in the occupation of S, will pass.”

The description by metes and bounds of each tract was definite and certain, and the recital that the premises thus described were in the occupancy of the Winifrede Coal Co., was insufficient of itself to put the plaintiff on inquiry. It must be determined therefore from all the evidence whether there was a mutual mistake, whether material, and whether the'plaintiff acted promptly on discovery.

If, as claimed by counsel for defendants in his brief, “the plaintiff knew what property the Winifrede Coal Co. occupied, and supposed that the property described in the advertisement by metes and bounds was the property which said company occupied,” then it would be entitled to no relief, as it .would be claiming property tinder the lease that it never expected to get and the defendant's never intended to lease.

The officers of the plaintiff company who negotiated the lease deny all this, and say that they relied on the description by metes and bounds and that the premises were not available for the use intended without the particular piece in dispute, and we think this testimony is corroborated by the circumstances; but whether the company afterwards acquiesced is not so clear. The testimony of Mr. Jones, manager of the Winifrede Coal Co., shows that there was a high board fence dividing the property occupied by the company from that in dispute occupied by the B. & O. S. W. Ry. Co., and that he knew that it substantially represented the boundary line; but it does not appear that he communicated this knowledge to Mr. Marmet' and Mr. Kleybolte, president and vice-president of the plaintiff company, when they together viewed the premises a few days after the bids for the leasehold were opened. He also pointed out to them at that time adjacent property leased to his company by parties other than the city, but h'e did not attempt to describe that which was acquired from the city.

Mr. Baird, president of the Winifrede Coal Company, was also present at this meeting and it appears from his deposition that he “made a mistake that the railroad track did not belong to the Winifrede Coal Co., it was owned by the' Baltimore & Ohio Railway and had been put in for our convenience.” This is not a denial of ownership of the land upon which the track was laid, and Marmef and Kleybolte- might well assume that if the track was laid for the convenience of the Winifrede Co., the latter owned the land.

The admission of C. G-. Roth,'Jr., as auditor of the Marmet Co., in tlie letter of December 9, 1903, is not binding on the corporation in the absence of express authority to make the same or a course of dealing from which it may. be implied. Belting Co. v. Gibson, 68 O. S., 442.

If, as’ claimed by counsel for the defendants, it was the duty of the plaintiff! to examine the records or otherwise verify'the description, then the company was negligent and not entitled to the relief asked; but we do not understand that under a lease containing a pertinent description of the land and a covenant for quiet enjoyment, the lessee is bound at his peril to search the records or examine the property. The mistake of the defendants, who are presumed to know the boundaries and extent of the city’s property, is. apparent, yet they did not discover it until this controversy arose. With,greater reason therefore the sincerity of the plaintiff in claiming to be misled by the mistake should not be doubted, unless the circumstances require it; and this we find to be not the ease, although there are facts seemingly leading to a different conclusion.

The evidence shows the mistake to be material although the plaintiff did not, for business reasons, use the property in the manner originally intended, and that it was not actually discovered until a short time before suit was brought. It follows therefore that the plaintiff is entitled to a rescission of the contract (Hayes v. Skidmore et al, 27 O. S., 331). The plaintiff is not entitled, however, to recover the rents already paid, as it was in the possession of and enjoyed the entire premises until discovery of the mistake, and the rents were paid by reason thereof and not under a mistake of fact. Clark v. Potter, 32 O. S., 49.

Decree accordingly.


text:
    EXCLUSION OF FOUNDATION IN SETTLING FIRE LOSS.
    Circuit Court of Hamilton County.
    German-American Insurance Company v. John McBee et al.
    Decided, July 17, 1909.

      Insurance — Construction of Section 3691 — Providing that Cellar and Foundation Shall Not he Considered as Part of Structure in Settling Loss — Charge of Cou/rt with Reference t.o Total Loss — Appraisement — Section 361$.

    1. Notwithstanding the insurable interest which the owner of a building has in the foundation upon which it rests, he can not recover for the foundation where the policy includes it as a part of the building.
    2. Where it is undisputed that the loss was total, a failure on the part of the court to qualify the definition of "total loss” in the charge to the jury does not constitute error; and where the building exclusive of the foundation is a total loss, a disagreement as to the amount of the loss is unimportant and the necessity for an appraisement does not exist.
    3. A charge that the jury need not consider whether or not the property was vacant at the time the policy was applied for and issued is not erroneous under the provisions of Section 3643, particularly when the evidence is undisputed that the agent of the company . had knowledge of such vacancy.

      Robert L. Black and J. W. Mooney, for plaintiff in error.

      J. T. Harison, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   It may be conceded that the owner of a building has an insurable interest in the foundation upon which it rests; but if as in this case the description in the policy of insurance includes it as a part of the building, it can not be so considered in settling losses. The purpose of Section 3691, Revised Statutes, was to prevent the confusion and uncertainty arising by treating 'the foundation as a part of the building and to give full effect to Section 3643, Revised Statutes, in case of total loss of the building.

Thfe illustration suggested by counsel for plaintiff in error of a policy of insurance upon dwelling-house and furniture therein contained is not in point, as the furniture is not included as a part of the building, nor is there any statutory regulation of such a case except Section 3643, Revised Statutes, which would still require the insurer’s agent to fix the insurable value of the building at the time the policy is applied for.

The construction of this section contended for would permit the insurer to defeat its operation in all cases by simply using the form of policy here sued on.

It is practically undisputed that the loss of the buildings was total, and the error of the court in not qualifying the definition of “total loss” as requested by counsel at the conclusion of the general charge was not -prejudicial. So, likewise, if the foundation be considered not a part of the buildings, the exclusion and admission of certain evidence set forth in the brief were without prejudice. It follows also that there was no error in refusing to submit to the jury interrogatories Nos. 1, 3 and 4.

The charge of the court that the jury need not consider whether the property was vacant at the time the policy was applied for and issued was proper under Section 3643, Revised Statutes, as well as the undisputed evidence that the agent of the company had actual knowledge of such vacancy. The demurrer to the amendment to the second defense alleging a proportionate liability for the cash value of the dwelling-house at the time of the fire was properly sustained, although a motion to strike out would have been more appropriate. Insurance Co. v. Leslie, 47 O. S., 400.

The special instructions refused by the court were requested upon the theory that the foundation was specially insured, and thereby a disagreement as to the amount of loss, and necessity for an appraisement arose; but if the buildings, exclusive of foundation, were a total loss, the disagreement was unimportant and a necessity for appraisement did not exist. Ohage v. Union Insurance Co., 85 N. W., 212.

We find no prejudicial error and the judgment will be affirmed.