author: GIFFEN, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    December 29, 1906.]
    Jelke, Swing and Gifilen, JJ.
    Interurban Ry. & Term. Co. v. Frederick J. Treuheit.
    1. CONTRIBUTORY NEGLIGENCE OF STREET CAR MOTORMAN.
    The motorman of an electric car is guilty of contributory negligence if, by the exercise of ordinary care and prudence, he ought to have discovered the presence of another car on the same track in time to have avoided the collision in which he was injured.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ BIO-BOO; “Negligence,” §§ 285-326. — Ed.]
    2. General Law of Negligence not Applicable to Employes.
    The rule of law that one who is placed in a situation of danger without his fault is not to be held to the exercise of the same care and circumspection that prudent persons would exercise when no danger is present, does not apply to a motorman injured in a collision, who testified that “The instant I saw the other car approaching I threw the current off and applied my brakes — the only thing I could have done.”
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 357-361. — Ed.]
    S. Application of Employers’ Rules for the Jury.
    Whether a car barn situated midway on an electric railway, where conductors are required to stop for orders from a train dispatcher, is a terminal station within the meaning of a rule of the company which gives a conductor control of the car in regard to starting, stopping and general management of the car “between terminal stations,” is a question for the jury under proper instructions from the court.
    4. Rules of Employer not Construed against Employe.
    A rule of the company which requires a conductor, upon receiving orders from the train dispatcher to “verbally communicate them to the motorman before proceeding,” will not be construed against a motorman who started his car upon receiving a “bell” signal from the conductor to start, ^inasmuch as he could have placed no more reliance upon a “verbal” order to proceed than upon a bell signal, if they both came from the same person.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 247-263 — Ed.]
    [Syllabus approved by the court.]
    The plaintiff below sued for damages on account of injuries sustained while employed by the railway company as a motorman. He alleged that he started his ear eastward from the Coney Island barn toward Bethel, upon signal so to do given him by the conductor of the ear; that he was running on or about schedule time; that it was a single track road, and when about eight minutes out, and on a sharp curve, he saw a car approaching from the opposite direction about one hundred feet distant; that he remained at his post to reverse the current and apply the brakes, and in so doing was caught in the crash, and lost one foot thereby and sustained other injuries; that the car which he met was an extra car, and that the defendant company wantonly, negligently, wilfully and unlawfully failed to give him any warning of the approach of said car. The jury found in his favor, and assessed his damages at $2,000.
    F. F. Dinsmore and C. M, Leslie, for plaintiff in error.
    C. S. Schneider, L. H. Zeter and J. E. Robinson, for defendant in error.
   GIFFEN, J.

The defendant below requested the court to give to the jury before argument the following special instructions, which is a correct proposition of law applicable to the evidence in the case, and its refusal was error:

‘ ‘ If you should find from the evidence that the plaintiff, when going up the track along three-mile road, by exercising ordinary care and prudence, ought to have discovered the presence of the other car in time to have stopped his own car without a collision, then I charge you that his failure to do so would be contributory negligence on his part, and he could not recover a verdict in this case against the defendant.”

The general charge contained this proposition:

“The law further says that when a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; the question in such case is not what a person of ordinary care and prudence would do under ordinary circumstances, but what would he do or ought reasonably be expected to do in the presence of such existing danger.”

The evidence does not present a situation where the plaintiff was required to choose suddenly between different courses of action. The plaintiff himself testifies that ‘ ‘ The instant I saw the other car approaching, why I threw the current off and applied my brakes — the only thing I could have done,” and pleads substantially the same facts in his petition. The charge was, therefore, misleading and erroneous.

The court gave to the jury the following special instruction:

“If you find from the evidence that the defendants, the Interurban Railway & Terminal Company, placed the plaintiff asvmotorman under their employ, under the control of the conductor of the car, in regard to the starting, stopping and general management of the car between terminal stations, the defendant is liable to- the motorman for an injury received without plaintiff’s fault, occasioned by the negligence of the conductor, while they are both engaged in their respective employment. ’ ’

The liability is here made broader than the finding would warrant. It should be limited to the negligence of the conductor while both are engaged in their respective employment between terminal stations.

Whether the car barn was a terminal station, within the meaning of the company’s rule, to which the instruction applied was a question for the jury under proper instructions from the court.

There was testimony tending to prove a custom or rule of the company, that, on the arrival of a car at the car barn the conductor was required to obtain orders from the train dispatcher, and verbally communicate them to the motorman before proceeding. If there was such a rule or custom, and was understood by the plaintiff motorman, it was his duty to wait for such orders, and not to proceed upon a mere bell signal from the conductor. It is, however, very improbable that the rule was so strict as to require a transmission of the orders verbally by the conductor to the motorman, as the latter would have no more assurance that the orders came from the train dispatcher than he would if transmitted by bell signal, unless he verified them by going himself to the train dispatcher; but there is no pretense that the rule required him to do so.

We are of opinion that the instruction was erroneous. There was no error in refusing to give special instruction No. 8 requested by defendant, as it merely states a self-evident truth.

We are of opinion, further, that the verdict is not sustained by sufficient evidence; but in view of the conflict in the testimony, we are not prepared to say that the defendant was manifestly free from negligence, nor that the plaintiff was manifestly guilty of contributory negligence.

The judgment will be reversed for error in the instructions above specified and the cause remanded for a new trial.

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    CHARGE TO JURY — CRIMINAL LAW.
    [Columbiana (7th) Circuit Court,
    October Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    Clarence Tate et al. v. State of Ohio.
    REFERENCE OP COURT OT ITS CHARGE, TO THE FAILURE OP DEPENDANT IN A CRIMINAL Case to Testify.
    It is not error for the court, sua sponte, to charge the jury that: “The fact that the defendant has not gone upon the witness stand and testified, does not excuse the state from the full measure of proof to which I have called your attention, for it is the privilege of the defendant either to testify in his own behalf or to decline to do so, resting his denial of the offense solely upon his plea of ‘Not Guilty.’ ”
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 793-795; 7 Cyc. Dig., “Witnesses,” § 403. — Ed.]
    [Syllabus approved by the court.]
    Eeror to Columbiana common pleas court.
    Metzger & Smith, W. S. Anderson and J. G. Moore, for plaintiffs in error.
    M. J. McGarry, prosecuting attorney, and C. S. Speaker, for defendant in error.
   COOK, J.

Plaintiffs in error, Clarence Tate and Thomas Taylor, were tried and convicted of the crime-of arson, and sentenced to the penitentiary.

A number of errors are assigned as ground for the reversal of the judgment below, but the one mainly relied upon by counsel, and indeed the only one that could be considered important, is, that the trial judge in his charge to the juiy, without any request so to do, referred to the provisions of Rev. Stat. 7286 (Lan. 11040), respecting the accused becoming a witness in his own behalf. The section reads as follows:

"On the trial of all indictments, complaints, and other proceedings, against a person charged with the commission of an offense, the person so charged shall, at his own request, buts not otherwise, be a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor any comment be made upon, such neglect or refusal.”

If the provisions of the statute are to be taken in their strict literal sense, then the failure of an accused to be a witness in his own behalf should not be referred to at all. The language of the statute could not be made more definite and imperative:

“But his neglect or refusal to testify shall not create any presumption against him,' nor shall any reference be made to, nor any comment be made upon, such neglect or refusal.”

This prohibition of the statute is clearly as applicable to the trial judge as the prosecuting officer, and such was the holding in the case of Ruloff v. People, 45 N. Y. 213, 221; under the statute of this state, which is not nearly so strong as our own. The remarks of Mr. Judge Allen in his opinion are so applicable that we quote them at some length:

“A question is presented by the exception to the comments of the judge upon the fact that the prisoner had not availed himself of the privilege of being sworn and giving evidence in his own behalf. By statute (Chap. 678 of the laws of 1869) persons upon trial for crime may, at their own request, but not otherwise, be deemed competent witnesses. The act may be regarded as of doubtful propriety and many regard it as unwise, and as subjecting a person on trial to a severe if not cruel test. If sworn, his testimony will be treated as of but little value, will be subjected to those tests which detract from the weight of evidence given under peculiar inducements to pervert the truth when the truth would be unfavorable, and he will, under the law as now understood and interpreted, be subjected to the cross-examination of the prosecuting officer, and made to testify to' any and all matters relevant to the issue, or his own credibility and character, and under pretense of impeaching him as a witness, all the incidents of his life brought to bear with great force against him. He will be examined under the embarrassments incident to his position, depriving him of his self-possession and .necessarily greatly interfering with his capacity to do himself and the truth justice, if he is really clesirous to speak the truth. These embarrassments will more seriously affect the innocent than the guilty and hardened in crime. Discreet counsel will hesitate' before advising a client charged with high crimes to be a witness for himself, under all the disadvantages surrounding him. If, with this statute in force, the fact that he is not sworn can be used against him, and suspicion be made to assume the form and have the force of evidence, and circumstances, however slightly tending to prove guilt, be made conclusive evidence of the fact, then the individual is morally coerced, although not actually compelled to be a witness against himself. The constitution, which protects a party accused of crime from being a witness against himself, will be practically abrogated.
“The legislature foresaw some of the evils and dangers that might result from the passage of this act, and did what could be done to prevent them by enacting that the neglect or refusal of the accused to testify should not create a presumption against him. Neither the prosecuting officer nor the judge has the right to allude to the fact that a person has not availed himself of this statute, and it would be the duty of the court promptly to interrupt a prosecuting counsel who should so far forget himself and the duties of his office as to attempt to make use of the fact in any way to the prejudice of a person on trial. An allusion by the judge to the fact, unexplained, cannot but be prejudicial to a person on trial, and a provision intended for his bene-' fit. will prove a trap and a snare. It is an intimation to the jury of the effect upon his mind of the omission of the accused to explain by his own oath, suspicious and doubtful facts and circumstances, as affecting the question of guilt or innocence.”

In the case of State v. Pearce, 56 Minn. 226 [57 N. W. Rep. 652], it was held:

“Where, in a criminal trial, the defendant neglects or refuses to testify in his own behalf, as provided by Gen. St. c. 73, title 1, Sec. 7, the trial court has no right or authority to allude to or comment upon such refusal before the jury, nor to refer to the subject or instruct them as to whether they shall consider such neglect in any manner whatever. ’ ’

In this case the counsel for the accused requested the court to charge the jury,

“That defendant has not testified in this ease cannot be taken into consideration by you in determining the guilt or innocence of the defendant, and all reference thereto, and inference therefrom, must be entirely excluded from your minds; and your determination must be based solely upon the evidence introduced and the instructions of the court.”

The' court refused to give this request and this was assigned as error.

Buck, J., in support of the decision of the court, in a very able opinion shows that to have given the instruction would be in direct conflict with the statute which provides that, “The neglect or refusal of the accused to testify shall not create any presumption against him, nor shall kuch neglect or refusal be alluded to or commented upon by the prosecuting attorney or by the eourt.” “Indeed the court should not even hint at the existence of such a law by the .most remote suggestion, and to do so would be a nullification of the statute.” Many authorities are referred to in the opinion in harmony with the holding of the court.

Is the law different in Ohio? We are inclined to think it is, and that in this state it is not error under certain circumstances for the prosecuting officer or the trial judge to refer to the fact that the accused might testify in his own behalf; and this court must be controlled by the decisions in our own court.

In the case of Calkins v. State, 18 Ohio St. 366, it was held that where a defendant interrupted the prosecuting attorney during his argument by controverting his statement to the jury, and the prosecuting attorney replied, “You had an opportunity to testify in this case and did not do so,” and it not appearing that the court was in any way derelict in duty in the premises, such occurrence does not constitute good cause for granting of a new trial. In the opinion it is said:

“We suppose a ease might occur, in which the misconduct of counsel for the state in disregarding the prohibition of the statute above quoted, and of the court in permitting such disregard, or in failing promptly to rebuke and to arrest it by the exercise of all its authority and power necessary for that purpose, would require the court, in the exercise of a just discretion, and out of due regard to the rights of the prisoner, to award a new trial. But in this case the prisoner seems to have provoked the single hasty retort of counsel, and the court does not appear to have been in any way wanting in duty.”

While in this ease the remark of the prosecutor was provoked by the accused, yet from the opinion it is apparent that the view taken of the1 statute was, that it was a matter of discretion in the court whether or not a new trial should.be grantéd when reference was made to the prohibition of the statute which is directly opposed to the law as laid down in State v. Pearce, supra.

In the case of Schneider v. State, 1 Circ. Dec. 565 (2 R. 420), the prosecuting attorney in his argument said of the accused who was convicted of murder in the first degree:

“He admits that he was present when she was killed; of course he does not say he killed his mother; he did not get on the stand and say he killed her; he did not tell anyone that he killed his mother; he says that two robbers killed her, and that he stood by and saw them do it. Is this a reasonable story?”

The court held:

“This is not such misconduct of the prosecuting attorney, as would require' the trial court to set aside' the verdict and grant a new trial. No statement having been made to the jury, as to the right of the defendant to testify, or any comment made on his refusal to do so, and it not appearing that the defendant was in any way prejudiced thereby, it rests in the sound and legal discretion of the trial court.”

In the opinion Judge Smith concedes that the use of the word “stand” by the prosecuting attorney no doubt referred io the witness stand; and then referring to the case of Calkins v. State, supra, says, page 575:

“The effect of this decision is, that to justify the setting aside of a verdict for such cause, there must be a_material and substantial infraction of the law, and one which seems to the trial court, or that reviewing its decision, to have prejudicially affected the rights of the defendants. ’ ’

This case was affirmed by the Supreme Court without .report. Whether this question was pressed or not we do not know, but it is to be presumed that it was.

Were it not for these two cases decided by our Supreme Court this court would be inclined to hold, under our statute, as was held in the Minnesota case referred to, that neither the public prosecutor nor the court had any right to refer to the failure of the accused to testify; and that the prohibition of the statute is mandatory and must be strictly complied with. But from these cases we feel to do so would be to hold against what is decided by our own court.

Wihat the trial judge said to the jury in this case was not in any sense unfair to the accused, and if .justified in referring to the subject at all, was as favorable to them as it should have been. It was as follows:

'“I desire, however, to remind you, as I have heretofore said in this charge,' that you will not be warranted in returning a verdict of guilt against any one of these defendants unless the evidence produced against such particular defendant convinces your minds, beyond a reasonable doubt, of his guilt; for even though you should find, beyond a reasonable doubt, that one of the defendants had been guilty of the commission of said crime, that fact alone would not warrant you in finding the other defendants guilty unless, as I have heretofore stated, the evidence is such as to convince your minds to a moral certainty of the guilt of each defendant against whom you shall return a verdict of guilty. And I desire-to say to you now that the fact that no one of the defendants has gone upon the. witness stand and- testified, does not excuse the state from the full measure of proof to which I have called your attention, for it is the privilege of each defendant either to testify in his own behalf or to decline to do so, resting his denial of the offense solely upon his plea of not guilty.”

¥e should say that the conclusion to which we have come is in line with Sullivan v. State, 4 Circ. Dec. 451 (9 R. 652).

Judgment of common pleas court is affirmed.

Burrows and Laubie, JJ., concur.


text:
    INFANT — LIFE INSURANCE — WHEN PREMIUMS MAY BE RECOVERED BACK.
    [Portage (7th) Circuit Court,
    February Term, 1907.]
    Burrows, Laubie and Cook.
    Prudential Life Ins. Co. of America v. Frank R. Fuller, a Minor.
    Right of Infant to Recover Consideration on Refddiated Contract.
    Upon repudiating bis contract of life insurance and surrendering to the company its policy therefor an infant may recover the whole amount of premiums paid by him thereon.
    [For other cases in point, see 5 Cyc. Dig., “Infants,” §§ 69-71. — Ed.]
    [Syllabus by the court.]
    Error to Portage common pleas court.
    Musser, Kimber & Huffman, for plaintiff in error:
    Plaintiff in error contends:
    1. That the beneficiaries named in the several policies of insurance are necessary parties plaintiff.
    That, if the infant, Fuller, is permitted to repudiate his contract of insurance and sue to recover the premiums paid, then the beneficiaries named in the separate insurance policies are necessary parties to the suit, before a recovery of the premiums paid can be had by the infant and the contractual relations between the insured and insurer canceled, in order to release the insurance company from any future liability to the beneficiary; that the rights of a beneficiary'in a policy of insurance and the amount to be paid at the death of the insured are vested rights upon the taking effect of the policy and that these rights cannot be defeated by the separate or combined acts of the insured and insurance company without the consent of the beneficiary. Holland v. Taylor; 111 Ind. 121 [12 N. E. Rep. 116] ; Trabandt v. Insurance Co. 131 Mass. 167; North American Life Ins. Co. v. Wilson, 111 Mass. 542; Joyce, Insurance See. 730-, Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156 [5 N. E. Rep. 417; 58 Am. Rep. 806]; Gass v. Insurance Go. 4 Dec. 234 (3 N. P. 216) ; Connecticut Mut. L. Ins. Co. v. Lucks, 108 U. S. 498 [2 Sup. Ct. Rep. 949; 27 L. Ed. 800] ; Aetna Life Ins. Co. v. France, 94 U. S. 561 [24 L. Ed. 287] ; Bliss, Insurance, Chap. 10, p. 517; Glanz v. Gloeclar, 104 Ill. 573 [44 Am. Rep. *94]; Central Nat. Bank v. Hume. 128 U. S. 195 [9 Sup. Ct. Rep. 41; 32 L. Ed. 370] ; Bacon, Life Insurance, See. 292; Aetna'Life Ins. Co', v. Penn, 16 Dec. 375; Vance,-Insurance 390.
    2. That there is a misjoinder of parties plaintiff (if the beneficiaries are necessary parties) and of causes of action.
    Plaintiff in error contends that, inasmuch as there are difierent policies of insurance taken at different periods of time and upon the lives of different persons and that the beneficiaries named in the different policies are different persons, suit upon these different policies must be brought separately.
    Plaintiff further contends that the several contracts of insunme > sued upon did not grow out of the same transaction, are not connected with the same subject of action, and do not affect all the parties who should be joined in the action. Revised Statute 4993 (Lan. 8508).
    3. Minor’s right to rescind a contract of insurance and recover premiums paid.
    Plaintiff further contends that even a minor before he can rescind a contract, which as to him might be voidable, must so far as in his I>ower lies put the opposing party in statu quo; that before a recovery can be had, in any event, in this case the plaintiff must tender back all he and the beneficiaries received under the policies and he' must also relieve and release the insurance company from all liability upon his part and upon the. part of the beneficiaries. 2 Kent’s Commentaries 240; Bishop, Contracts Par. 921; 22 Cyc. 617; Robinson v. Weeks, 56 Me. 102; Heath v. Stevens, 48 N. EL 251; Adams v. Beall, 67 Md. 53 [8 Atl. Rep. 664; 1 Am. St. Rep. 379] ; 1 Chitty, Contracts 222; Rice v. Butler, 160 N. Y. 578 [55 N. E. Rep. 275; 47 L. R. A. 303; 73 Am. St. Rep. 703] ; 16 Am. & Eng. Enc. Law (2 Ed.) 295, 296; Craighead v. Wells, 21 Mo. 404; Bartlett v. Cowles, 81 Mass. (15 Gray) 445; Chicago Mut. Life Indemn. Assn. v. Hunt, 127 Ill. 257 [20 N. E. Rep. 55; 2 L. R. A. 549] ; Johnsons. Insurance Co. 56 Minn. 365 [59 N. W. Rep. 992; .26 L. R. A. 187; 45 Am. St. Rep. 473],
    W. J. Beckley, for defendant in error:
    There is no dispute as to the facts in the case, and the case therefore resolves itself into the question, Can a minor recover for money paid upon' life insurance policies ?

      First, life insurance is not a necessary and the minor may repudiate the contract and recover back the money paid, even though the contract has been executed. 2 Page, Contracts 1340, Par. 866, also page 1344; Simpson v. Insurance Co. 184 Mass. 348 [68 N. E. Rep. 673; 63 L. R. A. 741; 100 Am. St. Rep. 560]. .
    Fire insurance is not a necessary for which a minor can make a valid contract. Page, Contracts 1343. See also 16 Am. & Eng. Ene. Law (2 Ed.) 276.
    'We concede that the contracts of minors, as a rule, are only voidable in Ohio. Hamer v. Hippie, 31 Ohio St. 72 [27 Am. Rep. 496] ; Bush v. Wick, 31 Ohio St. 521 [27 Am. Rep. 523],
    The minor must return such of the property as he may have in his possession or under his control, but if the same has been lost or taken from said minor, or is of such a character that it cannot be restored in kind, he may still disaffirm the contract and recover back the consideration paid by him without making restitution. Lemmon v. Beeman, 45 Ohio St. 505 [15 N. E. Rep. 476], See opinion of court, p. 509; Mac-Greal v. Taylor, 167 U. S. 688 [17 Sup. Ct. Rep. 961; 42 L. Ed. 326],
    In this ease the minor has deposited in court the insurance policies and made all the restitution that it was within his power to make,
   COOK, J.

Frank R. Fuller, a minor, of eighteen years of age, took out several policies of insurance in the plaintiff company, he paying all the premiums, some of them being upon his own life for the benefit of his brothers and sisters who were also minors younger than himself, and some of them upon the lives of his brothers and sisters, for his own benefit.

His father and mother were dead, and being the eldest child, he looked after the interests of his brothers and sisters.

Young Fuller becoming dissatisfied with his contract of insurance, repudiated the same and demanded of the company that it pay back to him the amount of premiums that he had paid, running over a period of about three years and amounting to $100, on the ground that he was a minor when he made the contract and paid the premiums. This the company refused to do. No fraud is claimed.

The principal errors assigned are, that the court erred in overruling the demurrer to the petition and in directing a verdict for plaintiff below for the full amount of his claim. These grounds of error raise but the one .question and that is: May a minor repudiate his contract of insurance and recover back the premiums paid and, if so, must he deduct the expenses incurred for carrying the .risk during the time the insurance continued before such repudiation?

It should be stated that plaintiff below tendered back to the insurance company ail the policies of insurance issued, and deposited the same in court for its benefit'.

The first claim made on behalf of the company is, that, the brothers and sisters having an interest in the contract and policies or at least in some of them, and not being parties to the action, the contract cannot be repudiated and the policies canceled, in this action or in any other action, without their consent.

It is no doubt true that generally the beneficiary has a vested interest and that nothing can be done to prejudice such interest without the consent of the beneficiary, except in cases where the policy or the rules of the company provide otherwise; but that principle does not apply to a ease of this character. These beneficiaries are mere volunteers. They paid nothing. They and the company knew that the contract was voidable at the option of the minor at any time before or at the time he attained his majority. The claim of the plaintiff in error that the company is still liable to these beneficiaries after the repudiation by the minor making the contract is therefore, we think, wholly untenable. Counsel in their exhaustive brief have furnished us no authority to that effect and the claim is against principle and reason. Furthermore the guardian has tendered to the company all of the policies and deposited them in court for the company, presumably with the consent of the beneficiaries, so far as the beneficiaries, who are all minors, could give their consent.

It is again claimed that the company, in the absence of fraud, has a right to retain from the amount of premiums paid by the infant the necessary expense of carrying the risks and that the plaintiff below is only entitled to the excess; and this claim has some support in the adjudicated cases.

The solution of the question turns on what are the rights of the infant who has lost or squandered what he has received as the consideration for his contract. Must he return what he has not the power to return, or- must he permit the other contracting party to retain that which has proved of no benefit to him or has been wasted? If so, the shield of infancy would be of little value.

This claim is no doubt in accord with the English rule and has some countenance in the decisions of some of the states. The case of Johnson v. Insurance Co. 56 Minn. 365 [59 N. W. Rep. 992; 26 L. R. A. 187; 45 Am. St. Rep. 473], is the leading case holding to this rule. In that case it was held:

“Where the personal contract of an infant is fair and reasonable, and free from any fraud, overreaching, or undue influence by the other party, and has been wholly or partly executed on both sides, so that the infant has enjoyed the benefits of it, but has parted with what he received, or the benefits received are of such a nature that he cannot restore them, he cannot recover back what he has paid.”

In accordance with that holding the infant in that case was ordered to account for the current annual risk assumed by the company under its policy.

The case of Simpson v. Insurance Co. 184 Mass. 348 [68 N. E. Rep. 673; 63 L. R. A. 741; 100 Am. St. Rep. 560], is directly in conflict with Johnson v. Insurance Co. 56 Minn. 365 [59 N. W. Rep. 992; 26 L. R. A. 187; 45 Am. St. Rep. 473]. In that case it was held:

(1) “An infant may avoid a contract of life insurance and recover the money paid by him as premiums, however reasonable and prudent it may have been for him to take out the policy. >'
(2) “In this commonwealth an infant, in order to avoid a contract, is not obliged to put the other party in statu quo. Thus an infant may recover money paid by him as premiums under a policy of life insurance without any deduction for the expenses incurred'by the insurer in keeping the policy in force.”

In the opinion it is said, page 349:

“The defendant contends that the contract having been executed in part at least the plaintiff cannot recover without making the defendant whole for the expense to which it has been subjected. But that would be compelling the plaintiff to carry out to that extent a contract which is not binding on her and which she may avoid. Morse v. Ely, 154 Mass. 458 [28 N. E. Rep. 577; 26 Am. St. Rep. 263].

This decision seems to be in accord with the adjudications in most of the states. 16 Am. & Eng. Enc. Law 293 where the decisions are collated.

The case of Lemmon v. Beeman, 45 Ohio St. 505 [15 N. E. Rep 476], would seem also to be in accordance with the case of Simpson v. Insurance Co. supra, and, if so, is determinative.

We might add that, while we have passed upon the question, it is doubtful if it is raised by the. pleadings, as the answer makes no claim for anything for the expenses of carrying the risks.

Judgment affirmed.


author: PER CURIAM.

text:
    MASTER AND SERVANT.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Donahue, McCarty and Taggart, JJ.
    J. B. Foote Foundry Co. v. James A. Young.
    Employee wot Liable fob Negligence of Sekvants of Equal Rank.
    An employe of a foundry company who, while responding to a request or order from another to assist in a certain kind of Work, is injured by reason of the negligence of the other servant cannot recover for such injuries without first showing that the servant ordering such assistance has been placed, by his employer, in a position of control Ur authority over 'him. 1
    [For other cases in point, see 6 Cyc. Dig,, “Master and .Servant,” §§ 292-437. —Ed.]
    [Syllabus approved by the court.]
    ERROR to Knox common pleas court.
    L. C. Stillwell, for plaintiff in error.
    F. V. Owen, for defendant in error.
   PER CURIAM.

Tbe defendant in- error obtained a judgment against the plaintiff in error in an action wherein he claimed that he had been injured in consequence of the negligence of the plaintiff in error and proceedings in error are now prosecuted to reverse that judgment.

It is contended that the verdict of the jury is manifestly against the weight of the evidence, and is contrary to law. These grounds were- set out in a motion for a new trial, and are carried into the petition in error, and require us to investigate this entire record.

It appears that the plaintiff was employed by the defendant to work in its paint shop, and that a few days after entering the employment, he was in a portion of the defendant’s shop where a machine known as a “rattler” was being operated by one of the defendant’s servants, Hofleek; that a belt, which in the operation of said shop was to 'be placed 'upon a pulley, which would start and operate the machine known as a “rattler,” was not upon said pulley, and that the plaintiff attempted to place the same thereon so as to start the machine, and that while engaged in this his arm- was caught, and so severely injured, that it required its amputation. He says it was in consequence of the negligence of the defendant and of his servant, Hofleek. It is his claim that the servant, Hofleek, was his superior, and that in performing the work in and about the pulley and belt, he was acting in obedience to tbe direction and orders of flofleek, wbo stood in the capacity of vice principal to defendant.

We may go to the extent of assuming • that the record.shows that Hofleck did order and direct the plaintiff to assist in adjusting said belt upon the pulley, but we simply assume this situation for the purpose of this opinion. We do not, by any means, so decide. But assuming that that situation existed, is there any proof in this record that Ifofleek stood in the relation of a vice principal to the defendant, or was he simply a fellow servant? If he was a fellow servant, without authority to direct, and the record so shows, then the verdict is not sustained by sufficient evidence and is contrary to law. If he stood in the relation of a vice principal or superior, and directed • and ordered the plaintiff to assist, and the record was otherwise sufficient, then the verdict should be sustained.

In the case of Kelley Island Lime & Transport Co. v. Pachuta, 69 Ohio St. 462, 468 [69 N. E. Rep. 988; 100 Am. St. Rep. 706], the Supreme Court gives a test to be applied in determining whether a particular servant is a vice principal or a fellow servant:

“In Ohio the test to be applied in determining whether a particular servant is a vice principal or a fellow servant, except in certain cases where the rule has been modified by statute, is whether or not he has been placed by his employer in a position of control or authority over his eoemploye.”

That this, rather than the nature and character of the work being done, is the controlling and governing test in this state is shown by the following authorities: Clev. C. & C. Ry. v. Keary, 3 Ohio St. 201; Pitts. Ft. W. & C. Ry. v. Lewis, 33 Ohio St. 196; Pitts. C. & St. L. Ry. v. Ranney, 37 Ohio St. 665.

In Clev. C. & C. Ry. v. Keary, supra, we find the following syllabus:

“But a principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the injuries they may occasion.”

The circuit court. of Cuyahoga county, in the case of Toomey v. Stamp Co. 11 Circ. Dec. 216 (20 R. 183), has also defined what constitutes a fellow servant:

“It is the rule in Ohio that the master is liable for injury to one servant from the negligence of another, where both are engaged in a common employment and one is given control over the other. Mere working together where the advice of one is accepted by another, and where by superior knowledge one gives all the advice and. direction for the work, is not alone sufficient to charge the master with the negligence of either by which the other is injured, but such direction and authority must be by the authority given by the master or some one standing in his place. ’ ’

We have carefully gone over this record and we fail to find' any place in the record where the servant, Hofleck, was given any authority or power to control and direct the work of the plaintiif in error herein. The most that we find from the record is, that he requested the assistance of other servants of the plaintiif in error and that that assistance was given, but that the master had ever conferred any authority or power, on him to control or direct this work, or any other work, we fail to find it set out m the record or shown by the proof. This being so, even if the defendant in error was directed by the person Hofleck to do this work, it does not appear that it was done under the direction or authority of the master. That being so, the record fails to show that Hofleck stood in the relation of a vice principal' or superior and the engaging in this work by the defendant in error was not in consequence of any act or direction of the master.

We have, for the purposes of this opinion, assumed every element necessary for the defendant in error to recover, and all that the defendant in error could claim in his own behalf up to the point we have been discussing, but as this is essential and necessary to be shown in the case and is not shown, it is our judgment that the verdict of the jury is against the manifest weight of the evidence and is contrary to 1 the law of the ease. Therefore, the motion for a new trial should have been granted, and the court was in error in overruling said motion. For this error the judgment of the court of common pleas will be reversed, with exceptions, and the cause remanded to the court of common pleas for further proceedings according to law. Judgment will be entered in favor of plaintiff in error for the costs in this court.


text:
    JUDGMENT — JUSTICE OF PEACE.
    [Trumbull (7th) Circuit Court,
    October Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    C. C. Sigler v. Jesse K. Shaffer.

      ■ 1. Parol Evidence Inadmissible to Contradict Justice Docket.
    Where the docket of a justice of the peace shows that judgment was rendered ten days after the return of the verdict by the jury, parol evidence is not admissible to show thá't the judgment in fact was rendered immediately upon the return of the verdict.
    2. Judgment Rendered by Justice of Peace After Ten Days from Verdict is Void.
    Where a justice of the peace fails to render judgment until ten days after the return of a verdict by a jury, such failure works a discontinuance of the action; the judgment so rendered by the justice is absolutely void, and a court of equity will enjoin any further proceedings upon such judgment.
    [For other cases in point, see 5 Cyc. Dig., “Justice of Peace,” §§ 299-312. —Ed.]
    [Syllabus by the court.]
    W. B. Moran and T. I. Gillmer, for plaintiff.
    E. B. Leonard, for defendant.
   COOK, J.

This action is before ns on appeal. Defendant, Jesse K. Shaffer; brought suit before a justice of the peace, against the plaintiff. The action was tried to a jury, which, on June 13, 1904, returned a verdict in favor of Shaffer for the sum of $27.75. On June 23, the justice entered judgment upon the verdict on his docket, reciting that on that date he rendered judgment upon the verdict, against Sigler, for the amount of the verdict and costs. Execution was issued upon this judgment and this action was commenced to restrain Sháffer from enforcing the execution against plaintiff’s property, and that he be perpetually enjoined from making any claim against him upon the judgment.

The theory of counsel for plaintiff is, that, judgment not having been rendered by the justice immediately upon the return of the.verdict by the jury, the justice lost control of the ease; and the judgment is a nullity. In órder for the plaintiff to succeed in the action, that 'theory must be maintained.

Is the judgment of the justice absolutely void as claimed? Evidence was received upon the trial and taken under advisement, tending; to show that the justice did in fact declare that judgment would be entered upon the verdict immediately upon the return of the jury.

The first question, therefore, that .meets us, is, Was such evidence competent? We now think it was not and reject it. It will |>e observed that the justice’s docket shows that the judgment was rendered, not entered, upon June 23, and to admit this evidence is to permit the entry upon his docket to be directly contradicted. It is not a ease where there is no entry at all. Possibly in such case parol evidence might be admissible to show what was done, in order to support the judgment. That question we do not decide for in this case the docket is complete and show's, as we have said, that the judgment was rendered on the twenty-third, and that the verdict was returned on the thirteenth.

The next and important question is what is the effect -of the', justice’s withholding his judgment for ten days? Does it make the judgment absolutely void, or is it only voidable by reason of irregularity to be remedied by a proceeding in error or by appeal to common pleas court.

Revised Statute 6579 (Lan. 10161) provides:

“Upon a verdict the justice must immediately render judgment accordingly. When the trial is by the justice, judgment must be entered immediately after the close of the trial, if the defendant has been arrested or his property attached; in other cases it must be entered at the close of the trial, or if the justice then desire further'time to consider, on or by the fourth day thereafter, both days inclusive.”

Justices of the peace derive all their power from the statutes, and the language of the statute is clear, specific and peremptory and would seem to preclude the justice from rendering judgment at any time other than that provided by the statute.

The case of Robinson v. Kious, 4 Ohio St. 593, is difficult of reconciliation upon this theory, but is also probably as difficult of reconciliation with subsequent decisions. The syllabus is:

“Section 107 of the justices’ code provides that, ‘upon a verdict the justice must immediately render judgment accordingly.’ This provision may not make a judgment rendered upon a subsequent day absolutely void, but it makes it irregular and for such irregularity, when not waived, it is reversible.”

If you take the language of the syllabus literally, it no doubt sustains the proposition that the judgment is not void, but voidable only, and the remedy of the aggrieved party would be by error. It will, however, be observed that the question wTe have did not directly arise' in that case. The question there was, could the successful party, by failing to pay the jury fee,, prevent a judgment and thereby compel a dismissal of the case for want of further jurisdiction ?

In the case of Dunlap v. Robinson, 12 Ohio St. 530, if is held in the third proposition of the syllabus:

“Where a justice of the peace fails to render judgment, or take any other action, for a period of ten months, upon the verdict of a jury rendered in a cause upon trial before him, such neglect of duty, on the part of the justice, works a discontinuance of the action, and such verdict, without judgment, will not constitute a bar to a subsequent suit on the same cause of action.”

In the opinion, after referring to Robinson v. Kious, supra, it is said, page 534:

“A justice of the peace cannot, by neglecting or refusing to enter judgment within the time required by statute, keep an action indefinitely pending before himself. When his power to determine the controversy, by a valid judgment, ceases, his jurisdiction ends. His power of adjudication is derived from the statute, and if not exercised within the time allowed by law, it is clearly lost; and the cause is no longer pending before him. The legal effect of such a failure in duty is a discontinuance of the action. So jurisdiction may be lost by an adjournment of the suit, without consent of parties, for a time longer than -the statute permits. Such unauthorized adjournment, or other neglect of duty by the justice, which prevents a hearing, and determination of the suit within the proper time, it has been repeatedly held, works a discontinuance of the action. Gamage v. Law, 2 Johns. 192; Taft v. Grosfent, 5 Johns. 353; Green v. Angel, 13 Johns 469; Stoddard v. Holmes, 1 Cow. 245.”

Sutliff, C. J., and Brinkerhoff, J., concurred with Scott, J., who rendered the opinion, in the third proposition of the syllabus, while Peck and Gholson, JJ., dissented. It must be conceded that it is difficult to uphold this decision without overruling Robinson v. Eious, supra.

In the ease of Eaton v. French, 23 Ohio St. 560, it is said:

‘ ‘ Section 107 of the justices ’ act provides, that when the trial is by the justice, judgment ‘must be entered either at the close of the trial, or if the justice then desire further time to consider, on or by the, fourth day thereafter, both days inclusive. ’ This language is clear, specific, and peremptory. The power of the justice must be measured by the statute. Accordingly, it was held in Robinson v. Kious, 4 Ohio St. 593, that a judgment rendered by a justice after the time allowed by the statute, was, for that reason, reversible; and the holding in Dunlap v. Robinson, 12 Ohio St. 530, would warrant the conclusion that such delay works a discontinuance of the action.”

From these cases., taken together and especially from the language of the statute, we are of opinion that the failure of the justice to immediately render judgment upon the return of the' verdict by the jury worked a discontinuance of the action; that he thereafter had no authority to render and enter the judgment and that the same is absolutely void!

A decree will be entered enjoining the defehdant from taking any further proceedings upon the execution he caused to be issued, ■and from causing any further proceedings to be taken upon the pretended judgment. Defendant to pay costs.

Burrows and Laubie, JJ., concur.


author: JELKE, P. J.

text:
    OFFICE AND OFFICERS.
    [Butler (1st) Circuit Court,
    May 1, 1906.]
    Jelke, Swing and Giffen, JJ.

      State ex rel. Robert J. Shauk v. Homer Gard. Fred Shearer v. Brandon R. Millikin.
    Offices of County School Examinee and Councilman are Incompatible.
    The election to the. office of councilman of a person who holds the office of county school examiner and is also a teacher in the schools of the city contravenes the provisions of Sec. 120 of the municipal code (Rev. Stat. 1536-613; Lan. 3098) and is therefore a nullity.
    [For other cases in point, see 6 Cyc. Dig., “Office and Officers,” §§ 89-103. — Ed.]
    [Syllabus by the court.]
    QUO WARRANTO.
    Injunction.
    Shank filed in the circuit court a proceeding in quo warranto, setting forth that at the organization of the council of the city of Hamilton, on January 8, 1906, he was elected clerk thereof, and that the defendant, Homer Gard, had usurped the said office and was unlawfully holding it from the possession of the relator. The prayer was for ouster.
    The answer denied the election of the relator and the alleged usurpation, and alleged that in May, 1903, the defendant was duly elected clerk of the council for a term of two years and until his successor was elected and qualified, and that on January 8, 1906, the defendant was legally re-elected to said office for the term of two years, and that he gave bond, qualified and is performing the duties of the office.
    The reply was substantially a denial of the new matter in the answer.
    The determination.of the issue thus presented was dependent upon the disputed title to a seat in council. The findings of fact as made by the circuit court were as follows:
    That at the November election, 1904, Fred Shearer, an elector of the city of Hamilton, was elected for two years as a member at large of the city council of said city; that prior to and at the time of such election said Fred Shearer held a public office in Butler county, Ohio, to wit, the office of member of the county board of school examiners, and held a public employment in said city of Hamilton, Ohio, to wit, as school teacher in, and principal of, one of the ward schools of said city, and as such officer and employe received compensation in money for his services; that continuously from the time of his election as said member of council and up until the filing of this proceeding he held said public office and said employment.
    That said Fred Shearer acted as such member of the city council until December 27, 1905, at which time a regular recessed meeting of council was held, of which meeting said Fred Shearer had full knowledge, and at which meeting the said city council by resolution found and determined that at the time of the election of Fred Shearer as such member of council and continuously thereafter to that time he was said public officer and held such public employment, and that by reason thereof at all of said times he did not possess the qualifications of a member of council provided and required by Sec. 120 of the municipal code of Ohio (Rev. Stat. 1536-613; Lan. 3098), and by said resolution at said time the office of Fred Shearer as member of said city council was declared vacant, and that said Brandon R. Millikin was at said meeting duly elected by said council to fill the office of member of council in place of said Fred Shearer, and thereupon at said meeting of December 27, 1905, said Brandon R. Millikin appeared, took the oath of office and qualified as such member of council, and took possession of said office, and thereafter discharged the duties thereof; and the minutes of said meeting were duly approved at the next subsequent meeting of council.
    That said Fred Shearer was not present at said meeting, and while he had knowledge of said meeting, he had no notice of the intended proceedings held by said city council, declaring him ineligible, and his office vacant, and the appointment of said Brandon R. Millikin.
    The court finds that said city council met for organization Janua'ry 8, 1906,, at which time said Brandon R. Millikin was present as such member of council and that the president of council directed the then clerk, Homer Gard (the defendant), to call the roll of the members of the city council, which was done, and said Brandon Millikin’s name was called and he answered to said roll, and thereupon council proceeded to elect a clerk, and the relator and defendant were both nominated fox the office of clerk, and thereupon the president of council directed the roll to be called for said election, and said clerk did call said roll, including Brandon R. Millikin, and that four of the members of said council, including- Brandon R. Millikin, voted for said defendant, and that three of the members thereof voted for Robert J. Shank, all of which is shown by the minutes of said council, and which minutes were duly approved at the next .meeting of said council.
    That at said last named meeting Fred Shearer was present, and that after the clerk had called the roll for the election of clerk, one J. P. Wilson, a member of said council, without the direction of anyone, called the name of Fred Shearer, who responded by saying “Shank;” and the court finds thatJthe calling of the name of Shearer by said Wilson does not appear on the minutes of said meeting. Thereupon the defendant was declared elected as such clerk of council, gave bond which was approved and filed, and entered into the possession and discharge of the_ duties of said office, and has since discharged the duties thereof.
    That the relator subsequent to said meeting pretended to give bond as such clerk and demanded of the defendant the said office and books, documents, papers and property appertaining thereto, which said demand said defendant refused.
    That said defendant, _ Fred Shearer, held said office of member of the board of county examiners and said employment as school teacher of the Hamilton special school district at the time of his election, and that at his term of said office and of said employment terminated June, 1905, but that during the month of June, 1905, he was reappointed as a member of the board of county school examiners and re-engaged as a teacher by said scho’ol district, and without interval continued upon another term as such member of the board of county school examiners and as such teacher, and has acted as such continuously thereafter until the trial of this ease.
    The conclusions of law as made-by the circuit court, were as follows:
    “As conclusions of law the court finds that Fred Shearer, at no time between his election and the hearing of the canse, had the qualifications of a member of council required by law, and that his election and pretended incumbency of the office of councilman were a nullity, and that council had the right to determine this matter without notice to said Fred Shearer or taking any proceedings against him, and that the election of Brandon R. Millikin to fill said vacancy was duly and legally held, and that Homer Gard, the defendant, was legally elected as such clerk, and that the relator was not elected clerk, and is not entitled to any of the relief prayed for. It is therefore considered, adjudged and decreed that the relator’s petition be and the same is hereby dismissed, and that defendant recover of relator his costs expended in this action, taxed at $-; to which decision of the court said relator excepts.” ,
    Andrews, Harlan & Andrews, Shank & Shank and Neilan & Neilan, for plaintiff in error:
    “Shearer was at least the de facto member of council, and that the proceeding of the city council, adjudging him disqualified, declaring his office vacant and appointing a successor without charges, investigation, notice to Shearer or knowledge on his part, is a mere nullity. State v. Bryce, 7 Ohio (pt. 2) 82; Hogan v. Carbery, 6 Dec. Re. 729 (7 Rec. 595) ; Board of Aldermen v. Barrow, 13 Col. 460 [22 Pac. Rep. 784; 16 Am. St. Rep. 215]; Oliver v. Jersey City, 63 N. J. Law 634 [44 Atl. Rep. 709; 48 L. R. A. 412; 76 Am. St. Rep. 228]; Hallgren v. Campbell, 82 Mich. 255 [46 N. W. Rep. 381; 9 L. R. A. 408; 21 Am. St. Rep. 557]; State v. Hewitt, 3 S. Dak. 187 [52 N. W. Rep. 875; 16 L. R. A. 413; 44 Am. St. Rep. 788]; Commonwealth v. Slifer, 25 Pa. St. 23 [64 Am. Dee. 680]; Jones v. State, 28 Neb. 495 [44 N. W. Rep. 658; 7 L. R. A. 325]; State v. Examining Board, 32 Minn. 324 [20 N. W. Rep. 238; 50 Am. Rep. 575]; State v. St. Louis, 90 Mo. 19 [1 S. W. Rep. 757]; State v. Schultz, 11 Mont. 429 [28 Pac. Rep. 643; Hartigan V. Board of Regents, 49 W. Ya. 14 [38 S. E. Rep. 698]; Dullam v. Will-son, 53 Mich. 392 [19 N. W. Rep. 112; 51 Am. Rep. 128]; Carter v.. Durango {City), 16 Col. 534 [27 Pac. Rep. 1057; 25 Am. St. Rep. 294]; State v. Bryson, 44 Ohio St. 457 [8 N. E. Rep. 470]; State v. McLain, 58 Ohio St. 313 [50 N. E. Rep. 907]; State v. Sullivan, 58 Ohio St. 504 [51 N. E. Rep. 48; 65 Am. St. Rep. 781]; State v. Hawkins, 44 Ohio St. 98 [5 N. E. Rep. 228]; Meachem v. New Brunswick (City), 62 Atl. Rep. 303 (N. J.) ; Carr v. Augusta {City), 124 Ga. 116 [52 S. E. Rep. 300]; State v. Hoglan, 64 Ohio St. 532 [60 N. E. Rep. 627]; State v. Bryce, 7 Ohio (pt. 2) 82; 4 Blackstone’s Com. 282; Murdock V. Phillips Academy, 29 Mass. (32 Pick.) 244; State v. Darby, 4 Circ. Dec. 124 (12 R. 235); affirmed, Darby v. State, 52 Ohio St. 611; State v.
      O’Brien, 47 Ohio St. 464 [25 N. E. Rep. 121]; Board of Aldermen v. Barrow, 13 Col. 460 [22 Pac. Rep. 784; 16 Am. St. Rep. 215].
    “In Ohio the doctrine prevails that a member of council, chosen to an incompatible office, or an office forbidden to him, does not lose his membership in the city council, but his election or appointment to the second office is invalid. State v. Kearns, 47 Ohio St. 566 [25 N. E. Rep. 1027] ; State v. Taylor, 12 Ohio St. 130; Guernsey Go. (Comrs.) v. Cambridge, 3 Circ. Dec, 669 (7 R. 72) ; State v. Newark, 8 Dec. 344 (6 N. P. 523) ; State v. Brown, 60 Ohio St. 499 [54 N. E. Rep. 467],
    “Shearer was not disqualified under the law from holding at the same time the office of member of city council, member of county board of school examiners, and position of school teacher. State v. Kinney, 11 Circ. Dec. 261 (20 R. 325), and State v. Broten, 60 Ohio St. 499 [54 N. E. Rep. 467], were cited to establish the proposition that the public office or public employment forbidden to members of council is office under the municipality or employment by it; and the former construction shall be given to the revision known as the municipal code, in the absence of any clear indication that the legislature intended to change the law in that respect. Conger v. Barker, 11 Ohio St. 1; Ash v. Ash, 9 Ohio St. 383; Williams v. State, 35 Ohio St. 175; State v. Shelby Co. {Comrs.) 36 Ohio St. 326; Allen v. Bussell, 39 Ohio St. 336; State v. Darke Co. (Aud.) 43 Ohio St. 311 [1 N. E. Rep. 209]; State v. Stockley, 45 Ohio St. 304 [13 N. E. Rep. 279]; Tyler v. Winslow, 15 Ohio St. 364; Hamilton V. Steamboat B. B. Hamilton, 16 Ohio St. 428; Brower v. Hunt, 18 Ohio St. 311; Warren v. Davis, 43 Ohio St. 447 [3 N. E. Rep. 301],
    “A section of a revised statute must be confined in its construction as if it were still a part of the original act from which it was taken. Kbersole v. Schiller, 50 Ohio St. 701 [35 N. E. Rep. 793].
    ‘ ‘ The letter of a statute is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. Burgett v. Burgett, 11 Ohio St. 469; Tracy v. Card, 2 Ohio St. 431; Slater v. Cave, 3 Ohio St. 80; State V. Harmon, 31 Ohio St. 250; Brigel v. Starbuck, 34 Ohio St. 280; Johnson v. State, 42 Ohio St. 207; Monroe Tp. (Bd. of Ed.) v. Board of Ed. 46 Ohio St. 595 [22 N. E. Rep. 641],
    R. N. Shotts, W. Gard and W. C. Shepherd, for defendant in error:
    The question involved was controlled entirely by Secs. 119 and 120 of the municipal code (Rev. Stat. 1536-612 and 1536-613; Lan. 3097, 3098), and there is no room for the application of any common law rules, claiming that the holding of any public office or employment disqualifies a person from being elected a member of council, and that after a lawful election as member of such body such holding of office or employment works a forfeiture of the office of councilman forthwith. The election and subsequent incumbency of Shearer were, therefore, a, nullity and no motion or judicial determination was necessary. State v. Craig, 69 Ohio St. 236 [69 N. E. Rep. 228]; State v. Orr, 61 Ohio St. 384 [56 N. E. Rep. 14]; 23 Am. & Eng. Ene. Law (2 ed.) 338 ■; State v. Pierce City Aldermen, 91 Mo. 445 [3 S. W. Rep. 849]; Mechem, Public Offices Sec. 428; People v. Common Council, 77 N. Y. 503 [33 Am. Rep. 659]; Stearns v. Wyoming, 53 Ohio St. 352 [41 N. E. Rep. 578] ; State .v. Berry, 47 Ohio St. 232 [24 N. E. Rep. 266] ; State v. Hawkins, 44 Ohio St. 98 [5 N. E. Rep. 228]; People v. Mays, 117 III 257 [7 N. E. Rep. 660].
    Delay on the part of council in filling the vacancy occasioned by Shearer’s ineligibility is of no importance. Nothing that council or even Shearer could do would dispense with the statutory qualifications. Corliss, In re, 11 R. L. 638; Commonwealth v. Hatter, 1 Leg. Rec. Rep. (Pa.) 86; Searcy v. Grow, 15 Cal. 117; People v. Clute, 50 N. Y. 451 [10 Am. Rep. 508],
    In opposition to State v. Kinney, 11 Circ. Dec. 261 (20 R. 325), the cases of State v. Kearns, 47 Ohio St. 566 [25 N. E. Rep. 1027] ; State v. McMillan, 8 Circ. Dec. 380 (15 R. 163), and State v. Wagar, 10 Circ. Dee. 160 (19 R. 149), were cited.
    It was further contended that the relator has-no standing in court, because in order to prevail he must show that Millikin, who was appointed to fill the Shearer vacancy,' had no title to 'the office of councilman, and relator’s action being( one to oust Gard, the title of Millikin, who was not a party to the proceeding, could not be collaterally attacked. 4 Current Law 861, Sec. 7; Strang, Ex Parte, 21 Ohio St. 610; Gitsky v. Newton, 9 Circ. Dec. 682 (17 R. 484),. affirmed, Gitskey v. Newton, 60 O. S. 605; State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660]; People v. Mays, 117 Ill. 257 [7 N. E. Rep. 660],

       Affirmed by Supreme Court, without report, State v. Gard, 51 Bull. 596; 75 O. S. 000.

   JELKE, P. J.

This is not a case involving the expulsion of a member of council, who, being legally qualified has been duly elected and installed in office. Section 121 of the municipal code (Rev. Stat. 1536-614; Lan. 3099) has no application to the ease at bar. We are of opinion that at no time between his election and the hearing of this ease did Fred Shearer have the qualifications of a member of council provided and required by Sec. 120 of the municipal code (Rev. Stat. 1536-613; Lan. 3098). He held the public office of school examiner and the public employment of superintendent of one of the Hamilton public schools before the election and continuously during the entire time of .his pretended incumbency as member of council, in contravention of the provision:

“Every member of council shall be an elector of the city, shall not hold any other public office or employment, except that of notary public or member of the state militia, and shall not be interested in any contract with the city.”

"We are of the opinion that the inhibition against persons holding public office or employment is not limited to office in or employment by the' municipality, but extends to all public office and employment. This is evidenced by the exception of notaries public and members of the militia.

Having come to this conclusion, the case of State v. Craig, 69 Ohio St. 236 [69 N. E. Rep. 228], applies:

“"Where the appointment to an office is a nullity, for the reason that the appointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting such first appointee by proceedings in quo warranto.”

Fred Shearer's election and pretended incumbency of the office of councilman were a nullity, and on December 27, 1905, council had the right under Secs. 119 and 120 of the municipal code to determine this matter without notice to Fred Shearer or taking any proceedings against him, and to fill the vacancy forthwith by the election of Brandon R. Millikin.

The prayers in both the quo warranto and injunction suits above set forth will be denied and the petitions dismissed.

Swing and Giffen, JJ„ concur,


author: WILDMAN, J.

text:
    AFFIDAVITS — ATTACHMENT.
    [Lucas (6th) Circuit Court,
    March 9, 1907.]
    Haynes, Parker and Wildman, JJ.
    American Manufacturing Co. v. National Supply Co.
    1. Essentials of Affidavit in Attachment.
    Affidavit in attachment should contain a statement of the nature of the claim, to show that the action is one in which an attachment may issue, and a statement of the ground or grounds upon which the attachment is sought.
    [For other cases in point, see 1 Cyc. Dig., “Attachment,” §§ 260-264. — Ed.]
    2. Sufficiency of Statement in Affidavit foe Attachment as to Nature of Claim.
    An affidavit for attachment contains a sufficient statement of the nature of the plaintiffs claim if in appropriate terms it refers to the petition and on examination the petition discloses such a cause, arising on contract, as would justify the issue of an attachment.
    [For other cases in point, see 1 Cyc. Dig., “Attachment and Garnishment,” §§ 271-308. — Ed.]
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    Smith & Beckwith, for plaintiff in error,
    Taber & Clapp, for defendant in error:
    Cited and commented on tbe following authorities. Cook v. Engine Works, 10 Circ. Dec. 236 (19 R. 732); Northern Nat. Bank v. Boll-ing Mill Co. 2 Dec. 67 (2 N. P. 260); Coston v. Paige, 9 Ohio St. 397; Harrison v. King, 9 Ohio St. 388; Creasser v. Young, 31 Ohio St. 57; Hockspringer v. Ballenburg, 16 Ohio 304; Emmitt v. Yeigh, 12 Ohio St. 335; Constable v. White, 12 Dec. Re. 18 (1 Handy 45) ; Hoover v. Haslage, 7 Dec. 98 (5 N. P. 90) ; Simpson v. McCarty, 78 Cal. 175 [20 Pac. Rep. 406; 12 Am. St. Rep. 37] ; Haywood v. McCrory, 33 Ill. 459; Thierman v. Vahle, 32 Ind. 400; Drew v. Dequindre, 2 Doug. (Mich.) 93; Klenk v. 'Schivalm, 19 Wis. Ill; Phelps v. Young, 1 Ill. 327; Stifel v. Bank, 9 Dec. Re. 700 (16 Bull. 398); Halbert v. Armstrong, 7 Circ. Dec. 705 (14 R. 296); Caldwell v. Spillman, 1 Dee. Re. 308 (7 "W. L. Jo. 149) ; Pennsylvania By. v. Peoples, 31 Ohio St. 537; Landis v. Case, 7 Dec. 454 (5 N. P. 366)Conley v. Creighton, 5 Dec. Re. 402 (5 Am. Law Rec. 421); Conley v. Creighton, 7 Dec. Re. 241 (2 Bull. 4).
   WILDMAN, J.

This is a proceeding in error to reverse the judgment of the court of common pleas of this county. The suit below was by the defendant in error, the National Supply Company, against the plaintiff in error, the American Manufacturing Company, to recover unliquidated damages to the amount of $4,000, upon the breach of a certain contract alleged to have been entered into between the parties. The American Manufacturing Company, being a nonresident, was brought into court by proceedings in attachment, and the only ground of claimed error before us is, that the court below erred in holding sufficient the affidavit for said attachment. It is claimed that this affidavit is defective in that it does not with sufficient clearness stafe the nature of the plaintiff’s claim. In this respect the affidavit says “that the nature of the plaintiff’s claim in this action is a demand arising upon a contract, as is set forth in the petition filed herein.” No attack is made upon the affidavit for any alleged insufficiency in other respects. It is not claimed that it does not sufficiently state a proper ground for the attachment — 'the nonresidence of the defendant corporation — or that it fails in any of the other averments required by the statute. It is insisted, however, that it does not sufficiently state the nature of the plaintiff’s claim and that its reference to the allegation of the petition to reinforce and supply whatever may be lacking in the affidavit is not permissible.

An affidavit for an attachment may properly be divided into two essential parts. One is a statement of the nature of the claim, in order to show that it is a case in which an attachment may issue. The other is a statement of the ground of the attachment sought in the particular case. There are numerous grounds for an attachment; one of which is, that the defendant is a foreign corporation or a nonresident of this state. This affidavit says both that the American Manufacturing Company is a nonresident of the state of Ohio and that it is a foreign corporation. The last clause of Rev. Stat. 5521 (Lan. 9050), stating the grounds of attachment, provides that:

“An attachment shall not be granted on the ground that the defendant is a foreign corporation or a nonresident of this state for any claim other than a debt or demand arising upon contract, judgment or decree, or for causing death or a personal injury, by a negligent or wrongful act.”

Revised Statute 5522 (Lan. 9051) provides what are the requisites of the affidavit, as follows:

“An order of attachment shall be made by the clerk of the court .in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing — 1. The nature of the plaintiff’s claim.” •

Then there are certain other matters in regard to .the justice of the claim and of the existence of one of the grounds for the attachment as provided in the preceding section. The statute does not provide that there shah be any especial form of stating the nature of the claim. Indeed, it does not say, in terms, that the affidavit shall state the nature of the claim, but it says that the affidavit shall show it; that is, that an affidavit shall be filed showing the nature of the plaintiff’s claim. This affidavit — as has been once before said by this court in another case — is not directed to the court, but is rather for the information of the clerk and to authorize the" clerk to issue the process in an attachment proceeding. In a ease which I decided while on the common pleas bench, Hoover v. Haslage, 7 Dec. 98 (5 N. P. 90), I held that:

“It is unnecessary, in an affidavit for attachment, to allege the facts constituting the cause of action on which the attachment is based. The plaintiff is required to state only the ‘nature of the claim.’ An affidavit which states that the action is ‘upon a book account for merchandise sold to said defendant, amounting to $471.47,’ is, in this respect, a substantial compliance with the statute and sufficient. ’ ’

^ This case was affirmed by the circuit court; but, as no special emphasis was laid by the circuit court in its decision of the case, upon the question of the sufficiency of the affidavit, in this statement of the nature of the claim, I will make no special reference to it, further than to cite it, infra.

In their bearing upon the questions here involved, some of them close and some remote, I cite the cases of Haslage v. Hoover, 9 Circ. Dec. 404 (16 R. 570) ; Constable v. White, 12 Dec. Re. 18 (1 Handy 44, 45) ; Simpson v. McCarty, 78 Cal. 175 [20 Pac. Rep. 406; 12 Am. St. Rep. 37]; Cope v. Mining & Prospecting Co. 1 Mont. 53; Haywood v. McCrory, 33 Ill. 459, 460; in which, on page 462, the court says:

“The statute does not require the nature of the indebtedness to be described with any degree of particularity. The affidavit states the nature and amount of the indebtedness; and that is all that the law requires to be stated in regard to it.”

I cite, also, Theirman v. Vahle, 32 Ind. 400; Drew v. Dequindre, 2 Dough (Mich.) 93 ; Klenk v. Schwalm, 19 Wis. 111, 124; Phelps v. Young, 1 Ill. 327, where the question was raised (as to the sufficiency of the affidavit for an attachment, as in the case at bar, and it was held by the court:

“Under the attachment law of 1827, which requires that the amount and nature of the indebtedness should be specified in the af-. fidavit, it is sufficient to state that the nonresident is justly indebted to the plaintiff in the sum of $— by his certain instrument in writing signed by him.”

In the case at bar, we have an averment as to the justice of the claim — that the plaintiff ought to recover the sum of $4,000, and that the claim is one arising on contract, with the other reference, already recited, to the petition for more specific information as to the character of the action. The Illinois court in the ease just cited, says: .

“The proceeding must be considered as one against a nonresident debtor, and all the forms of the statute appear to have been complied with, unless the affidavit upon which the attachment was sued out, should be defective in not sufficiently specifying the nature of the indebtedness. The statute requires that the plaintiff in the attachment shall specify in his complaint, on oath or affirmation, the amount and nature of the indebtedness of the defendant. The deposition sets out that Phelps is justly indebted unto the plaintiff in the sum of fourteen hundred dollars iby his certain instrument of writing signed by him; and the question is thus presented for determination whether1 this is the description of specification intended by the statute. It would seem at a first examination of the object of the act, that there was' not that compliance with its spirit in the specification given, as its framers intended, but when it is recollected that the plaintiff has filed his declaration, in which the entire cause of action is fully set forth, the objection loses its force.”

The case of Miller v. Chandler, 29 La. Ann. 88, is a case in which the affidavit for attachment was held to be aided by the averments of the petition. Probably in that ease the affidavit was one upon the same sheet, or written with the petition itself, but I fail to see that that makes any substantial difference. The decision of the court was, in this respect, as follows:

“The petition sets out clearly and distinctly a cause of action ex contractu a debt alleged to be due to plaintiff by defendant, and it charges that defendant is a nonresident. The affidavit is, that ‘All the allegations of the foregoing petition are true.’ There can be no question as to the sufficiency of this affidavit to authorize the order, and to maintain the writ of attachment.”

It does not seem to be disputed by counsel for plaintiff in error that if the petition had been sworn to absolutely and the affidavit had then referred to it and made the petition a part of the affidavit, with such reference, that it might be used in aid of the affidavit to determine the nature of the proceeding; but it is contended that in the ease at bar the petition is not sworn to absolutely and that the affidavit does not expressly make the petition a part of it, although it says that the case- is one arising on a contract, “as is set forth in the petition filed herein.” The fact that the petition is verified upon belief only is not, in our judgment, important. The affidavit is absolute and in effect, by its reference to the petition, makes the latter a part of it.

In the case of Stifel v. Bank, 9 Dec. Re. 700 (16 Bull. 398), the court passed upon a case in which reference was made, in an affidavit for attachment, to the petition in the case, and the court held:

“Averments in the petition in an action may, by express reference, be incorporated in an affidavit for attachment.”

I will not take time to read the ease, which is especially interesting in that it cites a number of authorities bearing more or less closely upon the question, including the case which I have already cited of Miller v. Chandler, supra, decided by the supreme court of Louisiana.

It is our view that this affidavit, while not quite so specifically drawn as it might well have been, is still sufficient, if an 'examination of the petition to which it refers discloses such a case, arising on a contract, as would justify the issue of an attachment against a nonresident debtor. We think that the petition discloses such a case. It is a case for unliquidated damages, but it is one arising.on a contract.

In another case which was before me on the common pleas bench, Landis v. Case, 7 Dec. 454 (5 N. P. 366), I held that:

“An attachment will lie on the ground that-the defendant is a nonresident of the state, Sec. 5521 [Lan. 9050], Subs. 1 and 9, Rev. Stat., and constructive service may be obtained by publication, in an action for special damages for breach of land contract, notwithstanding the fact that such damages are unliquidated.”

I based my position ver;'- largely upon the case of Pennsylvania Ry. v. Peoples, 31 Ohio St. 537, which holds:

“Negligence of a railway company, by which a passenger is injured, may be made the basis of an action upon the company’s contract to carry the passenger or in tort at the passenger’s election,” and, that, although the case was clearly one for unliquidated damages, the cause of action was one arising upon contract within the meaning of the attachment statute before referred to.

The Supreme Court referred to the statute relative to. attachments and affidavits therefor.

Our conclusion is, that this case is one in which an attachment is authorized; the affidavit discloses the fact that the defendant was a nonresident corporation and the other grounds for an attachment, and that there was brought to the knowledge of the clerk, before the issuing of the order of attachment,, the nature of the plaintiff’s claims with sufficient precision to justify the clerk in the issuance of the writ. We think that the court below did not err in overruling the motion to discharge the attachment, and the judgment below will be affirmed.

Haynes and Parker,-JJ., concur.


author: WILDMAN, J,

text:
    BUILDING RESTRICTIONS — COVENANTS.
    [Lucas (6th) Circuit Court,
    March 2, 1907.]
    Haynes, Parker and Wildman, JJ.
    Frances A. Brown v. Thomas F. Huber et al.
    Equitable Rule as to Building Restrictions in Deeds.
    Building restrictions in a deed, as to property retained by the grantor, will not be enforced against such property where, after the lapse of several years, the drift of the population has so changed the character and surroundings of the property as to make it inequitable so to enforce the covenant as to prevent its improvement in conformity to the new conditions.
    [For other cases in point, see 3 Cyc. Dig., “Covenants,” §§ 190-195; 3 Cyc. Dig., “Deeds,” §§ 973-992 Eu.]
    [Syllabus approved by the court.]
    In Equity.
    O. S. Brumback, for plaintiff.
    Marshall & Fraser, for defendants.
   WILDMAN, J,

This [Frances A. Brown v. Thomas F. Huber and Roger Huber] is a suit to enjoin the construction and maintenance of certain buildings' upon property on Ashland avenue in this city. It seems that on October 14, 1871, what is now known as lot No. 8 was deeded by one Scott to Mrs. Kelley. At that time the title to lot No. 2 was in Scott. In the deed to Mrs. Kelley there was a covenant providing for a restriction as to,the character of structures thereafter to be placed by Scott, or his heirs, executors and assigns, on lot No. 2. In a subsequent conveyance by Scott to one Wood, of lot No. 2, reference was made by way of recital to the covenant which had been inserted in the deed to Mrs. Kelley, and the deed to Wood was made expressly subject to that covenant. The plaintiff, Mrs. Frances A. Brown, is now the owner of lot No. 3, having succeeded to the title of Mrs. Kelley, and the defendant, Roger Huber, has succeeded to the rights of Wood, the purchaser of lot No. 2. Roger Huber, the owner of lot No. 2 (the other defendant being his agent), has commenced the construction of certain buildings upon the property owned by him, and is about to construct other buildings, in violation, as claimed by Mrs. Brown, of the covenant made with Mrs. .Kelley by Scott in the deed of October 14, 1871.

Such covenants of restriction as to the character of structures to (6e placed upon real estate conveyed, and sometimes as to the character of such structures on property retained by the grantor, are not very uncommon, and there has been much adjudication as to the rights of parties to enforce such covenants. While the defendants do not dispute that the one here relied on was inserted in the deed of Scott to Mrs. Kelley, they insist, in the first place, that it was not a covenant running with the land conveyed to Mrs. Kelley or in any other wise made available to her; but that it was a covenant personal to Mrs. Kelley. It is claimed, further, by defendants, that the circumstances surrounding this property have so materially changed in the lapse of years as to make it inequitable so to enforce the covenant as to prevent the improving of lot No. 2 in the manner in which the defendants design to improve it.

I quote the language of the covenant as embodied in the deed of Mr. Scott to Mrs. Kelley:

“And the said B. T. Scott hereby covenants and agrees for himself, his heirs, assigns, executors and administrators, that neither he, his heirs nor assigns, will at any time erect upon lot 2 of said Scott’s first addition to the city of Toledo thereon, any building nearer than sixty feet to the southwesterly line of Adams street, and that the only buildings put upon said lot shall be a residence and the necessary attachments and that it shall be used for no other purposes than that of a family residence, and shall not cost less than $5,000 for the residence alone. ’ ’

What was known as a part of Adams street at the date of the deed is now Ashland avenue.

The reference to this covenant in the subsequent deed of Mr. Scott to Mr. Wood is in this phraseology:

“Subject, however, to all the conditions as to location of building, etc., contained in the deed from said Scott to Mary I. Kelley of lot 3 in said addition. And said Scott also hereby makes the same agreement for himself, his heirs, assigns, executors and administrators concerning so much of lot 1 as remains in him after this conveyance, as contained in said last-mentioned deed.”

To be a little more explicit, I should have said that Scott was the owner also of lot 1 and that a part of that lot, as well as lot 2, was included in the conveyance to Wood. The covenant with Mrs. Kelley does not, in terms, run to any grantee of hers; but it is insisted by counsel for the plaintiff that Mrs. Brown, .the present owner of the premises conveyed by Scott to Mrs. Kelley, is entitled to claim under the covenant, because, in the first place, it pertains ty the land and was designed for its benefit; and, secondly, tbe defendant, Roger Huber, prior to his purchase of the property and the making of the improvements now sought to be enjoined, was fully apprised of the covenant in the deed from Scott to Mrs. Kelley and of the claimed rights of Mrs. Brown.

The view at which we have arrived will not necessitate very much discussion of the question whether the covenant made by Scott either runs with the land or was designed to apply to the land sold by him to Mrs. Kelley. It is insisted by counsel for the defendants that the covenant was made more to gratify Mrs. Kelley — her pleasure and comfort — than that of any person or persons who might subsequently succeed to her rights. Although the covenant does not, in terms, run to her heirs or assigns, it does not differ in that respect from an ordinary covenant of warranty. And perhaps no matter is more thoroughly settled than that the assigns of Mrs. Kelley, under such circumstances, might still bring suit for a breach of warranty. "We are disposed, however, to leave this question an open one, as we do not find it necessary to decide it in view of the conclusions at which we have arrived.

The other point urged in behalf of the defendants is, that the conditions affecting the uses which may properly and profitably be made of these several properties, have so substantially changed since October 4, 1871, as to make it inequitable now to attempt the enforcement of the covenant, at least to the extent of enjoining the defendants" from making the improvements contemplated.

, At this point it is proper that I should pause for a moment to consider the character of the improvements planned by the defendants and in process of construction. There has been no breach of that part of the covenant which restricts Scott and those claiming under him from building within sixty feet of Ashland avenue. There has been no breach, as we clearly find from the evidence, of that part of the covenant restricting Scott or those claiming under him, from erecting any build-, ing of less value than $5,000. The buildings already placed upon the property, by the undisputed evidence, or at least by the very clear weight of the evidence, are each of greater value than $5,000. There was nothing in the covenant prohibiting the erecting of such dwelling as might be placed upon the property in such position that the rear of the building should be towards the property sold to Mrs. Kelley, and even against the boundary line between lois 2 sad 3; that is, between the property sold to Mrs. Kelley and that retained by Scotv. The evidence shows that the two buildings which have been erected upon lot 2 are built so as to front a driveway which has been planned so as to extend into the property now owned by Roger Huber and that the fear of the buildings towards the Brown property is 'some ten or fifteen feet from the line. We are not prepared to say whether or not any substantial damage has been done, or will be done to the Brown property by the erection of those structures in the impairment of the market value — the sale value — of that property. It is claimed by the ■ defendants that the potential renting value of both these properties has been and will be enhanced by the sort of improvement which they are placing upon this property; indeed the defendants claim that the property of the Browns is enhanced in value rather than depreciated, by the improvements which the defendants are making and have in contemplation. This may still be left as an open question.

The important question in the ease is, whether there has been any substantial change in the drift of the population and the character of the property as to its greater availability and value for use in the manner in which it is proposed to be improved by the defendants, or, whether the character is not so substantially changed. It does not seem to be very much urged by counsel for the plaintiff that there might not be such a complete change in the condition of the property, or the character of its possible uses, as would prevent the equitable application of the power of a court to enjoin such use. To illustrate: If the street upon which this property abuts had become a business street, lined with business blocks, and in which the property had acquired a high value for business purposes, it is hardly claimed by counsel for the plaintiff, if we understand his argument aright, that such a change would not be one affecting the right to insist upon- the covenant found in -this deed. But it is said that the change in the present instance is not of that character.

Numerous cases were cited by counsel for the plaintiff, many of which were considered, and I think carefully, by Judge Hull in an opinion rendered by him in a case decided by this court in the year 1900, the case of Russell v. Harpel, 10 Circ. Dec. 732 (20 R. 127). This was a case where, by covenant, the grantor sought to restrict the grantee from making certain improvement upon property conveyed, and, in that respect is to be distinguished from the case at bar. Perhaps the conditions in Russell v. Harpel, supra, were rather more favorable to the plaintiff than in the case at bar, because there could be no question there that the covenant was not a personal one, but ran with the land.

I read from the syllabus:

“The enforcement, of building restrictions in deeds is somewhat a matter of discretion with the courts. If the neighborhood has so changed that a building restriction has become valueless to property owners, equity will not enforce it.”

On pages 132, 133, 134 and 135, are references in the opinion to cases decided in New York and Philadelphia and also to the pertinent language of Mr. High in his work on injunctions. Citing the case of Columbia College (Tr.) v. Thatcher, 87 N. Y. 311, Judge Hull says that it discusses quite fully this question of restrictions of this character, and then quotes from the first paragraph of the syllabus, as follows, page 736:

“While a court of equity has jurisdiction to enforce the observance of covenants made by an owner of lands in a city with an adjoining owner, in consideration of similar reciprocal covenants on the part of the latter, restricting the use of the lands to the purposes of private residences, the exercise of this authority is within its discretion; and where there has been such a change in the character of the neighborhood as to defeat the objects and purposes of the agreement, and to render it inequitable' to deprive such owner of the privilege of conforming his property to that character, such relief will not be granted.”

He quotes some language also from the opinion of the judge in the case, as follows:

“It certainly is not the doctrine of courts of equity, to enforce, by its peculiar mandate,' every contract, in all cases, even where specific execution is found to be its legal intention and effect. It gives or withholds such decree according to its discretion, in view of the circumstances of the case and the plaintiff’s prayer for relief is not answered, where, under those circumstances, the relief he seeks would be inequitable. ’ ’

Judge Hull cites also Amerman v. Deane, 132 N. Y. 355 [30 N. E. Rep. 741; 28 Am. St. Rep. 584], and quotes from the syllabus as follows :

‘ ‘ Where the owner of lands in a city has laid it out into lots, which are sold to different purchasers, each conveyance containing covenants on the part of the grantee, running with the land, restricting the use thereof to the purposes of a private residence, or prohibiting the erection thereon of certain specified structures, while a court of equity has power to enforce the performance of these covenants, the exercise of this authority is within its discretion, and where there has been such a change in the character of the neighborhood as to defeat the objects and purposes of the covenants and to render it inequitable to deprive a grantee or his successors in title of the privilege of conforming his property to that character, such relief will not be granted, and in lieu thereof damages may be allowed.”

This ease is referred to in the brief of counsel for plaintiff in order, apparently, to suggest that if the plaintiff is not entitled to the relief of injunction, she may be entitled to damages to be awarded by this court, perhaps after reference to a master to ascertain the proper amount. In the case of Columbia College (Tr.) v. Thatcher, supra, the New York court dismissed the petition for injunction. In the case in Amerman v. Deane, supra, which went up to the court of appeals on error, the court below had retained the ease for the ascertainment of the amount of damages, finding that there had been such a change in the conditions affecting the property as would justify the refusal of an injunction to prevent the contemplated improvement of the property. I have both these cases before me and have examined them. In the case last cited — Amerman v. Deane, supra, — the petition of the plaintiff prayed for an injunction and for damages. No such prayer is found in the original petition or in the supplemental petition, in the case at bar; although there is, in addition to the prayer for injunction, one for general, equitable relief. Judge Hull quotes from High, Injunctions1 Sec. 22, as follows:

“It is said, ‘If it is apparent upon an application for an injunction, that the relief sought is disproportioned to the nature and extent of the injury sustained, or likely to be sustained, the court will decline to interfere.’ And again, at Sec. 1158, ‘Where the character and condition of the adjoining lands,’ with reference to that conveyed, ‘have so, changed as to render the restriction in the conveyance inapplicable, according to its true intent and spirit, a court of equity will not interfere by injunction to prevent a breach of the covenant, but will leave the party aggrieved to his remedy at law.’ ”

The case of Orne v. Fridenberg, 143 Pa. St. 487 [22 Atl. Rep. 832; 24 Am. St. Rep. 567], is also cited, with this quotation, page 737:

“Plaintiff filed a bill for a mandatory injunction restraining the maintenance of certain structures upon an adjoining lot, in violation of restrictive conditions imposed on a conveyance of defendant’s lot in 1825.”

And, omitting a part of the language which is not entirely pertinent, Judge Hull proceeds:

, “Moreover, there had been such a change of surroundings in the neighborhood, in the character of the improvements, and in the purposes to which they were applied as might well have been deemed sufficient to justify a chancellor in refusing to restrain the violation of building restrictions such as were complained of.
“The plaintiff might have brought his action at law, or he might, as he did, file his bill for an injunction. While, for the reasons given, he was not entitled to an injunction, he may still sue at law and recover damages', if he can show he has sustained' any. ’ ’

Judge Hull cpiotes further from High, Injunctions Sec. 1158, a part of his quotation being as follows:

“Thus, where the vendor has covenanted in the conveyance not to erect or permit the erection of any buildings on his' premises in front of those conveyed, the erection of buildings in violation of the terms of the agreement will be enjoined. . Where, however, the title of the feoffor, or of those deriving their title under him, has so changed the character and condition of the adjoining lands, with reference to that conveyed, as to render the restriction in the conveyance inapplicable according to its true intent and spirit, a court of equity will not interfere by injunction to prevent a breach' of the covenant, but will leave the party aggrieved to his remedy at law.”

The action taken by this court in the case of Russell v. Harpel, supra, was the dismissal of the plaintiff’s petition and no retention of the ease for the ascertainment of the amount of claimed damage to. the plaintiff

Now, as I said a little while ago, there was nothing in this covenant to prohibit anyone having title to lot No. 2 from erecting a dwelling house thereon, not fronting on Ashland avenue, but with its rear towards the property of Mrs. Brown. None of the buildings the construction or maintenance of which is sought to be enjoined, come within the restriction as to the value of such building. There is no violation of the covenant as to the distance of the building which is nearest to Ash-land avenue; so that the sole contention of the plaintiff is, substantially, that the defendants are erecting more buildings upon the property than they are entitled to. It is the use of the property farthest removed from Ashland avenue that is sought to be enjoined. There has been no breach of the covenant so far as the first house is concerned, the house nearestJ to Ashland avenue. The covenant has not been violated, so far as appears, in any respect, unless by the construction of more buildings than one upon the property.

We think it sufficiently apparent by the evidence that in the thirty odd years since the deed was made by Scott to Kelley, the conditions for the available use of these properties have substantially changed. True, the property may not have become adaptable at present for business blocks, but we see no distinction in principle between a change from the use of the property for residences only by the families of owners of the properties to that where the property may become very valuable for renting purposes to the occupants of separate domicils, and a change from the use of property for residence purposes to that for business blocks. The principle is the same, although the extent of the change in the one case may be greater than in the other. It is a matter of degree rather than of kind, and we think it clearly inequitable to restrain the defendant from that kind of a use of his property, which has become profitable to lots generally in the neighborhood by reason of the increase of population, and so deprive the defendant of one of the chief elements of value in the use of the property which he has bought. True, he may have bought it with a knowledge of the existence of the covenant; and, personally, I am inclined to think that he is held to a constructive knowledge conveyed by the recital in the deed from Scott to Wood; but, notwithstanding that fact, the question remains as to whether the true intent and spirit of this contract is to be subserved by holding the property to what may now be an unprofitable use.

t It is also a proper inquiry, whether the plaintiff would derive any such benefit from the enforcement of the covenant as will justify the the court in depriving his neighbor of the large benefit which may come from the contemplated use of the property. The plaintiff may or may not have been damaged. The lot of the plaintiff may be more, or less, valuable by reason of the construction of .these buildings by the Hubers; but there would seem to be no greater difficulty, if the plaintiff has been damaged by the depreciation of his property, in ascertaining the amount of such damage by an action at law, than there is in very many eases where damages are sought and where verdicts are rendered therefor, although the opinions of witnesses may differ as to the exact extent of such damages. I am not holding or indicating that the plaintiff has been damaged in any substantial way, or has not, but I see no reason why we should depart from the principles enunciated in Russell v. Harpel, supra, and, entertaining that opinion, following the view of this court, which has been undisturbed by any reversal or by any reconsideration of the question and departure from the judgment therein rendered, we are disposed, in the case at bar, to take the same action that was taken by the court in that case. ¥e think that, in view of all the circumstances the petition of the plaintiff should ¡6e dismissed.

Haynes and Parker, JJ., concur.