text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    LENA RUDERSHAUER v. FRED PAGELS.

      Appeal — Failure to perfect in time — Action on appeal bond—

    Where in an action on an appeal bond in a case appealed from a_J. P. to the common pleas, the petition fails to state that the transcript from the J. P. was duly filed in the common pleas and the other steps taken to perfect the appeal, such defect in the petition should be taken advantage of by demurrer. If this is noted done, it may be shown by evidence at the trial that the necesssary steps to perfect the appeal were duly taken, and judgment on the bond rendered accordingly.

      Same — Failure to perfect appedl — Cause to be remanded—
    Appeal case from a J. P. if dismissed for failure to comply with sec. 6586, Rev. Stat.,in filing transcript in time,Case is to be remanded to the J. P. to be proceeded with as if no appeal had been taken.
   Smith, J.

We are of the opinion that if the evidence in this case had shown that the defendant in error, Pagels, after the dismissal of the appeal taken by the defendants, Fischer and others, in the original action brought by Pagels against them before the justice of the peace,on the ground that it was not filed in time, that failed to comply with the provisions of sec. 6586, Rev. Stats.,and to have a transcript docketed,and the other steps therein pointed out taken, that he was not entitled, on the authority of Gimperling v. Hanes, 40 Ohio St., 114, to a judgment in this case against the plaintiff in error, Rudershauer. But the question was not fairly presented by the record before us. ’ It is true that-the petition filed by Pagels against the surety, did not allege that these steps had been taken, but there was no demurrer filed to his petition, and if the evidence had shown that such steps had been taken, the court would have been authorized to hold the surety liable on her appeal bond.

It may be that the question was sought to be raised on the motion of the defendant below, interposed at the close of the evidence for the plaintiff, in effect asking for a judgment in hér favor. But tbe difficulty on this point is, that it is apparent that we have not before us in tbe bill of exceptions all of the evidence offered by the plaintiffs. The docket of the justice of the peace in the original case, was offered in evidence, and read A copy of this is not given. It might have shown that under sec. 6589, on the dismissal’ of the appeal by the common pleas, a transcript had been filed by Pagels after the appeal was dismissed, and the case remanded to the justice to be proceeded with as if no appeal had been taken.

Keam & Keam, Attorneys for Plaintiff in Error.

Burch, Johnson & Holmes, Attorneys for Defendant in Error.

In addition to this the same and additional facts may have been shown by the two affidavits offered in evidence by the defendant herself, and which are not made part of the bill of exceptions.

We therefore, with some reluctance, feel compelled to affirm the judgment.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    (Third Circuit — Wyandot Co., O., Circuit Court
    Jan’y. Term, 1897.)
    Before Day and Price, J.J.
    LOUISA SHUMAN v. ASA DRAYTON.

      Action for malpractice accruing before amendment to sec. 4983 R. S. — Limitation—
    Prior to May 18, 1894, sec. 4982;, Rev. Stat., applied to and provided the period within which an action to recover for an injury resulting from malpractice might be commenced. Such period was, within four years from the time the cause of action accrued, and the act passed May 18, 1894, amending sec. 4983, Rev. Stat., fixing the limitation for the commencement of such actions at one year, does not apply to causes of action, on account of malpractice, which accrued and were subsisting prior to that date.

      Same—
    The right to bring and maintain such action ‘ ‘ within four years, ’ ’ having accrued before that date, under existing law, became a vested right, and is”not' curtailed, abridged, or in any way affected by subsequent legislatioja, unless it is remedial, and not then unless express provision therefor is con t'ained in the amending act.

      Same — Malice no element in action for- malpractice—
    A cause of action for injuries from .malpractice does not arise on con tract, but is based on the negligent conduct of the person sought to be charged in omitting to exercise due care or skill; and malice, while it may exist, is not an element and forms no part of such cause of action; —and it is not necessary to aver it in the petition or prove it on the trial.
    Error to the Court of Common Pleas of Wyandot county.
   Day, J.

The plaintiff in error commenced an action against the defendant, to recover for an injury claimed to have resulted from the negligent and unskillful attendance and treatment, as a physician, rendered by defendant under employment to render such service for fee or reward. The date of the professional services resulting in the injury complained of, was March 22, 1892. The petition was filed and the summons issued, which was subsequently served, on March 21, 1896. The statements of fact in the petition were full and ample, confessedly stating a cause of action against the defendant, if commenced in time to save it from the running of the statute of limitations. The court below sustained a demurrer to the petition, and dismissed it, on the ground that the action was barred by lapse of time; and plaintiff prosecutes error here seeking a reversal of that judgment, and a judgment overruling the demurrer,and requiring defendant to answer the claim preferred in the petition.

The demurrer raises the question.of the statute of limitations, and that is the only question in the case. Was the demurrer improperly sustained, or was the action not barred, by lapse of time after the right of action accrued?

The claimed right of action and recovery is based on negligent and unskillful practice by defendant as a physician, and now known and designated in the law as malpractice. By act of General Assembly, passed May 18, 1894, amending sec. 4983, Rev. Stat., being the one year limitation, actions for malpractice was made part of that section. Prior to that date, malpractice was not named or mentioned, in terms, in any section of the statute of limitations. Since that amendment, however, the statute of limitations for actions for malpractice has been one year; and it is manifest, if that section applies and controls as to the particular cause of action in this case, that the demurrer was properly sustained. If, however, sec. 4982, Rev. Stat., which is the four years’ limitation,obtains and governs, then, the action having been commenced within four years, by one day, the demurrer was improperly sustained, and the judgment will, of necessity, have to be reversed. So the problem we have to solve, is, which section of the statute is applicable to this cause of action; sec. 4982 or sec. 4983, the four years’ section, or the one year?

It is conceded in argument that the general impression with the profession has been, that actions for malpractice belonged to and were governed by the provisions of sec. 4982, and that they were assigned to that section almost, if not quite universally, by the courts. This impression and practice of the courts, it is urged however, is not right; that the profession has been wrong, and the courts wrong; that by reason of the-essential elements of malice and willful negligence, constituting malpractice, it of right belonged to, and ’should have been assigned to the group made up of libel, slander, assault, battery, malicious prosecution and false imprisonment, provided for in sec. 4983, Rev, Stat., and to^which^it was assigned, specially, by the amendment of that'section^in May, 1894.

We are unable”to agree with this proposition, but are clearly of opinion, the cause of action in question was covered and controlled by the provisions of sec. 4982, Rev. Stats., as, we think, quite abundantly appears from a careful reading and consideration of that section. The latter part of sec. 4982, reads:, “Within four years * * * an action for an injury to the rights of plaintiff, not arising on contract and not hereinafter enumerated. ” Until May, 1894, actions for malpractice were not hereinafter, or at all, enumerated in any section of the limitations statute; and certainly, an action for an injury on account of malpractice, does not arise on contract. True,the service is rendered on contract, either express or implied, but the cause of action arises altogether on the negligence — -the omission to exercise due care or due skill in the rendition of the service on the part of the person sought to be charged. Nor is there present necessarily, or'even probably, the element of malice or willful wrong-doing, although that element may be present. If such element is present, or can be made to appear by the evidence, the matter at once assumes a grave aspect — that of intentional wrong-doing resulting in damage and loss, which can be recovered without the formality or necessity of alleging or proving either negligence or unskillfulness. We are of opinion that an action for injuries resulting from malpractice, prior to May 18, 1894, did not, as matter of law, belong to that class of actions for-malici jus injuries — injuries resulting from willful and intentional wrong-doing — - such as libel, slander, assault, etc ,covered by the provision of sec. 4983; but to that larger and more common class, in which injury and loss results simply from an omission or failure to exercise ordinary care,or necessary skill when care or skill is requisite; and provided for,, so far as the statute of limitations is concerned, by sec. 4982; which is within four years after the right to bring an action accrued, If this conclusion is correct, it will settle the question raised by the demurrer adversely to demurrant, unless it can be properly held that legislation, not remedial in its character, amending the statute of limitations by reducing the time within which an action may be commenced from four years to one,applies to and governs causes of action already accrued and subsisting when the amendment became the law. Such claim is not asserted,and is believed to be untenable. Under the facts in this case, as they are stated in the petition, and which, for all purposes of the demurrer,, are conceded to be true, the cause of action arose in 1892, while the four years limitation for commencing actions for injuries from malpractice obtained; and at that date the right to bring an action within four years accrued to plaintiff, and became a vested right under the then existing law; and it is a familiar and fundamental principle that such right cannot be abridged or in any way curtailed by subsequent legislation; unless it is remedial in its character, without subjecting the subsequent legislation to the imputation of being retrospective, and therefore unconstitutional. If the subsequent legislation is purely remedial, still, it cannot be made effectual to displace any portion of a vested and subsisting right, without express provision to that effect contained in the amending act, as provided by sec. 79, Rev. Stat. There is no such provision in the amendment of May, 1894, and it follows, of course, that that amendment, changing the period in which actions for malpractice may be commenced, from four years to one year, does not apply to the cause of action then accrued and subsisting, and which forms the basis of the petition in this case. To this purport are decisions of the supreme court, in construing the provisions of sec. 79 Rev. Stat.; so there can be no doubt as to the proper holding on that head. It is held in the 38 Ohio St., 46: “The provision of the code, as revised in 1878 by which tlm period within, which a proceeding in error may be com menced, is reduced from three to two years, does not apply to judgments which had been rendered when the act took effect. As to such judgments; the provisions of the repealed. law apply.” In the 31 Ohio St., 358, it is said: “Where rights have fully vested under a section, these rights are not affected by a repeal of the section,” Other decisions there are of like import, which it is not thought necessary to quote or refer to as these will illustrate and settle the principle in¿ volved.

Judge Clayton, for Plaintiff.

Hon. D. D. Hare, for Defendant.

Upon consideration of the whole matter, and believing ■the law to be as here indicated, we find the demurrer was improperly sustained and the petition improperly dismissed, for which error the judgment is reversed, with costs, but no penalty; and the demurrer to the petition is overruled and cause remanded for further proceeding according to law.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O. Circuit Court
    Jan’y. Term, 1887.)
    Before Smith, Swing and Cox, JJ.
    C. H. & D. R. R. CO. v. MARY R. LALLY, EXECUTRIX.

      Injury to person on R. R. track — Duty to look — Engine running backward—
    Where one suddenly steps on a railroad track without looking whether a train or engine is coming, and is run down, he can not recover when it appears that he, by first looidng, would have seen an approaching engine, and that although the engine was coming with tender forward with no light thereon, where those in charge of the engine were not aware that the deceased would suddenly step on the track in this manner.
   Smith, J.

In this case we are of the opinion that the verdict was manifestly against the weight of the evidence, and for this reason the motion for a - new trial filed by the defendant Company should have been granted. The evidence clearly shows (even that offered for the plaintiff below,) that Lally, the deceased, directly contributed to the injury received by him, which caused his death, by walking on the main north bound track of defendant's railroad, in front of an engine with tender which was coming up behind him, when there was no necessity of his doing so, and when there was a good path, four or five feet wide, on which he could have gone with safety, as did the two men who were with him at the time; and when it does not appear that before stepping upon the track, he looked to see if a train was coming up behind him, and if he had done so, it seems that he would have been able to see it in time to avoid any injury, even if there was no light upon the tender which was in front of the backing engine, as to which last fact the evidence is conflicting. But if the defendant was negligent in not having the light there, and thus contributed to the injury, it is not shown that those in charge of the engiue knew of the peril in which the deceased Lally had placed himself until he was struck and, therefore, could not be in fault for having .failed to use proper care after they had knowledge of the danger. It is true that they saw the lights carried by the three men, one of whom was the deceased, but they were then all on the side of the track, and there appeared to be no reason to apprehend any danger to them. The whole evidence would seem to lead to the-conclusion that the deceased, without looking for the approaching train, stepped suddenly from the side of the track, on the same, and was thus run down, when if he had looked he might have avoided the injury. The judgment will therefore be reversed. - -

Ramsey,Maxwell & Ramsey, for Plaintiff in' Error.

Roberts & Taylor, for Defendant in Error.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O. Circuit Court
    Jan’y. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    FRANK P. CHAPIN v. ARLINGTON U. BETTS.

      Application for insurance — Revocation—Agent’s right to sue for premium individually—
    Where a party contracts with the agent of a Life Insurance Co. for a certain amount of insurance, for which he agrees to pay a certain sum as first installment of premium, but before the policy is issued and before there is any liability from the company to such/ applicant, he revokes his application, the agent of the company can not bring an action in his own name for the first installment of premium agreed upon, nor for the amount of the commission to which he would have been entitled out of the premium if the insurance had been completed. If there were any right of action for the premium or any part of it, it would be in the company or its assignee of such claim, but not in the agent personally.
    Error to the Court of Common Pleas of Lucas county,
   Parker, J.

This action was brought in the court of common pleas on what is alleged to be a contract between the plaintiff and the defendant. At the close of the testimony, on motion of defendant, the court directed the jury to return a verdict for the defendant, which was done. Motion for a new trial was made, alleging this action of the court as error, which motion was overruled. On account of this action of the court — in directing a verdict and overruling said motion —error is prosecuted in this court by the plaintiff.

The pleadings are brief, and the statement of plaintiff’s case can probably be most clearly given by reading from the petition:

“The plaintiff says that on the 18th day of September, 1894, he was the managing agent of the Equitable Life Assurance Society, of New York, in the city of Toledo, and was known by the defendant to be such;, that on said last mentioned date the defendant, by a certain contract in writing entered into between defendant and the plaintiff, engaged and employed said plaintiff to secure for said defendant a certain policy of insurance upon the life of said defendant in the sum of six thousand seven hundred and ninety-eight dollars ($6,798) on the installment plan for twenty years, with a twenty year tontine period.
“It was further agreed in said contract, that said defendant should be liable only for the amount of the annual premiums on said policy, which it was agreed between said parties should be the sum of one hundred and forty-three dollars, ($143) per year, and that same should be paid by defendant to plaintiff upon the delivery of said policy, on or before the 15th day of October, 1894. A copy of said contract is hereto attached, marked Exhibit “A.”
“The plaintiff says that he has duly performed all the conditions of said contract on his part to be performed, and secured a policy from said company, complying in all ■respects with the terms of said agreement, and that on the 13th day of October, 1894, he delivered the same to the defendant; that this plaintiff has duly paid to said Life Assurance Society, the amount of the premium due from him as such agent on said policy, but that the defendant has not paid to this plaintiff, or to any one for him, the ;said sum of $143, so agreed upon the delivery of said policy, .although often requested so to do.
“Wherefore, the plaintiff prays judgment against said .defendant for the sum of $143.00, with interest thereon from the 15th day of October, 1894-”

It will be observed that this action is brought upon an ■instrument in writing, a copy of which is attached to the petition, to recover the sum of $143.00, the first installment of the annual premiums to be paid upon the policy set forth •in the petition. Plaintiff alleges that this is a contract between himself and the defendant, and that the defendant employed him to obtain this policy, and agreed to pay to him this sum of $143.00 as compensation for his services in procuring a policy for the defendant. These allegations of the petition are denied in the answer of defendant. There js an issue made as to whether or not the policy which was proferred in pursuance of this arrangement between the parties was, in fact, of the form and character agreed upon; but it is not necessary to pay any attention to that issue bere.

I proceed now to read Exhibit “A.;” that which the plaintiff aveTs is a contract between him and defendant upon which he brings suit:

“Toledo, Ohio, September 18th, 1894.
“Frank P. Chapin, Esq.,
“Manager Equitable Life Assurance Society,
“Northwestern Ohio Department, Toledo, Ohio.
“You are hereby authorized to transmit my application 'to the Equitable Life Assurance Society, of New York, this ■day made by me for a policy of Life Assurance, together with the Medical Examination which I agree to have taken by Dr. Thorne, on or before the 2t0h day of September, 1894, for a policy in the sum of $6798.00 on the installment plan for twenty years, with twenty year tontine period.
“It is distinctly understood and agreed that if the medical examination should be unsatisfactory to the company, ■or for any reason whatever, the application should be rejected, I am to be at no expense whatever for Medical Examination or otherwise, and if the application is accepted, I shall be liable only for the amount of the annual premium ¡amounting to $143 per year, payáble according to the terms ■of said application, the first payment to be made on or before October 15th when policy may be delivered.
“(Signed) Arlington U. Betts & Co,
'“Attest: F. P. Chapin.”

The signature of the plaintiff does not appear, excepting under the word “attest,” where he appears to sign attesting Ihis signature of “Arlington U. Betts &Co.” Upon trial of the case the alleged contract itself was introduced in evidence, and in addition to what I have read, this appears on the.margin: “Free Tontine (or Tontine Installment) Application — continued. See other sheet.”

It appeared upon trial of the case, that at the time this application was signed by defendant, another blank was-made out and signed by him, and upon the margin of the blank (which is Exhibit “9” attached to plaintiff’s petition),. appears thisFree Tontine (or Tontine Installment) Application — continued, See other side.” This blank gives-the name of the party to be insured, the name of the person making application for the insurance (both the same party-in the case), his residence, business, age and various statements such as are usually made by persons applying for life-insurance, and then this appears:

‘‘I have noted the privilege and conditions printed on the other side of this sheet, and hereby apply for a policy embodying the same, and I hereby agree that this application, and the policy hereby applied for taken together, shall constitute the entire contract between the parties-hereto; that all the foregoing statements and answers-are warranted to be true; that this contract shall not take effect until the first premium shall have been paid during my good health.”

In the blank there is provision made for payment of premium upon the policy at the time the application is made, or at some time before the policy is delivered; in which event the right of the applicant for insurance — if the policy shall be issued to him- — appears to differ somewhat from his rights under the policy where he does not advance the payment. It is the 12th paragraph, and reads.

‘‘What premium has been paid to make the assurance■■ under this application binding from this date provided the risk is assumed by the Society? A. Annual premium of $ — has been paid upon condition that if the risk is not assumed by the Society, this sum is to be returned in accordance with the provisions of the conditional receipt No.. — given for said premium. ”

. This part of the blank, in this instance, was not filled out. Mr, Chapin signed this blank as Mannager of the Company, under the words: “This risk is approved and ■recommended by F. P, Chapin.” He recommends and approves and fills in the blank with his own name as the person. who does so approve, and then signs below as Manager.

Within a week after this application was signed by Betts, ■he notified Chapin that upon further investigation he had ■concluded to not take the policy. This was before the policy had been issued, or at least before it had been tendered to ■Betts or he had been notified that it would be issued.

Now, our views of these papers, taken together — and they clearly should .be taken and read together' — is, that they constitute an application to the Assurance. Society for the issuing to the applicant of a policy of the character described in the application — or in Exhibit “A. ” — alone,or the two together — hut do not constitute a contract between the ■plaintiff and the defendant; that it is a mere authority to the plaintiff, as the managing agent of the Society, to pro■cure for the applicant, the defendant, an insurance policy, ¡and an agreement that if he procure and deliver to him the policy he will accept it and pay the first annual premium. 'The signature ‘ ‘Arlington U. Betts & Co., ’ ’ was treated upon the trial and has been treated in argument before us as the signature of an individual, namely the defendant, Arlington Ü. Betts. So we shall treat it in the same way, and therefore we say that this is an agreement between the defendant and the Assurance Society, and not between the defendant and the plaintiff. There is nothing in it to indicate an employment of the plaintiff by the defendant, as the ¡agent of the defendant, to procure this insurance for the •defendant; it is a mere authority and direction to him as a representative of the Society.

Further, if it could be construed to be an employment of •Chapin, there is no promise to pay Chapin for his services in procuring a policy, this sum of $143. This is a payment to be made to the Assurance Society; or if to Chapin, then 4o Chapin as the agent of the Assurance Socity, of the first annual premium upon the policy. If Chapin was, in this* transaction, the agent of both Betts and the Society — a position which seems to us to be quite inconsistent, in view of the fact that he is entrusted us the confidential agent of' the Society, with the duty of approving or disapproving; this application and this risk- — his action would be for a quantum meruit upon an implied undertaking on the part of Betts to compensate him for services thus requested and performed — it would not be an action for this $143.00 to be paid as the first premium upon this policy. We hold that this action to recover the $143.00 premium cannot be maintained by any other than the Society, or one who has received the claim of the Society by assignment or otherwise-,, so as to become possessed of the rights of the Society to recover the premium; and it is not contended,and there is nothing in the pleadings or the testimony tending to show that the-plaintiff stands in a position where he may maintain an action for this premium as the assignee or successor in interset of the Society. There is no privity of contract here between plaintiff and defendant, growing out of the fact that the plaintiff is to receive for his services as agent of the Society, a share of these premiums — a percentage, or an-amount, based upon the amount of premium to be paid by the defendant to the Society — no such privity as would-authorize him to maintain an action for the premium, or any part of it. If this action could be maintained by the-plaintiff for the premium, then the claim in his hands would-, be subject to the same infirmities and defenses as if the-suit were brought by the Society. In that case it must be-made to appear that the policy was issued and delivered before the application was cancelled or revoked. It appears very clear, from the bill of exceptions, from the testimony and the letters attached, that within a week after this application was made — before the policy had been issued by the company — -at least before the policy had been sent forward to be delivered to Mr. Betts, by clear, distinct and unequivocal words, he undertook to recall his application, and we think that since the contract was in no way binding, upon the Insurance Society at that time — since it was not bound at that time to issue its policy, that it was within ■the power of Betts to recall or revoke this application. So-we say, even if the suit had been instituted by the Assurance-Society, or by one standing in the shoes of the Assurance-Society, for the first annual premium to be paid upon this-policy, it could not have prevailed.

It appears that after this attempt to recall this-application- — this declaration of his purpose to recall-the application on the part of Betts — Chapin, as agent of the Society, went to the office of the defendant, Betts, and delivered into his possession a policy. The circumstances under which that delivery was made were such as to raise grave doubts as to whether the defendant, Betts, accepted of the delivery: it seems to have been thrown down upon his table, and left. There is, perhaps, enough-in that so that if a suit had been instituted by the Society,- or by Chapin as the assignee of the claim of the Society, there would have been sufficient to leave to a jury to call in question whether or not the insurance policy was accepted, whereby Betts became bound to pay the premium. But this suit was brought by one not standing in the shoes of the Society; was brought distinctly by the plaintiff upon his alleged claim for compensation, as the agent, or one who had performed services for the defendant. We think the court was right in taking the case from the jury; that this issue need not to have been and should not have been submitted to the jury.

It will be seen that this is not a suit for money paid by Chapin for the use of Betts at his request or upon his authority. It is alleged in the petition, that Chapin had paid to the Insurance Company this $143.00, first premium, which should have been paid by Betts; but in looking into the bill of exceptions and the testimony of the plaintiff upon that subject, we find that he distinctly states that he was not requested nor authorized by Betts to send forward or pay this 1143,00 for him. He says it was paid to the company on the 1st day of November, 1894, some time after the de-, fendant had unequivocally and distinctly asserted that he would not accept the insurance, and had sent back the policy to Mr. Chapin the second time.

Doyle, Scott & Lewis, for Plaintiff.

E. W. Tolerton, for Defendant..

This, I believe, covers all the points presented by this record, or that have been suggested by the argument of counsel, and the conclusion to which we have arrived is, that there was no error in the action of the court in directing a verdict to be returned for the defendant and in overruling the motion for a new trial.

Judgment will be entered accordingly, affirming the judgment below.


text:
    (First Circuit — Hamilton Co., O. Circuit Court
    Jan’y. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    A. W. GOLDSMITH v. THE CITY OF CINCINNATI, et al.

      Mistake in contract — Can not be corrected to affect rights of innocent third parties—
    Where, in consideration of the assignment of a partly completed contract for the improvement of a street, the assignee agrees to pay to a trustee named, a sum equivalent to the value of the work already done on the contract, the amount to be determined by a third party agreed upon, to pay the liens for work, etc., done on the contract which are released in consideration of such agreement and after payment of a large amount to such trustee, it appears that a material mistake was made by the arbiter in over-estimating the amount of work done by the original contractor, yet the assignee of the contract will be bound to the lien-holders who released their liens in consideration of his agreement, to pay the whole amount agreed upon to the trustee to satisfy their claims. While mistakes in a contract may be corrected as between the parties thereto, such correction can not be made to affect rights that have accrued to third parties under such contract.
    Appeal from the Court Common Pleas of Hamilton county.
   Smith, J.

The material facts in this case as we understand them, briefly stated, are those: Neidermeyer entered into a contract with the city of Cincinnati fir the improvement and •construction of a street of the city; and Spooner & Humpreys were his sureties on such contract. Neidermeyer commenced and prosecuted said work for some time, but was unable from financial embarrassment to complete it, and the city was about to take steps to cancel the contract and re-let it, ■and look to Neidermeyer and his sureties for any damage that would result from his failure to complete it. This the sureties were anxiius to avoid, and negotiated with Evan Evans to have him take an assignment of the contract and •complete it — he to pay to the sureties the contract price of the work already done by Neidermeyer. This was verbally ■agreed to by them, and it was further agreed by them verbally that the amount of the work which had been done by Neidermeyer was to be completed and ascertained by Mr. Caldwell, a civil engineer, whose estimate was to be accepted by the parties as correct. It was accordingly measured and calculated by Caldwell, who made a report to the parties, and on the 13th day of September, 1892, a written contract was entered into between Spooner & Humpreys of the first part and Mr. Evans of the second part, which recited substantially that the parties of the first part were the owners, by assignment from Neidermeyer,of this contract between Neidermeyer and the city, and that a large amount of work had been done by Neidermeyer therein, and that Caldwell had ¿prepared an estimate of the value of the work done by him amounting to $7889.20, which estimate for the value of the work and materials put into it to that date is accepted as correct; and it was then and thereby agreed that “Spooner & Humpreys shall, and they hereby do, assign and set out to said Evans all their right, title and interest, and all the right, title and interest of Neidermeyer in and to said contracts, the same to be free from all liens and claims of every kind except as to the value of the work done and materials furnished as measured and estimated as stated above by said William E. Caldwell, at $7889.20, and in consideration of the premises, said Evans agrees to pay the amount of said estimate in the manner hereinafter set out.’’ It then provides that upon the completion of the work and its acceptance by the city and the payment by the city of 90 per cent, of the amount due therefor, “said Evans shall pay the amount of the estimate of said work already done, amounting to -$7,889.20, to A. M. Goldsmith, who is hereby made trustee of said fund for the holders of liens thereon, the balance, if any, of said fund to be paid by said trustee to Spooner & Humpreys, when said liens'are satisfied.’’ And it was further provided that all the balance due from the city on the contracts was to belong to Evans, free from all liens and claims of every kind, and the parties of the first part agreed to protect and save harmless said Evans from all claims against or on account of said work heretofore done or money heietofore furnished for prosecuting said improvements. Neidermeyer, by indorsement on the contract, consented thereto,and on this contract is the further indorsement, made at the time of its execution with the consent of the parties thereto, viz: “It is a part of the written agreement that all the liens and claims for labor and materials shall be settled before any money is paid to the Equitable National Bank by me. A. W. Goldmith, Trustee.’’

On the same day,and to carry out this arrangement, with' the knowledge of Evans, another written contract was entered into between the Equitable National Bank of the first part, and ■ said Humprey, Spooner and others of the second part which recited that whereas the said parties of the second part were sureties on notes given to the Equitable National Bank by Neidermeyer for $11,0000, and that the bank was the holder by assignment from Neidermeyer of those contracts with the city, and whereas said contracts have been assigned by said Neidermeyer to Evans for the sum of $7,889.20 which it has been agreed shall be collected by Goldsmith as trustee and the proceeds to be applied to the payment of the debts of Neidermeyer, incurred in carrying out said contracts — it was then agreed that said debts should be paid in the following order: 1st. To the payment of debts for labor and materials furnished in carrying out said contracts,and the balance to be paid to the bank on said debt; and the bank thereupon released all liens or claims to any money and for any future work, and for all materials put in said work by said Evans. This,too, was agreed and consented to by Neidermeyer, as shown by his indorsement on said contract.

It is admitted that Evans paid to Goldsmith,as trustee, a sufficient amount to pay all the liens on the work, except that due to the Equitable National Bank, and that this required all of said sum of $7,889.20,except about the sum of $2,500 with the interest thereon, and which he declines to pay, claiming that in his measurement and estimate of the amount of work done by Neidermeyer, Caldwell made a great mistake and gave him,Neidermeyer,credit for a much greater amount than had been done by him, and consequently that Evans is entitled to a credit on this balance, due from him to Goldsmith,in the amount of such mistake.

On the evidence submitted to us, we are of the opinion that there was a very material mistake made by Caldwell in his measurement of the work done on this contract by Neidermeyer, before it was assigned to Evans. His estimate of work so done in grading and excavation was 32.088.67 cubic yards, while the estimate of the city,on the completion of the work by Evans, and after the latter had done a considerable amount of grading and excavation, was but 26.432 cubic yards — making a difference of 5656.67 cubic yards. We are satisfied that this estimate of the city was correct, and that of Caldwell was erroneous,and therefore that it is satisfactorily shown that Caldwell gave Neidermeyer credit for at least 5656.67 cubic yards of grading and excavation more than he was entitled to, and probably the error was greater than thisin favor of Neidermeyer; but this is not shown with certainty. This over-estimate at 16 cents a cubic yard would amount to about $905.00.

This being so, if the controversy was solely between the parties to the first contract we have referred to, viz: that between Spooner &Humpreys of the first part and Evans of the second part, we should feel bound under the law as we understand it, to hold that it having been entered into between these parties in good faith,but acting under a mutual mistake as to a material part thereof, that it should be corrected in that particular.

But in our judgment it does not follow as a consequence, that this contract can be corrected or reformed as against the Equitable National Bank or against Mr. Goldsmith, who was by the parties appointed and constituted as a trustee to receive and distribute this $7,889.20,in a particular manner. Neither the bank or Goldsmith or the other persons who were entitled to liens,or actually held such liens on the fund ■coming from the city, were parties to the contract which was predicated on this mistake. Certainly both the bank and Goldsmith, and probably the lien-holders who have already been paid the full amount of their claims, knew of the contract and its terms. None of them knew of this mistake, and had no agency in bringing it about, and were in no sense responsible therefor. They simply knew that by the contract Evans, for a good and valuable consideration, had agreed to pay this amount to Goldsmith for them, on the condition that they would release to him their claims or liens on the amount that would be payable to them by the city when the contract should be completed,and on the faith of the promise and undertaking of Evans to make such payment to Goldsmith for them,they release all their liens against the fund, and in the case of the bank, it in effect assigns the contract which it held as collateral to its claims against Neidermeyer and his sureties, to Evans. Why should they be affected by a mistake in a contract of Evans with other persons-to which they were not parties? Suppose those persons who held the liens should, on the faith of Evans undertaking to pay their claims, have cancelled them, and it had turned out that the mistake of Oaldwell was such that no money whatever was really due to Neidermeyer for work done — could Evans be released from all liability to pay any part of the sum which ■ he had stipulated to pay? Or, if it had been paid, could he recover it back from them? We think not. We know of no law which would sanction this — and we think the bank stands on the same ground. On the faith of this undertaking of Evans to pay the balance of the stipulated sum,after paying other liens, on the claim of the bank, it transfers to Evans or to the sureties who do so, the contract which had been assigned to it. If Evans had not agreed to pay this, the bank might well have held on to its contract, — and perhaps have realized more than it will now. Whether, if Evans is compelled to fulfill his contract and pay the. full amount to Goldsmith, trustee, that he agreed to pay, he would have any recourse against Spooner & Humpreys with whom his contract was made, is not involved in this case, and we have not considered it,and express no opinion upon it.

Harmon, Colston, Goldsmith & Hoadly, for Plaintiff.

Frank M, Coppoclc, for Defendant.


text:
    (First Circuit — Hamilton Co., O. Circuit Court
    Jan’y. Term, 1897.)
    Before Cox, Smith, and Swing JJ.
    DAVID W. MITHER, ET AL. v. HOWARD DOUGLASS EX., ET AL.

      Error to judgment on conclusions of law — Motion for new trial not necessary—
    Where there has been a finding of facts, separately from the conclusions of law, under sec. 5205, R. S., a motion for a new trial is not necessary, in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. All that is necessary in such cases is to except to such judgment.
    Motion to strike petition in error from the files.
   Smith, J.

The defendant in error has filed his motion to strike the petition in error in this case from the files, on the ground that the court has no jurisdiction of the subject matter or ■of the parties, and that no motion for a new trial was made, -and no bill of exceptions was allowed.

The case in the court of common pleas, was one involving the right of the parties to the distribution of a fund of which the court clearly had jurisdiction, and all of the parties were before the court. By the final decree, the court found the facts in the case, and its conclusions of law on such facts, and decreed the fund to some of the parties,to the •exclusion of the others. The losing parties excepted to the conclusions of law and the judgment rendered; but being satisfied with the finding of facts, made no motion for a new trial, but filed the petition in error alleging that the court erred in its conclusions of law on the facts found,

There is no reason, whatever, for striking the petition in •error from the files. The plaintiffs in error were authorized to file it, alleging error in the record as it stands, and it was filed in due time. Where there has been a finding of facts, separately from the conclusions of law, under the provisions of Sec. 5205 Rev. Stats., a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusion of law on the facts found are correct; 34 Ohio St. 113. All that its necessary in such case is to except to such judgment. But if it is desired to have the reviewing court decide whether the facts so found by the court are supported by the evidence, a motion for a new trial on this ground should be filed and overruled, and a bill of exceptions containing all of the evidence allowed.

In this case the judgment entry does not shew that the court, at the request of either of the parties, stated in writing the conclusions of law. But the entry shows that the findings of fact and conclusions of law were therein stated separately. But it is held in 35 Ohio St., 113, that a judgment rendered on a special finding of facts made by the court, may be reviewed on error, although such finding was not made at the request of either party.

The motion will be overruled.


text:
    (Sixth Circuit — Lucas Co., Ohio Circuit Court
    June Term, 1897.)
    Before King, Haynes and Parker, JJ.
    LEROY E. CLARK v. THE BOARD OF COUNTY COMMISSIONERS OF LUCAS COUNTY, OHIO.

      Clerk’s fees out of County Treasury — Indexing causes, noting judgments, etc—
    The words “cause, suit, action, and case,” used to describe a proceeding whereby litigation is carried on, are synonymous terms.
    Every suit or action, without regard to the number of parties plaintiff or defendant, is a single cause of action, within the meaning of sec. 1263 Rev. Stats., and the clerk of the court is entitled, for •indexing the same, direct and reverse, to a single, fee payable out of the county treasury, of eight cents for each case without regard as to the number of parties to such suit.
    No compensation cut of the county treasury is provided for the clerk for his services for indexing pending suits, and noting judgments, or executions issued. *
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.

This is an action brought by the clerk of the court of common pleas against the commissioners to recover fees which he claims should have been allowed him — or compensation, rather — lor services appearing on bills which he rendered to said commissioners, and which they refused to allow. Plaintiff took an appeal from this action of the commissioners to the court of common pleas, and that court also disallowed this claim-, and he is now prosecuting error here from the judgment of the common pleas.

Part of plaintiff’s claim is for services in making up and completing a general index of parties plaintiff and defendant. For this service two bills were rendered which aggregate $296,48.. Another bill for other services, I will speak of further along. He presents these bills, and claims compensation under sec. 1263, Rev. Stats., a part of which I will read:

“The clerk shall receive from the treasurer, in the same manner as the fees specified in the last two preceding sections, the following fees:”

It then proceeds to set forth the services to be performed by him for which he shall receive compensation, and then comes among these the following:

“Making up and completing general indexes, direct and reverse of all judgments, final orders and decrees, eight cents for each cause. ”

In making up his indexes, he enters the name of each defendant upon a reverse index, as many times as there are plaintiffs in the suit. For instance, in a suit of Smith & Jones v. Brown & White, he would enter up: “Smith v. Brown; Jones v. Brown; Smith v. White; Jones v. White;” making four entries, for which he made a charge of thirty-two cents, or eight cents for each entry, his contention being that within the purview of this section there was a cause as to each of the persons between whom there was a controversy in a pending suit.

We have looked into the statutes and the law dictionaries, and we cannot discover there, nor have we any knowledge •of any place in the books, where the words “cause, suit, ■action and case, ’’ used to describes proceeding whereby ■litigation is carried on,are used otherwise than as synonymous terms. We find no instance in which either term when used to designate a proceeding in which there are many parties, is •used in the plural,or in such a way as to describe a fraction of the proceeding. We find no authority for holding that the legislature used the word “cause” in any new or peculiar •sense in this section. We hold therefore that every suit or action, without regard to the number of parties plainiiff or ■defendant, is a single cause within the meaning of this statute. The court of common pleas, proceeding upon this construction of the law, allowed an amount — 154,00-—-and a cross-petition is filed here on behalf of the commissioners to set aside the judgment for that amount. The statute seems to provide very plainly that the clerk shall receive compensation for making this index, to be paid out of the county treasury. Reference is made anda strong argument based •upon the proposition that the changes in the law — the history of the statute — indicate that it was the purpose of the ■legislature only to allow this compensation to clerks for bringing up indexes which were incomplete, and that it was not an additional compensation to that which he is allowed to charge against the parties for the keeping up of the index.

We have given careful consideration to the claims of the parties and to the history of this legislation. It is not worth while to go into it, to review it; that is done very fully by the judge of the court of common pleas in deciding this •ease, where it is reported at page 30,vol. 4 Ohio Nisi Prius Reps.; but it is sufficient to say that we arrive at the same ■conclusion that was reached by the learned judge below,and that was reached by the circuit court of the First Circuit, in, the case of Com’rs. of Butler Co. v. A. J. Welliver, Clerk, reported in vol. XII, C. C. Reps. 440. I read a paragraph from page 443:

“We are of the opinion that item 26, ‘for general index' of 147 cases’, (which is an item of the same character as the items contained in this part of the clerk’s bill in this case), • — of judgments in common pleas, is payable from the treasury under the provisions of sec. 1263, which allows the clerk for making up and compiling general indices,direct and reverse, of all judgments, eight cents for each cause; that the law does not limit this payment to cases under sec. 5339, which provides for the making of such index where it had not before been done. And though the clerk does receive pay for this service also,from litigants,it may well be that the legislature intended the county also to assist in keeping it up after it is once made up. It is not entirely clear that this is so, but we are disposed to so hold in this case.”

And this court is disposed to adopt that language as read, including the last paragraph: that it is not entirely clear that it is so; but we are disposed to hold that in this case; •and this court is disposed'to hold so not only from examination of-the statute, but from the fact that this holding has been made by the circuit court of the First Circuit, and as long as it is not clear to us that that court is wrong in its conclusion, we shall follow it.

The plaintiff, also, filed his bills (which have been considered and brought up in the same way,) for indexing pending suits and judgments, amounting to 1441.44. It appears that that was charged in the same way — for indexing, eight cents for each party. If I understand it correctly, he charged eight cents for'each party plaintiff and each party defendant, so that his bill is somewhat larger in a given case for making this index than it is for making the general index for the clerk. He also charged for keeping up the same record whenever judgments were rendered and entered in certain columns on that book, eight cents for making each entry; and whenever an execution was issued he charged eight cents for each party against whom the execution was issued. These charges were in addition to the charges made against the parties litigant.

For these charges and for this bill he thinks he should' have compensation from the county. Tne view that we take of this bill makes it unnecessary to consider whether this method of charging is authorized — I mean this method of making the computation. No question as to the method of taxing fees against parties litigant, is involved here.

We hold that no compensation is provided, or authorized to be paid by the county for these services; and in this also, we refer to the decision of the circuit court of the First Circuit before referred to. I read from the paragraph following that I read before:

‘‘But we see no warrant for items 27, 28'and 29, as. against the county.”

We are favored with a transcript of a part of the record in the case of Welliver v. Commissioners of Butler county.. From the printed report of this case, we could not determine' what items were referred to as ‘‘items 27, 28 and 29,” nor what the charges were that were contained in those items, but from this transcript which has been furnished to us, and which contains a copy of the bill of the clerk under consideration in that case, we find that these items 27, 28- and 29, are for the indexing of pending suits. Item-27, pending suits in circuit court, $136.00; item 28, indexing pending suits in 148 cases, $11.84; item 29,. noting judgments, (referring to sec. 1259 Rev. Stats.), 116 cases, $9.28.” Referring to the section providing for this work, and the section relied upon by the clerk in this-case as containing authority to make this allowance to him-1 and to give him this compensation from the county treasury,» we find in this section no express authority to thus compensate the clerk for such services. And, applying a principle which is very well stated in this case of The Com’rs. of Butler Co. v. Welliver — and is supported by a number of the decisions of the supreme court of Ohio- — we disallow this claim, The syllabus in that case is as follows:

Clayton W. Everett, Esq., for Plaintiff.

O, W, Nelson and J. A. Barter, for Defendants.

“Except by statute specifically provided,the clerk of court is not entitled to receive any compensation from the county treasury for any services rendered for the benefit of the county or the public,however valuable and necessary such services may be, and although the law absolutely requires him to perform the same. If so required for the public,and no provision is made for its payment from the treasury, it must be regarded as gratuitous.”

That is, ii must be regarded as gratuitous as far as the public is concerned; but additional emphasis is given to this in this case, for the reason that compensation is provided, to be taxed as costs and collected from the parties litigant. What is contended for here by the plaintiff, is additional -compensation, to be paid by the county. We find therefore, that the court of common pleas did not err in its judgment, • either in disallowing what was disallowed of the claim of •the plaintiff, or in allowing what was allowed him.

The judgment will be affirmed.


text:
    (First Circuit Hamilton Co., O. Circuit Court
    Jan’y. Term, 1897.)
    Before Cox, Smith, and Swing, .TJ
    STATE EX REL. SONNTAG v. SHONHOFT ET AL., TRUSTEES.

      Application for disinterment of body — Parents next of Tain where ■ brothers and sisters are minors—
    'Under the act of 1894, 91 O. L., 231, providing for the manner in ' which application is to be made for the disinterment and delivery of bodies from cemeteries by the trustees thereof, to the next of kin of the deceased, the brothers and sisters are the next of kin of the deceased; but where the brothers and sisters are minors, the parents are the next of kin, and entitled to make the application.
    Mandamus.

      L. Cr. Hummell, for Relator.

      Garr & Sjpeiser, for Defendant.
   Smith, J.

We think, on the facts shown in this case, the relators are entitled to the relief sought by them, viz, that the defendants, trustees of the cemetery in question, on payment of the reasonable cost and expenses thereof, shall disinter and deliver to the relators the bodies of their two minor children,, now buried in said cemetery, or issue a permit for the disinterment and delivery thereof to the relators — the provisions of the act of May 14, 1894, 91 Ohio Laws, 231, as to-the application &c., having been fully complied with by the relators.

The only question really made is as to whether the relators are next of kind of the deceased, of full age and sound mind. It is conceded that relators have two other minor-children, brothers or sisters of the dead children. If the-children living were of full age and sound mind, they would be the next of kin to the deceased children, and the' application should come from them. As they are minors,, the father and mother would be next of kin, competent to-apply, and we think the statutes on the facts stated give-them the right claimed.


author: Frazier, J.

text:
    Seventh Circuit — Ashtabula Co., O., Cir. Court
    March Term, 1895.
    Before Woodbury, Laubie and Frazier, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. TEED.

      Railroad — Ejecting passenger — Damages—
    1. In an action against a railroad company for ejecting from one of its trains a passenger who had purchased and presented to the conductor a proper ticket entitling him to ride on such train from one local station to another; the conductor having wrongfully stopped the train between stations, and refused to carry him further on the ticket, it is not error to refuse to charge that the plaintiff can only recover the price of the ticket and for the labor of walking to the place of destination.

      Same — Damage—What to he considered — Injury to feelings—
    2. It is not error in such case to charge the jury, that they may, in determining the amount of recovery, take into consideration the place where the plaintiff was left, the circumstances under which it was done, and the humiliation, disgrace, and injury to his feelings, in having the train stopped and being compelled to leave the coach and train in a public manner in the presence of the passengers.

      Verdict — When to he set aside for excessiveness—
    3. When the trial court refuses a new7 trial on the ground that the damages are not excessive, before a reviewing court will disturb the judgment, it must be clearly satisfied the trial court erred in its refusal; or that the verdict is so excessive as to show it was ¡rendered under the influence of passion or prejudice.
    Error to Court of Common Pleas of Ashtabula county.
   Frazier, J.

Charles Teed, the defendant in error, brought an action in the court of common pleas, claiming that on the 21st day •of December, 1889, he was unlawfully ejected from the cars •of the defendant below.

That he had a ticket as the evidence of having paid his fare.and entitling him to ride from Kingsville to Ashtabula.

That the conductor in charge of the train refused to accept the ticket, and demanded that he pay his fare in money for his passage, and on his refusal to do so,the conductor stop ped the train where there was no station,and refused to carry plaintiff or permit him to ride further toward Ashtabula on •the ticket; and without any just cause,illegally and wrongfully ejected plaintiff from the train and lefEhim to make his way as best he could, whereby it is averred he is injured, and prays judgment.

To this petition the defendant answers and admits that it is a corporation owning and operating the railroad as alleged.

Admits that on the 21st of December, 1889, the plaintiff ¿not having a proper ticket and refusing to pay his fare, was requested to leave one of defendant’s trains between Kings-ville and Ashtabula, and that he left the same voluntarily, -and the defendant denies each and every other allegation in the petition contained.

Plaintiff replies that he had a good and sufficient ticket, -such a one as entitled him to be carried from Kingsville to Ashtabula; that it was one of the regular and unlimited tickets issued by the defendant company.

That he left the car under compulsion, and not voluntarily; that the conductor and brakoman in charge of the train, demanded that he should leave, anc did so in a rough, rude and insulting manner, threatening force if he did not comply therewith, and that he left the car and train under compulsion and orders to do so,and not voluntarily.

Upon these issues the parties went to trial to a jury, which returned a verdict for plaintiff for $450. A motion for a new .trial was made, which being overruled, a bill of exceptions was taken, setting out all the evidence with the rulings and •charge of the court.

Counsel for plaintiff in error, admit the evidence warranted the jury in finding that plaintiff below had an unlimited ticket of the company, which entitled him to be carried from Kingsville to Ashtabula upon the train and in the car in •question.

The conductor testified that when the ticket was presented, 'he believed it to be a going coupon of a round trip limited •ticket.

The difficulty probably arose from the fact that the ticket had been purchased upon a day prior to the time he entered •upon the passage, and Mr. Teed in his testimony gives as a ■¡reason why it was not used at that time,that after he bought it and was waiting to take his passage, a neighbor or friend came along and invited him to ride in his buggy,and he did so, and consequently did not use it on the day it was purchased. Mr. Teed also testifies he carried it in his vest pocket and it became somewhat soiled. It is an admission in the record that the stamp on the ticket could be read. When the ticket was presented, it was refused by the conductor, and plaintiff was notified that he could not ride upon it, and the train was stopped, and and he was ordered to leave the train, while the evidence does not show that actual force was used, yet certainly it was under such circumstances that Teed understood and had a right to understand, that if he did not leave the train the conductor would use such force as was necessary to put him off.

The objections urged in this court are, that the court of common pleas erred in its charge as to the rule of damages, and that the damages are excessive. The plaintiff in error insists that the action is only for the breach of a contract, and that the plaintiff below can only recover his actual damages, viz: the price of the ticket, and the labor of walking to Ashtabula; that he has averred no special damages, and the recovery is limited to the items of damages above stated.

The statements of the plaintiff in his petition bearing upon this question,are: “that he had a proper ticket,as the token of his right to a passage from Kingsville to Ashtabula; that said conductor refused to accept said ticket,and commanded the plaintiff to pay his fare in money, for said passage, and on refussing to do so, the conductor of said train stopped it, where there was no station, and refused to carry plaintiff or permit him to ride any further on the train on said ticket toward Ashtabula, and without any just cause, illegally and wrongfully ejected plaintiff from the train and left him to make his way as best he could,” whereby it is averred he is injured and asks judgment.

The court of common pleas charged the jury,in substance, that the plaintiff would be entitled to recover for injury to his feelings, in being ejected from the car at the place he was, and in the presence of the passengers. I apprehend that it is a rule of law, that a party doing a wrongful act, is liable for and must anticipate the natural and necessary consequences and result of his act, and that under this rule, plaintiff below was entitled to recover for the injury to his feelings, which naturally and necessarily resulted from the wrongful and deliberate act of the defendant. In Smith v. The Pittsburgh, Ft. Wayne & Chicago Railway Company, 23 Ohio St., 10, the fourth paragraph of the syllabus is:

“In an action for a personal tort an injury to the feelings, naturally and necessarily resulting from the wrongful act, may be considered by the jury in their estimate of compensatory damages, whether the case be or be not one in which damages beyond compensation may be awarded.”

The case of Smith v. The Railway Company, was an action brought for expelling Smith from a train of the company. It appears that Smith boarded the train upon that occasion, for the purpose of being expelled from the cars, in order that he might test a rule of the company which required if passengers did not purchase a ticket before entering the cars, they should pay an additional rate. It is evident from the statement of the case, that Smith not only expected, but desired to be expelled from the cars. The opinion of the court, as stated in the syllabus of a case,must always be read in view of the question that was then before the court to be decided. Counsel for defendant in Smith v. Pittsburg, Ft. Wayne & Chicago Railway Company, supra, claimed in argument to the supreme court:

“Compensation is limited to direct pecuniary loss and cost of suits only. No indirect loss, no mental suffering or wounded feelings,is included.”

Counsel in that case further say:

“The petition here charges neither fraud, malice, nor an intention to oppress, and the evidence shows clearly that the defendant’s servants did not intentionally annoy or insult the plaintiff;” and in that case the court of common pleas charged the jury, that:
‘‘Should youfind the company liable, you will proceed to determine the damages for the plaintiff. The plaintiff is entitled to recover for all the injury which naturally resulted from the wrong act of the defendant — the injury to the feelings caused by a public expulsion from the cars; the injury to his health, which resulted from exposure to the inclemency of the weather, (if you should find that such injury accrued), and from being compelled to walk to a neighbor’s house, and the expense to which the plaintiff was subjected in reaching Mansfield; if you find for the plaintiff in this case, you will render a verdict for the amount of damages which you may find he has sustained in the premises. ”

On page 19, Judge Mcllvaine says:

‘‘That physical pain, caused by an act of trespass on the person, constitutes a leigtimate ground for compensatory damages, no one disputes.' And why should not mental suffering as well? Is it more endurable than physical suffering? Is it a less probable consequence of a trespass against the person of another? Is the mind an object of less concern in the judgment of the law than the body? Is it any less a part of the person? Is compensation in money for mental suffering more difficult to estimate than for physical pain? I can find no good reason for affirming any of these distinctions. Conceding therefore, that the case made against the defendant would not have justified a verdict for damages beyond the rule of compensation, and for punishment merely, a majority of the court are of opinion that there was no error in this charge, to-wit, that in estimating the damages sustained by the plaintiff in the premises, the injury to the feelings caused by a public expulsion from the cars, was a proper subject for the consideration of the jury.”

In the case at bar, one of the defendant’s requests to charge, which the court refused to give, was, if the conductor made an honest mistake,the company is not liable.

We must look to the whole record to determine whether a motion for a new trial should have been sustained. Upon the question of damages the court of common pleas charged 'the jury:

“In the event of your so finding in favor of the plaintiff, we instruct you that the plaintiff will not be entitled to recover exemplary or vindictive damages, and you are not at liberty to include anything in your verdict for ■attorney fees, or by way of punishment of the defendant; but we instruct you that the rule of damages in this case is compensatory damages, and your verdict should be for such an amount only as will fully and fairly compensae the plaintiff for all the loss and damages he has sustained by reason thereof, and which is the direct, necessary and natural result of said wrongful act of the defendant, by its conductor and brakeman, as herein explained, and in determining that amount, we instruct you that you have a right to take into ■consideration the place where the plaintiff was left, the circumstances, as proven by the evidence, under which it was •done; any interruption in his business and loss of time, which you find has been proven by the evidence, and any ■expense or exertion he was put to, or compelled to undergo as the necessary result of such wrongful act, and you have the right also, in fixing that amount, to take into consideration the humiliation and disgrace and injury to the feelings of the plaintiff, if any have been proven by a preponderance of the evidence in this case, of having the train stopped and being compelled to leave the train and coach in a public manner,and in the presence of the passengers thereon.”

This is excepted to, and these constitute substantially the grounds of the objections interposed, so far as the action and ■charge of the court is concerned in its refusal to charge and the charges given, so far as excepted to.

There remains, however, another question that is urged by counsel for plaintiff in error; that is, that the damages are excessive. This court is a reviewing court. It passes npon the action of the trial judge, and before this court is ¡authorized to disturb the judgment of the trial court in overruling the motion for a new trial, we must be satisfied that the court below clearly erred.

Theodore Hall, for Plaintiff in Error.

EdwardH. Filch, for Defendant in Error.

Speaking for myself, I will say, that ifiij were an original question, and I the trial judge, and toe evidence made the same impression upon my mind that the reading of the record does, I would say that the verdict is excessive; but looking at it as we do, not by seeing the witnesses face to face, but by the imperfect reproduction of the testimony of the witnesses upon paper, we are not able to say that the record shows that the verdict was influenced by passion or prejudice.

The defendant in error, when he presented his ticket, was-publicly charged by the conducor, with attempting to fraudulently and wrongfully pass upon him the going coupon of a round trip ticket which was worthless.

There is a conflict in the evidence as to the manner and language of the conductor on the occasion, but from the evidence we are warranted in saying the conductor lost his discretion, if he did not show actual ill-temper. Nor can we say the jury was not warranted in the conclusion that he was rude and insolent in his conduct toward the plaintiff.

The conductor, as a witness, admits it was his duty, under the rules of the company, before he was authorized to expel plaintiff from the car, to take the ticket and examine it, and take the number and a description of the ticket presented, which he did not do on this occasion.

The judgment of the court of common pleas is affirmed.


text:
    (First Circuit — Clinton Co., O. Circuit Court
    May Term, 1897.)
    Before Cox, Smith, and Swing JJ.
    MERRICK F. JONES v. THE STATE OF OHIO.

      Blackmailing — Seo. (¡380, Rev. Stats. — What viill constitute—
    The crime of black-mailing,under sec. 6880 Rev. Stats., may be committed in two ways: 1st. Whenever a person accuses any person of a crime punishable by law, or of any immoral conduct, etc.,with intent to extort or gain from such person any chattel, money,etc. 2nd. Whenever a person knowingly sends or delivers any letter or writing, or any printed or written communication, with or without a name, or with any letter, mark or designation, accusing or threatening to accuse any person of a crime punishable by law, etc., or to do an injury to the person or property of any person with.intent to extort or gain, etc.

      Motion of one defendant, not joined in by the other, will not avail the latter on error—
    Where two are jointly indicted, and one of them files a motion to quash the indictment, while the other files a demurrer to the indictment, both of which are overruled, the defendant who had filed the demurrer, cannot, on error, take advantage of the error of the court below in overruling the motion to quash filed by his co-defendant. To avail himself of such error, he should have joined in the motion to quash, or have filed one in his own behalf.
    Error to the Court of Common Pleas of Clinton county.
   Smith, J.

The petition in error, filed by the plaintiff in error, seeks the reversal of the judgment rendered against him in the court of common pleas, and alleges as ground therefor that the trial court erred in this, viz: that it erred in overruling a motion to quash the indictment; that it erred in overruling the demurrers filed thereto; that it erred in the admission of evidence in the charges given to the jury, and those refused, and in overruling the motion for a new trial based on the ground that the verdict was against the evidence.

The indictment against the defendant, which was based on sec. 6830, Rev. Stats., is very long and involved in its language, and in some respects it is difficult to know exactly what it means-^-strippéd of much of its verbiage, we understand its substance to be about this: That the plaintiff in error, Merrick F. Jones, and two other persons (naming them), on October 20, 1895, at Clinton Co., Ohio, unlawfully, knowingly and feloniously, did verbally and orally, and in writing, and by then and there sending and delivering to one Doan, mayor of the village of Wilmington, in said county,a certain letter writing,and written and printed communication as follows: (Here is set out, in hciec verba, an affidavit made by said defendant Jones before said mayor, charging that one Mary J. Urton, or Mary J. Jones, did unlawfully kill and murder one---Jones, on July 15, 1885, in Delaware county, Ohio), and by then and there sending and delivering to said Mary J. Urton, or Jones, a certain letter writing and written or printed communication, which said letter writing and written and printed communication is as follows: — (And here is set out a copy of a warrant issued by said mayor in the usual form, directed to one J. W. Smallwood as a special officer, reciting that a complaint had been made to said mayor, by said M. F. Jones, charging said Mary J. Urton,otherwise Mary J. Jones, with the crime aforesaid, and commanding said officer to take said Mary J. Urton, or Jones, if she be found in Clinton county, and remove her bodj' to the county of Delaware, aforesaid, and deliver it to any magistrate of said county having cognizance of said offense, to answer said complaint and be further dealt with according to law), accuse and threaten to accuse said Mary J. Urton, otherwise Jones, of having committed the crime of unlawfully, purposely and maliciously killing and murdering one---Jones, on or about July 15, 1885, at the county of Delaware, Ohio, said crime being punishable by the laws of the state with imprisonment in the Ohio penitentiary, with intent thereby, then and there unlawfully, willfully, knowingly and feloniously, to compel the said Mary J. Urton,aforesaid, against her will, to execute and deliver to the said Merrick F. Jones, her note for $2,500, and a mortgage on a farm owned by her ih Delaware county,Ohio,to seaure said note. And then follow, in four separate paragraphs, allegations as to other and different intents with which such acts were done, all connected by the conjunction “and”, viz: 1st. To compel her to settle a suit brought by her against him in Clinton county, setting out the nature thereof, against her will. 2nd. To compel her against her will to settle another suit brought by her against him in Clinton county. 3rd. To compel her to convey to him her interest in a farm in Delaware county of the value of $6,000. 4th. To compel her against her will to agrees to execute and deliver to him, her note for $2,500, and a mortgage to secure it, with intent thereby to extort and gain from her certain chattels,money, valuable securities and pecuniary advantages to-wit: — certain money, of the value of $2,500, and a note and mortgage securing it, said chattels, money and valuable securities being then and there the property of said Mary J. Uiton— contrary to the form of the statute, etc.

The statute on which this indictment is founded, sec. 6830, Rev. Stats., is certainly very unskilifully drawn,and it is exceedingly difficult to form an opinion as to the proper construction to be placed on some of its provisions. It attempts to define what shall constitute the crime of black-mailing, and it is clear from its language, that it may be done in different modes, and by different acts and with the different intents, as stated in the section. Thus,by the first paragraph of the section, it is provided, that whoever, either verbally or by letter or writing, or written or printed communication, sent or delivered by him, demands of any person, with menaces, any chattel, money or valuable security, with any one or' more of the intents mentioned afterwards in the section, is guilty of the crime. But we do not understand that this indictment is founded on this, for there is no allegation in the indictment that there was any verbal or written demand made by defendant on Mary J. Urton,with menaces for any chattel, money or valuable security. The indictment, then to be valid, must be founded upon some other provision of the statute, and we understand it to be based on the immediately succeeding language used, viz: “Or accuses, or knowingly sends or delivers any letter or writing, or any written or printed communication, with or without a name, or with any letter, mark or designation, accusing, or threatening to accuse, any person of a crime punishable by law,” etc., “with intent to extort,or gain from such person any chattel, money," etc., mentioning other in tents,shall be imprisoned, etc.

The conclusion we have reached as to the meaning of this part of the section is this: that there are two ways here pointed out by either of which the crime may be committed, .viz: 1st. That whenever any person accuses any person of a crime punishable by law,or of any immoral conduct, etc,, etc., with intent to extort or gain from such person any chattel, money, etc., etc., he violates the statute; and 2nd.; That any person who knowingly sends or delivers any letter or writing,or any written or printed communication, with or without a name, or with any letter, mark or designation, accusing or threatening to accuse any person of a crime punishable by law,etc.,etc., or to do an injury to the person or property of any person,with intent to extort or gain,etc., etc., is also guilty of a breach of the statute. It may be that such is not the grammatical construction of the language used, but we think it must have been the intention of the legislature so to provide. If it be not so, we do not see how the words “or accuses” are to have any meaning or force whatever.

This being our view as to this, we come to the consideration of the errors assigned.

It is claimed that the trial court erred in overruling a motion to quash this indictment, based on the ground that it charged different distinct and repugnant crimes in the same count of the indictment, and therefore that it was bad for duplicity. The record Bhows that no such motion was filed by this defendant. One was filed by one of the defendants jointly indicted with him — no exception to the action of the court in overruling it could properly be taken by this defendant. He should, to avail himself of any such error, have pined in the motion, or filed one on his own behalf. Instead of doing so,he demurred to the indictment. By so doing,under the provisions of sec. 7258, he waived any such defect in the indictment,for the way to raise such a question was by a motion to quash. 2nd. Should the demurrer to the indictment have been sustained? That raised the question whether the facts stated in it, constituted an offense punishable by the laws of this state, or whether the intent with which it was done was alleged. Our conclusion as to this is,that it did charge the defendant with a crime punishable under the laws of the state, in this — that it charged him with accusing Mrs. Urton of the crime of murder, by unlawfully, knowingly and feloniously filing his affidavit as set out in the indictment with the mayor of Wilmington, charging her with the crime of murder, and with the unlawful and felonious intents set out therein. This was the gravest accusation that could be made, and we are satisfied that such an accusation,feloniously made and with the intent stated, comes within the letter and spirit of the statute. The demurrer was therefore properly overruled. We are of the opinion, though, that so much of the indictment as relates to the issue or service of the warrant, or the sending or delivering it to Mrs. Urton, did not constitute an offense in the meaning of the statute, and this part of it should be deemed to be surplusage.

Many specific objections are made to the charge given by tbe court to the jury. The principal objection we find to it is. that so far as we can .see the court substantially held, as we understand, that the indictment might be sustained against the defendant, not only by showing an accusation made by him against Mrs. Urton, by the affidavit filed by him with the intent mentioned therein, but,if that were not sustained by proof, that if it were shown that the warrant issued thereon, if communicated to the accused, or sent or ■delivered “with the purpose of having it communicated to the accused, and under circumstances which render it probable that the same will be so communicated, ’ ’ if accompanied with the intent alleged in the indictment, would also justify his conviction of the crime. It must be conceded that the charge on this point is obscure, but such seems to us to be its fair meaning. This view is strengthened by the fact that the court refused to give special instructions Nos. 4 and 5, asked by counsel for defendant to be given to the jury. .No, 4 asked, in substance, that the jury be charged that the ■warrant issued by the mayor upon which Mrs. Urton was ,-arrested, was simply a judicial order issued by the mayor, and can not be considered by the jury as an accusation of •the crime of murder on the part of the defendant and ■against Mary Urton with the extent to extort, and you can not convict the defendant, upon such evidence, of accusing the said Mary Urton under the present indictments. And No. 5 asked the court to say to the jury, that the charge that the defendant, “unlawfully, willfully, knowingly and feloniously did verbally and orally, and in writing and by then and there sending and delivering to one Mary Urton, •aforesaid, a certain letter writing and written and printed •Communication,” which is as follows: (And here follows the copy of the warrant as set out in the indictment), did accuse, and threaten to accuse her of murder, with intent, >etc., “is not supported by evidence that said warrant was issued by Doan, and delivered by him to J.W. Smallwood, special officer,and served by Smallwood upon,and then and there read by him to said Mary J. Urton, and that you can.not convict the defendant upon such evidence,notwithstanding the proof, if you find any was offered, of the intent of said Merrick R. Jones, in making the affidavit upon which said warrant was issued.” ' •

We think that those charges were substantially correct, and should have been given,and were not in substance given elsewhere. We think that th.ere was no error in the refusal to give the other special charges asked by defendant’s counsel.

As to the ground that the verdict was against the weight of the evidence, we have this to say, that if the statement made by the Prosecuting Attorney as to the facts in this case be true — and that they áre true is not controverted by counsel for the defendant and seems tobe supported by the evidence — it is shown that the defendant was guilty of almost diabolical conduct in his treatment of this unfortunate and hardly responsible woman, in his attempt by this accusation to extort from her, and apply to his own use, all of her estate, and was clearly guilty of the crime charged against him. And it can not be said that his sentence of two years imprisonment was excessive. If he was of sound mind,and there were no extenuating circumstances, (and this last does not appear in the record), a sentence for the full term of five years would not seem too great.

In this state of the case,and with the interpolation which we have concluded should be placed upon this statute, we feel ver*y unwilling to reverse the judgment on the ground of error in the charge of the court, but finding that substantial error has been committed, must do so, if insisted upon by plaintiff in error. But as he has already served a considerable part of his term in the penitentiary, and with the belief that on a new trial he would be again convicted and run the risk of a longer imprisonment, it would seem that he would act wisely if he allows matters to rest as they are.

Mills & Clevenger, Attorneys for Plaintiff in Error.

Pros. Attorney JHariman, and Melville Hayes,for Defendant in Error.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O. Circuit Court
    Jan’y. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    BARBARA BENHOFF v. MARTIN WEAVER et al.

      Damages for unlawfully selling liquor to plaintiff’s husband— When premises where sold not liable—
    In an action to hold the premises liable for the payment of a judgment recovered for unlawfully selling intoxicating liquor to plaintiff’s husband, on the ground that the owner permitted such unlawful sales, but where it appeared that the premises were the property of the wife of the judgment debtor; that she never consented to the use of the premises for such purpose, but always objected thereto, and that there was no collusion between her and her husband, the property can not be held liable for the payment of the judgment, and the fact that she did not institute legal proceedings against her husband will not avail. It is not the purpose or polity of the laws of Ohio to stir up lawsuits between husband and wife. •
    Error to the Court of Common Pleas of Lucas connty.
   Haynes, J.

A petition in error is filed to reverse the judgment of the court of common pleas. The plaintiff in error, who was plaintiff in tho court of common pleas, seeks to enforce ■upon certain property situate in Washington township,Lucas county, 0., the amount of a judgment of some $250, which the plaintiff had recovered before that time against Martin Weaver, who was the husband of Persilvia Weaver.

It appears from the record that the judgment was obtained by Barbara Benhoff against Martin Weaver, for selling intoxicating liquors to her husband, causing his intoxication, &e.; that the sale was in violation of law; that that judgment remained unpaid and unsatisfied. It further appears from the record that in that original suit, Persilvia .Ann Weaver had also been made a party defendant with Martin Weaver, but upon the trial of the cause the jury had found in favor of Persilvia and against Martin, and the judgment was in favor of Persilvia Weaver upon the issues joined and against Barbara Benhoff, while as between Barbara Benhoff and against Martin Weaver, the issues were found in her favor, and she recovered a judgment against Martin fur the sum named.

In this action it is set up and alleged that Barbara Ben'hoff was the owner of the premises upon which the building stood in which the liquors were sold for which the judgment had been obtained; and it is claimed that under and by virtue of Sec. 4364, Rev. St., the plaintiff had the right to subject that property to the payment of that judgment, although the property stood in the name and was in the name of Persilvia Weaver, and not in the name of Martin,

Sec. 4364 provides:

“If a person rent or lease to another, any building or. premises to be used or occupied, in whole or in part,for the sale of intoxicating liquors, or permit the same to be so used •or occupied, he shall be held liable for, and may be held to pay, all fines, costs, and damages assessed against any person occupying the same; proceedings may be had to subject the same to the payment of any such fine and costs assessed -or judgment recovered, or any part thereof which remain •unpaid, either before or after execution issues against the property of the person against whom such fine and costs or .judgment have been adjudged or assessed, &c. ’’

Upon the evidence in the ease, there is no evidence of ¡any lease of the premises from Persilvia Weaver to Martin Weaver. The clause under which it is sought to hold Persilvia Weaver in favor of that judgment, and to subject "the property, is that she also permitted the.same to be used -or occupied for the sale of intoxicating liquors. The testimony shows generally, in substance, that the land upon which this building was situated was the property of Persilvia by inheritance; that she received it from ancestors; and that the building that was put upon it, or some portion of the building, was put on there with the money of Martin. There had been a little grocery store carried on there for some time. On the premises adjacent, or nearby, was the postoffice, and one or the other of these parties had charge of that postoffice. I suppose the husband waspostmastsr, and the wife bad charge of the postoffice, and. ran it. Martin, desiring to carry on the sale of liquors, made an addition to the building in which he eventually carried on the sale of liquors for the period of at least over a year, when he leased the premises. During this time-these events occurred for which this suit was brought and, in which judgment was obtained.

The wife, in her own behalf, denies that this sale of intoxicating liquors was ever carried on there by her permission or with her consent; on the contrary, she claims-that she protested against it from the very commencement, and repeatedly protested against it, and never consented to-it; but that her husband, listening to the persuasions of other parties, decided that he would commence to carry on, the sale of liquors, and did so. She says that from time to time certain women in the neighborhood protested that they ought not to carry on the business, and she says that, she had endeavored to have it stopped. It apperas in evidence that the plaintiff here, Mrs. Benhoff, called upon her,, and claimed that her husband was drinking at that place-, and drinking too much; that on a certain day she called there and said that her husband was then at- the grocery, drunk. Mrs, Weaver says that she went down there and found him about the premises. He was not so drunk but that he could walk about. She told him at that time to-leave, and keep away; that she didn’t want him about the-premises. There is some little evid en c ( nding - to show that at some time Mrs. Weaver had been seen handing out a glass of liquor there herself, On this trial she said she did hand out a glass to Benhoff, but she explains that. She denies that she ever did sell intoxicating liquors there. She says her husband always told her to keep out of that place. It is in evidence that she was about the premises, and there can be no doubt but that she knew that intoxicating liquors were sold there.

The question is, whether she permitted that sale voluntarily or wilfully, so that her property would become subjected to the payment of this judgment. In 49 Ohio St., 447, Mullen v. Peck, this statute is discussed at considerable length, and the right of the plaintiff to maintain an action against those who permit the sale of intoxicating liquors is maintained by the supreme court, In that case the building had been leased originally by the owner to a certain party, and the owner died, and the property was left to the widow for life, and at her death, the remainder over to the children. Suit was brought to subject the property to the payment of a judgment that was obtained for the unlawful sale of liquor by the tenant to plaintiff's husband. The supreme court held in that case that the life estate might be held subjected to the judgment, but not the remainder over belonging to the children. It was shown that the lease had not been made by these parties, and the tenant had never taken any step to avoid the old lease.

But the court below held in this case at bar, that the wife had done all that she was required to do; or, in other words, that she had shown by her evidence conclusively that she had not permitted the sale of the liquor, and that she had by a preponderancee of the evidence sustained that proposition. It was urged, of course, that she ought to have done something more — should have resorted to proceedings in law to have compelled her husband to stop.

Beard & Beard, for Plaintiff in Error.

James FI. Pilliod, for Defendant in Error.

We have discussed this matter at some length, and have endeavored to take a just view of it as between the plaintiff and the defendant; and while we can see that a defense of that'kind may be the subject of collusion between, the husband and wife, yet we think each case must stand upon its own facts, and be decided upon its onw facts; and we think that we ought not to say, as a matter of law, that the wife is bound to have recourse to any legal remedies in order to prohibit the husband from making a sale of liquor under these circumstances. If she refused to assent to it, if she objected to it on all proper occasions, we think she has done all, as a wife she is required to do. To hold that she was bound to commence, for instance, an action of injunction against her husband, or an action to oust him from the possession of the premises, would simply be stirring up law suits between husband and wife, which is not the purpose or polity, at least, of the laws of the state of Ohio.

The court having found that there was no collusion between the parties, and that the wife was honest and sincere in her objections, and truthfully stated the facts when she said that she did object at all times to the sale of the liquor, it found that no permission was given by her. We think upon these facts we should affirm the judgment of the court of common pleas. That is to sa.y, under the rule governing a court of error in reviewing the facts of a case, we are not justified in holding that the court of common pleas erred in its finding of facts upon the evidence.

The judgment of the court of common pleas will therefore be affirmed


text:
    (First Circuit — Hamilton Co., o. Circuit Court
    Jan’y. Term, 1897.)
    Before Cox, Smith and Swing, JJ .
    JOHN W. WOLFE v. THE VILLAGE OF AVONDALE.

      Assessment on unimproved corner lot — Lines of recorded sub-division control—
    Where several lots of a platted and recorded sub-division forming one piece of ground, one of which ie a corner lot on the intersection of two streets, are owned by one person, in assessing such corner lot for the improvement of the side street, the assessment should be for the number of feet of its actual frontage only, under the rule laid down in the Haviland case, according to the lines of the lot as platted, unless the 'property, as a whole, is improved so as in fact to make it front on the side street.
    Error to the Court of Common Pleas of Hamilton county. •
   Smith, J.

Mr. "Wolfe is the owner of four lots in the village of Avondale, situate at the north-east corner of Forest avenue and Haran street, numbered 257, 258, 259 and 260, on a plat of a subdivision of said village. They all front on Forest avenue 25 feet, and each lot is 96,47 feet deep. Lot No. 257 is the corner lot. In the rear of these four lots •are two others owned by Mrs. Wolfe, Nos. 255 and 256, which front on Haran street twenty-five feet. In 1893, proceedings were had by the village to improve Haran street, andjon July 2, 1894, after the completion of the work, an ordinance was passed assessing upon this property of plaintiff the sum of $213.42, as having a frontage on Haran ■street of 96.47 feet. It is claimed by plaintiff that he should have been assessed only for a frontage of 25 feet, andón inlot 257 alone,and this sum has been offered to pay.

The following additional facts are agreed to: Before the improvement was ordered, Mr. Wolfe had erected on lots Nos. 259 and 260, (being those of the four owned by him most distant from Haran street), a family residence. It clearly fronts on Forest avenue, there being no door on the side towards Haran street, and there being no access to the house or grounds from said street' — -the lot standing from seven to twenty-three feet above the street which was cut down. The only entrance to the house or lot is from Forest avenue, and as there is a cut there also,the house is above that street, which was also cut down when improved. The onlyentrance to the house or ground from any street is from Forest avenue, and the house and the ground is high above that street also. But his entrance to it is by a flight of steps, to a cement walk which winds around the house, and a few feet of which walk is upon lot No. 257, the corner lot. At the time the street was improved, there was a privy vault bn lot 257, but this was exposed by the cutting down of the street, and by order of the village authorities had to be removed, and was placed on one of the lots belonging to Mr. Wolf. It is also agreed that owing to the cutting down of Haran St., that the part of the cement walk on lot 257, may have to be removed. No other improvements have been made on this lot, but there is some shrubbery and grass thereon.

On the opposite side of Haran street, and fronting on Forest avenue also, are two lots of a Mr. Raabe, Nos. 72 and 73. Each of these has a frontage on said avenue of 25 feet, and No. 72, the corner lot, has 96.47 feet along Haran street. Neither of those Jots is improved, and the assessment for the improvement of this street imposed upon lot No. 72, was only for 25 feet. As there was no improvement on those lots, under the decision of the Haviland case, 50 Ohio St., 471, this was clearly right. And the question now for consideration is, whether under the facts stated, the same person being tbe owner of the four lots fronting on Forest avenue, and having improved the property in the manner stated, the original lot lines are to be entirely disregarded, and the owner be held liable for an assessment on the whole side of his lot, if such length does not exceed the frontage on the other street.

J. W. Wolfe, for Plaintiff.

Thornton Hinkle, for Defendant.

If the lots of the plaintiff were unimproved, it would seem clear that the assessment in this case should only be for 25 feet,' — that is, for the frontage of lot No. 257 on Forest avenue, as wa's done on the opposite side of the street; that is) that the lines of lots as platted and sub-divided should be regarded such unless the property is improved so as in fact to make it front on the side street. It can only be assessed for the improvement of such street for the number of feet it originally fronted on the other street; and, in our judgment, there has been no such improvement of this lot as would change the admitted original frontage. For these reasons, we think, the assessment of the plaintiff’s property for 96.47 feet was unauthorized, and should, be limited to 25 feet, the real frontage of the lot.