author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1895.)
    Before King, Haynes and Scribner, JJ.
    Berdan & Co. v. The J. M. Bour Co.
    1. Where an agent, acting under instructions from his principal, answers orally and under oath a garnishee process served on such principal, his statements so made may be given in evidence against the prineipal in another action involving the property about which the agent had so testified, and about which he alone had knowledge.
    "2. Where the only issue was whether the defendant had purchased certain accounts for an agreed price of the plaintiff, and the court has fully and properly instructed the jury as to the issue and the burden of proof, it is not error to refuse to charge that if the jury found that the-parties made some other contract their verdict should be for defendant.
    Error to the Court of Common Pleas of Lucas County.
   King, J.

In this case an action was commenced before a justice of the peace by the J. M. Bour Company, a corporation, July 30, 1892, to recover the sum of $202.36, with interest from May 25, 1892, from Berdan & Company, a partnership doing business in the city of Toledo, in the state of Ohio. After a judgment for the plaintiff, the case was appealed to the court of common pleas, a trial had and judgment rendered in favor of the plaintiff below, after which Berdan & Company filed in ,this court a petition in error. The plaintiff below claimed that defendant below was indebted to it in the sum mentioned, arising from the fact that they had sold, transferred and as-signed to Berdan & Company certain accounts which amounted to this sum. The defendant in its answer denied that they had purchased these accounts, but admitted that they were assigned to them, to be collected out of a stock of goods that were taken by Berdan & Company under a chattel mortgage and claimed that they were to be paid pro rata with ac-^ •counts which Berdan & Company held against the same parties, secured by the same mortgage. The case was submitted to a jury upon the issue whether these accounts were sold to Berdan & Company, and the verdict of the jury was, as we have said, in behalf of the plaintiff below. It was claimed that on the trial certain evidence was improperly admitted; and it was also claimed that the court erred in charging the jmy as requested by defendant, and while it is not urged, it is assigned in the petition in error that the verdict of the jury was against the evidence. The facts that led up to the errors claimed and stated by the bill of exceptions, are, substantially, these : A firm of the name and style of Frische & Soil, in the city of Toledo became insolvent, and J. M. Bour & Co. and Feilbach & Co., and others, having accounts against them for collection, placed them in the hands(of an attorney for collection. This attorney went to see Frische & Son and succeeded in getting a chattel mortgage to secure the account of J. M. Bour & Co. and Feilbach & Co., and also included in the mortgage, at the request of Frische & Son, an account which they owed to Berdan & Co., as they said they vranted to secure them that account, it being larger than the total of the •others mentioned. After this mortgage was executed and delivered to the attorney for Feilbach & Co. and J. M. Bour & Co., and he had possession of the store1 and the stock of goods under the mortgage, the agent of Berdan & Co. appeared on. the scene, Mr. James L. Pease1, the credit man of Berdan & Co., who did their business of that kind and all of it, practically; he was not satisfied with the arrangement "in the*' chattel mortgage, and insisted that the chattel mortgage did not secure their debt, that it was not large enough, and suggested that it would be very much better if the mortgage was executed to Berdan & Co. alone, and It is claimed on the part of the J. M. Bour Company that he said there to the attorney 'acting for the J. M. Bour Company and for Feilbach & Co., and the Toledo Spice Company, if they would assign their accounts to Berdan & Co. he wonld take them and give them credit on his books for the amount, or pay them, and then take a chattel mortgage to secure all of them; and he finally prevailed upon Frische & Son to execute another mortgage, and they did execute it, and these accounts were thereupon assigned by the attorney, to Berdan & Co.

A day or two after, somebody sued' Frische & Son, and garnisheed Berdan & Co., who were in possession of the stock and claiming to hold it under their chattel mortgage, and they 'were served with garnishee process and called before a justice of the peace to answer, and Mr. Pease again appeared to answer in that court for Berdan &. Co. to this process, and he answered orally under oath on being questioned as to what title or claim Berdan & Co. had in these goods. Upon the trial of this case it was offered by certain witnesses — T. J. McDonnell and the justice of the peace, Mr. Enright, to prove, in making out plaintiff’s case, what statements Mr. Pease had made, when under oath in answering this garnishee process in the justice’s court. This was objected to by the defendant below ; the court admitted the testimony, and that is assigned here as error. It is claimed that it was erroneous, because it was the narrative of a past transaction, and that Mr. Pease could not make any declaration about that which would in any way bind his principal.

The court are of opinion that these declarations or statements of Mr. Pease, under the circumstances testified to, do not come within that rule. Mr. Pease was there, if for any purpose, to answer the garnishee process served on his firm, simply;to answer the process; and who should answer it better than the man who had all the knowledge ? the man who took care of the credit business of the firm ? Some one must answer, must file a written answer or testify orally. Mr. Pease appeared. He was the person who took this chattel mortgage ; he was the person who made the arrangement for the assignment of these accounts to Berdan & Co. Mr. Pease appeared in the justice’s court and testified to the title right and claim which Berdan & Co. had in or made to those goods, and he made certain declarations. If those declarations are against the claim of Berdan & Company in this ease, why are they not receivable on the question of the rights of Berdan & Company ? It would seem that Mr. Pease was especially authorized to appear and make statements under oath concerning Berdan & Company’s rights, so that whatever answer he there made would be directly within the scope of his authority as their agent. We think the court did not err in permitting the evidence to be given under those circumstances.

The defendant below asked the court to charge the jury the following proposition, which was refused:

If you find there was no agreement by and between the defendants and the plaintiff, and Feilbach & Co., as to the amount to be paid, but that the accounts were assigned without any agreement as to what was to be paid for the same, the law will not infer that the defendants were to pay the face value of said accounts, but to pay quantum meruit, or whatever they were fairly worth at the time of said assignment, and if you find that there was no agreement as to what was to be paid for the accounts in question, your verdict will be for the defendant.”

I have said that the case was tried upon the issue of whether or not these accounts were purchased by Berdan & Co. It was claimed and set up in the answer of Berdan & Co. that they had received an assignment of those accounts to be paid' for out of the proceeds to be collected from this stock of goods. An arrangement was entered into by counsel trying the case before the court below that the single issue should be presented to the jury. If the jury found for the plaintiff, that •ended the case. If they found for defendant, the case still continued for the court to take an account of the amount which should be due to the plaintiff below. Now, the defendant asks that the court should instruct the jury as I have read. The court had instructed the jury on that subject. . After stating the issues and the pleadings between the parties and some of the •questions that arose, the court said to the jury r- »

“ That the plaintiff must make out by a preponderance of the evidence of the whole case; and unless the plaintiff does make that out, the plaintiff must fail and your verdict must be for the defendants. If the plaintiff does make it out, if he makes out that Feilbach & Co. assigned their account to the plaintiff, then you will find the amount that the defendant agreed to pay for those accounts, and cast interest on it from the 25th day of May up to the 2d day of Januray, 1894, and that will be your verdict. But if thi$ contract was not made with Berdan & Co.; if Berdan & Co. did not agree to pay a certain price for those accounts, if that is not made •out by a preponderance of the evidence, or if Berdan & Co. took the accounts and agreed to take the goods and get. in money as much as possible out of them and render to each one a pro rata share of the proceeds, if that was the arrangement, then your verdict must be for the defendants. The •court will go into that accounting afterwards and do justice between the parties.”

Then counsel for defendant (the court having refused the instruction which I have read) stated that he would except to the refusal of the court to charge in accordance with the request. The court then said:

“I have said very positively that the plaintiff alleges that the defendants bought these accounts absolutely, and agreed to pay a certain, price for them; and if the plaintiff don’t make that out he cannot recover, and I say it now. You may retire, gentlemen.”

Now, it seems to us that that charge of the court submitted the whole issue to the jury. The question was, whether that agreement was made or not, to-wit: to pay, the face of the accounts; whether they were purchased-by Berdan & Go. with an agreement that that price was to be paid, and the court said that that was the issue; if that was not made out, then the verdict must be for defendant. It does .not seem to us that the request submitted by the defendant was pertinent. It was necessary that the jury should find that this agreement which was alleged in the petition was made, and if they did not find that, the court said to-them that their verdict must be for the defendant. We do not*find any error in the charge, and affirm the judgment, but without penalty.

L. K. Parks, for plaintiff in error.

J. E. Piliod, for defendant in error.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    (Third Circuit—Defiance County, O., Circuit Court
    Jan. Term, 1895.)
    Before Seney, Moore Aim Day, JJ.
    Sarah A. Kent v. Charles S. Bentley et al.
    1. Prior to March 19, 1887, in Ohio, estates for life, other than dower and curtesy, were not forfeitable for waste committed or suffered thereon by the life tenant.
    2. Section 4177, of the Revised Statutes of Ohio, as amended March 19, 1887, does not affect such life estates vested prior thereto.
    3. The true rule of damages for the wrongful or unlawful waste committed by a life tenant, is : “The diminished value of the estate in remainder by reason of such waste.
    On error to the Court of Common Pleas of Defiance-County.
   Day, J.

The subject-matter of the controversy is two hundred and forty acres of land in Defiaüce county, Ohio, sixty acres of which is timbered, and one hundred and eighty is farm and pasture land. Sarah A. Kent acquired an estate for life in the lands by will from her husband, long prior to March 19, 1887, and has been in the occupation and use of the same ever since title vested in her. The value of the timber consisted largely in its constituting a part of the realty, and affording timber for the requirements of the farm. In 1890, aud later, the life tenant severed from the realty three or four hundred trees, oak, ash, cherry,- etc., standing and growing on said land. Part of the timber so severed was used in repairing and improving the farmland part was converted into cash, and, up to the time- suit was commenced, had not been expended in repairs or betterments of the farm. A portion of the trees so cut were decayed and dying. Bentley and his co-defendants in error own the fee in said lands subject to said life estate, and are reversioners and tenants in common in the proportion of three-fifths to Bentley and two-fifths to his co-defendants in error.

Bentley commenced his action against Mrs. Kent, making his co-tenants parties defendant, charging her with the commission of waste in the cutting of timber and converting it to her own use, and in other respects, to the damage of the reversioners in the sum of more than $3,000.00, and asking relief touching the premises by judgment for the damage sustained, and an order or decree of forfeiture of the life estate because of such waste. The reversioners, other than Bentley, filed answers and cross-petitions substantially adopting the averments of the petition, and praying similar relief. Mrs. Kent, by an answer, denies all waste, and denies coversion of timber cut to her own use.

The issues thus joined were tried to the court without the intervention of a jury, and resulted in a finding against the life tenant, that she had committed waste of the lands to the damage of the reversioners, $800.00. After overruling a motion for new trial, the court entered judgment on the finding for $800.00, and also an order forfeiting the life estate for such waste. Mrs. Kent prosecutes error to obtain a reversal of the judgment and decree of forfeiture, and for anew trial, because of prejudicial error intervening and appearing in the record.

It is insisted by plaintiff in error, that the finding and judgment for $800.00 is not supported by sufficient evidence, and is against the weight of the evidence.

That timber, standing and growing on the farm, was cut and used by Mrs Kent, was fully conceded by her. And as to the extent of the .cutting, the number and kind of trees severed and used, there was but little controversy. But every cutting and use of timber by a life tenant is not actionable. To an extent, for the purpose of repairing and improving the estate, to save dead or decaying timber, the life tenant has good right to so cut and use timber; may even cut and sell timber to enable him to pay taxes in certain circumstances. It is only where the cutting is wholly without right, and is wrongful, producing and occasioning real injury to the estate in remainder, that it can properly be made the basis of an action by the remainderman. The difficulty in this case seemed to be in discriminating and distinguishing between a legitimate and rightful use of timber by the owner of the life estate, and a wrongful use amounting to conversion and waste by her; and, if a wrongful use has been established,'to make apparent by competent evidence the precise extené-óf the damage. The evidence tending to show a wrongful use was slight; very much of the testimony offered and received as tending to prove both the questions involved, was incompetent. This was especially true of the testimony produced to prove the extent of the damage claimed. If it was proven that waste was committed — that trees were cut and wrongfully converted to the injury of those having the next estate, then Bentley and his co-owners were entitled to recover the solid and permanent injury to their estate resulting from the wrong acts of the life tenant. The legal rule by which the damage must be measured, would be “the diminished value of the estate in remainder by reason of the waste committed or suffered by the life-tenant.” It is undisputed that part of the trees cut and used were decaying, and were properly cut, and some of them, at least, were used in repairs and necessary improvements on the farm; yet in every instance, in propounding a question to a witness to elicit testimonyas to the extent of damage, it was assumed that all the trees cut and used were cut and used wrongful■ly, and the witness formed and gave his estimate as to the extent •of the damage on that basis. The stumps of all the trees cut •were counted, and the whole number, whether rightfully or wrongfully cut, was made the basis upon which the amount of injury resulting from wrongful cutting was estimated and found by the court. Such way of proving and measuring damage is not believed to be accurate or productive of correct •and satisfactory results. It is, in fact, radically wrong, and cannot be upheld. It leaves the case precisely as if no evidence was produced on the trial having a tendency to establish definitely the. real amount of damage sustained; and in such case, the finding by the court of damage in the sum of $800.00 is not warranted or sustained by sufficient evidence, but is contrary to the evidence and the law.

Again, it is claimed by the plaintiff in error, that the judgment and decree is not warranted by the pleadings in the case, and is against the law and the evidence. By this it is intended to raise a question as to the propriety of the order of the court forfeiting the life estate of the plaintiff in error on account of waste committed or suffered on the premises. The decree of forfeiture was broad and radical, covering the entire ground. The entire estate of the life tenant, in the entire farm, was declared forfeited. Even under the present law this would be erroneous, unless it was made to appear that waste had been committed or suffered of the entire farm; and that is not claimed or proven. But plaintiff in error does not content herself with ■criticising the order of forfeiture on the ground that it is broader and more absolute than the evidence would warrant. The lawfullness of any decree at all is questioned; and the ■claim asserted that under the law as it existed at the time the life estate was created and vested, it was not forfeitable for waste. The order of forfeiture is assailed as being wholly unauthorized by any law, and as contrary to all law having application to the facts upon which the rights of plaintiff in error are based.

By express provision of the statute, as amended -March 19, 1887, section 4177, Revised Statutes: “A tenant for life in real property, who commits or suffers any waste thereto, shall forfeit that part of the real property of which such waste is committed or suffered, to the person having the immediate estate in reversion or remainder,” etc. Prior to this amendment, in 1887, there was no statutory provision forfeiting estates for life, other than dower and curtesy, for waste committed or suffered thereon by the life tea-ant. In this case there was no contract or devise providing for such forfeiture; and it would seem, in the absence of some such provision, that estates for life, in Ohio, other than dower and curtesy, were non-forfeitable for waste. This precise point has not been decided by the Supreme Court. The question, however, has been considered by the court in the case of Jenks v. Langdon, 21 Ohio St. 362-368, and the views of the court expressed by "Welch, C. J., who formulated the opinion of the court, using the following language : “As to the prayer for that form of relief, inserted in the petition, (a prayer for the recovery of the land on the ground that the life estate was forfeited for waste), I think it may well be said, * * * than it is a prayer without any allegations of fact to support it. I am not aware that by the law of Ohio a life estate, other than dower, is forfeited by the commission of waste thereon by the tenant for life. In the absence of statutory provision, contract or devise, lam not aware that such is now the law in any of the states.” This, to be sure, is but a dictum, but it clearly indicates the opinion of the court of last resort, and, as we think, is a correct statement of the law of Ohio ; sufficiently so, to justify us in holding as we now do, that prior to March 19, 1887, in Ohio, estates for life, other than dower, were not forfeitable for waste. By the amendment of March 19, 1887, all estates for life, whether in dower or otherwise, are made forfeitable for waste, and the question for solution here is: Do the provisions of section 4177, as amended, have application to estates for life, other than dower, created and vested before the amended section was enacted, as the life estate in question, was? Can the amended provisions of the law of 1887 be held to apply and control in such case, and the validity of the law maintained? Would not such holding subject the law to the imputation of being retroactive in .effect, and so void, under section 28, of article 2, of the constitution, which provides: “ The general assembly shall have no power to pass retroactive laws.” Whether the amended1 statute would be open to the imputation of being retroactive, depends upon the effect upon the rights of the parties, which its application to the facts of the case would have. If it would have the effect to take away or impair vested rights, create a new obligation, or attach a new disability; in short, if it would create and confer a new right, its effect would be retroactive, and it could not be properly held .to apply. It would be otherwise, however, if the effect' would be purely remedial, and would only afford a new and more appropriate remedy, than was before possessed, to enforce an existing right.

Judge Story defines a retroactive law in the following language, which has been adopted and approved by the Supreme Court of this state in the 15 Ohio St. 207, and 50 Ohio St. 103, viz: “Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective.” If we test the amended law of March 19, 1887, by these principles, the conclusion seems inevitable that, in its application to the facts of this case, it would operate retroactively. Am estate ft>r life, other, than dower, was created and vested in the plaintiff by a transaction occurring prior to March 19, 1887. It was acquired under existing laws, which made such estates non-forfcitable for waste; and one of the most valuable rights or elements of the estate so acquired was that it was non-forfeitable — that, the remainderman had no right to ask or have declared a forfeiture of the estate. The amended provision of the statute of March, 1887, if applied to the facts and conditions of the case, would fall within the definition of a retroactive-statute, in the respect that it would take away this vested right of plaintiff in error to have and enjoy her life estate without fear of having it declared forfeited at the instance of the reversioners; and also, in the respect that it would attach to such estate an obligation or disability in favor of the reversioners, that did not attach to it when the estafe vested — that of liability to forfeiture for waste committed or suffered. It would not only deprive the life tenant of a vested and existing right, but it would create and confer on the remainder-man a right not before possessed. True the law, in a sense, would be remedial, but it would be more than that. It would certainly afford a new and most effective remedy for waste to-the owner of the next estate, and it would just as certainly create a distinctively new right in such owner; it would; also, deprive the life tenant of a most valuable vested right, acquired from a transaction already past. In view of these facts, the suggestion that the law, if applied, would be remedial, does not have the effect to relieve it from the imputation of being retrospective, but rather emphasises the fact that the imputation is just.

Suiphen and Killits, for plaintiff in error.

Harris & Cameron and Thos. Emery, for defendants in error.

The foregoing considerations impel us to the conclusion that the amendment to the law in question was not intended to apply, or in any way affect, the case under consideration, or any case having similar facts; and we are of the opinion that section 4177, Rev. Stat., as amended, was intended and must be held to apply, only to estates for life, other than dower, created since its amendment on March 19, 1887.

We find error in the respects indicated, for which the judgment and decree of the common pleas will be reversed, with costs. The motion for new trial is allowed, and the cause is remanded for new trial and other proceeding in accordance with law.

Moore and Seney, JJ., concur.


author: Frazier, J.

text:
    (Seventh Circuit—Mahoning Co., O., Circuit Court
    March Term, 1895.)
    Before Frazier and Laubie, JJ.
    James McCann v. The Pennsylvania Company.
    1. The forms of remedies and the modes of judicial proceeding including the rules of evidence in the courts of Ohio, are to be according to the laws of this state, without any regard to the residence of the parties, the origin of the right, or the place of the act.
    2. Where an action is rightfully brought and prosecuted in a court of this state, by a citizen of Pennsylvania against a railroad company incorporated under the laws of that state, for an injury to his person, received in Pennsylvania while in the employ of such company by reason of a defect in a car being run and operated by such company ; when such defect is shown to exist, the company is chargeable with knowledge of such defect, as provided in the second section of the act of April 2, 1890, 87 Ohio Laws, 149; and to overcome the effect of such prima facie evidence, the company must show that in fact it did not have such knowledge.
    3. A yardmaster in charge of a railroad yard of the company with full control over all its employes, who have occasion to be in such yard in the discharge of their duties under their contract of employment with the company, with authority to select from the employes of such company the men who are to operate all trains sent out from such yard over the roads of defendant, is by virtue of the third section of said act, the “superior,” and not a fellow servant of a brakeman.
    4. When put in issue by the pleading, the adjudications in the courts of another stale must be proved.
    Error to the Court of Common Pleas of Mahoning County.
   Frazier, J.

The case of James McCann v. The Pennsylvania Company is a petition in error, the object of which is to reverse the judgment of the court of common pleas. I will not read the pleadings in the case, but shall endeavor to state their substance so far as I deem them material to the questions at issue, and in some instances probably, in language or words different from that used by the pleader.

The plaintiff in error, who was the plaintiff below, on the 27th day of October, 1891, filed in the Court of Common Pleas of Mahoning county his petition, in which he states that he is a resident and citizen of the state of Pennsylvania, and that the defendant now is, and during all the dates and times therein mentioned, was a public railroad corporation duly and legally incorporated and organized under and by virtue of the laws and statutes of the state of Pennsylvania, and as such corporation was in possession of, running and operating a line of public railroad between the city of Youngstown, in the county of.Mahoning and state of Ohio, and the city of Pittsburgh in the state of Pennsylvania. That on said line of railroad in the state of Pennsylvania, at the time of the injury to the plaintiff as complained of, there was a station called Wampum. That there was then and for a long time prior thereto had been connected with said line of railroad, and used and operated by said defendant as a part thereof, a railroad which extended from said station, or a point on said line near thereto, a distance of about three miles to coal mines called the Clinton mines, from which defendant as a common carrier took coal to market for the owners thereof. That on the 7th day of May, 1890, and prior thereto, plaintiff had been in the employ of the defendant as brakeman that on said day defendant had in its [possession, and was then using, and for a long time prior thereto had been using in the prosecution of its business a freight or gondola car, the number of which plaintiff cannot give. That the iron stirrup placed upon said car and used for getting on said car was on said day, and for a long time prior thereto had been, as said defendant knew or ought to have known, wholly unfit for use, and in a dangerous condition. That it was loose from its fastenings to such an extent that on pressure it moved back and forth under the car when any one attempted to use it for the purpose of getting thereon. That the tracks of said railroad to said mine at the point where plaintiff was injured' was then, and for a long time had been, as defendant well knew or ought to have known, wholly unfit for use, and in a dangerous condition. That the rails and ties, and the fastenings of the rails were old and worn out, and the ballast between and under the ties insufficient to keep them in place, and the rails at the joints were not perfectly fastened, so that the rails sunk down ; when a car was passing it would strike the end of the next rail and severely jar it. That plaintiff in the discharge of his duty attempted to get on this car, and set his right foot in the stirrup and caught hold of the hand-hold on the car, and thereby raised himself from the ground, when the stirrup moved backwards under the car, and brought his leg against the car, and prevented his foot from fully entering the stirrup, and just at that moment, and while plaintiff was in that position, the wheels' of the car came to a joint in said track, and in passing over the same so badly jarred and jolted the car and stirrup and plaintiff, that his foot slipped out of such defective stirrup, and he was thereby thrown violently to the ground and in front of the wheels, which ran over his left leg, and so badly injured it that amputation was necessary; that plaintiff received his injuries as the direct result of the gross carelessness and negligence of the defendant, and without any negligence or want of care on his part.

The defendant by its answer admits its corporate existence and the operation .of the line of railroad extending between, the points designated in said petition. It admits that ont or about the 7th day of May, 1890, the plaintiff received an injury while in its service as a freight brakeman, but it denies each and every other allegation of the petition, and says that the injury sustained by the plaintiff as aforesaid,, was caused solely by reason of his own negligence while in the service of the defendant as aforesaid.

For reply, the plaintiff denies that the injury sustained by him was caused by his own negligence while in the service of the defendant.

Upon these issues a trial was had, and on the first day of July, 1892, a verdict returned for the plaintiff. The defendant filed a petition in error in this court, and while the cause was pending on error, the plaintiff below, to conform his pleading to the decision in the case of Coal and Car Co. v Norman, 49 Ohio St. 598, decided by the Supreme Court after the trial of this case, on the 22d day of March, 1893, filed in the court of common pleas, by leave thereof, an amendment to his petition as follows:

“Now comes the plaintiff, and by leave of the court, after" judgment, and files his amendment to his original petition, and says, that at the time he was injured he did not know, nor did he know at any time prior thereto, nor did he then or at any time prior thereto have any means of knowing, that said stirrup and said track, at the point of said accident, was in a dangerous and defective condition, as alleged in his original petition.”- 0

Upon suggestion of diminution in this court, the court of common pleas sent up and certified as a part of the record, said amendment filed March 22, 1893, and upon a hearing, upon the record as amended, this court reversed the judgment and remanded the cause to the court of common pleas. On the 14th day of August, 1894, plaintiff, by leave of the court of common pleas, filed in said court a second amendment to his petition, in which he says, in substance, that on the 7th day of May, 1890, and for a long time prior thereto, said defendant had maintained in connection with the operation of said railroad, and other railroads of which it was then in possession, a large railroad yard at Lawrence Junction, in the county of Lawrence, and state of Pennsylvania, and then had a large number of men in its employ in said yard, and had therein a yardmaster, who had full charge of, and control over all said men and all its employes who had occasion to be in said yard in the discharge of their duties, under their contracts of employment with said defendant, and who had lawful power and authority, at will, to hire and discharge all employes of defendant who worked in said yard, and some employes who worked elsewhere on said railroads; that under the rules of said defendant, it was the duty of said yardmaster to make up, or cause to be made up, all trains to be sent out over defendant’s said railroads, with power and authority to select from the employes of defendant the men who were to operate them, and to see that cars are inspected, and those needing repairs sent to the shop. That on the 7th day of May, 1890, said yardmaster made up, or caused to be» made up, a train of fifteen freight or gondola cars, and placed therein said car with the defective stirrup, and ordered the crew, of which plaintiff was a brakeman, to place them at said coal mine ; that at the time said yardmaster placed said car in the train and gave orders and directions to plaintiff and said crew, he knew, or ought to have known, that the stirrup was defective and dangerous; and says that said yardmaster failed to inspect or have said car inspected. That the dangerous and defective condition of said stirrup was open and obvious, and that any sort of a proper or reasonable inspection would have readily disclosed its condition; that directly in consequence of the faults herqjn stated, in connection with the facts stated in the original petition, said plaintiff received the injuries in his original petition described, and without any fault on his part, and without any knowledge on his part of said defective stirrup.

The defendant, for answer to the second amendment to the petition, says it admits that on said 7th day of May, 1890, it had and maintained, in connection with the operation of said railroad and other railroads of which it was then in possession, a railroad yard at Lawrence Junction, in the county of Lawrence and state of Pennsylvania, and that it had charge thereof; but says that said yardmaster and plaintiff was under the direction of, and controlled by the superintendent of said railroads, and further, it denies each and every other allegation in said second amendment to the petition.

And for a second defense says, that the plaintiff ought not to have or maintain this action on account of any alleged negligence on the part of said yardmaster at Lawrence Junction, Pennsylvania, for the reason that the liability of the defendant herein is to be determined solely by the law of Pennsylvania,. and that under the law of that state, as determined by the Supreme Court of the state of Pennsylvania, said yardmaster was a co-employe with said plaintiff, and for his negligence resulting in injuries to the plaintiff this defendant would not be liable.

The plaintiff, by way of reply thereto, denies that he and said yax'dmaster were under the direction and control of the superintendent of said railroads in and about their work in said yard, and avers that said yardmaster had the sole control of said yard, and of all the men who worked therein, and of all the work done therein, and denies that the liability of the defendant herein is to be determined by the laws of Pennsylvania; but avers that the liability of the defendant is to be determined by the law of Ohio; and denies that under the law of Pennsylvania, as determined by the Supreme Court of that state, said yardmaster was a co-employe with said plaintiff, and for his negligence resulting in injuries to the plaintiff, the defendant would not be liable.

To try the issues thus made, a jury was empanelled, and the evidence of the plaintiff being heard, the defendant thereupon moved the court to arrest the testimony from the jury and for judgment, which motion was sustained by the court and the evidence withdrawn from the jury, and judgment rendered against the plaintiff for costs. A bill of exceptions was taken setting out all the evidence and rulings of the court, and plaintiff filed in this court a petition in error to reverse said judgment.

It is shown by the record that the plaintiff introduced testimony tending to prove that the stirrup on the car in question was loose and defective at the time of the accident to the plaintiff as alleged, and also tending to prove that plaintiff rer ceived his injury by reason thereof, and also tending to prove that the yardmaster at Lawrence Junction, in the state of Pennsylvania, in the employ of said defendant, had power and authority to direct and control some of the other employes of said company while in said railroad yard, and it is as a matter of fact admitted in the record that Lawrence Junction and tc Possum Hollow,” the latter being the place of ihe accident^ are both in the state of Pennsylvania.

This court has heretofore held, adopting the rule announced by the Supreme Court of Pennsylvania in the case of Mixter v. Imperial Coal Co., 152 Penn. St. 395, that independent of, and before the passage of the act of April 2, 1890, “ in order that the employer may be held liable to an employe for negligence arising from some defect in the machinery or appliances used by-the employe at the time of the accident, it is not enough to show that the defect existed at the moment of the accident. It must also appear that the master had an opportunity of previous knowledge, or that the facts were such that he ought to have known of the defect.

“In an action by a brakeman to recover damages for personal injuries, evidence that the brake was out of order at the time of the accident, and that the plaintiff was thereby unable to control the car so that it ran away with him, is insufficient in itself to establish the negligence of the master.”

Ode question presented, and the main contention of counsel is, whether the act of April 2, 1890, 87 Ohio Laws, 149, controlled in this case. It is contended by the plaintiff that the second .and third sections of the act are remedial only, and that they are applicable to the proceeding in this action.

Counsel for the defendant contend that the plaintiff and the defendant being citizens of and the injury occurring in the state of Pennsylvania, that the act of the legislature of Ohio can have no extra territorial effect, and cannot control or affect the rights or liabilities of the parties for a right accruing or liabilities incurred in the state of Pennsylvania. It is said by Scott, J., in Lehman v. McBride, 15 Ohio St. 608: “It is undoubtedly true that legislative enactments can only operate proprio vigore upon persons and things within the jurisdiction of the law-making power.”

And Justice Story, in his Conflict of Laws, section 7, says: “It is plain .that the laws of one country can have no intrinsic force proprio vigore, except within the territorial limits and jurisdiction of that country. They can bind onty its own subjects and others who are within its jurisdictional limits, and the latter only while they remain therein.” This princple is sustained in the cases of Steamboat Ohio v. Stunt, 10 Ohio St. 582; Booth v. Hubbard, 8 Ohio St. 243; Stetson v. The City Bank of New Orleans, 2 Ohio St. 174; Woodward v. The Michigan Southern and Northern Indiana Railroad Company, 10 Ohio St. 122; and Hover’s Administrator v. The Pennsylvania Co., 25 Ohio St. 667. From the foregoing and other authorities, it may be said that if the act attempts to grant a right or give redress for a wrong for which there was before no redress, it can have no extra-territorial effect. It is held in Kanaga v. Taylor, 7 Ohio St. 134, “by the law of comity between different states the lex loci contractus controls as to the validity and construction of personal contracts, though not as to the remedy and rule of evidence ; nor where it clashes with the rights of our own citizen or the policy of our own laws.” In Templeton v. Kraner et al., 24 Ohio St. 554, it is held, “ under the grant of legislative power in the constitution the general assembly has complete control over the remedies which are to be afforded to parties in the courts of this state ; and if the remedies provided do not interfere with vested rights, such effect must be given them as will carry out the intents of the law-making power.” Rohrer on Inter-State Law, page 52, says, “the law of the forum, the place where suit is brought, governsAs regards the remedy in the enforcement of contracts; thus, contracts made in one state and enforced by suit in another, whether made in expectation of performance in such latter state, or made without any designated place of performance, as for instance a general promise to pay a sum of money, are governed in their legal enforcements by the laws of the place where the suit is brought, as to all things pertaining to the remedy.

In the language of the United States Supreme Court, matters respecting the remedy, such as the bringing of suits, admissibility of evidence, and statutes of limitations depend upon the law of the place where the suit is brought.

“ Pleadings and evidence are matters strictly appertaining to the remedy, and in respect to their sufficiency and admissibility come within the rule of being governed by the law of the forum or place where the trial is had. The ease here cited very fully illustrates the application of the principle. It was an action in the court of Iowa upon a sealed instrument for the payment of money executed in the state of Maryland, an instrument of such a character as is usually termed a writing obligatory. The common law rule was shown to have prevailed in Maryland by the pleadings at .the date of the instrument, and that thereby the considerations for which the instrument was given could not be brought in question by a plea of want of consideration.

But the court held to the contrary, and the Supreme Court of Iowa affirmed the decision upon the principle that the question was one as to the remedy merely, and was governed by the law of the forum which had abolished the common law distinction, and permitted the consideration of sealed as well as unsealed instruments to be inquired into by pleadings and evidence. In this case the Supreme Court of Iowa, Dillon, J., says: ‘ The plaintiff must take such remedy as our laws afford him; respecting what shall be good defenses to action in this state, its courts must administer its own laws, and not those of other states, and our act allowing the defense of want of consideration to be pleaded to all actions on subsequent sealed contracts, is a matter relating to the remedy, and does not impair the obligation of the contract within the meaning of the authoritative adjudication of the Supreme Court of the United States.’ ”

Justice Story, in his Conflict of Laws, sec. 556, says: We are next led to the consideration of the question in what manner suits arising from foreign causes are to be instituted, and proceedings had until the final judgment. Are they to be according to the law of the place where the parties, or either them, live ? Or are they to be according to the modes of proceedings and forms of suit prescribed by the laws of the place where suits are brought ? Fortunately, here there is scarcely any ground left open for controversy, either at the common law or in the opinions of foreign jurists, or in the actual practice of nations. It is universally admitted and established that the forms of remedies and the modes of proceeding, and the execution of judgments, are to be regulated solely and exclusively by the laws of the place where the action is instituted; or as the civilians uniformly express it, according to' lex fori.” And again, in section 557, he says : “The jurisprudence of one nation may be very refined and artificial, with a multitude of intricate and perplexed proceedings; that of another may be rude, uninformed and harsh, consisting of an undigested mass of usages. It would be absolutely impracticable to apply the process and modes of proceedings of the one nation to the other. Besides there would be an utter confusion in all judicial proceedings by attempting to engraft •upon the remedies of one country those of all other countries whose subjects should be parties or be interested therein. No tribunal on earth, however learned, could hope, by any degree of diligence, to master the laws and processes and remedies of all other nations, and the qualifications and limitations properly belonging thereto. A whole life might be passed in obtaining little more than a few unconnected elements; and litigation would thus become immeasurably complicated, if not absolutely interminable. All that any nation can, therefore be justly required to do, is to open its own tribunals to foreigners, in the same manner and to the same extent as they are opened to its own subjects; and to give them the same redress, as to rights and wrongs, which it deems fit to acknowledge in its own municipal code for natives and residents.”

Again, in section 558, in stating the doctrine of the common law, he says: “ But the forms of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, to the origin of the right, or the country of the act.”

Wharton on the Conflict of Laws, second edition, sec. 752, says, “ there can be no question that the lex fori is also to determine the competency and weight of evidence adduced to prove a litigated case.” And again, in the same section, “the court in which such case comes to be tried, must direct its own procedure.” In Downer v. Chesebrough, 4 American Reports, 29, (36 Conn. 39), it is held: “In an action in Connecticut against an indorser of a promissory note, made and indorsed in blank in New York where it was made payable, held that evidence of a special parol agreement, that the indorsement was only for collection, was admissible, although, by the law of New York, a parol contract cannot be introduced in evidence to change the legal import of a blank indorsement. The lex fori governs as to the proof of the contract, the lex loci contractus as to the obligations of the contract.” In Hoadley v. Northern Transportation Co., 15 American Reports, 106, (115 Mass. 304), it is held : “A common carrier may, by an express contract, exempt himself from liability for loss happening without his fault. If the law of the place where a contract, signed only by the carrier, is made for the carriage of goods, requires evidence other than the mere receipt by the shipper to show his assent to its terms, and the law of the place where the suit is brought presumes conclusively such assent from acceptance without dissent, the question of assent is a question of evidence, and is to be determined by the law of the place where the suit is brought.”

We hold, where an action is rightfully brought and prosecuted in the courts of this state, the rules of evidence prescribed by the statutes of Ohio are to govern on the trial of such action, without regard to the origin of the cause, or the place of the act; and that the second section of the act of April 2, 1890, 87 Ohio Laws, 149, applies to this action.

Upon the question whether in reviewing the record, we are to regard the yardmaster at Lawrence Junction and the plaintiff as co-employes, or whether the yardmaster is a “superior” within the meaning of the third section of the act aforesaid.

It is admitted by the pleadings, that the defendant was on the 7th day of May, 1890, operating a line of railway, partly within the state of Ohio, and partly within the state of Pennsylvania. If the railroad yard at Lawrence Junction had been located in, and the injury to plaintiff received within the state of Ohio, and the authority and control of the yardmaster over the other employes of the company, proved as stated in the second amendment to the petition, the yardmaster, by reason of the third section of the act of April 2, 1890, 87 Ohio Laws 150, would not be a co-employe of the plaintiff.

The act has been construed by our Supreme Court, in Railroad Company v. Margrat, 51 Ohio St. 130, and Railroad Company v. Erick, 51 Ohio St. 146.

Upon the question sought to be made, whether under the law of the state of Pennsylvania, as determined by the Supreme Court of that state, the yardmaster at Lawrence Junction was a co-employe with the plaintiff, for whose negligence resulting in injury to the plaintiff, the defendant would not be liable.

The laws of another state, and the decisions of their courts, or their existence when they come in question in the courts of this state, must be proved by evidence as matters of fact, nor can they be regarded by a reviewing court, when not made part of the record sought to be reviewed. Revised Statutes, section 5244, Ingraham v. Hart, 11 Ohio 225; Smith v. Bartram, 11 Ohio St. 690; Evans v. Reynolds, 32 Ohio St. 163; Whelan v. Kinsley, 26 Ohio St. 131; Larwell v. Hanover Savings Fund Society, 40 Ohio St. 274; Williams v. Finlay, 40 Ohio St. 342: Alexander v. Pennsylvania Company, 48 Ohio St. 623.

We find in the record no evidence of any decision of the "Supreme Court of Pennsylvania, and are not officially advised that any such decision exists, and consequently, the questioil is not properly presented, whether, under the law of Pennsylvania, as decided by the Supreme Court of that state, the yardmaster and the plaintiff are co-employes.

Geo. F. Arrel, Wm. T. Gibson and JR. B. Murray, for plaintiff.

J. JR. Carey, W. O. Boyle and A. W. Jones, for defendant.

In arresting the testimony from the jury, and giving judgment against the plaintiff for costs, there is manifest error, for which the judgment of the court of common jileas is reversed, and the cause remanded for a new trial.


text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Jan. Term, 1895.)
    Before Scriener, Haynes and King, JJ.
    Dominick Foy, Jr., by Dominick Foy, Sr., his next friend v. The Toledo Consolidated Street Railway Company.
    1. When written instructions should be taken by the jury in their retirement. — Written instructions presented to the court, and by it given to the jury on the request of either party, should be taken by the jury in their retirement.
    •2. Evidence of witness’ opinion excluded. — In an action to recover damages for a personal injury, claimed to have resulted from the negligence of the defendant, it is proper to exclude the opinion of a witness that the plaintiff' ‘‘ might have been saved” from injury.
    3. Discretion of court to receive evidence in chief on rebuttal. — Where evidence is offered ini rebuttal that was competent in making out plaintiff’s case, its admission or rejection is discretionary -with the trial court.
    4. Evidence of conduct of motorman under which verdict will not be disturbed.— There being evidence tending to show that the motorman running an electric motor car rung the gong, turned off the electric current and put on the brake as soon as he could reasonably anticipate that his car was likely to run against a boy who suddenly turning from the position he had occupied, ran upon the track not as a passenger crossing and was injured, a verdict for the company owning and runuing the car will not be disturbed, there also being evidence from which contributory- negligence on the part of the boy might be inferred by the jury.

      Error to the Court of Common Pleas of Lucas County.
   King, J.

This is an action brought in this court to reverse the judgment of the court of common pleas of this county in an action brought in that court by the plaintiff in error to recover a judgment for an injury done to Dominick Foy, Jr., by defendant in error.

It is claimed by plaintiff in error that this judgment should be set aside, and for three reasons :

First. — That the court erred in submitting to the jury, to be taken by them in their retirement, the written instructions requested by the parties in the case, which were requests made at the close of the evidence and before the argument, the charge not having been delivered in writing, and which the jury did not have with them.

Second. — That the court erred in excluding certain testimony in the deposition of a witness, and

Third. — That the verdict of the jury is not sustained by the evidence.

The first question arises upon these requests. The plaintiff below, at the close of the evidence, requested the court to give the jury a certain written instruction, and the defendant at the same time requested the court to give a number of written instructions, some of which the court gave, and some it refused ; and these written instructions which were given, the court allowed the jury to take with them in their retirement. It is cláimed that the court ought not to have allowed that; that the proper construction of the statute relating to that matter does not warrant the court in sending to the jury a part of the charge, whether the charge be its own main charge, of the written instructions requested by the parties.

The statute in force when this case was tried, and which is now in force, is section 5190, and provides :

“5. When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

That statute was passed in 1892, and repealed the statute then in force, which had been on the statute books for some years, the fifth paragraph of which read :

“ When the evidence is concluded, either party may request instructions to the jury on matters of law, which shall be given or refused by the court.”

The fifth paragraph was the one that was amended in 1892, to the effect that the instructions should be written instructions. Previous to 1892 these might have been oral. The amendment provided further, that the instructions should be given or refused by the court before the argument to the jury is commenced, which is also an addition to the previous section.

Paragraph 7 of this amended statute is the same as in the previous statute, and reads :

“The court, after the argument is concluded, shall, before proceeding with other business, charge the jury ; any charge shall be reduced to writing by the court if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written or given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on tile with the papers of the oase.”

The lack of time will prevent me from extending my argument in relation to the construction which, we think, should be placed upon this statute; but the construction which it is entitled to receive is that either party may present to the court written instructions, and request that they may’be given to the jury, after the evidence is closed and before the argument begins, in which case the court shall give or refuse thun': without any oral qualification, modification or explanaron, and these are the instructions the parties may request to be given after the evidence is closed and before the argument as their instructions to the jury, and they become a part of the instructions of the court to the jury when so requested and so given. At the same time the parties, or either of them, may-request the court to give its charge to the jury in writing; and in that case the court shall reduce its charge and give it without any oral explanation or modification, the same as the instructions that have been requested. If that request to charge the jury in writing be omitted by the parties, the court can then charge the jury orally, and of course there is no writing or written charge to be submitted to the jury in their retirement; but the “written instructions” still remain that were given at the close of the evidence and before the argument, and it is the intention of this statute that the court should allow the jury to take those in their retirement. The idea is, the requests being in writing, and having been delivered before the case was argued to the jury, that these shall go to the jury, so that they may know what the instructions were, and we do not find that the action of the court was erroneous.

In this case the plaintiff took the deposition of a witness, and offered and read this deposition in making out his case, except that he did not read to the jury questions and answers Nos. 41, 42 and 43, in the examination in chief; but, in rebuttal, offered them as rebutting evidence, and the objection was sustained.

These questions and the answers, were as follows:

“41. Q. After the boy had run on the track, what opportunity was there tor the car to be checked, or the boy to be saved, if you observed any? A. Well, if he had slacked a little on the track, the boy would have got out of the way.
“42. Q. Could he have reached the boy? A. The man that stood on the left could have reached him and caught him, I thought; I thought that if I had stood where the man did, on the left there, I might have caught the boy.
“43. Q. And saved him ? A. Yes, sir.”

Now, it is pretty clear to us that this was not evidence iu rebuttal. It was a part of the case which the plaintiff was called upon to make out — the negligence of the company, or its agents or servants, in either not stopping the car, or in not using those means which were at hand to save the boy from being run over. It should have been offered then, and it could only be admitted afterwards at the discretion of the court. And it also occurs to us that it would not be competent evidence in chief. This witness was a passenger conductor on the Lake Shore Railroad, and riding in the street car as a passenger. There is no evidence that he knew anything about an electric car, yet he is asked to state whether or not, after the boy had run on the track, there was an opportunity for the car to be checked before the boy was reached by it; and it is not shown that he had any means of knowing about that. Then he is asked to state whether the boy could have been saved or not, which certainly was the question which the jury was trying and would have to determine by their verdict from the facts, and not from the opinion of a witness as to whether the boy could have been saved. Of course, it would have been competent to give an opinion as to within what distance a car like that could have been stopped •; but this witness did not have that knowledge, and therefore, it seems to us, that question was incompetent, and as to whether the boy could have been saved or not, that was to be determined by the jury from the facts and circumstances and the appliances at hand for saving him.

Now, is this verdict sustained by sufficient evidence? It is contended here that the plaintiff below is entitled to recover under the principle of law which has been determined by the courts of this state and of others; that the more proximate cause of the injury in this case, was the omission of the defendant, after being warned of the danger to the plaintiff, to use a proper degree of care to avoid injuring him. This rule is stated in 49th Ohio St. 230, and in other cases. Cases involving substantially the facts contained in this one, have been repeatedly before the courts of other states, two or three of which I will refer to on this point. It was held in the case of Sheets v. Conolly Street Railway, found in 24 Atlantic Reporter, 483, and decided by the Supreme Court of New Jersey, that it was negligence as a matter of law, for an intelligent child ten years old, to cross a track in front of a moving street ear, while looking in an opposite direction. And in Pennsylvania, in the 25th Atlantic Reporter, 606, is a case where the gripman saw a boy five and a half years old in the street, by tie side of the track, or between the track and the gutter, saw him pick up a stone and go towards the sidewalk, and throw it at a companion boy, and at the same time that he saw the boy do this, he turned on the power and started his car forward, at full speed. The boy, after throwing the stone, wheeled and ran kind of cross-wise on the track, and was struck by the car, and run over. It was held that the company was guilty of no negligence. In Durman v. Broadway Ry. Co., 22 North-Western Reporter, 162, a verdict for the plaintiff was reversed and a new trial granted because, as the court say, defendant was not guilty of negligence where a boy ten years of age ran in front of the horses attached to a car, and was two feet in front of the horses when first seen, and the car was going six miles an hour and could be stopped within sixteen or eighteen feet, and yet was not stopped, but ran over the boy. In 126 N. Y. 645, a boy of ten years was killed by falling upon the track about eight feet in front of the horses, and being run over. The court say in that case, that street cars have preference in the street, and while the ears must be managed with ordinary care to avoid injuring people who are upon the street, yet passengers must use reasonable care to keep out of their way. The rule of care as prescribed for boys or children of tender years, is stated and settled in this state in the 46 Ohio St. 283 to 290, where the court sáy it is the duty of children to observe ordinary care, which, for them, is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances.

Now, applying these rules in the consideration of this case, is this verdict against the weight of evidence?

The plaintiff was ten years and two months of age when he was injured. He was playing in the street with his companion boys and girls, in front of his own home, and where they had resided for at least a year, along which street the track of the defendant company was laid. He had been accustomed to street cars ever since he was able to be about, and knew that these cars passed his house along this street many times every day, as is shown by the evidence. He was playing daily in front of this house. It seems that they were playing a game called Nigger baby that there was a hole in the ground, into which the ball would roll, and if it went into the hole in front of one boy, that boy took up the ball and threw it to see if he could hit some other boy, in which case the other boy took the ball and continued to play in that manner; and, about the time this street car came along, some boy, whose name I do not remember, picked up the ball just as the car came along, and threw it towards the boy who was injured, and he turned around and ran, heedlessly and without looking, as it is testified, without noticing the car, or hearing the car or the bell, whether it was rung or not, yet several witnesses testified that it was; but he ran right out on the track in front of the moving car. Now, was the motorman of that car guilty of negligence in not presuming the intentions of the boy in reference to running on this track, and in not stopping the car in time to prevent the inj ury ? The evidence of the sole passenger on this car would seem to indicate that there was plenty of time to have stopped the car before the injury occurred ; and yet the testimony of that witness does not seem to bear upon its face quite as much indication that he was trying to tell all the truth as I would like in a case of that kind. In his testimony he says:

Q. How fast was you going at that time? A. We were running fifteen miles an hour when I noticed so many of them there.”

The testimony shows that this car stopped at a switch— being a single track railroad with turn-outs; at the corner of the block, where it met and passed a car and had pulled out of the swtich onto the single track and ran a distance of perhaps three hundred feet to the place where the boy was injured; and the witness swears it was running fifteen miles an hour when he noticed the children.

“ Q. After you observed the children, was there any change in the speed ? A. When he got towards the children he wound up the brake a little, and slackened down maybe to nine or ten miles an hour.
“Q. Then what happened? A. They kind of scattered off the track, some of them, and this boy — I was watching to see if they did not, some of them, come on again — this boy started to go across the track.
Q. What was he doing ? A. Playing with the rest of them.
Q. Did you see the ball in the air? A. No, sir.
Q. Going across the track, was he going backwards or forwards ? A. He was running forward, and he kind of looked around at the car.”

The boy does not testify that he looked at the car at all, or had any intimation that the car was near him.

“ Q. How close were you to him then ? A. Ten or twelve feet.
■“ Q. What did the motorman do ? A. He didn’t do anything until we ran over the boy, and then he slacked on the brake, and stopped.
“ Q. How far did you run after you ran over him? A. Forty or fifty feet, maybe sixty feet; there is where we picked up the boy.
“ Q. Prior to the time you ran over the boy, did he ring the bell, or not ? A. He did not at all; I did not hear.

Now, the testimony of the motorman, and of the conductor, and of a man who was a carpenter at that time, acting as a car repairer, and who soon after went to work for the Lozier Bicycle manufactory, and who seemed to be a very intelligent witness, who stood with the motorman on the front platform, all show that this car did not run at any time on leaving the switch, and before they struck this boy, at a speed to exceed eight miles an hour. That when they approached to within a hundred feet of where the boys were playing, two little girls started apparently to run across the track; that the motorman turned off the electricity, turned the brake and rang the gong, and the girls heard it and looked up and turned back upon the left side of the street about a hundred feet from where these boys were playing with their ball; that he then turned on the current and increased the speed and proceeded, but had no idea that this boy was going upon the track who was about five feet from the rails of the track, and was with the other boys in the street. The car proceeded until they reached the point near where the boys were, and one boy started to throw the ball, and this boy turned and ran upon the track instantly. As soon as he stepped upon the track the motorman turned off the current of electricity and turned the brake with all his force, and rang the gong, as all three of these witnesses say, and almost at that instant the boy was struck and injured. He had nearly passed over the track. It is the testimony of this carpenter that he was watching and saw the whole occurrence, and saw it very plainly and distinctly, and he swears that the motorman did everything in the way of putting on the brake and turning off the electricity that could have been done to stop the car; and that was testified to by the motorman, and they are corroborated by the conductor, to some extent, although he didn’t see all of it.

Under that state of facts, can it be said that the agents of this company were so negligent as to make the company liable, or rather, should the verdict of the jury, finding that they were not guilty of negligence, or in effect finding that, be reversed, and the case sent back for a new trial? We do not feel that we would be justified in disturbing the verdict under such testimony. It rather seems to us that the weight of the evidence, which the jury evidently believed, and which they were entitled to believe, would clearly and fairly exonerate the motorman and the company from any negligence; that it was one of those things which he could not possibly have avoided; that he could not have anticipated that this boy, at that precise moment, would come upon the track in front of the car, and it is not at all clear that the boy, who was an intelligent lad, could not fairly be held to have been guilty of contributory negligence in heedlessly running upon the track in front of this car.

Frank Hurd, for plaintiff in error.

Barton Smith, for defendant in error.

We therefore affirm the judgment.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Jan. Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    Frank Gates and Niel Huston v. The City of Toledo. The City of Toledo v. Michael M. Goulden.

      Invalid sewer assessment. — Expense of previous litigation. — Hot recoverable.

    A municipal corporation having passed the necessary legislation to construct a sewer, entered into a written contract with certain contractors, under which said contractors constructed the sewer, and by the terms thereof said city agreed to give them a valid assessment upon the property benefited. In an action by the contractors against the property owners the assessment was held invalid, and the contractors paid their attorney $1,300.65 for conducting the suit, and paid the court costs amounting to $46.37, and also paid for an opinion of title showing the names of the necessary parties for said suit, $65.00. In an action brought by the contractors against the city to recover these expenses,

      Held: that none of these expenses can be recovered.

      Invalid sidewalk assessment. — Expense of previous litigation. — Not recoverable.

    A municipal corporation having passed the necessary legislation to construct a sidewalk, entered into a written contract with a certain contractor, under which the contractor constructed the same, and by the terms thereof said city agreed to give him a valid assessment upon the abutting lots. In an action by the contractor against the property owner the assessment was held invalid for the reason that the city had not given the property owner written notice as required by section 2329 of the Eevised Statutes, and the contractor was required to pay his attorney for conducting the suit. In an action brought by the contractor against the city to recover the amount of the assessment and amount paid his attorney,

      Held: that the amount of the assessment, with interest, was recoverable, but that no recovery could be had of the amount paid to the attorney for conducting the suit.

      Stephen Brophy, for the contractors,
    cited : 10 Pick. 204; 2 Met. 229; 7 Cush. 166 ; 117 Mass. 433; 122 Mass. 100; 20 N. Y. (Ct. App.), 226; 56 N. Y. 673; 33 Wis. 617; 1 Story, U. S. 458; 12 Me. 1; 52 Me. 202; 66 Me. 557; 2 Bibb, (Ky.), 273; 18 N. H. 220; 13 Vt. 379 ; 30 Vt. 242; 51 III. 413; 1 Mont. 688; 11 Ohio St. 120; 31 Ohio St. 574; 14 Bull. 48; 32 Bull. 78 , 8 C. C. Rep. 407; Dillon Mun. Corp. (4th Ed.), sec. 472 and note 1; Sedgwick on Damages (8th Ed.), secs. 236, 238, 240, 241; Southerland on Damages (1st Ed.), Vol. 1, pages 127, 128, 140, 141, 142, Vol. 2, pages 302 to 309, inclusive, and pages 412, 413 and 419.

      C. F. Watts, City Solicitor, for the city,
    cited: 10 Ohio St. 277; 31 Ohio St. 529; 46 Ohio St. 371; 8 C. C. Rep. 407.
    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

These cases come into this court on petitions in error to reverse the judgment of the court of common pleas, and in each of them the same question arises. That question is whether, where a contract is made by a party for the performance of work, 'either in building sewers, or the improvement of a street, or the building of a sidewalk in the city of Toledo, with the city of Toledo, and there is an agreement in the contract that the contractor is to be paid by an assessment upon abutting property, and upon the completion of the work an assessment is made and the contractor receives the assessment and attempts to collect it, and it is held by the courts to be an invalid assessment, and the contractor makes his claim against the city for the amount of the contract price of his work, he can include in that claim, and maintain it as against the city, his expenses for counsel and attorney’s fees in the prosecution of the suit or claim for the collection of the assessment.

The amounts in these cases are not large, but the question, nevertheless, is an important one, because there are many cases of this kind arising. ■ ■ .-

For between forty and fifty years the city of Toledo has been carrying forward a vast number of improvements of the character that are spoken of, either in- the building of sewers, the grading and paving of streets, or the making of sidewalks in the city; and during all that time, it is a matter of history that contracts of the character and kind that are mentioned here, have been made between the city and contractors, and assessments have been assigned to the contractor, and suits have, been brought to collect them — suits which have often failed for the reason that the assessments were invalid, and claims have been made of the city for the contract price of the work, and paid by the city, and so far as I am, or any member of this court is, advised, no case prior to the cases that are mentioned here that I shall speak of hereafter, have ever arisen, wherein it has been held by any court that the contractor was entitled to recover, as a part of his damages, his expenses paid to his attorneys for prosecuting the suits.- Although the state of Ohio contains many large cities which have been carrying on this same kind of work in the making of improvements, and although various claims and important questions have been submitted to the decisions of the Supreme Court, involving almost every variety of question that can arise under the municipal laws governing work of that kind, yet no suit has ever been prosecuted in that court wherein that question has been raised, as to whether these attorneys’ fees can be collected, under the circumstances that I have mentioned, so that there is no decision of the Supreme Court upon that question. The only significance which this has is that by the concurring testimony of the members of the bar, the legal profession, the right does not exist in the party to recover for attorneys’ fees in that class of cases, because many ingenious men, learned lawyers, báve been engaged in these various suits and claims, and questions of interest have often arisen, but never this, save, I should say, that there have been two decisions — one made by the Superior Court of Cincinnati, in General Term, two of the judges sitting, which will be found in 14 W. L. B. 48, wherein that court sustained a claim of that kind, and one in 8 C. C. Rep., 407, wherein that court held otherwise. And there have been two decisions made in this county, one by Judge Harmon, about a year ago, 1 Toledo Legal News, 11, wherein he held in one of these cases that attorneys’fees might be recovered, and one by Judge Lemmon in the other case which is before us, in which he held that they could not be recovered.

The ease cited from 8 C. C. Rep., 407, is that of Cincinnati v. Charles J. Steadman, trustee. The question was made before that court, and it held that attorneys’ fees could not be recovered. That decision was delivered by Judge Smith, who is a very able and learned judge, audit is before us. With that decision, and with the statement that is made by that court of the condition of the law throughout the country, and as to the condition of the law in the state of Ohio, we are entirely content, and are willing to adopt it as the decision of this court.

We have listened to the cases that have been cited by counsel for the contractors. He. has argued the case with ability, and has exhibited a great deal of industry in gathering together authorities which bear upon the general question. He finds cases in some of the states in which upon the failure of title to personal property that has been sold, it is decided that parties may recover attorneys’ fees for defending that title.

He finds, of course, as he has found in this state, upon a breach of covenant of warranty under a deed, that a party may recover for attorneys’ fees in defending. But a large number of cases are cited holding the contrary doctrine.

What the Supreme Court may ultimately do in this case we do not know, of course, but we are generally of the opinion that if any change should be made in the law from what it is generally accepted to be by the profession of the stale, that change should be made by the Supreme Court of the state. Our own notions are that attorneys’ fees ought not to be allowed, although argument may be made and reasons may be given in favor of their allowance. But it should be remembered that when these contracts are taken, they are taken in a town where this claim has never been made, and where no such claim has ever been allowed, and where the contractor would suppose that they never would be allowed; where the contract is made, really, upon the assumption that the city would make a good and sufficient assessment. The history of the state, however, shows that they are very often defeated, and it may be presumed that he contracts with that state of facts in view.

The case of the City of Toledo v. Goulden is reversed, and the case of Gates v. The City of Toledo is affirmed.


text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Feb. Term, 1895.)
    Before Bentley, Haynes and Scribner, JJ.
    Ernest Munding v. Isadore Michael et al.
    In replevin cases, when the finding is that defendant is entitled to the property, the judgment should he either for the return of the .property to the defendant, or if he does not ask that, for the value of the property. But where the magistrate in such a case, on a verdict by the jury for the defendant, entered judgment that the defendant was entitled to the property and to his costs, which were paid, but failed to enter judgment that the property should he returned to the defendant, or to assess the value of the property to be paid by plaintiff, plaintiff’s surety on the replevin bond will not be liable to the defendant for the property or its value.
    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

This is a case that arose before a justice of the peace, the original action being in replevin, and, in it, certain errors are alleged to have occurred. An action was brought before a certain magistrate in the city of Toledo, to recover possesion of a horse. The suit was brought by Isadore Michael against Ernest Munding and another party, who was an employe of Munding’s, and who was in possession of the horse, and was driving it, with another horse, upon some business in that eity, Upon an affidavit being filed before a magistrate, a writ of replevin was issued, which was given to a constable, who took possession of the horse, and thereupon he took a bond or undertaking from the plaintiff, written in the following .language : , :

“We bind ourselves to the defendant, Munding, (first name unknown), and John Pruden, in the sum of eighty dollars, that the said plaintiff, Isadore Michael, shall duly prosecute' this action, and pay all costs and damages thit'm'ky be assessed against them, and shall return the property replevined, if the same shall be adjudged to be returned to the defendant.”.

There had come into force recently, before this time, a new statute in regard to the replevin of personal property, and which statute was then and still is in force ; and that undertaking was evidently written with the intention of meeting the provisions of that statute. The statute provided :

,. “ The constable shall deliver to the plaintiff, his agent or attorney, the property so taken, but not before the time named in the summons for the trial, except in the cases hereinafter provided, when there has been axecuted by one or more sufficient sureties of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to be approved by the justice, to the effect that the plaintiff shall duly prosecute the action, and in case the judgment shall be against him, that he shall then return the property taken, or pay the value so assessed, at the election of the defendant, and also pay the damages assessed for the taking, detention and injury of the property, and costs of suit.”

It was under this clause that the plaintiff attempted to give the undertaking; and it will be seen that the undertaking does not recite precisely the language of the statute ; nor is it according to the terms of the former statute in regárd to bonds in replevin. Upon the hearing of the case, the court found that the defendants in the case , were, at the commencement of the action, entitled to the immediate possession of the horse, and adjudged that the defendant, Isadore Michael, pay one-half the costs of said action, and declared that the judgment and costs have “been fully paid.” It will be observed that in rendering the judgment, it did not declare or adjudge that the horse should be returned to the defendant in replevin, that is to Munding; nor did it assess any value upon the horse, as, according to the prior statute in force, should have been done. The plaintiff in filing his petition and in bringing his action, afterwards avers that immediately upon the return of this verdict, he demanded that the'ho.rse be returned to him, and that he has kept up the demand ever since, with a great deal of energy, but that Michael, the plaintiff in replevin, has refused, to return the horse or pay for him, and thereupon the suit was brought. ...

Now the judgment, in our opinion, was never rendered as it should have been; that is to say, the proper' practice is shown in section 6616, and provides that if the jury find for the defendant, and against the plaintiff, they shall then proceed to assess the value of the property, or of the plaintiff’s interest. That law is still in force. What should have been donej in our judgment, was, when this verdict was returned in favor of the defendant in replevin, that the court should have done one of two things : If the defendant in replevin demanded that this horse should be returned, as he had the option to do, then the judgment of the court should have been that the horse should be returned to the defendant in replevin. If he did not elect to take the horse, in that case, the value of the property should have been assessed, and judgment should have been entered for the amount assessed, or, perhaps, it should have been assessed in the first instance, and then the court should have entered judgment. There was no judgment of that kind rendered, and the condition of the bond is that they “will pay all costs and damages that may be assessed against them, and shall return the property replevined, if the same shall be adjudged to be returned to the defendant.”

No question is better settled in Ohio, we suppose, than this, that the surety on a bond has a right to rely on the letter of the bond. Under the letter of this bond, no judgment was ever entered that the property should be returned, and until that was done, there could be no liability on the part of the sureties. It may be that the bond was not in proper form. If it was not, there remained to the party the right, as decided by the Supreme Court, in 50 Ohio St. 394, to have the bond amended, even as against the sureties, to conform to what was the agreement or intention of all parties. Or, if the constable took a bond that was not what the statute required or authorized him to take, he and his bond might be liable to the owner of the property taken. But nowhere can we any decision of the Supreme Court that, allows us, by onlfirging the construction, to sustain an action against a surety beyond the strict letter of the bond. We have looked to see if we could not work out a right of action that would entitle the plaintiff here to recover as to the value of this horse, but we are unable to do so. We hold that the judgment of the court of common pleas should be affirmed. The ground upon which the justice rendered the judgment, as appears upon his record, we do not think can be sustained, that is to say, “that no liability accrued until execution was issued upon the judgment.” The judgment was that Michael should pay the costs, and those costs he has paid. That is not a matter in controversy. The fact is, that the plaintiff has got this horse, and has not returned it, and the defendant has no judgment that he should return it, nor has he any judgment for the value of the horse. The action of the magistrate fell short of rendering justice as between these parties, or of putting the judgment in such a form as that defendant could obtain justice. The judgment of the common pleas will, therefore, have to be affirmed.

Beard & Beard, for plaintiff.

B. F. Reno and A. Farquhason, for defendant.