text:
    QUESTIONS OF NEGLIGENCE WHERE REPAIRER. WAS INJURED BY THE TILTING OF A CAR.
    [Circuit Court of Lucas County.]
    Anna S. Kracht, Administratrix of the Estate of William F. Kracht, Deceased, v. The Lake Shore & Michigan Southern Railway Company.
    Decided, October 10, 1903.

      Negligence — Where a Oar Repairer was Fatally Hurt — By the Tilting of a Gar Under which he was at Worh — Circumstances of Injury— Constitute Issues of Fact Rather than of Law — Master and Servant — Railways.
    1. The master is bound to use ordinary care to provide a reasonably safe place for his servants to work, and to establish reasonable rules or regulations whereby the servant may be guarded and protected against danger and injury incident to the performance of his duties. Hence, where a servant is ordered, either by general or special direction, by the foreman of his department to repair a car, in which work it is necessary to raise the same and place it on supports for the purpose of removing the trucks, and while engaged in such repair it is necessary for the servant, along with others, to work underneath the car as thus raised, and sit upon the ground at one end thereof with his eyes directed to the floor of the car above him in order to see what he is doing, and while he is so at work other servants are also engaged in the same work at the other end of the car and in the course of making the repairs it becomes necessary to have such other end of the car raised and the supports thereunder taken out, and while engaged in his work in such position the servant cpuld not see and did not know what was going on at such end, the master is charged with knowledge of the dangerous situation and the known and apparent danger to the servants by the raising and falling of the car, and it is a question for the jury whether or not it is the master’s duty, while such work is going on, to have some one from under the car, or provide some other method, to give timely notice or warning to the workmen under the car that the same was about to be raised. In such case the master may be liable for the injuries sustained by the servant by reason of the car falling upon him, notwithstanding the combined negligence of fellow servants in raising the car.
    2. it was not negligence as a matter of law for a servant, who was experienced in such car repairing, to remain at his work under the car unless lie had notice that the car was about to be raised; but where there was a conflict in the evidence as to such notice, the question as to whether or not the servant was negligent and the question as to the duty of the master under the circumstances to make rules or other provisions for giving notice or warning of what was about to be done by the workmen at the other end of the car should have been submitted to the jury; and it was improper for the court to take the case from the jury and direct a verdict for the defendant.
    Hull, J.; Haynes, 'J., and Parker, J., concur.
   This action was brought in the court of common pleas by the plaintiff in error, who was plaintiff in the court below, as administratrix of her husband’s estate, to recover damages for the death of her husband, caused — as claimed by the plaintiff — by and through the negligence of the defendant railway company. At the conclusion of plaintiff’s testimony, on motion of the defendant, the common pleas court directed the jury to return a verdict in favor of the defendant. After the overruling of a motion for a new trial, judgment was entered on that verdict in favor of the railway company, and it is to reverse that judgment that a petition in error was filed in this court.

The case raises the question of the duty of the railway company in the premises and whether the evidence offered by the plaintiff showed any negligence on the part of the railway company; and, further, whether it showed that the deceased was guilty of such contributory negligence as would bar a recovery by his administratrix for his death.

The accident occurred in September, 1901, at which time Kracht was in the employ of the railway company as a car repairer, and had been employed in such work for some time prior to the accident. He was a man of ability and of experience in the performance of that kind of work; there is no claim that he was inexperienced. It was a portion of his duties to aid in the repair of ears which were in the yards of the company; and, for the purpose of repairing these cars, there was a sidetrack upon which such cars were run and left standing near Air Line junction in the city of Toledo, and after the cars were run upon this track, if they needed repairs that necessitated the taking of the trucks out from under them, they were “jacked up,” as it is called, and the body of the car was set on heavy barrels, and after the trucks had been taken out, if repairs were necessary to the bottom of the ear, men would go under the car to make those repairs. In this case Kracht and three other men were directed to make repairs upon a car. The car was jacked up in this way — Kracht assisting in doing it — and after the body of the car had been raised sufficiently, both ends of the car were set upon heavy barrels — a barrel under each corner, and timbers extended across the barrels — and thus the body of the car rested and the trucks were taken out. There was something out of repair underneath this ear, the nuts on the bolts needed tightening, and also something out of repair at one end, and some apparatus was out of repair, situated about the middle of the car underneath. After they got the car upon the barrels, Kracht and a man named Buck, another employe, went under ,lhe car to work, near the west end of the car, perhaps two or three feet from the end. Two other men were working near the middle of the car, repairing the truck apparatus. After they had been at work for some time — having commenced to work in the morning — the foreman came to them and inquired whether they were going to get the car “fixed” that day, and some of the men said they thought they would; but the time went on and they did not get it finished, and the foreman came over again, and for some reason it seemed to be desirable to have the car repaired that day, so the foreman in the afternoon sent three other men to aid in the repair of the car; had told them to assist, saying to them, and perhaps to all of them, to be careful not to get hurt. These three men first repaired the end board of the ear, at the west end, which work occupied them but a few minutes. After that they went to the east end of the car — which had been also jacked up and was resting on barrels at each corner — and, procuring jacks, proceeded to raise that end of the ear, Kracht and Buck being at work under the other end of the car, which was thirty-five to forty feet long. Perhaps only two of the men went to the east end. After they had jacked up the car at the east end and had taken out the barrels and timbers, according to the weight of the testimony, they then undertook to put the truck under the body of the car, and just as they had gotten a very little of it under the body of the car, for some reason, which is not very clearly shown in the record, the car slid, or “slewed,” as stated by some of the witnesses, to the north. The record does- not state just how many feet this car was from the ground, but it was so near that the men who were working underneath it sat on the ground and did their work of tightening the bolts and the other work in that way; it was probably about four feet from the ground. The car, just as they got the edge of the trucks under it, slid to the north; the northwest corner of it, near where Buck and Kracht, the decedent, were working, also sliding to the north. These four men were still all working under the car. Kracht noticed that the car was falling, and called out to “Look out! The car is falling,” or that in substance. Buck, who was working at his side, leaped to the south and the two men near the middle sprang out, and those three escaped. Kracht undertook to escape towards the north, but the car slid in that direction and fell upon him, and he was so injured that he died within two or three days afterwards.

It was claimed by the plaintiff in her petition and upon the trial of the ease, that Kracht was in the line of his duty at this time, and that without any negligence on his part he was injured in the manner described, and that the railway company was negligent and liable on account of that negligence, which is stated in her petition as follows:

“That the defendant well knew, or by ordinary care could have known, that decedent and its other employes would necessarily work under said and other cars while so resting on said barrels, yet defendant was careless and negligent in the premises, in that, that it failed and neglected to make reasonable provision and regulations for the protection of decedent and its other employes against the danger of having said ear raised, moved, or in any wise disturbed while said car was resting on said barrels, and while the decedent and its other employes were working thereunder, and in failing to provide that notice or warning should be given to those under said ear when the same was about to be raised, moved, or in any wise disturbed, and in failing to make any reasonable provision for decedent’s protection while he was at work under said car, and to guard him against the danger of said car being thrown upon him.”

The defendant denied all allegations of negligence and alleged that if the decedent sustained any injury by reason of the negligence of any one other than himself, it was the negligence of fellow servants — co-employes in the same common service — for which the defendant could not be held responsible, and set up further, that whatever injury he had sustained was on account of his own negligence. So that the question presented is, whether the evidence which was offered by the plaintiff, tended to show negligence on the part of the railway company, or failure of duty on the part of the railway company towards this employe in any respect; and, whether, if this were true, there was evidence which showed that the decedent was guilty of contributory negligence which would prevent a recovery? It is claimed by the plaintiff, as set forth in her petition, that it was the duty of the railway company to protect the decedent, Kracht, against such an accident as this, while he was under the car at work; that either the foreman or some one should have been on the ground to notify him in case the car was raised at the other end, to notify him that that was being done, so that he might get out, and that it was the duty of the railway company to have provided some rule or regulation requiring such notice to be given to men at work under cars in this manner, before the ear or any part of it was raised; and it is claimed that the failure to provide either of these things was negligence.

It is claimed by the railway company that this was an ordinary piece of work, the repairing of this car, a very common piece of work; that Kracht had been engaged at such work for a long time; that the fact that the car might possibly fall was known to him and that the company was not under obligation to have such rules as these, or to have any one posted outside of the car to call out to the men underneath the car in a case of peril of this kind; and it is claimed further that this was one .of the assumed risks of the duty in which Kracht was employed, he knowing the danger when he did that work; and, further, that Kracht himself was guilty of contributory negligence in this, as claimed, that the record discloses that Kracht knew that these men who came to assist had gone to the other end of the car, and that while there they would raise the car, jack it up and take the barrels out and put the trucks under. It is claimed that Kracht had full knowledge of this from what was said there and done there, aside from his knowledge of the work; and that he voluntarily remained under the car with this knowledge, and therefore assumed the risk himself and took the chances of injury, and, instead of getting out from under the ear or keeping watch to see when the men undertook to put the trucks under the car and getting out from under the ear then for his safety, it is said that he remained under, knowing that this was being done, and that he therefore assumed the risk and contributed to whatever injury he suffered.

The court found under the evidence offered by the plaintiff that plaintiff could not recover; that there was no evidence tending to show liability on the part of the railway company; that there was no duty resting on the railway company to make any such rules or regulations or to keep watch as claimed by the plaintiff.

We have read the record through very carefully and it appears that when these three men left the west end of the car, according to some of the testimony offered, some one said that they would go to the other end of the car and do what was necessary to be done there; and that was heard by some of the men — perhaps by some of the men working under the middle of the car— or one of them; and it is claimed, on the question of contributory negligence, that Kracht must have heard this and known it. But Buck, who was working by the side of Kracht and only a few feet from him, testified that no notice was given to him that the men at the other end of the ear were about to jack it up and put the trucks under, that he had no knowledge that they were about to do anything of that kind, and that he did not hear anything said by the men about going to the end of the car to do anything of the kind; and the weight of the testimony is that it was customary when work of that kind was done at the end of the car, with men under it, for the men to get out from under the car; and Buck testified that if he had known they were about to do this or anything else of this kind at the other end of the car, he would have got out and not have remained under it. Kraeht is dead and can not testify as to whether he knew what these men were doing at the other'end of the car or not. But the man who was at work beside him testified that he knew nothing about that; that he had no notice or knowledge, and that, so far as he knew, Kraeht had no knowledge. They were both at the time with their backs towards the east end of the car where this work was going on, sitting on the ground and looking up at the floor of the car over their heads, and Kraeht was engaged in tightening nuts on some bolts directly over his head, looking at them and intently engaged at his work. It seems to us that it can not be held as a matter of law that Kraeht was guilty of negligence contributing to his injury in not knowing or seeing what was going on at the other end of the car. We think that we could not, and ought not as a matter of law, to hold that Kraeht had knowledge of what was going on there; that was a question to submit to the jury, under all the circumstances. If the jury should find that he did have knowledge, and staid under the car, taking his own risk, the court could not say that the jury were not warranted in so finding. But there was the evidence of Buck tending quite strongly to show that he had no such knowledge or notice.

As to the duty of the railway company, whether there was any duty imposed upon it to care for him and to guard him against such injury which he was under the ear, or to have a rule of some kind to provide for this — the general rule, well established, is that the employer is bound to furnish his employes a reasonably safe place in which to work, and bound to exercise ordinary care in that respect, and that the employe does not assume the risk consequent upon the failure of the employer to perform this duty. The question here is whether there was any evidence tending to show that the railway company had failed in its duty to exercise ordinary care in furnishing a reasonably safe place for Kraeht to work. He was directed by the foreman — either by special or general direction — to repair this car. In order to do so it was necessary for him to go beneath the car; it was necessary to jack up the car as was done. This ear weighed many tons, and to do this work properly it was necessary for Kraeht to sit down on the ground under the ear with his eyes directed towards the floor above him in order to see what he was doing; and while he was in that position he could not see or know fully what was going on at the other end of the ear. It was necessary some time in the course of this work to have the other end of the ear raised and these barrels taken out and the trucks put under. All this was knowm to the railway company and its officers and foreman. A Mr. Bay was the foreman, or assistant foreman, immediately in charge of this work. He whs in the yard, or about there, but was not on the ground at this car when the accident occurred. He had directed these three men to go to this car and aid in the performance of this work, and knew that in the doing of that work all these things would have to be done. Knowing the position in which Kracht and the other men were, he must be presumed to know the danger of the car falling upon them in. case the men undertook to move the car at one end while the men were under the car. The evidence shows that nobody had ever been hurt in this yard in this way before, but it does not show that ears had not fallen in this manner before, but it tended to show that the men always got out from under the car before anything of this kind was done.

The leading case of Lake Shore & Michigan Southern R. R. Co. v. Lavalley, 36 O. S., 221, prescribes the duty of the railway company where an employe is put to work in a place of peril. The second paragraph of the syllabus in that case is:

“It is the duty of a railroad company to make such regulations or provisions for the safety of its employes as will afford them reasonable protection against the dangers incident to the performance of their respective duties.”

And again, in the syllabus:.

“That it was the duty of the foreman in putting the hand to work under the ear to use reasonable care to protect him, while thus engaged, from the danger arising from the switching of ears and the making up of trains on the same track; and for an injury resulting from the want of such care, the company is liable.”

This was a case, as is well known, where a man was put to work under a care in a yard where they were moving cars, and other cars were liable to run into this car, and while the man was there at work, another car was run into the car that Lavalley was working under and he was hurt — Lavalley being a car repairer, and it was held that the railroad company was liable. The whole question is discussed fully in the opinion.

Another ease bearing somewhat on this same question is found in 37 O. S., 549 (Railway Co. v. Henderson). This is the syllabus:

“Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a question of mixed law and fact to be determined by the jury under proper instructions.
“Where an action is brought against a railroad company by one of its employes to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company, as to the management of a particular train, which order was unreasonable, and the enforcement of the same was dangerous to such employe, the fact that the negligence of a fellow servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.”

As is said in some cases, rules may be required, and are sometimes required, in the exercise of ordinary care, and other precautions may be necessary for the purpose of protecting employes against the negligence of fellow servants. As in the Lavalley case, it may be said that the employes' who ran the car against the one under which Lavalley was working, were negligent, but this did not preclude a recovery.

In 38 O. S., 389 (Dick v. R. R. Co.) the Supreme Court say, in the syllabus:

“As between employes of a railroad company whose duty it is to repair its traek while trains are using- the same, and the company and its representatives, who are engaged in running trains over the same, where the trackmen are so employed, it is the duty of the latter, as far as is practicable, to adopt such precautions as will guard its employes on the track from dangers incident to their employment.”

These questions are discussed in the opinion and in the La-valley case referred to and cited with approval. These are cases where an employe was injured by a moving car or a moving train. In our judgment the principle is the same where an employe under a car is injured by reason of the car being moved or struck in any other way, if such a thing was liable to happen; it makes no difference whether it was a moving train or any other object or person that moved the ear, if the man was under it, or whether it was thrown down, as this was, or knocked over, if it was something that was liable to happen, if it was a thing that was imminent and pending while the man was under the car.

The Murphy case, reported in 50 O. S., 135, is in point. The man in that case who was killed was put at work upon a railroad track which was straight with the view unobstructed, and while he was at work there a train came along, struck and killed him. It was claimed that the railroad company should have made some provision to protect him while at work; should have had a rule requiring notice to be given, or should have had some one there whose duty it was to warn him of the approach of trains. The Supreme Court held, as stated in the syllabus:

“It is the duty of a railway company to afford reasonable protection to its employes against dangers incident to their work. And if under the circumstances of this case a rule providing for warning was necessary, and by the exercise of reásonable care on the part of the company that necessity could have been foreseen, it was the duty of the company to prescribe such rule. Whether it ought to have so provided or not, was a question for the jury.”

Upon the question of contributory negligence, the court say, in the last paragraph of the syllabus:

“The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds might differ as to the proper inference to be drawn. Such a question can not properly be determined by the court as matter of law, and should be submitted to the jury.”

The question is fully discussed in the opinion. The court say, on page 143 (Judge Spear delivering the opinion):

“Negligence is always an inference from facts put in evidence, as contrasted with a fact which is the subject of direct proof. The proof disclosed facts calling for logical, as distinct from legal, deduction. Where that is the case the question is for the jury and not for the court. And, whether or not, under the circumstances of the case at bar, the company should have anticipated the necessity and exercised proper precaution, by prescribing a rule requiring warning, was clearly a question for the jury. Of like character was the question of contributory negligence. As matter of law the court could not say that it was not the duty of the company to provide any means to warn men in that position of approaching danger, nor that, as matter of law, the deceased was negligent because he did not interrupt his work sufficiently to protect himself from approaching trains.”

It seems to us that the Murphy case was a stronger one for the railway company than the case at bar. Murphy, as I have said, was at work on a straight track, and had an unobstructed view of the train which came down the track in broad daylight and struck him, but the Supreme Court held that he could not be presumed to have seen the train or be guilty of contributory negligence. In the case at bar, Kraeht was seated upon the ground under the car, with his eyes upon the floor of the car above him, intent upon his work, and the acts which resulted in the ear falling upon him were going on at the east end of the car, behind him. And it seems to us that under the rule laid down in the Murphy case the court could not say that Kraeht was guilty of contributory negligence, nor that the railway company was not guilty of any negligence in the premises. It is clear that if there had been some one on the ground to notify the men under the car that this work of raising the ear was being done, that they would have gotten out from under the car safely. It is clear that if there had been a rule requiring notice to the men engaged under the ear to get out whenever work of this kind was commenced, if the rule had been complied with, Kraeht would have been saved. Whether ordinary care required such a provision or rule, requiring the foreman to give the men notice, or requiring some one to do it— whether ordinary care required that — we think was a proper question to submit to the jury. This was not a risk that Kraeht assumed, if it was a danger caused by the negligence of the master, as was said by the Supreme Court in 61 O. S., page 298 (Van Duzen, etc., v. Schelies):

“A servant assumes only such risks incident to his employment as will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.”

In Vol. 43, Atlantic Reporter (May 24, 1899, Rex v. Pullman Car Co.), Chief-Justice Lore of the Superior Court of Delaware, at the February Term, 1897, in his charge to the jury in a negligence case, uses this language:

“This is a case of master and servant, and the rights, duties and obligations of that relation govern it. The primary duties of the master are — First, to provide a reasonably safe place for the servant to work in or upon; second, to provide him with reasonably safe tools and machinery with which to do his work; third, to employ reasonably competent and careful co-workers and fellow servants; fourth, to promulgate proper rules for the government of such servants, in operating his business, where the extent of that business exceeds the limits of his personal supervision. The servant assumes no risk whatever as to these primary duties of the master when he accepts employment ; but he does assume all the ordinary risks of the employment, including therein the negligence of his fellow servant.”

In Beach on Contributory Negligence, Section 304, the author says:

“Whenever the negligence of the master, united to the negligence of the fellow servant, contributes to the injury, the servant injured thereby may recover from the common employer. The servant will not be held to have taken any chances of negligence on the part of the master, and it is believed that no ease has gone so far as to hold that where such combined negligence contributes to the injury the servant may not recover. It would be both impolitic and unjust to allow an employer, under those circumstances, to evade the penalty of his misconduct in neglecting to provide for the security of his servant. Contributory negligence in order to defeat a right of action in such a case must be solely the negligence of the party injured, or the negligence of a co-employe nnmixed with any negligence or default on the part of the common employer.”

Upon the general principles involved in this case may be cited: 24 O. S., 83; 41 O. S., 438; 9 C. C. Reports, 340; 38 Nebraska, 488; 59 Northwest R., 950; 113 Mo., 319; and 49 N. Y., 420.

It is clear that the place in which Kracht and the other three men were at work was a place of danger; and it was apparent that in the performance of the work it would be necessary to raise the other end of the car to put the trucks under; and, clearly, while the work was being done it would be very dangerous for these men to remain beneath the car, and if they were left there, they were in danger of being crushed by the falling of the car. It does not require expert testimony to show that where a car is resting upon barrels, as this car was, to lift one end of it with jacks, to put a truck under it, might easily result in the car being tipped .or slid over to one side, either by the ground sinking, the ear slipping, or by one end being raised higher than the other, or in many ways; and for men to be under the car while that kind of work was going on was extremely perilous. And we are of the opinion that the question whether the railroad company should have made provision to notify Kracht, if anything like this was to be done to the ear, was a question to submit to the jury; and whether if was the duty of the railway company, through its foreman, to have either done that himself or to have had some one there in his absence, or a rule was necessary requiring notice to men under the car in a situation of peril such as this, was a proper question for the jury. The question whether Kracht was guilty of contributory negligence was not a question to be determined by the eourt. The most that can be said is that the evidence on that point was conflicting. The rule in this state is, that where there is any evidence tending to sustain all the material elements of the plaintiff’s ease, the court can not withdraw the ease from the jury, but it must be submitted to them for their decision upon the questions of fact.

We are of the opinion that the court of common pleas erred in directing a verdict for the defendant iii this case; that the motion to that end should have been overruled and the ease submitted to the jury upon proper instructions as to the law, by the court. For these reasons the judgment of the court of common pleas will be reversed and the case remanded for a new trial.

E. L. Twing, for plaintiff in error.

E. D. Potter, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    ATTACHMENT IN ACTIONS FOR. NECESSARIES.
    [Circuit Court of Cuyahoga County.]
    The K. B. Company v. James Batie.
    Decided, December 24, 1903.

      Attachment — In Actions for Necessaries — Ten Per Cent, of Debtor’s Personal Earnings Not Exempt, When — What Affidavit Should Contain — Failure to Malee Demand, No Ground for Discharging Attachment — Personal Service of Demand.

    1. Ten per cent, of a debtor’s personal earnings are not exempt from execution and attachment where the claim, debt or demand for the payment of which it is sought to subject them is for necessaries furnished to the debtor, his wife or family, since April 26, 1898.
    2. In an action for necessaries the plaintiff may have an order of attachment when the affidavit therefor sets forth merely the nature of plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, that the property sought to be attached is not exempt from execution, and, if personal earnings are to be attached, that the claim on which judgment is sought is for necessaries, without mentioning any of the nine specifications, the existence of one or more of which must be stated when the action is not for necessaries.
    3. An attachment issued in an action for necessaries should not be discharged because the plaintiff has failed to mate a demand in writing for the excess over and above ninety per cent, of the personal earnings of the debtor.
    4. The demand in writing for the excess over and above ninety per cent’, of the personal earnings of the debtor, provided for in Section 6501, Revised Statutes, must be served upon the debtor personally.

      Winch, J.; Hale, J., and Marvin, J., concur.
    Error to court of common pleas.
   October 22,1903, plaintiff brought an action against defendant before a justice of the peace to recover “the sum of $20.25 for necessaries, to-wit, clothes sold and delivered,” and with his bill of particulars filed an affidavit in attachment in which it was alleged, “that said defendant is justly indebted to said plaintiff in the sum of twenty 25-100 dollars, for necessaries, to-wit, clothes sold and delivered; that said claim is just and lawful; that he believes said plaintiff ought to recover thereon the amount of $20.25, with interest as hereinbefore stated, and that the property about to be attached is not exempt from exeeur tion; that said property is the personal earnings of the defendant for services rendered by the defendant, and only ten per cent, of said earnings and four dollars is sought to be attached; that the claim for which judgment is sought is for necessaries contracted since April 26, 1898; that the said defendant is the head or support of a family, and has not in good faith, the maintenance and support of a widowed mother wholly dependent upon him for support. ’ ’

Order of attachment was issued and served upon the employer of the defendant, as garnishee, on October 28, 1903.

Thereafter motion was made by the defendant before the justice to discharge the attachment, and said motion being overruled, the matter was appealed to the common pleas court, heard by said court upon the original papers and affidavits, and the attachment was discharged.

Petition in error has been filed in this court by the plaintiff below, together with a bill of exceptions setting forth all the testimony given in the court below, from which it appears that the merits of plaintiff’s claim were not contested, but the defendant based his right to a dissolution of the attachment upon the following grounds:

1. That plaintiff being a partnership, transacting business in this state under a fictitious name, could not maintain the action until it had complied with the requirements of Sections 3170-1 to 7, Revised Statutes, and had filed a certificate with the clerk of the court of common pleas, as therein prescribed.

2. That the property sought to be attached was exempt.

3. That there was no proof that plaintiff had made a demand in writing upon his debtor for the excess of his personal earnings over and above ninety per cent, thereof, as required by Section 6501, Revised Statutes.

4. That if such demand was made, it was more than thirty days before the garnishee was served with process, and therefore would not bind any money in his hands coming due to the debtor after said thirty days.

The first objection may be considered by itself, and the second, third and fourth objections together. As to the first objection, it does not appear whether plaintiff had filed the certificate of partnership as required by Section 3170-1 to 7; there was no testimony on the subject. Section 3170-6 provides that if the partners shall at any time comply with the provisions of the act, then such partnership shall have the right to commence an action, or, if such action has been commenced, to maintain it. We incline to the construction of this statute which holds that failure to comply with it is a defense. J. W. Hartzell & Co. v. Warren, 11 C. C., 269.

The defense was not proved and there was no presumption against the plaintiff that it had not complied with the law. The statute is penal in its nature and should be strictly construed.

The second, third and fourth reasons alleged by the defendant require an examination of the recent amendments of the exemption and attachment laws found in 93 O. L.', 321 and 94 O. L., 376.

These recent enactments make it plain that ten per cent, of a debtor’s personal earnings are no longer exempt from execution and attachment where the claim, debt or demand for the payment of which it is sought to subject them is for necessaries furnished to the debtor, his wife or family since April 26, 1898, the date of the passage of the first of said acts.

It also appears that in an action for necessaries the plaintiff may have an order of attachment when the affidavit therefor sets forth merely the nature of the plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, that the property sought to be attached is not exempt from execution, and, if personal earnings are to be attached, that the claim on which judgment is sought is for necessaries, without mentioning any of the nine particulars, the existence of one or more of which must be stated when the action is not for necessaries, (Section 6489, Revised Statutes). The affidavit in this case complied with this section of the statutes. The claim was for necessaries, and the property sought to be attached was the excess of the personal earnings of the debtor over and above the ninety per cent, thereof which was exempt by law.

But it is claimed by virtue of Section 6501, Revised Statutes, that the affidavit should also contain an allegation that the plaintiff had made a demand in writing upon his debtor for the said excess of his personal earnings, or, in any event, that the attachment should be discharged upon a showing that such demand had not been made. These claims are based upon the following proviso in said section :

“The person bringing an action for necessaries shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor. ’ ’

To give such construction to this clause as is claimed by counsel for defendant in error would be to hold that no action for necessaries, even without attachment proceedings, could be brought without such demand. Such was not the intention of the Legislature.

Reading Section 6501 with reference to the question here raised, and stripping it of its verbage and other matters not pertinent to this case, it provides as follows:

A garnishee may pay the money owing by him to the defendant to the constable and he shall be discharged from liability to the defendant for any money so paid, and not be subjected to costs, but allowed his own costs, provided, that he may pay to such debtor ninety per cent, of his personal earnings, less the sum of four dollars for costs, and be released from any liability to such creditor; provided further, that the person bringing an action for necessities shall first make a demand in writing for the excess over said ninety per cent., and no cost or expense shall be chargeable to the defendant debtor if he tender payment in money or duly accepted order for the said excess of his personal earnings.

We think that the purpose of this enactment was to enable a debtor for necessaries to save himself from costs accruing as the result of garnishment of ten per cent, of his personal earnings, by tendering payment in money or a duly accepted order for said amount. It follows that neglect to make such written demand would put the costs upon the plaintiff, or upon the garnishee, if he should pay in the absence of such demand, for the statute reads: “No costs or expense shall be chargeable to the defendant debtor if he tender,” etc., and the authority with reference to the payment to the constable or withholding from the debtor of four dollars over and above ten per cent, of his wages is upon the proviso that said written demand be made. That such is the construction to be put upon the statute is gathered not only from a reading of it, as it now appears, but by a consideration of what must have been the intention of the Legislature in enacting the amendment of April 16, 1900, as shown by a comparison of the law as amended with the law as it was under the amendment of April 26, 1898.

It does not follow, however, that an attachment should be discharged because either the affidavit in attachment or the proof does not show a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor, and we so hold.

An affidavit, part of the records in this case, shows that plaintiff on September 21, 1903, left a written demand for “the excess over and above 90 per centum of your personal earnings for the week ending September 21, 1903, or in lieu thereof an accepted order on your employer” with the wife of the defendant at his residence, and that she subsequently told him that she had given it to her husband. The husband’s affidavit denies receiving the demand. It is not necessary for a determination of the case on error in this court to pass upon the sufficiency and effect of said demand or its service, but as the original action still stands undisposed of before the justice of the peace, it may be proper to say that there was in this case a failure to prove service of the demand. The statute does not specify how the demand should be served, and it has been repeatedly held that “Where a statute requires the giving of notice and there is nothing in the context of the law or in the circumstances of the case to show that any other notice was intended, personal notice must always be given.” 21 Am. & Eng. Enc. of Law, 583.

Hart & Canfield, for plaintiff in error.

A. A. Maresh, for defendant in error.

For error in granting the motion to discharge the attachment the judgment of the court of common pleas is reversed.


text:
    NEGLIGENCE IN THE OPERATION OF A RAILWAY INTERLOCKED.
    [Circuit Court of Franklin County.]
    The Toledo & Ohio Central Railway Company v. Charles E. Hydell.
    Decided, February 1, 1904.

      Negligence — Railways—Interlocking Devices at Crossings of, at Grade —Responsibility for Operation of — Can not be Shifted to Company Controlling the Operator — Agency—Parties—Privity of Contract.

      1. Where an interlocker is maintained at a crossing of two railroads at grade, it is competent for the companies to enter into a contract providing that the device shall be operated by one of them, subject to the limitation however, that the responsibility of the other company for the proper operation thereof on its own road is not thereby shifted, in so far as the public and third parties are concerned.
    2. No new liability arises upon such contract against the railroad companies, in favor of parties not in privity therewith; but each company is responsible to the public and third parties, for the full preformance of its statutory duty at such crossing.
    3. The leverman in control of the interlocker under such contract is, except as between the companies themselves, the agent and servant of the company whose road and trains he is, for the time being, assisting to operate.
    Wilson, J.; 'Summers, J., and Sullivan, J., concur.
   On tbe 4th day of January, 1901, Charles E. Hydell, who was at that time in the employ of the P., C., C. & St. L. Ry. Co. as a brakeman, was injured by the derailment of a freight train of that road on which he was serving, through the negligence of a leverman who was operating the interlocker at Mound Station, six miles west of Columbus, where the T. & O. C. Railroad crosses the Pennsylvania line at grade. The crossing and interlocker were maintained and operated by the T. & 0. C. Company under a contract for that purpose entered into with the Pennsylvania Company, in consideration of the right to cross the tracks at grade.

Iiydell filed his petition in the court of common pleas against the T. & 0. C. Company, setting out the contract between it and the Pennsylvania Company under which the interlocker was being operated at the time of the accident, the negligence of the leverman, and the extent of his injuries.

The defendant demurred to the petition for defect of parties defendant, and that it did not state a cause of action against the T. & 0. C. Company. The demurrer was overruled, and the defendant answered in the way of a general denial, and with an affirmative defense, alleging that the plaintiff had settled with and released the .Pennsylvania Company, which was liable, by accepting the benefits of its voluntary relief department, and had thereby released the T. & 0. C. Company, if it had been liable. The reply was, in effect, a general denial of the affirmative defense. Upon the trial of the case the plaintiff obtained a verdict for seven thousand dollars. A motion for a new trial was overruled, and judgment was entered on the verdict. A bill of exceptions embodying all of the evidence was taken, and the ease is brought into this court upon the whole record, seeking a reversal of the judgment.

At the time of the injury, which is the predicate of the action, it was the duty of the railroad companies crossing at grade, under the statute, to see that the crossings were put in and kept in repair; to employ a watchman at the crossing; to stop all trains at a given distance, and to cross only upon a given signal — unless, under a further provision of the statute, they installed and maintained, to the satisfaction of the commissioner of railroads and telegraphs, a system of interlocking, or other works or fixtures, which would render it safe for engines or trains to pass over such crossing without stopping. Revised Statutes, Section 3333, 247g.

Such an interlocking system was installed at this crossing under the contract of date July 24, 1893, hereinbefore mentioned. By its terms the T. & O. C. Company, among other things, agreed to ‘ ‘ erect and thereafter maintain and operate at its own expense, at the place of said crossing, an interlocking system which shall be satisfactory to the signal officer of the first party (the P., C., C. & St. L. Ry. Co.), and under the operation of which trains of either party may be permitted, under the laws of the state, to cross over said crossing without coming to a stop.”

The trains of both roads were being controlled at the crossing, by the interlocker operated under this contract, by lever-men employed and paid by the defendant company, and it was the negligence of one of these levermen that caused the injury.

The contention of the plaintiff below, defendant in error here, is that the leverman was the agent, exclusively, of the defendant company, and that, consequently, it alone is liable for the .injury. This contention is supported, in argument, by a long line of authorities, the most persuasive of which are, perhaps, the contracts for tracking privileges, such as Smith v. New York & Harlem Railroad Company, 19 N. Y., 127; Merrill v. Railroad Co., 54 Ver., 200, and Hurlbert v. Wabash Ry. Co., 130 Mo., 657. These cases are, we think, distinguishable however, in that it was the duty of the roads held to be liable, under the contracts, as well as under their franchise to keep the tracks or the machinery in repair, the failure to do which was the negligence complained of. Another class is the gates at crossing cases, of which Brow v. Boston & Albany Railroad, 157 Mass., 399, and Buchanan v. The Chicago, M. & St. P. Ry. Co., 75 Iowa, 393, are examples; but these authorities, in so far as they would seem controlling, are in conflict with Railroad Company v. Schneider, 45 O. S., 678.

The defendant’s claim is, first, that it and the Pennsylvania Company were without authority in law to enter into a contract as against the public and third parties, whereby one road should agree to perform the statutory duty of the other, and that, therefore, the defendant conld not, under such a contract, become liable for the mismanagement of the Pennsylvania Company’s track and trains at this crossing.

In the case of Railway Company v. Schneider, supra, it is said in the body of the opinion, page 696:

“It (the railway company) might, by proper stipulation in the agreement of the railroad company with which it contracted, require it to furnish competent servants for the transaction of its business, and hold it responsible for any breach of the agreement; but it can not by such contract, or by its failure to so contract, shift either the duty it owes to those using the street, or its responsibility to them.”

So here it was competent to contract for the services of efficient levermen, subject to the limitation that the Pennsylvania Company could not shift its responsibility, so far as the public and third parties were concerned.

But, secondly, it is contended that, notwithstanding this contract, and that under it the defendant was employing and paying the levermen whose duty it was to operate the inter-locker, when it was so operated for the benefit of the Pennsylvania Company, in the conduct of its trains on its road, the leverman was, for that time and purpose, the, agent of that company, or, at most, the joint agent of both companies. So that, in either event, the T. & O. C. Company is not liable in this action. We do not find it necessary to review at length the numerous authorities cited by counsel to support' thi,s proposition. From a consideration of all the authorities ¡it would seem there is no hard and fast rule which determines the question of agency, alike in all eases; but that the rule, in a marked degree, is made subservient to the facts in each case, and is fixed accordingly.

The trial court disposed of the case, and supported the judgment upon the theory that it was lawful for the railroad companies to enter into the contract for the employment, by one for the other, of competent agents to operate the interlocker; that the contract did not relieve the Pennsylvania Company from liability for negligence toward the plaintiff; that the lever-man, serving under the contract, was the agent of the T. & 0. C. Company, and not the agent of the Pennsylvania Company; that the Pennsylvania Company could, notwithstanding the contract, be held negligent because it had not kept a leverman in charge of the interlocker; that the jury might find the plaintiff, by entering upon the employment with knowledge of the fact that the Pennsylvania company did not employ a leverman of its own, waived any right of action he might otherwise have had on account of such negligence; and for that reason the plea of settlement with that company would be no defense in this action. To this effect the court charged the jury.

The ease thus made out would appear to be illogical. If it be lawful for the Pennsylvania Company to provide by contract with the T. & O. C. Co. for services of competent levermen to operate the interlocker, and such levermen do operate it, it is difficult to conceive how the company could still be negligent for failure to employ levermen. It had discharged that duty in a way the law permits, and in a way the court held it might do. To hold otherwise would be to deprive the contract, in that particular, of any legal status whatever so far as the plaintiff is concerned; and the court would be driven to the support of the first contention of the plaintiff in error, that the contract for the purpose of this case was null and void.

If the Pennsylvania Company could not be found negligent in that respect, then the proposition that the leverman was the agent of the T. & 0. C. Company only, can not stand with the proposition that the Pennsylvania Company could not contract against liability for negligence. For, not being negligent for failure to employ competent servants to operate the device, and not_ liable for the negligence of the servants of the T. & 0. C. Co. when they are doing the work of the Pennsylvania Company at the crossing, it is permitted to operate that particular part of its road without any liability for negligence; and this would be effected by. the contract.

"When it is conceded that it may contract wth the other company for the employment of levermen to operate the interlocker, but that it can not so contract as to relieve itself against negligence in the performance of that statutory duty, it follows that it must be held liable for the negligence of the servants, who by its procurement are performing that duty. They are pro Jiac vice, its servants. It has adopted and accepted them as such for the performance of that particular duty, at that time and place, by the terms of the contract; by accepting and relying upon their services; by issuing instructions to them, as the statute requires. The leverman whose negligence caused the injury was, at the time, the agent of the Pennsylvania Company. Railway Company v. Schneider, supra; W., St. L. & P. Ry. Co. v. Payton, 106 Ill., 535.

C. T. Lewis and Barger & Barger, for plaintiff in error.

Lentz & Addison, for defendant in error.

The relation of’the T. & O. C. Company to the operation of the Pennsylvania Company’s trains at this crossing was wholly contractual. The plaintiff was not in privity with the contract and can have no rights under it. What are the rights of the respective railroad companies under this contract, with reference to the accident, we are not called upon, to determine in this action.

It follows that the demurer to the petition, in the opinion of this court, should have been sustained, for that it did not state a cause of action against the T. & 0. Company. The action sounds in tort, and not in contract. It was not necessary to the plaintiff’s ease to plead the terms of the contract between the railroad companies, but proper, for the purpose of raising the question, whose agent was the negligent leverman, under the facts pleaded, which is the controlling question in the case.

Having resolved this question against the plaintiff, it follows, also, that there was error in overruling the motion to direct a verdict iior the defendant, which was interposed at the close of the plaintiff’s evidence; and error in the charge of the court.

The request by the defendant to charge, which was given by the court, is inconsistent with the general charge. It is therein stated to be the law that as the Pennsylvania Company could not contract away its responsibility, it would be responsible for the negligence of any one operating the system of interlocking for it by contract. This is a correct statement of the law, but it can not be reconciled with the general charge, which states that the leverman was the agent of the T. & O. C. Company and not the agent of the Pennsylvania Company for any purpose.

We find no other error upon the record. The judgment is reversed, and the cause remanded.


text:
    DOWER. IN THE PRODUCT OF OIL WELLS.
    [Circuit Court of Wood County.]
    Cassa M. Willford v. John B. Heimhoffer et al.
    Decided, March. 26, 1903.

      Dower — In the Production of Oil Wells — Sunk After the Death of the Husband — Bight of the Doweress in Oil from. Land Assigned to Her — Partition of the Lands — Effect of Provision Depriving Doweress of Interest in the Oil.

    1. A doweress has the same rights in oil wells sunk upon the lands of her husband after his death that she has in wells sunk before his death; and where the rents and profits of a tract of land are assigned to her, the oil production from that land is clearly hers.
    2. An order made in the probate court, upon confirmation in partition proceedings, which deprives the doweress of her rights in oil produced from a tract of land assigned to her in such preceedings is coram, non judice and void, and is not a bar to her right to recover.
    Haynes, P. J. (orally); Hull, J., and Parker, J., concur.
    Appeal from common pleas court.
   This case is in this court on appeal. The plaintiff in her cause of action against the defendants says she is the widow of Lewis D. Willford, who died seized of forty acres of land in Wood county, and the detailed description is given. She says she held the premises as tenant in common with the heirs at law of said Lewis D. Willford until the 3d day of September, 1895, when such proceedings were had in the probate court of the county, that a decree of partition was entered by said court and the premises ordered sold subject to her dower interest therein; that the commissioners appointed by the court to appraise said premises and assign to plaintiff her dower, did assign to her the rents and profits, for her natural life, of ten acres (which are described). That the premises were then sold on the 3d day of September, 1895, subject to plaintiff’s dower inerest therein, to one John B. Heimhoffer, who is still the owner thereof. She says that on September 19, 1894, she, and all the heirs at law of said Lewis D. Willford, executed and delivered to Frederick G. Moon an oil lease on said premises, and that Moon and his assigns have and are producing oil on the premises up to the present time. That on December 25, 1895, Dorr R. Willford and Charles H. Willford, two of the heirs, sold and assigned to the defendant, Margaret O’Brien, their undivided fourth interest of the one-sixth royalty in the oil produced on the premises, and that the said Margaret O’Brien remained in possession and received her share of the oil produced until July 20, 1898, when she sold her interest to some parties named Smith, who were doing business as The Huron Oil Company, and that they received their share of the oil until the 1st of September, 1899. She says she made due demand of Heimhoffer for an accounting of the oil produced on the premises, and that he refused to account. She says the defendants have remained in possession of the ten acres set off to her as dower since the 3d of September, 1895, and have continued to operate and produce oil therefrom, and that no part of the product has been accounted for or turned over to her; that she is unable to state the amount of oil produced from the property, or to state the amount of money, if any, paid out by the defendants in their operation of the lease. She says the defendants are held and are liable to account to her for all the oil produced on the ten acres so assigned to her, after the 3d of September, 1895, to the present time; and she says the defendants have operated said leasehold in such a manner as to completely destroy her income therefrom. She asks for a complete accounting of all the oil received and the money expended in the operation of the lease, and that upon the hearing of this cause that the defendants be required by proper decree of this court to account for and turn over to her all the oil produced on the said ten acres in September 3, 1895, after deducting the actual expenditures for lease operations; that the defendants be required to transfer said royalty to plaintiff, and that they be decreed to have no further interest therein during her life-time.

Answers were filed by the defendants, they relying, in substance, upon the_ fact that the dower of the plaintiff was assigned to her, subject to the said oil lease and that the one-fourth of the oil royalty in the whole of said'lands, including the portion so set off to plaintiff as her dower, was ordered by the probate court in the partition proceedings referred to. The plaintiff filed replies to these answers denying the allegations of new matter, and alleging that the petition and all the other pleadings filed in the partition proceedings fully set forth and recognized the dower interest and rights of plaintiff therein; that no issue was raised in any of the pleadings in any manner disputing plaintiff’s rights; that it was unnecessary for her to answer therein, and she did not file any answer. That prior to the filing of the petition for partition she had received a portion of the royalty by an amicable partition made thereof between the other parties who joined with this plaintiff in the execution of said lease, and that under said amicable partition she had received and was entitled to one-fifth of all the royalty from all the oil produced from the forty acres, and this division of the royalty was recognized by the averments contained in the petition; that when her dower was assigned to her she believed and relied upon the same carrying with it all the royalty produced therefrom upon the part so assigned to her in lieu of the one-fifth she had thertofore received from the whole tract; that when the commissioners assigned her dower they set apart to her the ten acres in question for the reason that there were two wells thereon that she might receive the royalty therefrom, and that said ten acres was and has been and had to be so occupied and used by oil wells and the carrying on of oil operations thereon as to render the same utterly useless for any other purpose; and then she denies that she ever transferred or authorized the transfer of her right to the royalty share of the oil produced from the ten acre tract to the defendants, and that the probate court has no authority or jurisdiction to make any such order or decree in that regard.

The case was heard upon an agreement as to the facts and some testimony, and it appears that some years ago one Lewis D. Willford died in this county seized of the real estate described, and that he left a widow, the plaintiff herein, and certain heirs at law who were of age. The heirs at law and the widow joined in and executed an oil lease on the forty acres to a certain party, and subsequently the land was partitioned. The lease was in the ordinary form and provided for the sinking of four wells on the land. These wells were sunk and were productive, and at the time the assignment of dower was made in the partition case, ten acres of this land were assigned to the widow which had upon it two of these four wells. It was a general assignment of dower of that ten acres and that assignment 'was confirmed by the court, and after the confirmation, or at the time of the confirmation, there was an order made by the-court in a journal entry in regard to the two wells on this ten acres of ground, practically providing that the widow should not have the two oil wells, but the land alone. Now the widow in her petition in this case claims the oil that has been taken from the land since the time of the assignment of dower. At the time of the execution of the original lease the power was given to one of the sons to draw the proceeds of the oil wells, and act as agent of all these parties, including the plaintiff. Subsequently he transferred that power to others, and it passed down through one to another until I think the last party was John B. Heimhoffer.

It is contended that by the assignment of dower, the widow has no right to the oil. In some cases she would have the right to the product of the oil if the wells had been sunk prior to the death of her husband. It is further claimed that this order that was made in this journal entry was conclusive upon her right to the use of these wells and the product thereof, and that she is barred by the judgment that was rendered in that case.

Now very briefly on this point: The dower question in this country is like a good many other questions; it is growing and expanding. The time was when a woman’s dower was thought about as little of as she was — which was little enough. In the case of Crocket v. Crocket, in 2d Ohio St., page 181, there is some discussion of the question of dower, and Judge Thurman in that case stated, upon the question of the right of the widow to cut timber, how extensively the widow might cut timber.

The rule had been very rigid in ancient times. He says:

“That a widow is dowable of wild lands in Ohio has long been well settled; that she is bound to pay the taxes upon the lands when assigned to her for dower, and that the failure to do so may result in a forfeiture of her estate, is expressly provided by statute. It follows, in our judgment, that she may by the sale of timber raise money to pay taxes; otherwise the estate would be a burden instead of a benefit to her. * * * It is well settled that many things may be done by a tenant for life here that if done in England would be waste; as for instance, the conversion of meadow or pasture into plowland, or woodland into a farm, etc. And it is also settled here that timber cut in improving the land belongs to the tenant for life and not to the reversioner. We are also of the opinion that where, as in the present case, the dower assigned consists of certain wholly unimproved and unproductive town-lots and a tract of woodland, the assignment is to be considered so far as an entirety as to authorize the sale of timber to pay the taxes on the lots as well as on the land. But we think the right to sell goes yet further,” etc.

It will be noticed that in this case they recognize the right to change woodland into farmland, and giving to the widow the timber itself, a thing that would startle an old-fashioned Englishman out of his grave.

There is a very instructive case in the 52 N. W. Rep., page 299, Seager v. McCabe. In that case a man had died leaving a widow, and had died possessed of certain lands in northern Michigan. You know that up there, there is nothing but rock and occasionally a tree that has to fight for its life pretty hard; but it turned out that this land was valuable for its minerals, though it was not worth anything as land to cultivate. The Supreme Court of Michigan takes up the question of dower, and discusses all these authorities that I have seen and heard cited, and they go through the whole matter very thoroughly. They hold that the widow is entitled to be endowed with the land and the contents of the land — the proceeds of it, and they give her dower in that land and in the minerals im it. The syllabus is :

“Under Howell’s Statutes, Section 5733, giving to the widow of every deceased person the use during her natural life of one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, a grant of dower in lands of her deceased husband, valuable solely as mineral lands, includes their use, and entitles her to her share of the proceeds of mining leases thereof, whether the mines were opened before or after the husband’s death.”

That is a wholesome doctrine and ought to be the doctrine in this country. If a wife helps a husband to accumulate property and get a farm, we see no reason why she ought not to have her share of the products of that land, whether it is from the surface, which may be very light, or from mines or mineral production under it which may be brought to the surface. However it is unnecessary to go to that length in the decision here. I will state in our judgment, the heirs having united in making this lease and providing for the production of the oil, and arranging as they did that it should be drawn as it was, that all this becomes a binding obligation, and whoever undertakes to take the assignment of that lease or of the products of the lease would be bound by the arrangement that had been made. In other words, we think that it was sufficient to give her a right to the use of the wells that may be sunk on the land — that were after-wards sunk — as dower, and it would be her’s as rightfully as it would have been if the wells had been opened prior to the death of the husband. Now the ten acres having been assigned to her, we conclude that she had a right to the proceeds of these wells clearly, unless she has been barred by something that has been done since that time. The paper she signed, turning the property over to one son, was simply to make him an agent. He was an agent of these other parties. Nowhere is it shown that she had consented that the money might be turned over to anybody else than herself. It is true that she waited for some time, and the matter had been going on for three or four years, but she is an old lady, and perhaps was not very well advised as to her rights, and probably of not very strong executive ability, and she probably did not get stirred up sufficiently.

Now as regards this decree, I will read from the case of Spoors v. Coen, 44 Ohio St., page 497. In that case a petition was filed in the probate court to sell property to pay debts, and it appeared that Spoors had at some time conveyed the property to another Spoors, and it was claimed that he was old and infirm and was not competent to do that; that Spoors had conveyed to the widow two acres of land. The petition in that case set up that the widow was alive and was entitled to dower, and counsel for plaintiff filed on her behalf a waiver of her dower by metes and bounds, and consented to take it in money. The petition nowhere set np that there was any fraud as to her, or was any claim made as to her property other than she was entitled to dower interest in the land, and when they took a decree in the case, they decreed that her land should be sold; practically took it out from under her. The court say:

“But, had the probate court the same jurisdiction in such matters as the common pleas, it would avail nothing in this case, for the reason that no such jurisdiction was invoked by the petition of the administrators against Rhoda Spoors. There is no averment in the petition that any land had been fraudulently conveyed, mediately, or immediately to her. The only averment as to her is, that she is entitled to dower in the lands, for which an order of sale is asked; and the only relief asked as to her is that her dower may be set off and assigned therein. And, in the answer filed for her by the attorney of the administrator, she simply waives an assignment of dower in the lands and elects to take the same in money. It is by no means intended to question or impair the principle that when jurisdiction has been obtained over the subject matter of a cause, by a court competent to exercise it, its judgment, however erroneous, can not be questioned in a collateral proceeding. A judgment so rendered can only be set aside or questioned in a direct proceeding instituted for that purpose. This is familiar law (Freeman on Judgments, Section 135). But a judgment rendered by a court of competent jurisdiction in a case brought before it, however erroneously the jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it, is another and different'thing. In one case its judgment may be erroneous, in the other it is void. To bring a cause before a court competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited and summoned in manner required by the law of procedure, but a case must also be made, or stated affecting the party against whom relief is asked;”

and then, after discussing the case, they held this judgment was void.

We think that authority is still in binding force in the state of Ohio, and we think it clearly disposes of this question. It appears that this suit was brought for partition, and there never was a word said in it in regard to the right of this old lady to an interest in this lease, and an order for partition was taken in the ordinary course, and the commissioners make the partition, the sheriff returning it, in which they set off in the usual and ordinary way ten acres of land, and then afterwards when the matter is confirmed, they undertake to make such disposition of it as will deprive her of her rights in the oil in this ten acres. We hold that this is coram non judice, and is void, and is not a bar to this woman’s right to recover.

James E. Wert and Baldwin & Harrington, for plaintiff.

James 0. Troup, for defendants.

We hold that she is entitled to the product of these wells, and that she is not barred or estopped by this alleged judgment, and a decree may be taken in her favor.


author: GlFFEN, J. Jelke, J.

text:
    TITLE TO AND CONTROL OF STREETS BY MUNICIPALITIES.
    [Circuit Court of Hamilton County.]
    Joseph C. Butler et al v. The City of Cincinnati et al.
    Decided, February 26, 1904.

      Streets — Title of Municipality Therein — Under the Modern Doctrine is a Title in Fee — A Qualified Fee, But Go-extensive with the Fee Title of the Abutting Owner — Such Owner Without Control Over— Can Not String Wires Over or Under at any Heighth or Depth— This Privilege Not Incident to Right of Ingress and Egress — Section 3471a Held Valid.

    1. Under the modern doctrine a city owns its streets in fee — a fee qualified by the purposes for which the title has vested, but co-extensive with the fee title of the abutting owner.
    2. The scope and extent of the purposes and uses of streets are to be defined by the municipality or the sovereign state, and not by the abutting property owner.
    3. The General Assembly having prescribed by Section 3471a that the stringing of wires in the space between the street lines at any level above or below the surface can only be done by the consent and under the control of the municipality, and this inhibition being within the power of the state, an injunction will not lie against interference by a municipality with electric wires, which have been used for a period of two years for conveying a current from one building to another across an alley and at a depth of nineteen feet below the surface.
   GlFFEN, J.

The plaintiffs seek to enjoin the defendants from cutting and removing certain wires maintained by the plaintiffs under and across Thorpe alley, at a depth of nineteen feet below the surface, for the purpose of supplying electricity to the premises of A. S. Taft from the premises of the plaintiff, each abutting upon said alley.

There is no substantial difference in the right of an abutting owner in the alley whether he or the city holds the title in fee. He has a property interest in the alley adjoining his lot which can not be taken against his will except upon the terms provided by the Constitution. Callen v. Electric Light Co., 66 O. S., 166.

His essential right is an easement in the alley appendant and appurtenant to his lot for ingress and egress. This includes the right to convey by horse and wagon or other suitable means such materials as he may require for the use and occupancy of his premises; and so long as he does not interfere with the right of the city and the public to the free and uninterrupted use of the alley, they can not complain of the material thus conveyed nor of the means employed to accomplish it.

The wires are used to convey electricity from one to the other of the two abutting lots alternately. And while the mode of conveyance and the material carried are different in kind, they do not differ in principle, as applied to the right of ingress and egress, from the conveyance of coal and other materials by horse and wagon from one lot to the other for the purpose of generating electricity. The fixed and permanent nature of the conduit is no legal objection to its maintenance, unless it does now or probably will in the future materially interfere with the use of the alley by the public.

It is averred in the petition and not denied in the answer—

“That said wires are many feet below all water and gas pipes and all sewers and conduits which have been laid or will hereafter be laid in said alley. That said wires have been maintained under said alley for more than two years; that the maintenance of said wires in such place and at the great depth of nineteen feet has in no way interfered with the use of said alley by the public or by the city of Cincinnati; that the continued maintenance of said wires at such depth can not at any time interfere with the use of said alley by the public or by the city or its board of public service or its successors, or any agent or officer of said city, for any municipal purposes or use whatever.”

This being true, the plaintiffs, by maintaining the wires, are infringing upon no right of the city or of the public; but are exercising a right incident to their easement of ingress and egress.

If the doctrine contended for by the city is the law, then an abutting owner may not lay a pipe in the pavement to drain the water from his house to the gutter; nor excavate the ground under the pavement for purposes of storage; nor construct a bay-window that will project over the pavement, although nineteen feet above the surface of the ground, each of which obstructions would more likely interfere with the public use of the street or alley than an underground wire.

Every individual’s property is subject to proper and reasonable police regulations, as was attempted by Section 3471a, Revised Statutes; but applied to the facts admitted by the pleadings in this case the inhibition of the statute is not only unreasonable, but, without just cause, deprives the abutting owner of land of a substantial property right.

Jelke, J.

I can not concur in the above conclusion for the following reasons:

The nature of the title of a municipality in its streets has been much in doubt until recently. The New York Elevated Railroad eases have defined this ownership, and the Supreme Court of Ohio has adopted the modern doctrine in this regard in the eases of Callen v. Electric Light Company, 66 O. S., 173, and The Traction Company v. Parish, 67 0. S., 190.

It is now settled that the city owns its streets in fee, not in fee simple, but has a base, qualified, or determinable fee. The qualification of such fee is that the city owns the land between street lines in trust for street purposes. A "qualified fee” is defined by Blackstone—

"This estate is a fee, because by possibility it may endure forever in a man and his heirs; yet as that duration depends upon the concurrence of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a qualified or base fee.”

So long as the city, maintains the purposes for which it is vested with title, this estate is a fee and as such eo-extensive with a fee title in any owner of any other property.

This estate, of course, is subject to the property right of the owner of abutting property of ingress and egress. All property rights existent in the land between street lines and over and above the property rights or easement of the abutting property owner must follow the fee and belong to the municipality.

I agree that if plaintiffs’ right to maintain the wire in question exists at all, it must subsist in being a part of the abutting property owners’ right of ingress and egress. I do not think, however, that the establishment of a fixed wire is within this right of ingress and egress as those words are commonly understood. Bay, oriel windows, cellar extensions under the sidewalk, and gutter pipes, have in many instances been permitted to remain unchallenged. But they do not exist by virtue of any property right of the abutting property owner, but by the indulgence of the municipality.

I can not follow the ease of Henry v. The City of Cincinnati, in The Ohio Law Reporter of September 21, 1903, 1 Circuit Court — New Series, page 289, for the reason that I do not think that it recognizes what is now the accepted modern doctrine as to municipal ownership in streets.

Such being the estate of the city, if, however, the city’s control is to be limited to street purposes, only the scope and extent of such uses are to be defined by the municipality or the sovereign state and not by the abutting property owner.

If the state sees fit, as it has done in Section 3471a, Revised Statutes, either for proprietary or police purposes, to declare that the stringing of wires in the space betweent street lines, no matter how high above or far below the surface, shall be deemed within the city’s property and jurisdiction, such declaration defines the city’s occupation and makes the limit, always provided that it does not trespass upon the private property rights of the abutting owner.

Coffey, Mallon, Mills & Vordenberg, for plaintiffs.

Charles J. Hunt and Albert H. Morrill, contra.

“Provided, however, that in order to subject the same to municipal control alone, no person or company shall place, string, construct or maintain any line, wire fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes through any street, alley, lane, square, place or land of any city, village or town, without the consent of such municipality; and this inhibition shall extend to all levels above and below the surface of any such public ways, grounds or places, as well as along the surface thereof.”

It is extremely difficult to define exactly what shall be included within the abutting property owner’s right of ingress and egress. All of the uses can not, with certainty, be enumerated, and there is no exact rule of law to determine just what uses are within and without such right. But it does not seem to me that the stringing of a permanent wire across the street or to the middle thereof to meet a wire from the other side of the street at any height above or depth below the surface, is within the meaning of these terms as they are understood, in dividing a piece of ground into streets and abutting lots.

As it is within the power of the city through the police department to remove anything improperly and illegally in the streets, I am of opinion that an injunction should be denied.

The two judges who sat at the hearing of this case, being unable to agree, as shown above, the same was submitted to Judge Swing, who is of opinion that Revised Statutes 3471a, controls, and that an injunction should not be granted.

The order of the court will therefore be that plaintiff’s petition be dismissed.