text:
    WARRANTY IN THE SALE OF A HORSE.
    [Circuit Court of Lorain County.]
    B. H. Palmer & Son v. Charles Cowie.
    Decided, October 6, 1905.

      Warranty — Failure of — Form of Action Against the Seller — Questions of Evidence — Talcing of Notes of Testimony by a Juror — Not Misconduct, When — Weight of Evidence — Charge of Comrt.

    1. Failure of the warranty that a horse is sound in every way, gives to the purchaser á right of action against the seller, either for damages or for rescission of contract.
    2. Where the action is for rescission of contract, it is not error to exclude testimony to the effect that at the time of the trial the horse was dead; or the statement that certain of the witnesses were jurors at the trial of the same case before the'justice of the peace; or to permit one who has had long experience with horses to testify, -although not a veterinarian-; or to exclude a statement of the purpose the witness had in- examining the hor-se.
    3. The use of the word “nice” by a witness, who testified that the ■horse in question had a “nice round hoof,” does not render the answer sufficiently objectionable to. warrant a reversal of the judgment.
    4. The mere fact that a juror, in the absence of a caution to the contrary, took notes of the testimony during the progress of the trial, does not constitute misconduct on his p'art, and is not ground for a new trial.
    5. A charge of court as to the right of a purchaser to return a horse not coming up to the warranty should specify that the return must have been, made within a reasonable time and under circumstances which placed the vendor in statu quo.

    6. A charge of court to the effect bh'at warranty of soundness would cover the condition of the shoulders, where the vendor had said of the thin shoulders that they were all right, was erroneous, unless it appeared that the fact that the horse was sweenied was not ■obvious to those who examined him.
    7. A verdict in favor of the defendant, in an action for recovery on a warranty by him of a horse sold to the plaintiff, will not he set aside, where the evidence was such that the jury might, without bias or prejudice, hut in the exercise of a sound judgment, have reached the conclusion that the horse was not sweenied at the time of the sale.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Suit was brought by Palmer & Son 'against Charles Cowie before a justice of tbe peace, and was thereafter appealed to and tried in the court of common pleas where it resulted in a verdict and judgment for the defendant. By proper proceedings the ease is now here for review upon petition in error filed by tbe plaintiffs below. A bill of exceptions is filed in this court containing all the evidence given or offered at the trial, and it is urged that errors prejudicial to the plaintiffs are manifest upon this record.

The action was based upon the claim that on the 9th of May, 1904, plaintiffs purchased a mare from defendants, and paid for her the agreed price of $145. That at the time of such purchase the defendant warranted her to be sound in every way; by reason of which warranty plaintiffs were induced to make the purchase and pay the money. That the mare was in fact unsound when such purchase was made, in that she was hoofbonnd and was badly sweenied in both shoulders, and upon being shod the same day became very lame on account of such unsoundness; that the plaintiffs within four days of such pur-f chase returned the mare to the defendant and tendered her to him, demanding a return of the money; that the defendant refused the tender and refused to return the money; that plaintiffs were put to an expense of $30 in keeping and earing for the mare. The prayer is for judgment for the said purchase price and for said $30 so expended on the mare.

For answer the defendant admitted that he sold the mare to plaintiffs for $145 and denies .all the other allegations of the petition.

It will be noticed that the plaintiffs based their action upon the rescission of the contract and not upon a claim for damages for a breach of warranty. Upon the facts stated they might have sued either way, that is they might have retained the mare and sued for the breach, or sued upon rescission as they did. Had they sued for the breach, they would have course have made the additional averment, that they were damaged in some certain amount by reason of such breach.

One of the errors complained of is that the verdict is against the weight of and contrary to the evidence. To1 reverse on this ground, we must find that the verdict was' clearly against thie weight of- the evidence, so that unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury.

It is not claimed by the defendant that he did not practically warrant the mare to be sound. He says in his testimony that he told Palmer at the time of the purchase “that the mare is sound from anything I know. I raised her and it seems I ought to know.” Again, he testified that Palmer -asked him if the mare' was ever sweenied and he answered “No, sir; them shoulders are the same as they always were from a colt.”

The defendant, however, claims that what he said about her was true, and on this issue the jury must have found with him, unless they found that whatever unsoundness there was, was so patent that, no representation about it could have mislead any one.

There is evidence tending to show that there was a peculiarity ■about the shoulders of this mare that was noticeable and that attention was called to this at the time of the purchase, when Cowie declared that the mare was not sweenied. There is evidence tending to show that the mare was sweenied at the time she was sold and there is evidence also tending to show that she was not.

Fred Rowland, a witness for the defendant, though not a veterinary, shows that he has bought and sold and examined many horses; he says he has purchased and sold at least one hundred and fifty horses within the last five years; he examined the mare at the blacksmith shop on the day of the sale; he says her shoulders were a trifle narrow but she was not sweenied.

Orrin Babcock looked the mare over a few days before the sale and noticed her shoulders were thin, but says she was not sweenied.

Stanley Wilcox examined the mare two days before the sale, the sale having been on Monday; he examined her on the Saturday before, and noticed the shoulders, but says she was not sweenied. Other witnesses gave similar testimony. One Snyder and William ITart testified to substantially the same thing upon the examination made by each of them.

All this is enough to show that the jury had evidence on which they might, without being biased or prejudiced, but in the exercise of sound judgment, have reached the conclusion that the mare was not sweenied.

It may be that the evidence of the unsoundness would seem from a reading of the record to be weightier than this, but it is not such as to justify us in saying that the jury, who saw the witnesses and had full opportunity to judge of their testimony, were clearly wrong, and the judgment will not be reversed on the weight of the evidence.

It is further urged that the court erred in certain rulings made at the trial upon the admission of evidence. On page 5 of the bill of exceptions a ruling is found which was made when Stewart McConnall was upon the stand as a witness. It appears that after the trial before the justice of the peace the mare was turned into the pasture of this witness. The witness in answer to a question as to what became of the mare after the trial, answered that she was turned into his pasture where she remained until she died. The court told the jury to exclude from their consideration the statement that the mare died. This was in no wise prejudicial to the plaintiffs, unless they had a right.to show, as> a part of their case, that the mare was dead. Andjin order to- make it of value to them they must have been -able to show that the mare died by reason of her unsoundness that existed at the time of the purchase; and if they might show that, then the defendant would h-ave .a right to- show that she died from some neglect -of the plaintiffs’ after the sale, and there w-o-uld have been raised an issue -of what the treatment of the mare was all -the time, and what sickness, if any, she had after the sale. There was no -error in excluding fro-m the jury the statement that the -mare died.

Exception is taken to the exclusion by the court -of the statement of W. M. Murray and -others that they were members of the jury which. tried thi-s case before the justice -of the peace. Murray, in testifying in the common pleas court, tol-d of an examination he made -of the mare -on the- day of the trial before the justice of the peace, and then to give weight to- his testimony it was sought to show that he was a juror. That is true as to others who- were called and who made- examination o-f the mare on the day of the trial before the justice of the peace. It was certainly not a matter which the plaintiff had a right to show as giving additional weight to the testimony of these witnesses that they were- jurors on the trial -before the - justice of the peace. They were here, they testified to their examination, and it ought not to add to or detract from the weight -of that evidence that they were jurors before the justice -of the peace. Evidently the object was to impress the jury with the fact that the result, as the transcript shows before the justice of the peace, was in favor of the plaintiffs, and that these jurors were so impressed with the unsoundness of the mare that they returned a verdict showing that -they thought her to be unsound. There was no error in the ruling on this.

It is claimed there was error because John Snyder was permitted to give his opinion as to whether this m-are was sound. He had examined her; -he was not a veterinary, but he says he is in the horse business and has been -all his life; has seen hundreds of sweenied horses; that Ms business is buying and selling horses. He described to some extent the appearance o-f the shoulders and ho-o-fs of this m-are 'and was permitted to give his opinion as to whether she was sound or not. We think there was no error in the ruling on that. It is true he was not a veterinary, but 'he had, as appears from his testimony, a greater knowledge than the average man has of the condition of horses, and long experience in dealing in horses and examining them.

When William Hart was upon the stand he was asked to describe the mare’s hoofs, and he answered she had a nice round hoof. This appears on page 200 of the bill of exceptions. It was objected to and overruled (the record is a little peculiar), the witness said “I cleaned her hoofs out, and I think she had a nice round hoof. ’ ’ (Objected to by counsel for plaintiff. Nd ruling). Without stating what you think, eliminate the words “I think,” you may describe the hoof. “A. She had a nice round hoof.” (Objected to by counsel for plaintiffs, which objection the court overruled; to which ruling the plaintiffs then and there excepted). I suppose, however, and we will treat it as though the objection had been made to the question put, “Without stating what you think, eliminate the words ‘I think,’ you may describe the hoof.” If we treat it as an objection to that question it was properly overruled. However, no ruling was made upon it until the answer is made, “She had a nice round foot. ’ ’

Certainly the better way to have got at that, if it was thought that .the answer was incompetent, would have been to ask to have it taken from the jury, but treating the language here “objected to by counsel for plaintiffs,” as meaning that it is desired to have that taken from the jury, we think there was no error in refusing to so rule. Of course without the word “nice” there could be no objection to this answer, “she had a round foot.” Now is it enough to malee that answer objectionable that the word “nice” is introduced? We think not. There was no error in the ruling on this.

Charles Cowie, on cross-examination, as appears by the bill of exceptions at page 154, described the appearance of the mare on the day of the trial before the justice of the peace, and said he did not think she was then sweenied. Charles Cowie is the defendant in the action. He was then 'asked if he did not see every one of the jury examine her on that day, and an objection was made and the court sustained the objection. He was permitted to testify immediately following this that he saw others than himself examine her, and the only possible object it seems to us that the plaintiffs could have had in asking that that question be answered, was to impress- the jury which was trying the case in the common pleas court that the jury which tried the ease before the justice of the peace saw the mare and examined her, and they found for the plaintiffs, and then reason that it must be that their examination was such as to justify that verdict. These jurors all might have been called as witnesses, and several of them were as -a matter of fact, because they offered to show, the plaintiffs did, that they were jurors and the fact that they examined the mare, that the witnesses did; and that these witnesses saw various men other than themselves examine her on that day was before the jury, and there was no error in the sustaining of the objection to this question.

William Hart, being on the stand, was answering questions, and on page 202 of the record he was asked this question .(it should be said he had testified that shortly before the mare was sold'to the plaintiff®, he had examined the mare, and he was asked this question) : “State whether or not you were looking at the horse with -a view of matching it with another horse which you had?” (To which question the plaintiffs objected, which objection the court overruled; to which ruling the plaintiffs then and there excepted). He said, “I was looking at the mare with the intentions of”— He got that far when counsel for the plaintiffs objected, and without the answer being completed at all, so that up to this point it has not appeared what he was examining the horse for, this question was asked, “Can you answer that yes or no?” and he said “Yes.” “Now answer it, were you or were you not?” “Yes.” That is, -he is now permitted to say that he was examining the mare with a view to matching her with another horse that he had; so that how the plaintiffs can complain that he was not permitted to tell, and indeed what possible difference it could make to anybody what •he was examining her for, we can not see. It is the result of the examination that is material, and not the purpose of it. The purpose of it might show, that is, if he was examining her with a view to purchasing her, i$ might carry with it an idea he made a careful examination; but he has said he did, somewhat careful, at least. There was no error in the ruling on this.

At page 169 of the bill of exceptions it appears that the court observed that a juror was taking notes, apparently of the evidence which was being given, and the court said, ‘ ‘ I notice, gentlemen of the jury, that some of you have been taking notes of the testimony. The theory of the law is, that unless you all take notes of the testimony none of you should, so- that some of the testimony will not be unduly emphasized in the jury room, and I will ask you to discontinue that.”

At page 272 there is an affidavit of Mr. Kenny, who was counsel in the case, that he observed during the trial that a juror, whose name he gives, was taking notes of the testimony, evidently referring to the,same thing to which attention is called by the court on page 169. There is nothing to indicate that after the court said that anybody took any notes, nothing to show that the juror retained the notes; but he did take down something on paper, and the witness says, notes of the testimony, which we may assume -to be true, though I doubt if the witness knew for certain that that was it. But is that misconduct on the part of a juror for which the verdict of the jury should be set aside and the judgment reversed?

Judge Adams, in the 20th Circuit Court Reports, page 512, the case of The C., C., C. & St. L. Ry. Co. v. Ullom, Admx.— what he said appears on page 522 of the report — expresses grave doubt as to whether a juror is guilty of misconduct by taking notes. Speaking for myself alone, I entertain no grave doubt about it. Unless a juror is cautioned not to take notes I know of no rule, nor can I think of any principle, that would make it misconduct on the part of a juror to take notes, any more than on the part of a judge before whom a trial upon facts is being heard, .and especially where there are several judges.

It is true that a juror might, by taking notes, have more information about the case in the jury room than a juror who did not take notes. It is equally true th-at there is a great difference in the intelligence of jurors. It is true that there is a difference in the memory, power of memory, of jurors and judges, and it is possible that it gives one juror an undue influence with his fellow jurors; but certainly until a caution is given it would seem to me a very remarkable thing that a juror should be said to-be guilty of misconduct because he took down some notes of the evidence that was being introduced. There was no error in the court refusing the motion for a new trial upon that ground— misconduct of the jury in taking notes.

It is complained, however, that the court erred — •

First. In refusing to give to the jury in charge certain propositions which the plaintiff requested, and the first of these propositions is this:

“If the jury find from the evidence given in this case that the defendant, Charles Cowie, warranted the mare to be sound and all right, and the jury find that the mare was not sound and all right, then the plaintiffs- had a right to return the mare to the defendant and demand the return of the money that they had paid for the mare.”

Th-at language omits, as we think, a material proposition. In one of the eases cited by counsel for plaintiff in error here, found in the 64th O. S. Reports, page 195, Crook & Co. v. Eldridge & Higgins Co., it is said that if the property is returned so as to put the defendants in statu quo, there being a breach of the warranty, the party returning within a reasonable time the property, in such wise is to put the vender of the property in statu quo, he may do that and recover the purchase money. But that is omitted here. If this proposition had been given, the jury might have found that the mare was returned; by reason of ill treatment of the mare by the purchaser she had been greatly injured, and .although she was swee-nied at the time, they had a right to return her -with the additional injury -which they had put upon, her by overdriving her, or the like, and still have a right to rescind the contract. The court was right in not giving that in charge. And the second request is the same,

The third request reads;

“If the jury find from the evidence given in this case that the defendant, when the plaintiff, James Palmer, asked him about the mare’s shoulders, told him that the shoulders were all right, that she was born that way; and you further find that the mare was in fact sweenied at the time of the sale, the warranty of the soundness of the mare would cover the condition of the shoulders. ’ ’

That would be true, that proposition of law would be correct, if it had one additional qualification, to-wit: That the unsoundness was such that it was not patent to whoever looked at the mare. There was evidence tending to show that this mare’s shoulders were peculiar and that attention was called to that by not only parties at the time -of the sale to the plaintiffs here, but at other times.

Now it is claimed on the part of the defendant, that whatever unsoundness there was — he says the mare was not unsound, there was no sweeny — but whatever there was about the mare that wasn’t all right was patent to everybody who looked at her. And the defendant introduced evidence tending to show the peculiarity about these shoulders was noticeable to those who looked at her. Now this should have been qualified, that if the mare was warranted, if she was unsound, and that unsoundness was not patent so as to be noticeable by those who examined her or looked at her, then the warranty would cover, and they would be entitled to recover for its breach.

I read from the 18th Edition of Swan’s Treatise, page 830:

“A warranty of the soundness of a horse, or other property, extends to every kind of unsoundness, known and unknown to the seller. If, however, the buyer examines the property at the time of the sale, and it is perfectly apparent that it has some particular defect, which can be discerned without requiring the use of any particular skill in the qualities of the property, as the loss of the ear of a horse, it will be presumed that the parties did not understand such defect as coming within the warranty. If, however, the horse, or other property, has a defect which is not plain and obvious, except to those who are skilled in the quality of the particular article, it can not be claimed by the defendant that the defect was top plain and obvious to come within the warranty,”

D. J. Nye and G. J. Kenny, for plaintiffs in error.

Lee Strov/p, for defendant in error.

There was no error in the refusal to give the charge as requested, in number three. The court properly stated the questions to be considered by the jury in the outset of his charge after stating the issues.

Beginning at page 259 of the bill, “Was the horse at the time of the sale unsound in the particulars complained of in the petition, or was it thereafter injured by the plaintiffs? Were the defects complained of in the petition known to the plaintiffs at the time of the purchase, or were they plain and obvious to the senses, and such to require no skill to detect, and if so, were they included in and conveyed by the warranty?” Plainly implying that even if they were obvious they might be included in the warranty. Then he says, “Were the defects complained of in the petition included in such warranty?”

“A general warranty does not usually extend to defects which are known to the buyer, or to defects which are plain and obvious to the senses and which it requires no skill to detect.” Following the law as laid down in Swan’s Treatise, which has been read.

Without following this charge through all of the way, we have found nothing in the charge which would warrant a reversal of the judgment. We think there was no language in the charge calculated to mislead the jury; but that it was calculated to call their attention to exactly the questions they should pass upon.

The court did say once or twice in the charge, “if you find that on the day of the sale” certain things- existed. It was suggested- to the court that that might be erroneous, because there might be something happen to the mare- in the latter part of that day when she was being driven to Ashland, as she was ■in the afternoon, and the court corrected that, and said “when I have used the term ‘on the day of the- sale’ I mean at the time of the s-ale.” We- think the charge of the court was proper. There is no error in the record which would justify a reversal, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    NEGLIGENCE IN MAINTAINING A TURN-TABLE.
    [Circuit Court of Portage County.]
    The Wheeling & Lake Erie Railroad Company v. Carl Harvey, By His Next Friend.
    Decided, September Term, 1905.

      Railways — Turn-table near Traveled Path — Child Hurt in Plpying upon It — Contrary Holdings of the Courts — As to Duty of Land Owner Totoard Trespassers — Reasonable Precautions for Protection of Children.

    Where a railroad company maintains a turn-t'able upon its right of way, close to a traveled path along its track, which people, old and young, have been accustomed to use, without objection for many years as a traveled way, and further permits children to play upon such turn-table, without objection — Held: That it is its duty to guard such turn-table, or so securely fasten it that children of tender years will not be injured while playing upon it.
    From the memorandum of authorities submitted by Squire, Sanders & Dempsey, for plaintiff in error.
    The so-called “turn-table doctrine” has never been adopted in Ohio'. Reference to the turn-table eases in Harriman v. Railway, 45 O. S., 11, is mere dictum. See the explanation of the ITarriman ease in the following cases: Railroad Company v. Aller, 64 O. S., 183; Railroad Company v. Cox, Admr., 66 O. S., 276; Railway Co. v. Workman, 66 O. S., 509, pp. 540, 541.
    Recent decisions of the Supreme Court are inconsistent with the turn-table doctrine, which was applicable to these cases if in force in Ohio: Railroad Company v. Kinz, 68 O. S., 210; Railway Company v. Liidke, 69 O. S., 384.
    Unless a different rule is to be applied in Ohio toward children than toward adults, the following cases prevent recovery in the present: Railway Company v. Bingham, 26 O. S., 364; Railroad Company v. Aller, supra.

    The original turn-table case (Railroad v. Stout, 84 U. S. [17 Wall.], 657), assumes the question at issue, and is an extension of cases since overruled. Railroad Company v. Kinz, supra.

    The weight of authority is opposed to the turn-table doctrine: Frost v. Railroad Co., 64 N. H., 220; Daniels v. Railroad Co., 154 Mass., 349; Holbrook v. Aldrick, 168 Mass., 15; 36 L. R. A., 493; McAlpin v. Powell, 70 N. Y., 126; Walsh v. Railroad, 145 N. Y., 301; Gillespie v. McGowen, 100 Pa., 144; Rogers v. Lees, 140 Pa., 475; Paolino v. McKendall, 24 R. I., 432; Turess v. Railroad, 61 N. J. L., 314; Railroad v. Raich, 61 N. J. L., 635; 41 L. R. A., 231; Retz v. Wheeling, 45 W. Va., 270; 43 L. R. A., 148; Uthermohlen v. Boogs Run Co 50 W. Va., 257; O’Connor v. Railroad Co., 45 La. Ann., 339; Catlett v. Railroad Co., 57 Ark., 461; Indianapolis v. Emmelman, 108 Ind., 530; Patterson v. Borough of Woohkahra, 16 New South Wales, L. R. Cases at Law, 229.
    In the following states the turn-table doctrine has been in force but is now repudiated:' Ryan v. Towar, 128 Mich., 463; 55 L. R. A., 310; Railway v. Beavers, 113 Ga., 298; Nolan v. Railway Co., 53 Conn., 461; Dobbins v. Railroad Co., 91 Tex., 60; 38 L. R. A., 573.
    Those states applying the turn-table doctrine do* not carry it as far as the present ease, as the turn-table here was fastened, and the requests to charge based upion the following cases should have been given: Railroad Company v. Bell, 81 Ill., 76; Kolste v. Railroad Co., 32 Minn., 133; Bates v. Railroad Company, 90 Tenn., 36.
    The plaintiff was not attracted onto the premises of the railroad company by the turn-table, and the turn-table doctrine does not apply: Jefferson v. B. R. E. Co. (Alabama, 1887), 38 L. R. A., 458; Elliott on Railroads, Vol. 3, No. 1259.
    Brief of W. J. Beekley on behalf of defendant in error.
    On behalf of plaintiff it is claimed that the within case is what is denominated in the books a “turn-table” case, and in nearly every aspect corresponds with the material facts found in a large number of eases decided in the various states.
    Carl IParvey, at time of injury, was less than six years of age, and therefore could not be said to be guilty of contributory negligence.

      While the turn-table was not located' in a thickly settled neighborhood, yet it was within the corporate limits of the village of Kent, and residences were within a few ¡hundred feet of the same, and was located also midway between two streets of said village, which were much used for travel, and the tracks of defendant company between the two streets had for years been used as a passage-way for pedestrians.
    The turn-table was not locked, and the fastening was so slight that, as shown in the evidence, children of tender years had lifted the same, and set the turn-table in motion.
    The evidence discloses not only that from the situation the company ought to have anticipated that children would be attracted to 'the turn-table and play thereon, but actual knowledge of the company of the repeated custom of children moving and playing upon said turn-table was proven.
    We have, therefore, all t'he necessary ingredients of liability in the above line of cases, sometimes denominated “dangerous and attractive nuisances,” namely, a machine peculiarly attractive to children, and latently dangerous to- those who might be attracted thither for the purpose of play; located where the owner should have anticipated that children would be attracted thereto; actual knowledge that they were wont to play thereon ; insecurely fastened; and no reason whatsoever given by defendant company why the same could not have been safely and securely locked and not materially interfere with its beneficial use thereof.
    The first and leading ease establishing the liability in such cases is what is commonly denominated the “Stout” case, and which was once tried before the noted jurist, Judge Dillon, who delivered the charge to the jury. Sioux City & P. R. Co. v. Stout, 17 Wall. (U. S.), 657, followed and approved in Ry. Co. v. McDonald, 152 U. S., 262; Alabama G. S. R. Co. v. Crocker (Ala.), Vol. 31, S. Rep., 561; Chicago, B. & O. R. Co. v. Krangenbuhl (Supreme Court of Neb., decided October 9, 1902), 91 N. W. Rep., 880; Edington v. Burlington, C. R. & N. Ry. Co. (Supreme Court of Iowa, April 12, 1902), Vol. 90, N. W. Rep., 95; Harriman v. Ry. Co., 45 O. S., 11, especially page 28; Ry. Co. v. Shields, 47 O. S., 387; Ann Arbor R. Co. v. Kinz, 68 O. S., 226-227 ; L. S. & M. S. Ry. Co. v. Duer, Gdn., 11 C. D., 761; 91 Cal., 296 (25 Am. St. R., 186); 92 Cal., 89 (28 Pac. Rep., 104); Keefe v. Mil. R. R. Co., 21 Minn., 207 (18 A. Rep., 393); Kan. R. R. Co. v. Fitzsimons, 22 Kan., 686 (31 Am. Rep., 203, and notes therein cited): East Tennessee & W. N. C. R. R. Co. v. Cargille (decided by the Supreme Court of Tennessee, November, 1900), found in Vol. 9, Am. Neg. Rep., 200; Koons v. St. Louis R. R. Co., 65 Mo., 592; Nagel v. R. R. Co., 75 Mo., 652 (42 Am. Rep., 418); Ilwaco R. Co. v. Hedrick, 1 Wash., 446 (22 Am. St. Rep., 169); McMahon v. Pekin, 154 Ill., 141, see especially page 149; Ferguson v. Columbus Ry. Co., 75 Ga., 637; Ferguson v. Columbus Ry. Co., 77 Ga., 102; Central Law Journal, Vol. 42, page 457.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to the Court of Common Plea» of Portage County.
   Carl Harvey, a boy six years of age, was injured by having his left leg crushed, necessitating its amputation close to the thigh joint, on the 2d day of July, 1904, while he was riding upon the turn-table of the Wheeling & Lake Erie Railroad Company situated upon its premises in the village of Kent, this county. There is very little dispute, if any, about the facts, and the question presented is: Was the jury justified in inferring negligence, from the facts in the ease ?

The evidence shows that the- turn-table was situated close to the main track on the right of way of the company, in the village of Kent; it is true, not in its most populous section, but in a place where there were a number of dwellings, upon two streets close to the turn-table. The tracks -of the company ran north and south at the place of the injury, ¡and numerous persons, adults and children, without objection from the company, were •accustomed for -a number of years to use a side path along the main track, in going to and fro between these two streets, as well as from other parts of the village. The evidence further shows that children, for some time, at least four or five years, had been accustomed to play upon the turn-table, with the knowledge of the subordinate employes of the company; when they were turning the turn-table these employes would object, and drive them away; when running over it, playing upon it only, they would not disturb them.

The turn-table was -not locked, or otherwise securely fastened. It 'had a piece of iron known -as a brake shoe, four inches wide by sixteen inches long, fitted down into a groove, one end placed upon the end of the turn-table, and the other upon a tie at the end of the switch intersecting the turn-table. This piece of iron weighed about ten to fifteen pounds, and could be easily removed by any one who conld lift it. Sometimes this break shoe was in place, hut frequently not in place, the turn-table swinging in the wind or by its own motion.

The day the boy was injured, he, with two other boys of larger size, went down the track, along the path for the purpose of getting a small piece of iron; in coming hack, and passing, the turn-table for the second time, one of the boys suggested that they have a ride on the turn-table, which was unfastened by one of the larger boys lifting out the 'break shoe. The plaintiff got upon the turn-table, and the two larger hoys pushed the turntable around to give him a ride, when his leg got between the end of the turn-table iand the abutment of the switch, and he was injured ás stated.

Under these facts, is the company liable? No amount of discussion would help to elucidate or settle the question as it has been gone over in nearly every state of the Union, and the holdings are directly contrary to each other.

Two principles are set forth and maintained in these directly opposite decisions. The first is: That an owner of land may use it in such, manner as he sees fit; and if a trespasser or mere licensee, although a child of immature years, is injured, he can not complain, for the reason that, if the owner had used it more carefully, no injury would have resulted, and that in the ease of turn-tables, erected and maintained upon the company’s land, although in a public place, or in a place where children are in a habit of congregating to play upon the turn-table, is not an invitation or inducement held out to the child to come upon the premises of the company ?

This rule has the support of many eminent courts and jurists in a large number of states: Haunsell v. Smith, 7 C. B. W. S., 731; Clark v. Manchester, 62 N. H., 577; Klix v. Memon, 68 Wis., 271; Gramlich v. Wurst, 86 Penn. St., 74; Conley v. Pittsburg, Cincinnati & St. Louis Ry. Co., 95 Penn. St., 398; Gillespie v. McGowen, 100 Penn., 144; Hargarve v. Deacon, 25 Mich., 1; Sweeny v. Old Colony & New Port Ry. Co., 10 Allen, 368; Metcalk v. Cunand Steamship Company, 147 Mass., 66; Barstow v. Old Colony Ry., 143 Mass., 535; Daniels v. N. Y. & N. E. R. R. Co., 154 Mass., 439; Frost v. Eastern Ry. Co., 64 N. H., 220; Walsh v. Fitchburg R. R. Co., 145 N. Y., 301; D., L. & W. R. R. Co. v. Reich, 61 N. J. Law, 635.

•The last ease referred to places the rule in its strongest light, the syllabus being as follows:

"1. The plaintiff, ;a young child, was injured while upon a turn-table of the defendant company. The turn-table was located upon the private property of the defendant, near to a public street, and was entirely unprotected and unguarded. Children of all ages frequently congregated upon the defendant’s premises, to play upon the turn-table. Held: That there was no liability on the part of the railroad company, to answer for the plaintiff’s injury.
“2. The land owner is ordinarily under no obligations to a mere licensee or to a trespasser, to keep his premises in a safe condition; and the fact that the licensee or the trespasser is an infant of tender years affords nO' reason for modifying this rule, and’ charging the land owner with a duty which .does not otherwise exist.
“3. When an owner of land erects upon ¡his premises for their more beneficial use, -a structure which happens to be attractive to children, he does not, by such action, extend an invitation to children to enter thereon. ’ ’

This doctrine a large number of the courts of last resort of the different states, as well as the Supreme Court of the United States, repudiate. The decisions are collated in American & English Encyclopedia of Law, Volume 29, page 33.

As deduced from these decisions, the rule as there laid down, is that the owner of dangerous machinery or appliances that are attractive to children of tender years can not permit such machinery -or appliances, to remain in a public place, where children are liable to be attracted thereby, get upon the same and be injured; or even upon his own premises, when the place is not public, if he has reason to anticipate that such children 'will get upon the same, without taking proper and reasonable precaution to so protect or fasten such machinery or appliance, that children will not be injured by the exercise of their youthful instinct to play upon the same.

The leading- case sustaining this rule is Railroad Company v. Stout, 17 Wallace, 637, which is followed and emphasized in Union Pacific Railroad Co. v. McDonaly, 152 U. S., 262.

Our Supreme Court has not had before it a ease directly involving the question, but there have been eases before it that involved the principle underlying the doctrine, and in those cases it has been more than intimated that the rule as ennuneiated in Railroad v. Stout was the correct one.

In Harriman v. The Railway Co., page 11, the first paragraph of the syllabus reads:

“Where a railroad company has, for a long time, permitted the public, including children, to travel and pass habitually over its road -at a given point, without objection -or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to -anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to- persons so using its road.”

In that case- our Supreme Court expressly approves the leading case -of Lynch v. Murden, 1 Adolphus & Ellis (New Series), 2, upon which ease was largely founded the decision in Railroad Company v. Stout.

In the ease of Railroad Company v. Snyder, 19 O. S., 399, it was held:

“The negligence- of parent, or custodian of a child, can n-ot be imputed to the child, to bar its right of action against others f-o-r injuries resulting from their wrongful acts.
“It is the duty, of persons in charge of -cars, passing along streets or -other frequented places, to- exercise great caution; and if, by failure to do so, a child of tender years- is injured. the company is liable in an -action by the child, notwithstanding the negligence of the parent in permitting it to- be on the track, or of the person in -charge- of the dhi-ld, in not keeping a proper 1-ook-out for the cars.”

In- the opinion, after quoting Lynch v. Murden, and a number of other eases, it is said on page 415:

“The injury here was -within the ordinary an-d probable sequence of -events, -a result of the defendant’s negligence. It might reasonably have been- anticipated. There was danger of its happening, such as an ordinarily careful and prudent person might have -apprehended, and would be likely to apprehend, as a possible result of any relaxation of vigilance and care. ’ ’

On principle hhis seems to us should be the proper doctrine. It can- not be said -that where -a railroad company permits its right of way to- be unfenced, and constantly used as a highway, and constructs in such place an appliance, such as a turn-table, that is especially attractive to -children, and which necessarily would lead the-m in the enjoyment of their natural instincts to play upon it, that it owes- no duty to such children, and espécial-ly s-o- when it is shown that the company knew of such use- of the appliance.

In Loomis v. Terry, 17 Wend., 497, whi-ch is spoken of approvingly in Walsh v. Railroad Co., 145 N. Y., 301, Justice Cowen said:

“The business of life must go forward, and the fruits of industry must be protected’; a man’s gravel pit is fallen into by-trespassing cattle; his corn eaten, or his sap drunk, whereby the cattle ai*e billed; his unruly bull gores the intruder, or -his trusty watch dog properly and honestly kept for protection, wories the unreasonable trespasser; such -consequences can n-ot be absolutely avoided.”

Tru-e-, but at the same time, the owner must take care that he offers no- inducements or implied invitation to visit “the unruly bull”, -or “trusty watch dog”, for if he does, he transforms that which would be a mere trespass or license into- a legal right.

Whether th-e- fastening upon the turn-table was.a sufficient one, in the exercise of ordinary care, by the company, was a question, of fact to be submitted to the jury. Indeed, the -whole question was one for the jury, except the law required the direction of a verdict for the defendant, under -the rule that the company owed-the child no duty, which we have seen is not the correct rule in this state.

. A. 8. Gole and Squire. Sanders & Dertvasey, for plaintiff in error.

W. J. BecMey, for defendant in error.

The trial judge submitted the case fairly and intelligently to the jury, and the verdict was against it.

In Railroad, Co. v. Stout, the third clause of the syllabus reads:

“ Though it is true in many cases, that where the facts of a case are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true, in that class of eases where the existence of such facts come in question, rather than where deductions or influences are to be made from them. And whether the facts be disputed or undisputed, if different minds may honestly draw different conelu-. sions from them, the case is properly left to the jury. ’ ’

This is also the -rule in this state.

We find no error in the record, and the judgment will be affirmed.


text:
    EMBEZZLEMENT BY THE SECRETARY OF A BUILDING ASSOCIATION.
    [Circuit Court of Cuyahoga County.]
    J. B. Livingston et al, Trustees Guarantee Savings & Loan Company, v. The Fidelity & Deposit Company.
    Decided, June 26, 1905.

      Building Associations — 'Embezzlement by Secretary of — By Issue of Oheclcs in Fictitious Fames — Liability of Surety on Secretary’s Bond.

    Where the secretary of a building association procures the issue of checks of the association in the names of fictitious applicants for loans, and endorses them in the names of the fictitious payees, his collection of such checks would estop him from asserting their original invalidity, even if they were invalid, and would amount to embezzlement under Section 6843.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.
   This proceeding in error is prosecuted by the -trustees of the Guarantee Savings & Loan Company, against the Fidelity & Deposit Company -of Maryland, to reverse the judgment of the Cuyahoga County Common Pleas Court. The parties here stand in the same relation as they stood below. The error complained of is the finding of that court that the petition fails to state facts sufficient to constitute a -cause of action.

The corporation of which plaintiffs in error -are trustees is organized under the building and loan laws of Ohio-, and its officers and employes were bonded by the defendant in error, which is a surety company organized under the laws of Maryland.

Among the -officers -and employes whose fidelity was thus guaranteed by the blanket bond issued by the surety company to the local -corporation, was the latter’s secretary, Jacob A. Blodt, who served as such for five years, beginning June 1, 1896, and -ending August 8, 1901, and who, after swindling his company to- the- extent of $209,100, committed suicide. The action below was commenced to recover, on -his last annual bond, the full limit thereof, $10,000. The provisions of the bond make it applicable to Blodt’s defalcation, if it amounts to embezzlement or larceny, and was perpetrated within the direct scope of his duties as secretary; but not otherwise.

Blodt’s plan of operation was to buy cheap vacant lots in Cleveland under divers fictitious names, and in the same names to apply to 'his company for loans wherewith to erect buildings thereon, . His board of directors granted the loans, on his recommendation, and issued checks therefor to the order of the fictitious applicants. Blodt was entrusted with these checks, and it was his duty to see to their application to the intended purposes, according to the usual custom of building and loan associations. Blodt, however, collected or deposited the checks for his own be-hoof, after endorsing them in the names of the fictitious payees.

The surety company claims that this scheme did not amount to either a larceny or am embezzlement of either checks or moneys.

It is argued that the cheeks were worthless, because the payees were fictitious, and that, therefore, such checks could not be the subject of either crime. And it is further argued that under Revised Statutes, Section 3836-4, the treasurer was the exclusive custodian of the association’s moneys, and that such moneys could not lawfully be transferred from his custody to that of the secretary. There could be, it is claimed, no embezzlement of such moneys by the secretary under Revised Statutes, Section 6842, because they did not ‘ ‘ come into his possession by virtue of his appointment or employment as such officer;” neither was there a larceny of such moneys under the rule laid down in Kellogg v. State, 26 O. S., 15.

It is not clear that Blodt might not lawfully have had possession of the money® of the association, if transferred to him from the treasury by the board of directors for specific purposes, in view of the broad provisions' of the last two paragraphs of Revised Statutes, Section 3836-3, and in view of the equally broad implications of Revised Statutes, Section 3836-25. But a majority of the court are unwilling to hold, under the facte alleged in the petition, that such a transference of the mere custody of moneys actually took place in this case. There can be no doubt, however, that the cheeks were lawfully in his possession as secretary. Were they of value, within the meaning of Revised Statutes, Sections 6842 and 6843, defining embezzlement ?

Smith W. Beimett .and Smith, Taft é Arter, for plaintiff in error.

Hoyt, Dustin & Kelley, for defendant in error.

People v. Boyce, 106 Cal., 173 [37 Pac. Rep. 630], is a similar case in this, that the defendant there was convicted of embezzlement of a draft which was claimed to be void and without value, because money was thereby sought to be made' payable out of the treasury of the United States, to a person other than the one authorized by law to receive payment. But the accused, having actually obtained the cash thereon, converted it to his own use; and the court held that he was thereby estopped from saying that it was not a valid draft. Adopting this view,' we therefore hold, that under the circumstances set forth in the petition below, the checks which Blodt cashed, or oolected, and converted to his own use, were things of value, and that he was guilty of embezzlement, within the meaning of our statutes, and of the bond sued upon in this ease.

The demurrer to the petition should have been overruled, and the judgment below is, therefore, reversed and the cause remanded.


text:
    RIGHT OF CONTRIBUTION ON CLAIM FOR CONCURRENT NEGLIGENCE.
    [Circuit Court of Summit County.]
    The Northern Ohio Railway Company v. The Akron Canal & Hydraulic Company.
    Decided, April, 1905.

      Negligence — Joint, Concurrent and Contributing — Right of a Wrong-doer as to a Third Party — To Indemnity from the Real Wrong-doers— Charge of Court — Breaking of a Mill-Race and Damages from the Overflow.

      1. Under the testimony of this case, it was not error to refuse a request for a charge to the jury to the effect that, if they found the defendant was guilty of negligence, but that the plaintiff under all the facts and circumstances of the case, which were known or should have been known to him, did not exercise reasonable and ordinary care to prevent the breaking of the bank of his mill-race and overflow of adjacent property, then negligence on his part contributed proximately to the injury, and he can not recover from the defendant the damages in which he has been compelled to respond on account of their joint negligence.
    2. So, also, it was not error to refuse a request to charge the jury to the effect that, if the plaintiff knew of acts on the part of the defendant which affected the safety of the mill-race, and himself took no steps to avoid the injury which resulted, he was guilty of such contributory negligence as will prevent his recovering from the defendant the damages assessed against him in another action.
    3. And the defendant could ask for no stronger instruction than was given to the effect that, if the breaking of the plaintiff’s mill-race bank was caused by the joint or concurrent negligence of the plaintiff in not caring for the water and regulating its flow in the race and of the defendant in constructing a cofferdam therein, which improperly impeded and obstructed the flow of the water, then the verdict should be for the defendant.
    4. The rule that where two or more contribute by their wrong-doing to the injury of another, such injured person may recover from all of them in a joint action, or he may pursue one of them and recover from him, in which case the one thus compelled to respond is entitled to neither indemnity nor contribution from those who with him caused the injury, does not apply where the wrong-doer who was compelled to respond for the injury was not, as between tlie wrong-doers themselves, a wrong-doer at all; and recovery by the injured party from such a party is not a bar to an action by him against the other parties to the wrong.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the Court' of Common Pleas of Summit County, Ohio.
   The Northern Ohio Railway Company is the successor of the Akron & Pittsburg Railway Company and in this opinion will be spoken of as the original party in certain proceedings and contracts made in the name of the latter company.

The plaintiff here was the défendant below, and the defendant here was plaintiff below. In this opinion the parties will be designated as in the original action.

The plaintiff is. the owner of a mill-race which conducts water in large quantities from a point east of the city of Akron to a place in said city where it is utilized as power for certain mills and manufactories.

The defendant is a railroad company operating a line of railroad from the western part of Ohio easterly to and through the city of Akron; said mill-race, for a part of its distance in said city, is some forty or fifty feet higher than the tracks of the Cleveland Terminal & Valley Railroad, which, at this place, are practically parallel with said race, and on the north side thereof.

On the night of September 17th, 1898, the waters in said race rose to such a height as to overflow its northern hank and wash a considerable part of the same away, the waters rushing down with great force and volume upon the tracks of the Cleveland Terminal & Valley Railroad Company, oversetting some cars standing upon said tracks' undermining said tracks, and so doing great injury to the property of said last named company.

To recover for this injury said last named company brought suit against said plaintiff and obtained judgment against it in the sum of $3,870, which said judgment the said plaintiff has paid in full. The present suit was brought to recover against the defendant such judgment, together with the expense of repairing the race.

The grounds of recovery set out in the second amended petition, upon which the case was tried, are, that the defendant, in the year 1896, by proceedings duly had in the Probate Court of said Summit County, appropriated from plaintiff a right of way for its railroad along and crossing over said hydraulic race, or eanal, at or near Summit street in said city of Akron; that by the term of said appropriation the bridge to be built for the said railroad was to pass over said eanal or race at that point, and was to be constructed so as not to impede the free flow of water through said canal or race, nor diminish or impair in any manner the usefulness of said canal or race; that afterwards said defendant, in the corporate name of said the Akron and Pittsburg Railroad Company, but for the sole benefit of said defendant, acquired by purchase from said plaintiff, as evidenced by deed dated May 4, 1898, the right to construct stone walls or abutments, instead of timber piling to support the structures for the support of the railroad over said eanal or race at the crossing so as aforesaid appropriated, and it was provided and stipulated in said deed that all of the said work of building said stone walls and structure was to be done and maintained . as not to impede in any way the free flow of water through said canal or race and not to diminish or impair in any manner the usefulness of said race; that in and about the months of August and September, 1898, the exact date being unknown to plaintiff, said defendant, the Northern Ohio Railway Company, secretly and without the knowledge of plaintiff entered into a contract with said the Akron and Pittsburg Railroad Company, whereby it, the defendant, engaged to construct, as an independent contractor, said stone walls, and thereafter did construct ■ the same, all of which construction was for the sole benefit of said defendant, but under the cloak and guise of the corporate authority of said the Akron and Pittsburg Railroad Company said defendant attempted to hide and conceal its connection therewith.

Plaintiff further avers that notwithstanding such attempted concealment said defendant, the Northern Ohio Railroad Company, had and exercised the sole and exclusive charge and control of such construction .and of the mode and manner of doing the same, and the said stone walls were in fact constructed by it for its sole benefit and at its ultimate expense.

Plaintiff further avers that on or about the 15th day of August, 1899, said the Akron and Pittsburg Railroad Company conveyed to said defendant, the Northern Ohio Railway Company, by proper instrument of transfer, all the right, title and interest it, the Akron and Pittsburg Railroad Company, had acquired to construct, operate and maintain said railroad to cross over said canal or race in the mlanner hereinbefore stated, and said defendant, the Northern Ohio Railway Company, then and there agreed with the Akron and Pittsburg Railroad Company that by its acceptance of the transfer of said rights, title and interest of said the Akron and Pittsburg Railroad Company to pass over said canal or race as aforesaid, it had, and then and there did assume and undertake the payment of any and all obligations of any kind whatsoever which were then or thereafter might become due and payable by said the Akron and Pittsburg Railroad Company, respecting the passing and crossing over said canal or race as aforesaid, which said assumption and undertaking was entered into for the benefit of the plaintiff herein.

The construction of said stone walls along the sides of said canal or race, was carried on solely by said defendant, and its officers, agents and employes, during all the time of their construction ; and the defendant then well knew that said canal or race was located 'along and upon the hillside so that if the water was permitted to overflow the banks of said canal or race, it would flow down upon, and cause damage to property located lower down the hillside.

Shortly prior to September 17th, 1898, while said defendant was engaged in the construction of said stone wall, it carelessly, negligently and knowingly so caused and permitted the channel of said canal or race to be narrowed, restricted and partially filled with obstructions at a point near Summit street in said city where said street crossd the said canal, so as to cause the water in said canal or race to set back 'and to rise To such a height as to overflow and carry away -the bank of said canal or race.

The answer to this petition admits that defendant acquired from plaintiff, by appropriation and deed, the rights as set out in such petition.; admits the overflow of the water and the injury to the property of the Valley Railway Company, but denies that such overflow was caused by it, and avers that the same was either an inevitable accident, or that it was caused by the negligence of the plaintiff.

The result of the trial was a verdict and judgment for the plaintiff. A motion for a new trial was filed and overruled, proper exceptions taken to this and to other proceedings in the trial, which will hereafter be noted. The ease is here upon proper proceedings in error seeking a reversal of the judgment. A bill of exceptions was filed here setting out the proceedings of the court below with all the evidence offered at the trial.

When this case was before in this court, construction was given to the deed, made by the plaintiff to the defendant, and it was held that the provisions therein relating to the construction of the abutments and structure, and reading, “All of the work to be constructed and maintained so as not to impede the free flow of water through said race and not to diminish or impair in any manner the usefulness of the same”, refer to the completed structure, and not to the manner of the work while the same was in progress. So that if the defendant is liable for any obstruction which it placed in the race, during the progress of the work, it is not because of this contract, but because it failed to exercise reasonable care in doing its work so as hot to unnecessarily injure the rights of the plaintiff.

The evidence shows that in the progress' of building the abutments for the bridge the defendant constructed cofferdams to keep back the water from t'he work and the workmen, and that shortly before the overflow of the water already mentioned it had so constructed a cofferdam as to narrow the channel down to a very few feet, thereby causing the flow to be so retarded as to greatly increase the depth of the water in that part of the race where the overflow occurred and the wall gave way. In short, it is not and can not be denied that the evidence so strongly tend-eel to show negligence on the part of the defendant, that the jury might well find, as it did, that the defendant was guilty of negligence in the premises.

It is said, however, on the part of the plaintiff in error, that the evidence clearly shows negligence on the part of the plaintiff approximately contributing to the accident, and that therefore the plaintiff is precluded from a recovery.

The evidence shows that the attention of Mr. Cleveland, the superintendent of the plaintiff, was called to the increase of the depth of the water some forty hours or more before the bank gave way and tends to show that by raising a certain water gate at the eastern end of this race, he might have provided for the escape of the water so as to relieve the pressure; it also tends to show that he called the attention -of the man in charge of the stone work to the backing up .of tbe water and the increase in its depth, and was assured that he would take care of that. It tends also to show that this could easily have been done by him, and that he failed to do it.

Whether there was negligence on the part of the plaintiff was a question for the jury and was, we think, fairly submitted to it.

Complaint is made, however, that the court erred in refusing to charge the jury as requested by the defendant. Thé defendant made eight requests, only one of which was given, to-wit, the third. The first request made is:

“If yen find from the evidence that the defendant was guilty of the neglect charged in the second amended petition, and if you also find that the plaintiff under all the facts and circumstances of the case which were known to it, or should have been known to it, did not exercise reasonable and ordinary care in its management of the race, and in regulating the flow of water thei 3in; and that such negligence of the plaintiff contributed proximately to the breaking of the race on the night of September 17th, 1898, then I say to- you that under such circumstances the plaintiff can not recover in this action.

This was refused. It is insisted- that it properly states the 1-aw -applicable to the case. It may be said in response to that, a-s bas already been said, the evidence tended to show that when the attention of the man in charge of the construction of the stone abutments was called to the hacking up of the water, the increased depth, and the danger that thereby might be occasioned to the north wall of the race, replied that he would take care of it. Now, if that were true — if the jury believe that the man in charge of the work had answered, when his attention was called to it, that he would take care of it, and if the jury further'believed that he could have taken eare of it with the exercise of reasonable eare — then this request should not have been given, for the juiy would be led to think that the -fact that the man in charge -of the construction of the stone work had promised that he would take care of it -could in nowise relieve the plaintiff. We think that the court properly refused this, and that the charge as given on pages 504, 505 and 506 of this record properly instructed the jury as to the law by which the plaintiff would be precluded from -a recovery.

The second request reads:

“If you find firo-m the evidence that the defendant constructed a cofferdam in the race, and that such cofferdam restricted the ordinary flow of the water and backed it up in the race to such an extent as to cause it to-break away the bank as complained of; an-d if you find that for a day or more before such break occurred, that the plaintiff knew of such cofferdam and such backing of the water, and could have prevented the breaking -of the bank by the exercise of ordinary eare, and did not do so, then the plaintiff would be guilty of such contributory negligence as would prevent a recovery. ’ ’

What has already -been said in reference to the first request is applicable to this, -and more strongly applicable.

The third request was given, and in connection with what the court said, to which attention has already been called, and which will be read later, we think the jury were properly instructed, certainly instructed as strongly for the defendannt as the defendant was entitled to.

The court said (defendant’s request No. 3) :

‘ ‘ If you find fram the evidence on this trial that the breaking of plaintiff’s mill-r-aee bank, as charged in the petition, was caused by the joint or concurrent negligence of the plaintiff in n-ot properly caring for the water and regulating the flow 'of the same in the race; and also find the negligent construction of its cofferdam in said race, by the defendant, by which the flow of water was improperly impeded and obstructed, then I say to you that neither party would have any right of action against the other for contribution for damages by reason of such break of the race bank, and in such ease your verdict should be for the defendant.”

What has been said as to the other requests which were refused applies with more or less force to each of the several requests, and we find no error in the refusal of any of the requests when we find what the court did give to the jury for these requests were not made to charge before argument, and, therefore, the court was not bound to give them in the words in which they were requested, even if they properly stated the law, provided the court properly stated the law in its charge to the jury.

The court, after speaking of the negligence which the plaintiff charged against the defendant, called the attention of the jury to the fact that the defendant charged negligence against the plaintiff, and said:

“ It is also set forth in the answer that on the night in question there was a storm of rain of more than ordinary violence perhaps and that that rainfall suddenly increased the flow of water, and that that rainfall, in connection; with -the flow of water through the gate at Middlebury, caused such an accumulation of water in the race so suddenly, that it broke over this bank and washed it away and caused the trouble.
“Now, this is the specification of negligence which the defendant makes against the plaintiff; and the rule of law on the subject is that where contributory negligence is shown by a preponderance of the evidence on the part of the plaintiff that the plaintiff can not recover. The plaintiff can not recover any compensation for any damages which it might have avoided by the use of ordinary care and prudence under the circumstances. It is a general rule of law that where both parties, plaintiff and defendant, are in fault and both guilty of negligence or a want of reasonable and ordinary care, neither can recover damages from the other for the consequences of such joint negligence.
“And in this case I say to you, that if you find from the evidence, and a preponderance of it on the part of the defendant, that the plaintiff itself was so guilty of negligence in the premises, or .a want of reasonable and ordinary care, as I have fined that term to you, then it can not recover if such negligence on its part proximately contributed to the injury which arose. ’ ’

It is urged on the part of the 'defendant, however (and I am using “defendant” as in the original action), that the fact shown in the petition, of the recovery by the Valley Railway Company against the plaintiff, establishes the negligence of the plaintiff, because there could have been no recovery against it, pxeept on the ground of its negligence, and that this being so, it necessarily follows that it can not recover of defendant, even though it be proved to have been negligent, the rule being that when two or more contribute by their wrong-doing to the injury of another, such injured party may recover from all of them in a joint action, or he may pursue any one of them and recover from him, in which ease he is neither entitled to indemnity or contribution from those who with him caused the injury.

There are, however, exceptions to this rule. Numerous cases are reported in which the courts of last resort have held that one mulcted in damages of some neglect of duty on his part, may recover of another who directly caused the injury. The most common of these is where a municipality is required by law to keep its streets and public ways free from nuisance, and in proper condition for use by the public, and has been obliged to respond in damages at the suit of one injured by the defective condition of walks in front of -the premises of the person whose duty it was primarily to keep such walk in proper repair.

In Shearman & Redfield on the Law of Negligence (4th Ed.), at Section 301, this language is used:

“In conclusion, under this head, it should be added, that although a municipal corporation may be, either at common law or under 'the statute, jprimarlily liable for injuries oeoafsioned by the unsafe condition of its highways, the ultimate liability may rest upon a third person who is the real author of such condition, and who, jointly with the corporation, may be liable for the damages suffered therefrom. If the injured person elects .to proceed against the corporation solely, and recovers damages, the latter has an action over - against the original wrong-doer. ’ ’

In Cooley on Torts (2d Ed.), side page 145, this language is used:

“But there are some exceptions to the general rule (after having stated the rule, that where two or more wrong-doers are liable because of some injury that is caused from the neglect of duty of such wrong-doers, there can be mo recovery of one against the other), which rests upon reasons at least as forcible as those which support the rule itself. They are of eases where although the law holds all the parties liable as wrong-doers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such eases where the wrongs are unintentional, or where the party, by reason of some relation, is, made chargeable with the conduct of others.' ’

But these eases are not confined to suits brought by municipalities.

Attention is called to the case of Gray v. Boston Light Company, 114 Mass., 149. The syllabus reads:

! ‘ The owner of a building to the chimney of which a gas company has, without the owner’s consent, so affixed a wire as to render the chimney unsafe, and ultimately to cause its fall upon a passer-by, may be liable for the damage so caused; and if, when so liable, he pays the damage, he has an action against the company for indemnity.”

The facts in that case show that the owner of a building,, on which was not a good chimney, but a defective chimney, that the light company placed a wire around that chimney without the consent of the owner; there was a storm, the chimney fell down and injured a person on the walk; the party injured brought suit against the owner of the building and recovered, and the owner of the building was permitted to recover against the company Which put the wire around the chimney.

There is a cases in Minnesota, reported in the 16 N. W. Rep., 698, Minneapolis Mill Company v. Wheeler et al. The syllabus reads as follows:

“The plaintiff corporation had excavated a canal through its lands for the use 'of its water power, which had been bridged over in part by plaintiff and in part by others, with its license, and the bridge or platform so made was thereupon operated, used, and held out to the public as a continuous thoroughfare for all persons having business to and from the mills abutting thereon. Held-. Under the circumstances, that as to persons rightfully upon any portion of such bridge or platform, plaintiff (that is, the mill company) was liable for damages caused by its failure to exercise reasonable diligence- to keep the bridge in repair, or closed against travel.
“The owner of premises, having the possession and control thereof, may he liable for an injury caused by their unsafe and dangerous condition, though resulting from the act or negligence of a third person.
“The person through whose conduct or negligence the owner in thus exposed to liability, is also liable to an action by the injured párty at his election. And in such case, also, the parties not being in pari delicto, the owner who has been obliged to pay-such damages is entitled to indemnity from the person to whose act or negligence the injury is directly chargeable. ’ ’

To this same effect is the ease in 66 Pa., 218, Armstrong County v. Clarion County.

The cases where municipalities have been permitted to recover against the property owners, and the ease to which attention has been called in 114 Mass., seem to rest upon the proposition that the fact of a defect, in cases of municipalities, in the walk being shown and the resulting injury, nothing further need be shown as to negligence to entitle the injured party to a recovery. In the present ease the same rule and the same reasoning seem to apply.

In the case of The Defiance Water Co. v. Olinger (54 O. S., 532), the first clause of the syllabus reads:

“One wiho collects on his own premises a substance liable to escape, -and if it should escape, likely to cause mischief, must at least use reasonable care to restrain it., If for want of such care it escapes and injures persons or property rightfully on adjoining premises, he is answerable for the damages sustained on account thereof.’.’

And in the opinion, pages 538 and 539, Judge Bradbury uses this language:

‘ ‘ In England it seems to have been settled by Fletcher v. Ry-lands, 1 Law Rep. Excheq., that the duty rests upon one who collects and stores upon his premises inaminate substances or animate things from the escape of which injury is likely to follow, to prevent such escape. While this duty may not extend to trespassers, or those who, for their own purposes, without express or implied invitation from the proprietor, choose to come upon this premises, yet that ease (Fletcher v. Rylands, supra) should be regarded as extending this duty to all persons who may be rightfully on adjoining premises. ' ’

Then quoting from Judge Blackburn, in which a similar view is held. And I call attention to' the caste of Bradford Glycerine Company v. The St. Mary’s Woolen Manufacturing Co., 60 O. S., 500; and the ease of Langabaugh et al v. Anderson, 68 O. S., 131, where quotation is made from the same opinion in the English report and the quotation is with approval in each of the cases.

From this it seems to follow that a recovery could have been had by the Valley Railroad Company against the hydraulic company by showing that the hydraulic company had upon its property tMs water, which was liable to overflow, .and did overflow, to the injury of the railway company, without showing any other negligence on the part of the hydraulic company. If that be so, the same reason that would allow the municipality to recover from one who allows a defect in the sidewalk in front of his premises, would apply in this case.

But it is said that in Ohio the doctrine is not as in some of the other states on this right of the municipality to recover from one who permits the existence of a defect in the sidewalk in front of his premises, and attention was called in the argument to the case oif Morris v. Woodburn, 57 O. S., beginning at page 330. On pages 334 and 335, Judge Shauek, in announcing the opinion, that this was a suit brought by a party injured against the uses this language — <and, perhaps, I should say, before reading, owner of .a lot abutting on the street of a municipality for an injury sustained by the plaintiff caused from a defective sidewalk, or rather the construction of a vault under the sidewalk, over which the property owner negligently placed and maintained a defective grating. The suit was brought directly against the property owner, and what is said by Judge Shauek, winch is about to be read, it must be conceded was not necessary to have been said in order to decide the ease. It was outside of the ease, but it expressed the opinion of the judge who prepared the opinion, at least:

“But while the tort of the city consisted in failure to discharge a duty imposed by statute (it should be said that the property owner was insisting that the suit should be brought against the city) that alleged in the amended petition against Mrs. Morris, consisted in the creation of a nuisance, dangerous to those using the walk. These are concurrent and related torts, but they are not joint. In view of their independent character, the plaintiff might, at her election, maintain her action against either the city for its omission of duty, or against Mrs. Morris for the creation of a nuisance which occasioned her injury.”

So far it is entirely applicable to the case. What follows, as 'has already been said, need not have been said in order to decide this ease:

“And it appears from reason and authority that the primary liability in such case is upon him who actively creates the nuisance ; so that if a recovery were bad against the city, it might in turn recover from the perpetrator of the wrong. ’ ’

If that were contained in the syllabus, or if that was said necessarily to decide the case that was before the court, and had not be interfered with by any announcement of the court since, it would clearly be a rule which should govern us if it 'is applicable to the ease before us. It is not as strong as that, because, as has already been said, it was not involved in the case. But that opinion was announced on the 14th day of December, 1897. Two months and a half thereafter the same judge announced an 'opinion in the case of Wilhelm v. The City of Defiance (58 O. S., 56). Unless there is something in this case that shows that the mind of the judge had changed since December 14th, 1897, we must not assume that such change had taken place. This is a ease where one Wilhelm had constructed a sidewalk in the city of Defiance, the construction of which was defective. It was not a case where a sidewalk having once been constructed was thereafter made unsafe by an excavation or anything of that sort, or had become by long use defective, but where the original construction was defective. A party was injured, brought suit against the city of Defiance and recovered, and then the city brought its suit against Wilhelm, and it must be conceded that the syllabus as announced here would seem to be in conflict with the opinion in, the case in the 57 O. S., which has just been read from. The syllabus reads:

“A municipal corporation having in the proper mode provided for the construction of a sidew-alk and notified the owner of abutting land, may require of him the construction of a sufficient walk in front of his premises, and, upon his default, may itself construct such walk .and assess the cost thereof upon his land; but it can not recover from him indemnity on account of a judgment recovered against it for injuries occasioned by such owner’s negligent construction of the walk.”

.The facts are not given in great detail, but the closing paragraph of the opinion seems to distinguish the ease from the case already referred to in the 57 O. S. “The policy of the statute, as indicated by its provisions -according to the doctrine of the eases cited and the numerous oases which they review, seems to require the conclusion that when a municipality accepts a sidewalk constructed by the owner of abutting property pursuant to its notice, as a compliance therewith, all liability for mere negligence in construction and maintenance must rest and remain upon it.”

Where the city -accepts the sidewalk, that is a compliance, then it and not the property owner is liable to the party injured; or, in any event, when the city is liable, and is obliged to pay, it may not recover of the property owner. From these two cases, the opinions being announced by the same judge, and at so near a time together, it is hardly to be presumed that the court meant to go further in this ease than to say that where the original construction is defective and the city accepts that construction, it must be bound by it.

Mr. Henry Newbegin, a leading lawyer in northwestern Ohio, was the attorney for the plaintiff in error in this case, and he recognized the rule as announced in the 57 O. S. Reports, to which attention has been called, although he did not cite that case, but in his brief he says:

/ Tibbals & Frank, for plaintiff in error.

Stuart & Stioart and Allen, Waters & Andress, for defendant in error.

‘ ‘ If Wilhelm 'had done any a'et which rendered the use of the street hazardous to passers thereon, such as making an excavation under the sidewalk without proper supports, or by leaving unsafe hatchways thereon, or leaving upon a coal hole, or actually placing an obstruction in the street so that he would have been liable to the person injured, in an action directly against himself, and the city had been obliged to respond in a judgment against it, on account of the injury to the passer-by, then it probably could have recovered in this .action against Wilhelm, as it would have been subrogated to the rights of the person injured.”

The announcement of the opinion in this ease does not seem .to conflict with that argument by counsel for plaintiff in error, and we conclude that to be the law in Ohio, and that being the law as to municipalities, the reasoning seems to apply to this case, and we affirm the judgment of the court below.

It Should be said that this conclusion has not been reached without very careful consideration and with some hesitation. We are not absolutely confident that we are right, but the weight of authority, we think, is in support of the opinion announced.


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    CLAIMS FOR NECESSARIES.
    [Circuit Court of Hamilton- County.]
    John Hughes v. Clarkson Shields.
    Decided, June 10, 1905.

      Necessaries — Attachment on a Claim tor — Demand in Writing Jurisdictional — Purpose of Section 5501.
    The provision of the statute that one bringing an action on a claim for necessaries should first make a demand in writing upon the debtor for the excess over ninety per cent, of his personal earnings is jurisdictional, and when this requirement has not been complied with the attachment should he discharged.
    Giffen, J.; Jelke, J., and Swing, J., concur.
   This action- was submitted in the -absence of counsel for plaintiff in error and the judgment -affirmed upon the ground that no demand in writing for the -excess over and above ninety (90) per centum of the personal earnings of the debtor was made before the action was commenced, but upon his application and for good cause shown -a rehearing of the ease was granted.

The question now presented is whether under Section 6501, Revised Statutes, the court is authorized to discharge -an attachment when the person bringing an .action for necessaries fails •to first máke a demand in writing for the excess over and above ninety per cent, of the personal -earnings of the debtor. Section 6489, Revised Statutes, gives the- plaintiff the right of attachment upon ia claim for necessaries against ten (10) per cent of the personal earnings of a defendant in any case, but Section 6501, as amended in 94 O. L., 376, provides, in substance, that the garnishee may pay the money -owing him by the defendant to the constable and be discharged from liability for any -money so paid and allowed his own costs, provided- that lie 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 the 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; ¡and no cost or expense shall be chargeable to the defendant debtor if he tender payment in money or duly accepted order for such excess; and provided, that more than one such demand by the same creditor shall not be made at closer periods than thirty day®, and the amount demanded may be for the excess over and above ninety per cent, of the earnings during the interval of thirty days.

Counsel contend that this provision was intended merely to save costs to the defendant, and that a failure to give such demand would make the plaintiff liable for the costs. Although the defendant would not, in such case, be liable for the costs, it does not follow that the plaintiff would be chargeable with any'costs other than his own, and besides the purpose of the statute is not only to save costs to the defendant, but to spare him the humiliation and annoyance of a law suit and the expense of employing counsel to defend the same.

The provision of the statute is explicit that the person bringing an action for necessaries shall first make the demand in writing, ¡and also that such demand by the same creditor shall not be made at closer periods than thirty days. These provisions have no necessary relation to ¡or connection with the preceding provision concerning the right and duty of ¡a garnishee, and seem to us to have been made for the purpose of giving the debtor an opportunity to protect himself against the attachment suit; in other words, that the demand in this class of ¡cases is jurisdictional and, unless complied with, the attachment should be discharged.

Counsel have called our ¡attention to the case of K. B. Co. v. Batie, 2 C. C. — New Series, 358, where a different conclusion is reached.

We have examined the same with some care and were inclined at first to follow it, but upon further consideration of the question we have been unable to concur in the views there expressed.

M. W. Oonway, for plaintiff in error.

McGarbin & Schultz, for defendant in error.

Judgment of the court of common pleas discharging the attachment will he affirmed.

        The K. B. Company v. James Batie, 2 C. C. — N. S., 358, not followed.


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    Removal óf executor,
    [Circuit Court of Lorain County.]
    In the Matter of the Estate of Justin Breckinridge, Deceased.
    Decided, October 6, 1905.

      JSxecutors and Administrators — Removal of, Under Section 6017 — Findings Necessary — Where the Gist of the Charge is Fraud.

    In a proceeding for the removal of an executor, based upon a motion filed under Section 6017 and the gist of the charge being fraud, it is error to grant an order of removal where no attempt has been made to show fraud,
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error was begun by W. B. Durand, as exectitor of the will of Justin Breekenridge, to reverse the. judgment of the Lorain County Court of Common Pleas, removing said executor.

The litigation originated in the probate court of this county, where Jacob C. Breckinridge, son and residuary legatee of the deceased, filed a motion Elay 16, 1904, under favor of Revised Statutes, Section 6017, for the executor’s removal. The motion was overruled by the probate judge, but, on appeal to the common pleas court it was granted, and a finding of' facts and law was made, showing among other things that Justin Breckinridge died testate August 12, 1874, leaving, besides the son aforesaid, two daughters, Eleanor S., wife of H. IT. Hitchcock, and Hannah Durand, wife of the executor. The executor’s final account was filed January 24, 1879, and duly approved, but he has never been discharged.

The testator had been a man of considerable property; but shortly before his death he sold his farm to his daughter, Eleanor Hitchcock, for $10,000, talcing back ten mortgage notes for $1,000 each, signed by her -and her 'husband, and payable at intervals of one or two years from 1871 to 1883.

The original motion charged that the executor not only “refused to -take possession of” these notes and other personal property of the estate, but that he confederated and connived with his brother-in-law, Hitchcock, -and their wives ‘ ‘to defraud said estate of said property.”

These charges, it is claimed, suffice to- bring the case within the purview of said Section 6017, which provides that-—

‘ ‘ The prohate court may, at any time, remove añ executor, for that, there are unsettled claims, or demands, existing between him and the estate, which in the opinion of the court may be the subject of controversy or litigation, between him and the estate, or persons interested therein; or for any other cause, which, in the opinion of the -court, renders it for the interest of the estate that 'such executor be removed. ’ ’

In the hearing before the court below the executor -offered to show that the property in dispute had been fully disposed of by the decedent in his lifetime; but this evidence was excluded.

The executor also asked the court to find whether such disposition had in fact been made, but the court refused to make such finding.

The count, however, did find that, although there is- no evidence of any fraud by the executor, there are “unsettled claims and demands existing between said W. B. Durand and said estate, which, in the opinion of the court, may be and probably will be the subject of controversy and litigation between said W. B. Durand and said estate or persons interested therein. ’ ’

It will be observed tbat the motion does not charge the executor with having converted to his own use any property of the estate. On the contrary it -alleges that he failed to take -possession -of and recover the same, and that this was fraudulently done in connivance with other persons. But the court below expressly found that there was no evidence -of any fraud by the executor. We fail to see, therefore, how the motion could be sustained. The gist of the only ground urged for the executor’s removal is fraud, and no attempt was made to show fraud.

Leonard '& Johnson, for Jacob Breckinridge.

C. A. Metcalf, for the executor, W. B. Durand.

It is urged, however, that the statute under consideration is remedial in its nature and should be liberally construed so that upon the mere suggestion of fraud, or, at least upon the proof of facts showing that there may arise a tona fide controversy or litigation of the sort contemplated 'by the statute, the executor may be removed .and deprived of his vantage ground, .and the issue litigated before a court and jury as an adversary action, in the same manner as other civil actions, and subject to the same rules of evidence.

We can not agree that the statute contemplates such an ex parte or summary proceeding for an executor’s removal.

It must at least be made to appear that the claim made is on its face meritorious, and the executor should be permitted to show, if he can, that iit is without merit. Any other construction would be harsh and oppressive.

We think the court below erred in excluding the evidence offered by the executor, and in concluding as a matter of law, upon the facts found, that there are unsettled claims and demands existing between said W. B. Durand and said estate, which may be the subject of controversy or litigation between ■said Durand and said estate or persons interested therein.

For these errors the judgment of the court of common pleas is reversed and the cause remanded for further proceedings..