text:
    UNFORTUNATE SITUATION OF A ROAD CONTRACTOR.
    Circuit Court of Huron County. ■
    Guy S. North v. Commissioners of Huron County.
    Decided, March Term, 1907.

      Invalid Contract for Improvement of a Road — No Record of Commissioners’ Meeting — No Auditor’s Certificate — No Authority to Order an Accounting for Worlc Done — Recovery of Property Impracticar hie — Implied Contracts.

    A contract between county commissioners and one who undertakes to pike a county highway is invalid, where no record of the meeting of the commissioners was made, and no auditor’s certificate was filed or recorded as required by Section 28345, Revised Statutes; such a contract can not be enforced against the county; nor can an equitable accounting be granted for the labor and materials expended in improving the road.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    Error to Huron Common Pleas Court.
   This case presents another phase of the questions which have arisen between public bodies and individuals, growing out of,- and providing for, the making of improvements without following legal requirements.

Guy S. North sued the county commissioners of Huron county in the court below, and, upon a demurrer by the defendant board to his petition, it was held insufficient and judgment rendered accordingly, the plaintiff not caring to plead further.

The petition alleges in_ substance That North had been employed by the board of Huron county commissioners to grade and level the Hunt’s Corners road and to place crushed stone thereon, the contract being a sort of a tripartite one, the township trustees joining in it and subsequently paying for their proportion of the agreed price.

The petition discloses the fact that no record of the meeting of the commissioners had been made as required by law, and that the contract was otherwise invalid by reason of the non-filing and recording of the auditor’s certificate, for which provision is made in Section 28346, Revised Statutes. The petition alleges that the omission of this certificate was an oversight. It alleges the doing of the work and the furnishing of the material by North.

The improvement is one where it would seem impossible for a person to make it and subsequently remove the material placed upon the road-bed to any advantage to himself or without destruction of the highway, or inj\iry to it. It is not like the case of the possible removal of a structure, such as a bridge or any other tangible and severable property, the restoration of which to the person furnishing it may, under some circumstances, be made by a court of equity.

We have had quite a careful adjudication in this state of analogous questions. Without stopping to read them, reference may be made especially to the case of Wellston v. Morgan, 65 Ohio St., 219, where it was held that no implied contract would arise under similar circumstances. In Buchanan Bridge Co. v. Campbell, 60 Ohio St., 406, it was held that there could be no recovery by a person furnishing an improvement, for the value thereof as upon an implied contract.

The case of Comstock v. Nelsonville, 61 Ohio St., 288, held, in reference to a contract with a municipality where the provisions of a similar statute had been violated — original Section 2702, Revised Statutes (1536-205) — that in the absence of such certificate, wdien required, no liability arises against the municipality, even though the contractor has fully performed his contract.

The question has been presented in various ways — sometimes by suits to enjoin public authorities from carrying out the contract to pay the purchase price; sometimes by mandamus in an effort to compel payment of the price, and as in Buchanan Bridge Co. v. Campbell, supra, in an effort, after other means had-failed,. to obtain payment by the person who had furnished the property, by suit for the value of the property furnished, as upon an implied contract.

A case was presented to me in Sandusky county in which the county commis_sioners had paid for a bridge, without legal authority, the required certificate not having-been filed, .and suit-was instituted .by the prosecuting, attorney of the county to recover, in behalf of the county, the price so unlawfully paid. In that case the defendants-’ answer alleged that the contract had been performed and the price had been paid to them under the supposition that the certificate of the auditor was on file and that, as stated in the answer of one or more of the defendants, the commissioners had represented to the persons furnishing the structure that the proper certificate was on file.

There was nothing to indicate that it was impracticable to restore both parties substantially to the status which they had occupied before entering into the contract. The ease, to which I refer for such relevancy as it may have to the case at bar, is State v. Fronizer, 3 N. P. — N. S., 303, and I refer also to the cases there cited and considered, one of which is the federal decision, Lee v. Monroe County, 114 Fed. Rep., 744, decided by the United States Circuit Court of Appeals, wherein the person or company which had furnished a bridge was permitted to sue for and recover the bridge, with the value of its use during the time that it was in the possession of the public.

Upon the authorities and principles considered and discussed in State v. Fronzier, supra, I held that the demurrers to the answers of the bridge company and certain agents ought not to be sustained and I overruled the same. That case has not been disturbed. Whether it will be, of course, I have no means of knowing; but up to the present time I am entirely satisfied that the principles are properly enunciated. [The case has, since the rendition of this opinion, been affirmed by the circuit court in State v. Fronizer, 8 C. C. — N. S., 216.] Do these principles apply to the case at bar?

The plaintiff, recognizing the difficulties confronting him, has instituted a suit here, not for the recovery of property, an • endeavor which, indeed, would seem to be futile by reason of the character of the improvement — nor for the value of the improvement to the public — but he has filed a petition in equity, seeking equitable relief; in other words, he seeks an accounting, asking the court substantially to determine how much loss he has sustained by reason of the mistake which he has committed in entering into this contract. My associate, in announcing an opinidn as- to another case a few moments ago, said that, so far as he was concerned, he was very glad that the court had been unable to discover any error prejudicial to the plaintiff in error, in the case being decided. ,1 think I may say for all the members of this court that if we could find- error in the holding of the court below in the case at bar, we should very gladly do it. It is a matter of profound regret that the difficulty which has arisen and which the plaintiff in error has encountered seems insurmountable.

As I have said, the plaintiff seeks relief in the way of an accounting for loss which he has sustained by his own mistake. It is not alleged that that contract was entered into by mutual mistake of the parties thereto. It is very doubtful whether, even if it were alleged in the petition that it was a mutual mistake of plaintiff and the commissioners as to the omission of 'this certificate, it would make the case very much stronger for the plaintiff. The commissioners are not the persons against whom a recovery is sought except in a formal way; they are the trustees of the public; they are public officials representing the people. It is true they are a gwasi-corporate body capable of suing and being sued. The property with regard to which the claims are made is not theirs; that is, not theirs in any personal or individual way; they have no private interest in it except that small private interest which every citizen of the county may have. Is this kind of a case against the consequences of which equity will relieve? It is not a case where there is an effort being made to rescind a contract and where, before permitting the rescission, a court of equity'will compel restitution by both parties or by neither. There is no averment or suggestion that the county commissioners are not willing to restore. It is a matter in which the nature of the property is such that there can be no.restoration.

Iff the plaintiff, without any contract, had gone upon the highway and graded it and placed stone thereon, and endeavored to improve it under a mistake of the law on his part, believing that if he improved a public highway he would be entitled to .receive his pay for it, it would hardly be contended that that would present a case wherein he could recover from the county, through its officials, damages for loss sustained by him, or that he could obtain-from a court of equity a decree in his favor for an accounting.

B. B. Wickham, for plaintiff in error.

L. W. Wickham, for defendant in error.

After all, he seems to be basing his claim and the right to a recovery substantially upon an implied contract, in the absence of a valid, express one, and that the Supreme Court has held in Buchanan Bridge Co. v. Campbell, supra, he can not do.

* The case is a hard one, and the court has been strongly tempted to make a decree that the plaintiff may have an accounting for what he has expended and the value of his services, and a judgment for such sum as is necessary to make him whole; not to give him profit, such as might be involved in the measure of his right under a legal contract.

But we have concluded on the whole that the court below could not well have done otherwise, under the authorities and the decisions pf our own Supreme Court, than to make the ruling and render the judgment which was made and rendered, and having arrived at that conclusion, there is nothing for us to do but to permit the judgment below to stand., We do it in the hope that if the case shall go higher, the Supreme Court will find some ground for reversing the judgment of this court, or of suggesting some other way by which Mr. North may recover the value of his services.

It does not appear that there has been anything in the way of corruption on the part of either of the parties to this attempted contract. It seems to be an honest claim on the one hand, and a willingness on the other to pay. The commissioners perhaps feel that they might make themselves personally liable or that they might be departing from their sworn duties if they, having-knowledge now of the legal rules applicable to the claimed contract, should attempt to carry out its provisions by making a payment of the purchase price. The judgment of the court below will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    AVERMENTS AS TO NEGLIGENCE.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Amasa Johnson.
    Decided, January 4, 1908.

      Pleading — Where it is Claimed Motorman was Aware of Plaintiff’s Peril —Negligence—Error—Charge of Court.

    Where there is no averment that the motorman of the car which caused the injury knew or should have known of the plaintiff’s peril, a charge of court is erroneous which makes the defendant company liable for the resulting injury, if the jury find from the evidence that the motorman might have stopped the car after he became aware, or by the exercise of reasonable care might have become aware, of the danger to which plaintiff was exposed.
    Gieeen, J.; Swing, P. J., and Smith, J., concur.
   The court charged the jury as follows:

“If you should find that the plaintiff did place himself in a position of danger through some remote negligence of his own, and yet notwithstanding this the motorman in charge of the car became aware of his danger in time to stop the car by using the means at hand, and failed to do so, then the plaintiff may recover notwithstanding the negligence of the plaintiff; but it is for you to shy gentlemen whether this exception applies to this case.”

No such negligence was charged in the petition, and hence the instruction was erroneous and prejudicial. Drown v. Traction Co., 76 O. S.

There is indeed no real negligence stated in such pleading. The only allegation on that subject is as follows:

“The agents of the defendant in charge of said car carelessly and negligently turned on the electricity in such quantity that defendant’s car was driven against plaintiff’s wagon with such force that plaintiff was violently thrown from his wagon upon the curbing of the street.”

The defect in the pleading consists in the omission of any averment that the agents of the defendant in charge of the car knew, or by the exercise of ordinary care would have known, at the time the electricity was so turned on, that the plaintiff’s wagon was upon or so near the track that it would be struck.

Kittredge & Wilby, for plaintiff in error.

Charles T. Dumont and Coppoch <& Hertenstein, contra.

• Judgment reversed and cause remanded for further proceed-’ ings according to law.


text:
    EFEECT OF VERDICT OF GUILTY OF LOWER. CRIME THAN CHARGED.
    Circuit Court of Lucas County.
    George Griggs v. State of Ohio.

    Decided, June 8, 1907.

      Criminal Law — Indictment for Shooting at with Intent to Wound— Verdict of Guilty of Assault and Battery — Fgect of Finding on a Charge not Presented — Surplusage in Verdict.

    A verdict finding an accused guilty of “assault and battery,” under an indictment that charged only “shooting at with intent to wound,” is not equivalent to an acquittal; and the accused is not entitled, under such a verdict, to an arrest of judgment or a discharge.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.

      LeaVe to file a petition in error in this case was refused by the Supreme Court.

   This is an error case brought to reverse the judgment of the court of common pleas in the trial of George Griggs, upon the charge of shooting at a person with intent to wound. No bill of exceptions is brought up showing the proceedings upon the trial of the case, which resulted in a verdict finding the defendant, Griggs, guilty of assault and battery only.

On September 5, 1907, an application which had been made for a new trial on behalf of the defendant, Griggs, was withdrawn, and on the same day the cause came on to be heard upon the motion of defendant in arrest of judgment, which motion the court overruled and exception was taken. On the same day a motion was made for the discharge of defendant, which also was overruled by the court, to which ruling the defendant excepted. Thereupon the court sentenced the defendant, and this proceeding in error was instituted for the reversal of that judgment.

The contention of the plaintiff in error is, substantially, that the charge of shooting at a person with intent to wound does not involve, as a lesser offense, the crime of assault and battery, of which offense the jury found the defendant guilty. Numerous authorities are cited to sustain the contention of the plaintiff in error.

It has been held in other states, several of them, that to shoot at a person is not to commit a battery upon him. It may be an assault, and it is not contended here that it does not amount to that misdemeanor; but it is urged that the verdict was irregular and not permissible under the indictment, in that it found the defendant guilty of the additional offense of battery. Under our statute we have no crime technically named as “assault and battery.” We have a penalty imposed for an assault of another in a menacing manner or with threats, for beating, etc., but the phrase “assault and battery” is not used in the statute and that line between “assault” and “assault and battery” is not always very clearly drawn in the adjudications.

We are all inclined to the view that as the defendant did not seek a new trial, and did not attempt any reformation of the verdict by exception to its form when it was received, or request that the jury be sent back for further consideration of the ease, the contention of defendant that the verdict amounts to an acquittal of the entire charge embodied in the indictment, so as to justify his discharge, can not be maintained. We do not think that the objection to the form of the verdict, if it be informal, is such as will work an entire failure of the prosecution. Whether the court committed any error in receiving the verdict or whether the defendant would have been entitled to a new trial if he had pressed the motion which he withdrew, we are not called upon to say; but before entirely disposing of the case by affirmance of the judgment below we may properly refer to two decisions by our own Supreme Court, which are perhaps to some extent in conflict with decisions cited by counsel for plaintiff in error, rendered by the courts of other states.

In the case of Stewart v. State, 5 Ohio, 241, the Supreme Court held that where an indictment charging a crime of a higher grade necessarily included a crime of a lower grade, the jury might acquit the defendant of the greater charge and find him guilty of the less offense, and that under the act of 1831 a party indicted for an assault .with intent to kill could be found guilty of assault and battery. In that case, the indictment was for assault with intent to kill and murder. Upon the trial defendant’s counsel moved the court to instruct the jury, “if they were of opinion that the facts of the case would not warrant them in finding the defendant guilty of an assault with intent to kill and murder, as charged in the indictment, yet that it was competent and lawful for the jury to find the defendant guilty of assault and battery alone.” This charge the court refused to give. The prosecuting attorney asked the court to instruct the jury “that if they did not find the defendant guilty of the assault with intent to kill and murder, they must'find him not guilty of the whole charge ’ ’; and this instruction the court gave to the jury, to all of which the defendant excepted. The indictment contained but one count. The jury found the defendant guilty of the assault with intent to murder, and he was sentenced to three years imprisonment in the penitentiary, to reverse which a writ of error.was brought.

Judge Lane delivered the opinion of the court as follows:

“It is assigned for error, that the court refused to charge the jury, that in an indictment for an assault with an intent to kill, they might find him guilty of simple assault and battery, without any such intention; and in charging that in this case, if the jury found him guilty at all, it must be guilty of the whole accusation. t
“A doubt has been raised, whether the bill of exceptions -is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe that it is, although somewhat informal, sufficiently applicable to both.
“We are all of opinion that the charge was erroneous. That a jury may find a verdict of guilty for part, and acquit for the residue; that where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him for the graver offense, and return him guilty of the least atrocious. The cases and examples are collected in 1 Ch. Cr. Law, 638, and there is no foundation in this country for the distinction made in England on this point, betwéen felonies and misdemeanors; for here an indictment for the higher offense rather adds to, than subtracts from, his privileges.
“Still, we can not say that the defendant might not be prejudiced by this instruction, and therefore, the judgment must be reversed. ’ ’

It is manifest that no particular distinction was drawn or sought to be drawn in that ease, between assault and assault and battery. The Supreme Court seem to have deemed the difference between the forms immaterial, perhaps because of there being no distinction in the statute or in the amount of the penalty. In our present statute the penalty is precisely the same whether the offense be technically described as “assault,” or whether it be called “assault and battery.” Whether it be an assault with threats or in a menacing manner, whatever the kind of offense it be, so far as its details are concerned, if it come under the general definitions in the section of the law describing an assault alone or what we now call “assault and battery,” the penalty is the same. Of course the trial judge would take into account the circumstances and the nature of the offense committed by the defendant in the imposition of the penalty on him and it is not likely that a court, having all the circumstances before him, would be affected very largely in determining the length of imprisonment or the amount of fine by the phraseology in the description of the offense of which the person is guilty, where he must be guilty under a particular section for which a particular penalty is imposed.

In the ease of Hanson v. State, 43 Ohio St., 376, it was held that an indictment for assault with intent to rob would support a conviction for assault and battery, and that it was error in the trial court to refuse so to charge.

The Supreme Court in arriving at this conclusion cited from prior adjudications in Ohio, including Stewart v. State, supra, and to my mind this decision is conclusive of the whole inquiry.

Counsel in oral argument criticise the decision in Stewart v. State, supra, and say that in some case from another state it is said, that the Supreme Court relied upon certain adjudications in coming to that conclusion, but there is nothing in the case itself which shows that the Supreme Court relied upon the adjudications so mentioned. The reference by, the Supreme Court is to 1 Chitty, Criminal Law, and some reliance was undoubtedly placed upon that. It is urged that the Supreme Court was not sustained by the authority cited, but we are not very much concerned with that. The decision of the Supreme Court upon the question was pertinent to that which we have at bar, and we adopt it for our guidance, even if they seem to have departed from adjudications in other states. The decisions of the court of last resort in the state of Ohio are deemed to be the law for the lower courts until subsequently departed from by the Supreme Court, or until their effect is destroyed by legislation.

C. K. Friedman, for plaintiff in error.

'Li W, Waohenheimer, contra.

In Stale v. Bradley, 6 La. Ann., 555, we have this holding:

“If the jury, in rendering their verdict, decide the whole issue, and then add other immaterial things, the verdict is not thereby vitiated. The immaterial things so added will be regarded as surplusage.”

Now if it be true that the indictment here charges only'“assault” in the phrase “shot at” and does not charge “battery,” then the finding of the jury as to battery-may be deemed a finding as to an issue not tendered to them — as to some other crime —just as if they had gone out of their way and found the defendant guilty of horse stealing, arson, or anything else, in addition to that with which he was charged in the indictment. This quotation is given on page 560 in this Louisiana case:

“Lord Coke lays- down the rule, that “if the jury give a verdict of the whole issue, and more, etc., that which is more is surplusage, and shall not stay judgment, for y,tile per inutile non vitiatur.”

Our opinion of the whole matter is that the finding of this verdict was not equivalent to an acquittal, and that whatever rights the defendant may have had, if any, as to -a reformation of the verdict or as to a new trial, he was not entitled to an arrest of judgment or a discharge. We think that the court was entirely right, the motion for a new trial having been withdrawn, in overruling the motions which were made and in imposing the sentence.

The judgment of the court below will be affirmed.


text:
    NOTICE AS TO ASSESSMENT BY A BENEFICIAL SOCIETY.
    Circuit Court of Lucas County.
    Bertrand G. Judge v. Masonic Mutual Benefit Association.
    Decided, March 22, 1907.

      Mutual Benefit Societies — Notice of Assessment — Proof of Mailing— Manner of Directing — Presumption that Letter was Delivered— Burden of Proof — Preponderance of Proof — Charge of Court — Prejudicial Error — ■Evidence.
    1. A fraternial beneficial association having been apprised of a change of address of an insured can not predicate a forfeiture upon failure to pay an assessment, if by reason of its failure to record such change the requisite notice, mailed to the former address, was not in fact received by the member.
    2. Proof of the mailing of a letter, properly stamped and addressed, affords prima facie evidence of its receipt by the person to whom directed; and this applies notwithstanding the address of the addressee may have been lately changed, as in this ease, the well known accuracy, knowledge, facilities and practice of the post office department in such matters raising a presumption of delivery; but this being a rebuttable presumption, which may be met by evidence of equal weight or countervailing force, a preponderance of proof that it was not received is not necessary to overcome the presumption of delivery.
    3. A judgment will be reversed where the charge improperly requires the burden of proof upon an issue, especially where the evidence is close and conflicting, and not so clear and conclusive as to enable the reviewing court to say prejudice did not result therefrom.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Error to Lucas Common Pleas Court.
   • Bertrand G. Judge, as the beneficiary under a certificate of insurance issued by the Mutual Benefit Association for Masons’ Wives, in which his wife was insured for his benefit, upon her death brought an action in the court of common pleas against the Masonic Mutual Benefit Association, of Toledo, Ohio, which he alleged had assumed the obligations of the association issuing the certificate, to recover the amount of -the insurance.

Tbe issues in the case can be definitely and succinctly stated by adopting the statement of the trial judge in his charge to the jury, and that statement is as follows:

“The plaintiff, Bertrand G. Judge, has brought this action to recover the sum of $1,000 and interest thereon from November 1, 1904, which he claims is due him upon a contract entered into .between the defendant, the Masonic Mutual Benefit Association, and his wife, Jessie Georgia Judge, since deceased.
“Before calling attention to the issues or questions of fact you must decide from the preponderance of the evidence, I desire to first state -those material facts about which there is no controversy, and which yoii will, therefore, consider as established. These facts are as follows: On or about June 24, 1902, the defendant entered into a contract with -the said Jessie Georgia Judge, whereby she became a member of said association. And whereby, in consideration of the payment by her, at the time and in the manner provided by its -constitution and rules, of all assessments thereafter called and made upon its members, it promised and agreed to pay to the said Bertrand G. Judge at some time after her death the sum of $1,000.”

I supplement that statement at this point by the statement that the certificate issued by the Mutual Benefit Association for Masons’ Wives, which was a voluntary or unincorporated association, bears date February 19, 1900, and afterward .the Masonic Mutual Association was incorporated, and, by a resolution adopted on May 21, 1902, the Masonic Mutual Benefit Association assumed the risks or the obligations of the other association, and by a letter to members dated June 24, 1902, it stated that it had done so, giving members the privilege of coming in under that arrangement, which Jessie Georgia Judge appears to h.ave done. I proceed with the statement of the trial judge:

“The constitution and rules of the defendant, among other things, provided that assessments upon its members should be called or made by the board of directors, as the same were deemed necessary, payable on or before the fifteenth day of the month in which they were made; that notice thereof stating the time payable and amount due should be given each member by mail directed to his last recorded address, and that the amount of each assessment should be determined by the age of the member who was assessed at the time of the assessment, as shown by a table in which the sum of seventy-eight cents is given as the amount of one assessment that could be made against a member at the age of twenty-eight years.
“It was further provided that if any member should fail to pay an assessment for fifteen days after notice thereof, he should cease to be a member of the defendant and forfeit all claims to the benefits thereof, as well as all moneys previously paid, and that the mailing of a notice of the making of an assessment, stating therein the time payable and amount due, directed to the last recorded address of a member, should constitute the notice required by the constitution and rules of the defendant to be given such member. ’ ’

The court then instructed the jury that these rules and regulations to which he had called their attention were parts of the contract entered into between the said defendant and the said Jessie Georgia Judge, and that by them both parties thereto were bound.

At this point I remark that the certificate issued to Jessie Georgia Judge set forth that it was issued in consideration of certain statements, agreements and warranties made by her, and the truth thereof, “together with the rules, regulations and bylaws of said association now in force or that shall hereafter be adopted by said association, all of which are hereby made a part of this agreement”; and the rules and regulations of the Masonic Mutual Benefit Association provided, as the judge has stated, that the notice of assessments might be given by mailing the same to the last recorded address of a member (which seems to mean the last recorded by the association in its books provided for that purpose), whereas the certificate before referred to contained the provision following:

“It is further understood and agreed that the mailing of a notice of an- assessment at Toledo, Ohio, by the secretary of the association at the last address furnished the secretary by said member shall constitute a legal notice of such an assessment.”

We are of the opinion that the charge of the court to the effect that the rules and regulations of the Masonic Mutual Benefit Association became a part of the contract between Jessie Georgia Judge and that association upon her acceptance of their proposal to assume the risks and obligations of the other association, was a correct charge; so that in so far as the rule respecting the mailing of notice contained in the certificate may have been modified by the constitution and rules of the other association, such alteration would amount to a modification of the contract, and would be binding ujDon the holder of the certificate. The judge proceeds to state:

“All assessments levied by said defendant against said Mrs. Judge prior to December 23, 1903, were paid. While it is denied by the plaintiff, yet it is established by the uncontroverted evidence that on said December 23, 1903, the defendant, through its board of directors, levied two assessments against its members, payable on or before January 15, 1904. It is conceded that at said time Mrs. Judge was twenty-eight years of age; that the amount of each assessment that was and could be made against her was the sum of seventy-eight cents. In other words, I instruct you that on December 23, 1903, the defendant duly and legally levied two assessments against the said Mrs. Judge, amounting in the aggregate to the sum of $1.56, which were payable on or before January 15, 1904. Neither of these assessments were ever paid, and on June 23, 1904, Mrs. Judge died.
“On February 23, 1905, .the plaintiff duly made proof to the defendant of the death of his wife and demanded payment of the said sum of $1,000, but the defendant refused to comply therewith. Thereupon this action was brought to recover said sum of money from the defendant, and the plaintiff based his right thereto upon two grounds: First, that no notice of the assessment levied December 23, 1903, was ever given his wife by the defendant, as required by its constitution and rules; and, second, that on November 23, 1903, he paid the assessments made that month upon Mrs. Judge, and that at that time he requested the secretary of the defendant to change the address of his wife from 408 Segur avenue to 1538 Western avenue, Toledo, Ohio; that said officer should have but did not record said address, and that by reason thereof she never received any notice from the defendant that it had made two assessments against her amounting to $1.56 and payable on or before January 15, 1904.
“On the other hand the defendant claims that it did cause a notice of said assessment, stating therein the time payable and amount due, to be mailed to her, postage prepaid, directed to her last recorded address, and the defendant dehies that it was ever requested or notified to malte any change therein. It has been established by the uneontroverted evidence that the last recorded address of the said Mrs. Judge was 408 Segur avenue, Toledo, Ohio, and that on and for some time after November 23, 1903, she lived at 1538 Western avenue in this city.”

I may add that the evidence shows that she moved from Segur avenue to Western avenue about October 1, 1903.

It will be observed that -the crucial question in this ease was whether notice, as required by the contract between Mrs. Judge and the association, had been given her of the assessments levied on December 23, 1903, payable on or before January 15, 1904. The defense of the company was based on the non-payment of those assessments, the plaintiff on the other hand contending that the obligation to pay had never arisen, or at least that no forfeiture could be predicated upon the non-payment for the reason that the requisite notice had not been given.

The ease was tried to a jury, which returned a verdict in favor of the defendant. Motion for a new trial having been overruled and judgment entered upon the verdict, the plaintiff prosecutes error to this court, and the principle error complained of and the one that has been most earnestly debated before us and most fully considered by us, is that respecting alleged errors in the charge of the court on the subject of the burden of proof.

As I have said, we are of the opinion that the charge of the trial judge to the effect that the rules and regulations of the defendant became a part of the contract, was correct; but it does not follow that under any and all circumstances a notice mailed to the last recorded address would be sufficient; for, if a failure to record the last address correctly was the fault of the company, and if, because of such fault, the notice was not received by the insured, then the company could not predicate a forfeiture upon the strict compliance by it with the letter of this rule. In other words, it would be the duty of the company, upon notification and request, to record the address correctly, so that the last recorded address would be the true address— i. e., that of which the company had been notified — and it would devolve upon the company to mail its notice to that address, and that duty would be the same even though it failed to record that address, precisely as if it had properly recorded it. And the rule should be so construed that “the last recorded address” would mean the last address which should have been recorded by the company in the performance of its duties.

The question of fact as to whether the company had been notified of this change of address was submitted to the' jury. There was a conflict of evidence upon it. I need not take time to recite what the evidence was. It is sufficient to say that there was a conflict, and that it was not made so clear and certain by the evidence that the contention of either party was right and should prevail, that the court could act thereon as upon a question of law. ' :•

If the company had sent the notice to the correct address, either that recorded or that which should have been recorded, then the insured would be in default on failing to pay the assessments, whether she received the notice or not. On the other hand, if the notice was not mailed and addressed in compliance with the rule, then the insured would not be in default unless she actually received the notice; but if she actually received the notice, then it is a matter of no consequence whether the notice had been actually addressed correctly or not. It will be seen that in the one event the mere mailing of the notice would be sufficient to put her in default; in the other event it would be necessary to show that she actually received the notice.

The testimony as to whether she had received the notice was conflicting. Now upon this conflict the judge charged the jury on the law- of the case as follows:

“The burden is upon the defendant to prove by the preponderance of the evidence that on or about January 1, 1904, the defendant caused a notice of the two assessments in question, stating therein that they were payable on or before January 15, 1904, and that the amount due was the sum of $1.56, to be given the said Jessie Georgia Judge, by mail, directed to her last recorded address. If you do not so find from a preponderance of the evidence, your verdict will be in favor of the plaintiff. If you do so find from a preponderance of the evidence, then the burden is upon the plaintiff to prove by a preponderance of the evidence that on or about November 23, he paid certain assessments made against his wife, and then requested the secretary of the defendant to change her address to 1538 Western avenue, Toledo, Ohio. If you do not so find from a preponderance of the evidence, but do find from a preponderance of the evidence that notice of said two assessments was given Mrs. Judge in .the manner and form I have stated, then your verdict will be in favor of the defendant.”

The charge thus far was correct; that is to say, the correct recorded address being at one time 408 Segur avenue, if the insured moved from there so that her address was changed it would devolve upon her to apprise the company of that fact, so as to lay upon the company the duty of changing the address; and we think it would devolve upon the plaintiff to establish by a preponderance of the evidence his contention upon that issue. The charge then proceeds:

“If you find from a preponderance of the evidence that the plaintiff, on or about said November 23, did request the secretary of the defendant to change the address of the said Mrs. Judge, as I have stated, and further find from a preponderance of the evidence that on or about January 1, 1904, the defendant caused a notice of said two assessments to be given her in the manner and form I have indicated, you will then determine from a preponderance of the evidence whether said notice was received by her. If you find from a preponderance of the evidence that on or about January 1, 1904, a notice of said two assessments, stating therein the time, the sum, where payable and the amount due, were mailed, postage prepaid, directed to said Mrs. Judge at 408 Segur avenue, Toledo, Ohio, and that at said time it was the custom of the post office department of the United States Government, in this city, to deliver mail addressed to said Mrs. Judge at 1538 Western avenue, Toledo, Ohio, I instruct you that the presumption would arise that, such notice was so delivered, and the burden would then devolve upon the plaintiff to remove that presumption, by a preponderance of evidence. In other words, the burden would then be upon the plaintiff to prove by a preponderance of the evidence that said notice was not so delivered.”

We think that under the authorities that charge was correct' in part and in part incorrect. In other words, we think it was correct to charge that if at that time mail addressed to Mrs. Judge at 408 Segur avenue was customarily delivered to her — • that is to say, if, in the usual course of the post office department ’s business, by reason of knowledge they had of her true address, or from any cause, it was customarily delivered at her true address, 1538 Western avenue, precisely as if it had been directed to 1538 Western jivenue — then from that a presumption would arise that the notice had been received by her. This so-called presumption is a rebuttable presumption. It is not at all conclusive. It is rather an inference of fact. It is sometimes stated in the authorities in this way: that the mailing of a letter, properly addressed and stamped, affords prima facie evidence that it was delivered to the person to whom addressed. We know that our postal facilities are so efficient, and the practices of the department are so uniformly accurate, that this is a more reasonable presumption or inference at this day than it was when it was established as the law of England, many years ago.

It is stated in 22 Am. & Eng. Enc. Law (2d Ed.), 1252, that—

“The rule was announced in England at an early date that if a letter is sent by post, properly addressed, a presumption of its receipt by the addressee arises; and this rule is now well settled in the United States. The presumption is based on the known and regular course of business of the jeost office department.”

A great many authorities are cited in support of this proposition. We do not understand that this branch of the proposition, or this particular part of the charge, is complained of, but what is complained of is the last part of this paragraph, to-wit:

“And the burden would then devolve upon the plaintiff to remove that presumption by a preponderance of evidence. In other words, the burden would then be upon the plaintiff to prove by a preponderance of the evidence that said notice was not so delivered. ’ ’

This proposition is repeated in a somewhat different form further along in the charge as follows:

“If you find from a preponderance of the evidence that on or about January 1, 1904, a notice of said two assessments in the form and manner I have indicated was deposited in the mail, postage prepaid, addressed to said Mrs. Judge at 408 Segur avenue, Toledo, Ohio, and that at said time it was the custom of the post office department of the United States government in this city to deliver mail thus addressed to Mrs. Judge at 1538 Western avenue, Toledo, Ohio, your verdict will be in favor 'of the defendant, unless you further find from a preponderance of the evidence that said notice was not so delivered.”

In this paragraph it is not stated that upon proof of such mailing and such custom the burden of proof would then be upon the plaintiff to ¿prove by a preponderance of evidence that the notice was not so delivered, but the effect of placing upon her the burden of establishing this fact by a preponderance of evidence appears to be precisely the same.

We are cited by counsel for plaintiff in error to a number of authorities bearing upon this question, to some of which I shall now call attentioñ. In the case of Huntley v. Whittier, 105 Mass., 391, .a case upon a contract to recover the price of a velocipede, wherein the chief issue was as to whether the defendant had received notice of completion of the order, Justice Gray says:

“The depositing of a letter in the post office, addressed to a merchant at his place of business, is prima facie evidence that he received it in the ordinary course of the mails; and where there is no other evidence, the jury should be so instructed. # * *
“The presumption so -arising is not a conclusive presumption of law, but a mere inference of fact, founded upon the probability that the officers of the government will do their duty, in the usual course of business; and, when it is opposed by evidence that the letter was never received, it must be weighed, with all the other circumstances of the case, by the jury, in determining the question whether the letter was actually received or not; and the burden of proving its receipt remains throughout upon the party who asserts it.”

In the case of Home Ins. Co. v. Marple, 1 Ind. App., 411 (27 N. E. Rep., 633), this is said in the syllabus:

“We are of the opinion, where actual notice is required, evidence of the mailing of a letter containing such notice, properly addressed and stamped, is prima facie proof of the receipt of the notice, and if its receipt is not denied, the court may instruct the jury to so find. But if its receipt' is disputed, the question should be submitted to the jury to determine from all the evidence, -both positive and circumstantial, whether the notice was in fact received or not. If the evidence is undisputed upon the essential fact and but one inferencé may be properly drawn from it, the court may so instruct the jury, and to that extent control the verdict; but if the evidence is conflicting, or of such a character that different inferences might be drawn from it, the question must be submitted to the jury without interference on the part of the court except to instruct generally upon the law of the ease. ”

Other authorities are cited in the brief in support of the proposition that notwithstanding this presumption, or this prima facie case made out by proof of the mailing of the letter or notice, the burden-of proof to establish the fact rests upon the party asserting that the notice was received — the party who is bound under the issues to establish by a preponderance of evidence at least that the notice was received. There is a late ease by our Supreme Court that seems to have escaped the attention of counsel that bears directly upon this question. The case of Klunk v. Railway, 74 Ohio St., 125. I read from the syllabus-:

‘ ‘ On the trial of an action against a railroad company, brought by a locomotive fireman for a personal injury received by him in consequence of a defect in the water gauge glass attached to the locomotive upon which he was employed, an instruction that to overcome the effect of the prima facie evidence of negligence arising from proof of such defect ‘the defendant company is required to satisfy the jury by a preponderance of the evidence that it was not negligent, ’ is erroneous.
“In such action the burden of proving, by a preponderance of the evidence, the particular negligence alleged, is at all times upon the plaintiff, and while proof of facts sufficient under the statute (Section 3365-21), to create a prima facie presumption of negligence against the defendant casts upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy such presumption, yet proof of such facts does not impose upon the defendant the burden of establishing affirmatively, by a preponderance of the evidence, that it was not negligent.
“The rule is, that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.”

This last proposition is a reiteration of the statement of the law made in the case of Lexington Fire, L. & M. Ins. Co. v. Paver, 16 Ohio, 324:

“In eases where the testimony upon any particular issue leaves it doubtful whether the affirmative of that issue is sustained, it is a safe and proper course for the jury to find against the party holding the affirmative. ’ ’

In the course of the opinion in Klunk v. Railway, supra, Judge Crew takes this question up and discusses it very fully, citing authorities; and; since it may all be found there, it is not-worth while for this court to carry the same matter into this opinion.. I can nót forbear, however, reading a part of the opinion, though I do not know that that which I shall read is more pertinent or forceful than that which I shall leave unread. He calls attention, at page 133, to a decision by Judge Deemer, of the Supreme Court of Iowa, in the case of. Gibbs v. Bank, 123 Iowa, 736, 742, in which that judge states the rule as follows:

“When a prima facie case is made out by presumption or otherwise, in order to destroy its effect and shift the burden of producing further evidence, the party denying it must produce evidence tending to negative the claim ’asserted to a point where, if no more testimony is given, his adversary can not win by a preponderance of the evidence. * * ® It is clearly a misnomer • of terms to say that the burden of proof swings like a pendulum from one side to the other during the progress of a trial. All that is meant is, that the duty of introducing evidence to meet a prima facie case shifts back and forth.”

He also notices Scott v. Wood, 81 Cal., 398, in which Iiayne, C., commenting upon an instruction given by the trial court in that case, touching the quantum of evidence necessary to -rebut a prima facie case, says, page 134:

“We think that the court erred in telling the jury that the defendant was required to have a preponderance of testimony upon the question mentioned. The term ‘burden of proof’ is used in different senses. Sometimes it is used to signify the burden of making or meeting a prima facie case, and sometimes the burden of producing a preponderance of evidence. These burdens are often on the same party. But this is not necessarily or always the case. And it is by no means safe to infer that because a party has the burden of meeting a prima facie case, therefore he must have a preponderance of evidence. It may be sufficient for him to produce just enough evidence to counterbalance the evidence adduced against him.”

Continuing, Judge Crew says:

“Perhaps one of the best statements to be found of the rule now under consideration, is that given by Chief Justice Shaw in Powers v. Russell, 30 Mass., 76, as follows: ‘It may be useful to say a word upon the subject of the burden of proof. It was stated here that the plaintiff had made out a prima facie ease, and,-therefore, the burden of proof was shifted and placed upon the defendant. In a certain sense this is true. Where the party having the burden of proof establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore, the other party, if he would avoid the effect of such prima facie case, must produce evidence, of equal or greater weight, to balance and coptrol it, or he will fail. Still the proof upon both sides applies to the affirmative or negative of one and the same issue, or proposition of fact; and the party whose ease requires the proof of that fact, has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate.’ ”

Further quotations are made from authorities giving these rules different language, but it all amoimts to the same thing as applied to this case.

When the case was made out (as we may assume for the purposes of this discussion that it was) of the mailing of this letter, addressed in such a way as that in the usual course it would probably reach the person to whom it was addressed, and therefore a prima facie ease was made out of the receipt of the letter or the notice by her, it then devolved upon the plaintiff in the case to overcome this prima facie case or to meet it by sufficient evidence, so that it could not be said that the presumption, or the prima facie ease, prevailed; or, in the language of the 'syllabus in Klunk v. Railway, supra, the burden was east upon the plaintiff of “producing evidence of equal weight or countervailing force in order to control or destroy such presumption.” Yet the burden was not imposed by the law — as it was by the charge of the court — upon the plaintiff, of establishing affirmatively by a preponderance of evidence that the notice had not been received. If the evidence produced was, sufficient to destroy the effect of this presumption, still — by the law — the burden rested upon the defendant all the time from the beginning to the end of the trial, to establish affirmatively by a preponderance of evidence that the notice was received, and if .the problem seemed to the jury to be left by the evidence so evenly balanced that they could not say affirmatively either that the notice had been received or that it had not been received, it was the duty of the jury to find against the defendant in error on that issue; and the jury should have been so instructed.

F. E.'Rheinfranh and G. A. Ohlinger, for plaintiff in error.

King <& Tracy, C. T. Johnson and C. El. Lemmon, contra.

In a close ease, as this appears to have been, this error in the charge may have been the thing that resulted in the defeat of the plaintiff upon this issue. At all events, the evidence is not so clear and conclusive against the plaintiff upon this issue that we are able to say he was not prejudiced by this error. The rule upon this subject is stated in the case of McNutt v. Kaufman, 26 Ohio St., 127, in the syllabus, as follows:

“A misdirection of the jury, as to the burden of proof, is error for which the judgment will be reversed at the instance of the party prejudiced thereby.
“A reviewing court having found such error to exist, will not look into the testimony for the purpose of ascertaining whether the verdict is sustained by the weight of the evidence.”

Because of this error in the charge, the judgment of the court below will be reversed.


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    HOURS OF CONTINUOUS SERVICE BY RAILWAY TRAINMEN.
    Circuit Court of Richland County.
    Baltimore & Ohio Railway v. Maggie M. Collins, Administratrix.
    Decided, 1907.

      Railways — Construction of Section SSGo-U/ — Limiting Hours of Continuous Service by Railway Trainmen — Action for Wrongful Death— ' Charge of Court — Designating One Issue as the Real Issue not Prejudicial Error, When — Evidence.
    1. The fact that railway trainmen have been on duty for more than fifteen consecutive hours does not amount to a violation by the company of Section 3365-14, unless it appears that the company permitted or required them to undertake the run without at least eight hours rest subsequent to their last preceding run, and not then unless the jury find from the evidence that the last preceding run occupied more than fifteen consecutive hours.
    2. In an action for wrongful death it is error to permit evidence to go to the jury which embodies an admission by the decedent of his own negligence.
    3. The designation in ihe charge to the jury of one issue in the case as the real issue is not prejudicial to a defendant, but might be a subject of complaint by a plaintiff who had presented several issues upon which he might be entitled to recover.
    Taggart, J.; Donahue, J., concurs; McCarty, J., not sitting.
   The defendant in error filed her petition in the court of common pleas of this county, alleging that she was the administratrix of the estate of James W. Collins; that he met his death 'While in the employ of the Baltimore & Ohio Railroad Company on the morning of December 28, 1904, near Sherwood in the state of Ohio; that the death of said James W. Collins was caused through the negligence of the defendant company in that it permitted and required a certain conductor, Grimes, and his crew to be on duty for more than fifteen consecutive hours, to-wit, forty-eight hours, without relief and without at least eight hours rest, in. violation of Section 3365-14, Revised Statutes; that the defendant below had full knowledge that said Grimes and his crew, at and prior to the time of said collision, had been on duty at least thirty-six hours without rest or sleep or relief; and that in consequence of the extreme cold and by reason of said Grimes and his crew being tired, weary and exhausted in consequence of said continuous duty and service, and loss of sleep and rest, they were incompetent to perform properly the duties devolving upon them, and that, while in that condition, the conductor, Grimes, negligently and carelessly opened the switch and permitted the same to remain open; that the train upon which the deceased was employed was wrecked and his death was caused; and that the company had full knowledge of the violation of said statute, and of the condition of said Grimes, and she prays a recovery.

The answer of the company is, in substance, a general denial with the plea of contributory negligence. On a verdict being returned in favor of the defendant in error and judgment rendered thereon, this proceeding to reverse said judgment was instituted.

Numerous errors are presented for our consideration as to the admission of evidence. The only error of substance that we discover in this record on the admission of evidence is found in the bill of exceptions on page 74. The witness, W. A. Miller, was introduced on behalf of the plaintiff, and testified that he was a member of the crew of the relief'train which was sent out on the night of the accident. He was inquired of as to whether he had seen Grimes after that, and he answered, “Yes, sir. ’ ’ This was after the accident occurred. PIq was then asked: “What did you hear him say?” This was objected to and overruled, the court permitted the answer: “Well, all I heard him say was, ‘ I don’t know how I come to leave that switch open. ’ ’ ’ Here was a declaration permitted to go to the jury as having been made by the conductor, Grimes, of an admission that he had left the switch open which caused the accident. We think that this was prejudicial error.

In respect to the charge of the court, it is claimed that this violates the rule in the ease of Baltimore & Ohio Ry. v. Lockwood, 72 Ohio St., 586, but we think the court clearly defined the issues in this case, as shown on pages 157 and 158 of the bill of exceptions. The fact that he designated one issue in this case as the real issue is of no prejudice to the plaintiff in error. The defendant in error might complain, if there were several issues upon which she might be entitled to recover and the court singled out one issue and designated it as the real issue. She might complain, but the defendant company has no ground to complain as to this action of the court.

The defendant company requested the court to charge the jury as follows:

“ ‘Any company operating a railroad over thirty miles in length in whole or in part within the state, shall not permit or require any conductor, engineer, fireman or any trainman on any train, who has worked in his respective capacity for fifteen consecutive hours, again to be required to go on duty or perform any work until he has had at least eight hours rest, except in cases of detention caused by accident, unavoidable or otherwise. ’
“The above statute does not apply to this ease, no difference how long the time occupied by Grimes in his run from Deshler to Garrett, unless the defendant company had either permitted or required Grimes to undertake this run without at least eight hours rest subsequent to the next preceding run, and not then unless the jury find from the evidence that such next preceding run occupied more than fifteen consecutive hours of time.”

We think that this request states the law governing this case and should have been given. This court, however, on page 160, instead of giving this charge, gives the following erroneous instruction to the jury:

“If the train on which which Grimes was conductor was delayed at Sherwood by reason of an accident occurring to its engine, the statute which I have read to you has no application to the facts in this case, unless you find that the defendant, knowing that said Grimes has been on duty for more than fifteen cónsecutive hours, could have reasonably provided in the due and proper operation of its trains other servants competent to relieve said Grimes and his crew.”

•'•This charge is erroneous-in that it instructs the jury that if said Grimes had been on duty more than fifteen consecutive hours, notwithstanding his train was delayed by accident, yet if the company could have reasonably provided, in the proper operation of its trains, other servants competent to relieve said Grimes and his crew.”

Cummings, McBride & Wolfe, for plaintiff in error.

Sidles, Green & Sidles, contra.

This charge is erroneous in that it instructs the jury that if said Grimes had been on duty more than fifteen consecutive hours notwithstanding that his train was delayed by accident, yet if the company could have reasonably provided, in the proper operation of its trains, other servants competent to relieve Grimes, and failed to do so, it would be guilty of negligence. We think this is clearly erroneous and unwarranted by the section of the statute under consideration.

The court also, on page 159, places as we think a wrong construction of said section of the statute, for he in effect instructs the jury that more than fifteen hours service on a continuous trip, without eight hours rest, would be a violation of this statute. This we think, is clearly erroneous and prejudicial.

For the errors indicated in the admission of testimony and for the misdirection of the court to the jury as indicated, the judgment of the court of common pleas will be reversed, the cause remanded for a new trial and further proceedings according to law.


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    CAUSES OF ACTION AND THEIR PROPER. STATEMENT.
    Circuit Court of Lucas County.
    Toledo Gas-Light & Coke Co. v. Toledo.
    Decided, June 27, 1907.

      Contracts — Pleading in an Action for Recovery on — Separation and Numbering of Different Causes of Action — When Separate Causes Become Merged.

    1. The numbering of paragraphs in a pleading is not approved for the reason that it leaves room for doubt and uncertainty as to whether it is intended to simply number the paragraphs or to number the causes of action.
    2. The different breaches of a contract are separate causes of action if sued on when occurring, but if no action is brought until after the term of the entire contract, the different breaches become one cause of action, and it is error to require plaintiff to separately state and number the different breaches as separate causes.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   Action was brought by the Toledo Gas-Light & Coke Company, in the court of common pleas of this county, to recover on account of gas furnished to the city for the lighting of streets and public places through a series of years beginning with 1866 and ending with 1877. It is alleged that this gas was furnished under certain contracts with the city, presumably in the form of resolutions or ordinances, and that covering this period there were several contracts — one for ten years, one for one year and one for five years; and that by the terms of these contracts the bills were payable by the city semi-annually. The gas company had a right to receive at the hands of the city for each period of six months the assessments upon certain property levied for the purpose of paying this expense, and it appears from the pleadings that it devolved upon the city to collect these assessments and pay the moneys over to the gas-light and coke company on demand. There was a petition filed, to which a motion was interposed to require the plaintiff to separately state and number its causes of action. These matters that I have stated were all set forth in this petition, and in addition thereto it was alleged therein “that on or about the first day of October, 1882, this said defendant and this plaintiff by their duly authorized officers made a computation of the amount due the said plaintiff at that time upon the bills rendered from the first day of January, 1866, up to the said time, and agreed that the amount due the said plaintiff from the said defendant at that time was $40,243.01”; and it was also averred in the petition that the gas was furnished; that bills were rendered (the dates and amounts being set forth in the petition) and that payments were made from time to time (and the dates and amounts of these payments are set forth), and that they continued from year to year until November 13, 1899, and there is a prayer for an accounting and for judgment.

The motion to require the plaintiff to separately state and number the causes of action was sustained. The order of the court that such -amendment should be -made was not complied with promptly — the matter ran along for some time — but finally, before the action was dismissed, an amended petition was filed. In that the plaintiff has undertaken to set forth four causes of action. There are four separate statements of what are evidently intended .to be causes of action, and these statements are numbered consecutively from one to four. We think the form of separately stating and numbering adopted by the pleader is not to be approved, because it leaves room for doubt and uncertainty as to whether the parties mean to simply number the paragraphs or to number causes of action. While the numbering of paragraphs is not approved, yet it is sometimes practiced. We think that where parties intend to state and number causes of action separately, they should state and mnnbar them distinctly; as, for instance, “The First Cause of Action; The Second Cause of Action,” etc. However, it seems to be understood by all concerned that each of these various paragraphs is intended for a separate and distinct cause of action.

The first cause of action is based upon an alleged contract entered into by the parties on December 30, extending over a period of ten years from January 1, 1866. It sets forth the rate at which gas was to be furnished, the amount of gas furnished, the payments made, and closes with the averment that the sum of $25,050 is due under the aforesaid contract.

The second cause of action is a like statement of facts, based upon a contract entered into for the period of one year on January 1, 1876, and a balance of $4,000 is claimed under .this contract.

The third cause • of action is based upon another contract, which is said to be for a period of five years from January 1, 1887.

We are inclined to think, from comparing this cause of action with the statement of the same matter in the original petition, that counsel has made a mistake in the date — that it was intended to be 1877. We are not certain about that, however; the mistake may be in the original rather than in this; the dates do ,not correspond. The balance claimed under this contract is $20,030.

The fourth cause of action is founded upon an alleged accounting and agreement of the parties on October 1, 1882, as to the amount due, and a promise of the defendant to pay the amount so agreed upon as due, and this agreement and computation is said to have covered the period from January 1, 1866, to January 1, 1882, so that it covers the same matters as stated in the first cause of action, and also those in the second cause of action, and if the date in the third cause of action should be “1877” instead of “1887,” it covers that also. If the date is correctly stated in the amended petition, that period is not covered by the alleged agreed statement of account.

This amended petition was stricken from the files and the action dismissed by the court, on the ground that the plaintiff bad not complied with the order of the .court to separately state and number the causes of action. The contention on behalf of the defendant, which seems to have been sustained by the court, is, that a cause of action arose in favor' of the plaintiff, if at all, at each period when an amount became due under either of these contracts and upon the non-payment of such amount; that, therefore, under the contract providing for a period of ten years, with payments to be made every six months, there would be twenty causes of action, if full payment was not made at each period when a payment became due, and so on of the other claims under the contract set forth in the second and third causes of action.

The plaintiff! in error contends that it complied with the order of the court when it set forth in its amended petition four causes of action. Counsel have filed briefs, but have not cited many authorities upon the question of what constitutes a cause of action under circumstances like these that I have stated. In the brief for plaintiff in error we are cited to one authority, a decision of this court, and that was probably deemed sufficient for the purpose of the hearing in this court. The authority seems to be in point and sustains the contention of the plaintiff in error. It is the case of Bowman v. Fuher, 11 C. C., 231. In addition to this we have examined a large number of authorities, some of which I will cite: Bliss, Code Pleading, Section 118; Kinkade, Code Pleading, Section 19; Pomeroy, Remedies & Rem. Rights, Section 460 — and there are several other sections upon the subject, some preceding and some following this; Monarch Cycle Mfg. Co. v. Wheel Co., 105 Fed. Rep., 324; 4 Enc. Pl. & Pr., 941; Whitaker v. Hawley, 30 Kan., 317, 327, 328. I shall read only what is stated in that opinion at the pages cited. The statement of facts is somewhat lengthy and complicated, but the principle involved is made very plain in what I shall read:

“The defendants claim, in the language of the Court of Appeals of New York, that ‘in respect to contracts, express or implied, each contract affords one and only one cause of action. The case of a contract containing several stipulations, to be performed at different times, is no exception, although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others.’ (Citing Secor v. Sturgis, 16 N. Y., 558, and what I have just read is quoted from that case.)
“The defendants cite several other cases as tending to sustain this doctrine, among which are the following: Barton County v. Plumb, 20 Kan., 147; Bond v. Sewing Mach. Co., 23 Kan., 119; Madden v. Smith, 28 Kan., 798; Bendernagle v. Cocks, 19 Wend., 207; Stein v. Steamboat Prairie Rose, 17 Ohio St., 471-475.
“The plaintiff denies the authority of some of these cases, and denies the applicability of all of them. ITe cites on his side the following, among other cases: Badger v. Titcomb, 32 Mass. (15 Pick.), 409; Shaw v. Beers, 25 Ala., 449; Stifel v. Lynch, 7 Mo. App., 326; McIntosh v. Lown, 49 Barb., 550; Perry v. Dickerson, 85 N. Y., 345.
“We suppose that the doctrine enunciated in the case of Secor v. Sturgis, ante, is generally correct; and, generally, that a breach or any number of breaches of a single contract can furnish, at one time, only one single cause of action. Of course where a contract contains several stipulations to be performed at different times, a cause of action may arise upon the breach of any one of such stipulations, and an action may be maintained at once upon such breach without prejudice to future actions upon subsequent breaches; but if no action is in fact commenced until after other breaches have occurred, then all the various breaches of the several stipulations will constitute only one comprehensive breach of the general contract, only one comprehensive cause of action on the entire contract. All of the various causes of action founded upon the several breaches in such case will be merged into one comprehensive cause of action. At each successive breach of a contract the cause of action on such contract will be enlarged, and no new cause of action will be created. The law abhors a multiplicity of suits, and for this reason, among others, courts generally construe all existing breaches of a. single contract as constituting in the aggregate only one general breach of one general contract, one comprehensive infringement of one comprehensive primary right —the right to have the contract fulfilled in its entirety. According to the great weight of authority, such a breach in the aggregate constitutes only one cause of action. (Citing Pomeroy, Remedies & Rem. Rights, Section 552 to 561’, and case therefore cited.)
“Hence, if the three items upon which the plaintiff now claims a right to recover are founded upon the aforesaid contract between the parties, then of course such items are a part of one general cause of action, of which the plaintiff’s previous cause of action for rent was another part, and the plaintiff can not recover in this action.”

It will be observed that the plea of res judicata was interposed and was sustained by the application of this principle.

That, we think, is the law applicable to this ease, and it follows that the court of common pleas erred in holding that the plaintiff had not complied with the order to separately state and. number the causes of action. The question chiefly debated by counsel, i. e., as- to whether valid causes of action are well stated, it not presented by this record; the only question presented by the record is, whether the court erred in dismissing the action upon the ground stated.

King <& Tracy, for plaintiff in error.

G. S. Northup and O. W. Nelson, contra.


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    REGULATIONS AS TO SMOKE.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Cornelius A. Burkhardt, President and General Manager of the Gibson House Hotel.

    Decided, February 15, 1908.

      Municipal Corporations — Regulation of the Emission of Smoke by Ordinance — Reasonableness of the Provisions — Nuisance—Presumption — Who may be Prosecuted — Criminal Law.

    1. It is within the power of a municipality to provide by ordinance; for the regulation of the emission of smoke.
    2. The test as to the validity of such an ordinance is its reasonableness; and unless it is shown to be clearly unreasonable, it should not be declared void.
    3. In a prosecution for violation of an ordinance regulating the emission of smoke, the proper defendant is the corporation permitting the emission, or the employe causing it.
    Gippen, J.; Swing, P. J., and Smith, J., concur.

       For a contrary holding as to the validity of this ordinance, see Cincinnati v. Burkhardt, 6 N. E. — N. S., 17.

   A statement of the ease may be found in 6 N. P. — N. S., 17. It involves the construction of a municipal ordinance to regulate the emission of smoke.

The prescribing of a certain scale for measuring the density of smoke, and declaring any thing in excess of that scale to be a public nuisance, is the same thing as declaring smoke to be a public injury and annoyance, to prevent which the Legislature has given the power to council. Section 7, Subdivision 3, municipal code.

Benton S. Oppenheimer, for plaintiff in error.

E. W. Strong and J. J. Muir, contra.

If upon its face, or after investigation, it clearly appears to be not a nuisance nor an annoyance nor an injury to the public, the ordinance is unreasonable and void; but if it appears that different minds may reasonably arrive at different conclusions the council has not exceeded its power in adopting the ordinance in question. Langel v. City of Bushnell, 197 Ill., 20; Bowers v. City of Indianapolis, 81 N. E., 1097.

We are of the opinion that the ordinary mind would be in doubt whether the prohibition is unreasonable, the difficulty lying in the manner of fixing and declaring the density of the smoke prohibited; but it will be presumed, in the absence of proof to the contrary, that council duly investigated the subject and adopted this particular scale upon the ground of accuracy and precision; and unless it is clearly unreasonable or in restraint of trade the ordinance should not be declared void. White v. Kent, 11 O. S., 550.

The defendant, Burkhardt, is charged, as president and general manager of the Gibson House hotel, with unlawfully permitting the emission and escape of smoke. It is admitted in the record that he is president and general manager of the A. G. Corre Hotel Co., which runs the Gibson House, and was at the time complained of. But it does not appear that he personally permitted or had anything to do with the nuisance of the smoke.

Under the ordinance the corporation permitting the emission of smoke, or the employe causing it, should have been prosecuted.

Judgment affirmed.