author: Kinkade, J.

text:
    ABSENCE OF MOTIVE FOR. COMMISSION OF A HOMICIDE.
    Court of Appeals for Wood County.
    Charles Neiswender v. State of Ohio.
    Decided, November 10, 1915.

      Criminal Law — As to Special Requests to Charge the Jury — Confusion, of Issue hy a Multiplicity of Requests — Failure to show Motive— Statements hy the Accused Distinguished from, Confession of Guilt — ~What Should he Left to the Jury — Tender of Incompetent Evidence and the Evil Resulting Therefrom — Jury as a Whole, and Not Individually, Should he Convinced Beyond a Resonahle Douht Before Verdict is Returned.

    1. In a prosecution for homicide, the absence of any evidence tending to show a motive for the alleged crime is a circumstance to which the attention of the jury should be directed by the court with the instruction that this fact should be considered in connection with the evidence and other circumstances of the case in determining the guilt or innocence of the accused.
    2. While the statute relative to the giving of special written instructions to the jury before argument applies to civil cases only, the substance of such a request, where embodying a correct statement of the law, should be incorporated in the general charge of the court.
    3. Where it is claimed that statements made by the accused are in a measure admissions of his guilt, the trial judge should leave to the jury the question whether such statments were made, and if made whether they amounted to an admission of guilt, care being taken not to designate the statements as a confession of guilt.

      B. F. James and Earl D. Bloom, for plaintiff in error.

      E. K. Solether, Prosecuting Attorney, and Charles S. Hatfield, contra.
   Kinkade, J.

Tbe plaintiff in error was charged, in the indictment returned by the grand jury, with having committed the crime of murder in the second degree by the killing of his father-in-law, William Edward Dindore, on the morning of December 13, 1913.

A plea in abatement was filed by the.accused and met by a demurrer on the part of the state. The demurrer was sustained. After a very careful examination of all that is claimed by the accused in support of this plea we are of the opinion that the action of the trial court in sustaining the demurrer was correct.

After a very long trial the jury returned a verdict finding the plaintiff in error guilty of manslaughter under the indictment mentioned. Motion for a new trial was overruled and judgment and sentence of the court followed pursuant to the verdict. A very large number of errors are assigned as necessitating a reversal of this judgment.

In the view that we take of the evidence in the case, we think it unnecessary to review in this opinion all of the claimed errors or to even mention more than a few of them specifically. The record embraces several hundred pages of evidence and a very large number of exhibits, including two maps exhibiting the scene of the tragedy and the territory thereabouts.

Over two hundred exceptions were taken during the trial by counsel for the accused with respect to rulings upon evidence, requests to charge and otherwise by the trial judge.

The ease was very fully and very ably argued, both orally and in printed briefs, by counsel for the accused and for the state. On account of the great importance of the case we have devoted a large amount of time to the reading and careful study and comparison of the evidence and have read with great care every syllable of evidence in the case and examined all the requests to charge and the general charge, and the exhibits.

Speaking of those things that took place at the trial to which our attention has been called by the plaintiff in error and which we deem of sufficient importance to justify special mention, w<> refer to request to charge, number 37, presented by counsel for the accused, which reads as follows:

“The court further instructs the jury that when the evidence fails to show any motive to commit the crime charged, on the part of the accused, this is a circumstance in favor of his innocence. And in this case if the jury find, upon careful examinar tion of all the evidence, that it fails to show any motive, on the part of the accused, to commit the crime charged against him, then this is a circumstance which the jury ought to consider in connection with the other evidence in the case in making up their verdict.”

This request was refused by the trial judge and an exception noted. We think this is a correct statement of the law and that this, or the substance of this request, should have been embodied in the general charge, and that the omission so to do was error prejudicial to the accused.

All of the requests to charge offered by counsel for the accused were asked to be given before argument. 'The statute relative to giving, before argument, written requests presented by counsel, applies to civil cases and not to criminal cases. Umbenhauer v. State of Ohio, 2 C. D., 606 (4 C C., 376), affirmed by the Supreme Court, without report, March 4, 1890, 23 Bull., 176.

This decision has been several times followed by this court. However, we think the request, presented as it was prior to the general charge of the court, should have been covered thereby as stated, and we are of the opinion that the language of the court found on page 7 of the general charge did not sufficiently cover that object. It was conceded in argument in this court that the record contained no evidence of any motive on the part of the accused to commit the crime charged. That being true, we think the charge would have been in better form had the court stated the fact to the jury that there was no evidence in the record tending to show any motive, and then have stated to the jury what the law was in a criminal case notwithstanding the fact that there was no evidence tending to show motive.

In view of the fact that sixty-six requests to charge were presented in this case we think the attention of counsel should be called to the case of American Steel Packing Company v. Conkle, 86 O. S., 117. In any criminal case a very few requests, carefully drawn, should be amply sufficient to cover every possible question of importance in the case, and the giving to the jury of numerous requests, in addition.to the general charge, puts an unwarranted element of confusion into the minds of the jury. We heartily approve of the rule laid down by the Supreme Court in the case cited.

We find in the general charge of the court on page 13 the following language:

“The court further instructs the jury that the confessions of the accused out of court are a doubtful species of evidence and Should be acted upon by the jury with great caution, and unless they are supported by some other evidence tending to show that the accused committed the crime, they are rarely sufficient to warrant a conviction! But confessions, however, may and should be taken into account by you with the other evidence in the case, and observing the caution of the court as to the effect of such evidence relating to confessions,' you should give it such weight as you think it is entitled to receive.”

Evidence was offered on behalf of the accused tending to show that no confession had been made by the accused to one Richard Smith. The court very properly excluded this evidence, on the motion of counsel for the state, for the reason that no evidence had been offered by the state that any such confession ever took place. In the argument of the case in this court it was stated by counsel for the state that they did not claim, either in the trial court or in this court, that any confession had been made by the accused. In view of this position taken by the state, and the state of the evidence in this record, we think the language of the court quoted from the general charge was not an accurate statement of the law and that the court was not justified in using the word confession in the relation there used, which was susceptible of being understood by the jury as a statement from the court, that the court was of the opinion that there was some evidence in the case of some kind of a confession.

Quoting from the Encyclopedia of Evidence, Volume 3, pages 297 and 298, we think this is the correct statement of the law:’

“A confession is a voluntary admission of guilt of a criminal offense. They are distinguished from admissions in civil cases and from admissions of fact in criminal eases tending to prove the offense charged but not amounting to a confession of guilt. To constitute a declaration a confession within the legal meaning of the term, it must amount to a confession of the crime charged or participation in such crime as distinguished from the admissions or other statements tending to prove guilt or innocence or of facts from which, taken together, guilt is directly dedueible.”

If it be claimed that statements by the accused are in a measure an admission of his guilt or are indicative of his guilt, the trial judge, where the evidence is in dispute as to whether the statements were made and if made whether they amount to a confession, should leave the question to the jury as to whether the statements were made, and also the question as to what, if made, their effect was in establishing the issue in dispute, and the trial judge should not designate such statements, if any there be, as a confession.

In some of the requests to charge and at more than one place in thé general charge the jury were instructed that each juror must be satisfied from the evidence, beyond a reasonable doubt, in order to find the accused guilty, or else the accused must be acquitted. 'This form of instruction was disapproved by the Supreme Court in the case of Davis et al v. State, 63 O. S., 173, where it is said:

“The proper charge to a jury in a criminal case is, that the, jury and not that each juror, should be convinced beyond a reasonable doubt of the guilt of the accused before finding him guilty.”

The charge as given in this respect was, of course, not prejudicial to the defendant, but we call attention to the matter in view of our disposition of the ease.

It was claimed on the trial by counsel for the accused that he had the right to show that when he was visited by various county officers and others in connection with investigations made .about the homicide, that he then disclosed to them all that he knew on the subject, and evidence was offered tending to show the fact of such disclosures. This evidence was rejected by the court on motion of the state and an exception saved. Evidently the ruling of the court was based upon the fact that no evidence had been offered by the state tending to show any refusal of the accused to answer inquiries put to him or give such information as was within his possession with respect to the homicide, and, consequently, the state making no such claim against him, there was no propriety in his showing that he had not so refused. It is entirely clear that if the accused, in the absence of any such evidence as I have indicated on behalf of the state, were .permitted to travel over numerous interviews had with other persons and show in detail 'the inquiries that were made of him and that he answered them all, etc., an issue involving almost an endless amount of time would be brought into the case. The defendant being attended by the presumption of innocence and only required to answer that which the evidence of the state tended to establish as wrong conduct on his part, we think the action of the trial court was correct in excluding the character of evidence referred to.

The accused was inquired of by his counsel whether he had ever been in trouble before. The question was objected to and excluded by the court and an exception saved. We think the question was too general in this form and that the action of the trial court with respect to it was correct. We are not meaning by this to say that the accused might not have been inquired of by his own counsel as to whether he had ever been guilty of any breach of the peace, or whether he had ever been convicted in any court as a violator of the law. It was also entirely proper for the accused, if he saw fit to do so, to show by competent proof what his general reputation was in the neighborhood in which he resided, with respect to whether he was a peaceable and law-abiding citizen or not, and this might be shown by the accused whether the state had offered any evidence touching these points or not. What has béen said in this respect rests upon the well known principle that a man of good reputation in any respect is less likely to have violated the law in that respect than one of vicious tendencies along the same lines.

We call attention to one feature of the trial which is not claimed by the plaintiff in error to present prejudicial error against him but which we think is worthy of comment, and that is the letter from the deceased, Edward Dindore, to his son, 'every page of which was identified by the evidence of the son as being in the handwriting of Edward Dindore and was said to have been received, in due course of mail, sealed up, by the son to whom it was addressed. If the state had no evidence to present concerning this letter except what the record discloses they did present, then manifestly the letter was clearly incompetent.

The ruling of the court excluded the letter on the showing made by the state with respect to it was unquestionably correct, but it does not follow in many instances that no prejudice arises to the party against whom a piece of evidence is tendered simply by reason of the fact that it is excluded from the jury on his motion. The jury are not acquainted with the technical rules of evidence and when a witness is offered on one side of a trial who is clearly disqualified to testify, or when a piece of documentary evidence is offered that is clearly incompetent as the record stands, the presentation of the witness or the document, associated with the necessary objection from the other side, may well raise in the minds of some of the jury at least a suspicion that the witness or the document offered would have disclosed something detrimental to the party objecting had the objection not been made. It was not contended in this court in argument that the letter in this case was competent. It was only hinted that had it been admitted it might have furnished some evidence of motive on the part of the accused. We think before the letter was offered in the presence of the jury, at least, counsel by his professional statement should have made it reasonably certain to the trial judge that further proof showing the competency of this letter would be offered in due time. In view of the importance in criminal trials that attaches to the presence or the absence of motive as an incident of the crime, and particularly in cases where the evidence is largely circumstantial, we think care should be observed in offering evidence of doubtful competency to see that no situation is presented that is likely to produce an unwarranted impression upon the minds of the jurors. Very wide latitude must rest with the trial court in matters of this character, and we are not indicating any particular rule that should be followed. All that we mean to say is that in respect to the letter in question we think something further should have come from the counsel offering it with respect to additional evidence to establish its competency before it was offered in the case. What has been said with respect to this letter is said without any knowledge on the part of this court of the contents of the letter, as it is not attached to the bill of exceptions.

Our attention is called by counsel for plaintiff in error to several rulings of the court on motions to withdraw from the consideration of the jury evidence that had been admitted without objection, these rulings being claimed as errors. We think it is sufficient to say, in general, covering all instances of this kind in the record, that it is not correct practice for counsel to permit evidence claimed by him to be incompetent to be placed before the jury without objection and then move the court to strike it out. When evidence is believed to be incompetent on any ground and counsel wish to have it excluded from the consideration of the jury, the proper practice is to object to it when it is offered, and save an exception there to the ruling of the court if the ruling is not satisfactory to counsel.

We are not, of course, meaning by what is said in this respect, to cover instances where witnesses answer before counsel have an opportunity to object. In such case the only course open to counsel is to move to strike out the incompetent answer that has thus come in.*

The conclusion that we have reached with respect to the evi-' deuce makes it wholly unnecessary to discuss all of the grounds stated in the motion for a new trial.

And lastly, we come to the most important question in the case, and that is the sufficiency of the evidence to sustain the verdict returned and the judgment entered thereon.

It has long been the uniform practice of this court when reversing a case on the ground that it is not sustained by sufficient evidence to omit entirely any detailed discussion of the evidence, and this for the reason that on a re-trial the evidence may not be the same and a discussion of the evidence by the reviewing court might give to one side or the other an unfair advantage in the re-trial of the case. Therefore, although we have spent several days in the examination of this evidence, and although it would be perfectly easy at this time to discuss the whole record in this respect in detail, for the reasons stated, and for the further reason that such discussion would unwarrantably prolong this opinion, I will state only the conclusion we have unanimously reached, and that is, that the verdict and judgment are not sustained by sufficient evidence.

We find no other errors in the record sufficiently prejudicial to the accused to justify a reversal, but for the error of the court in refusing to give, in substance, in the charge to the jury the matter contained in request number thirty-seven, hereinbefore quoted, and in refusing to grant a new trial to the plaintiff in error on the ground that the verdict and judgment were not sustained by sufficient evidence, the judgment of the court'of common pleas will be reversed and the cause remanded for new trial.

Richards, J., and Chittenden, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    ACCEPTANCE OF CHECK “IN FULL OF ACCOUNT” OF UNLIQUIDATED CLAIM.
    Court of Appeals for Hamilton County.
    Bettman et al v. Sporkin et al.
    Decided, March 22, 1915.

      Accord and Satisfaction — Effect of Acceptance of a Check — “In Full of an Unliquidated Claim.”

    When there is a dona fide controversy existing between two parties regarding the amount due on an unliquidated claim, and the debtor sends to the creditor a check, upon which appears the words, “'In settlement of account in full,” and the creditor receives this check and retains the same and uses it, there is an accord and satisfaction and the creditor can not recover any additional amount on account of such claim.

      Joseph W. O’Hara, for plaintiffs in error.

      Matthews & Matthews, contra.
   Gorman, J.

The action below was brought by Sporkin Brothers & Company, defendants in error in this case, to recover from the plaintiffs in error, Bettman, Cohen & Company, a balance amounting to $931.56, claimed to be due on an account.

The original account was for goods sold and delivered by the defendants in error to the plaintiffs in error, and amounted to something like $17,000, all of which had been paid except the balance claimed. There was attached to the petition an itemized account.

The answer of the defendants was a general denial, after admitting the respective partnerships of plaintiffs and defendants ; and by way of second defense set up full settlement of the account by accord and satisfaction, in this, to-wit, that on October 24, 1910, a check was sent to the plaintiffs for $1,553.31 and endorsed thereon, on the -body of the check, were the words, “In settlement of account in full”; that this check was sent in a letter which contained an itemized statement of a corrected account of the transactions between the plaintiffs and the defendants.

Upon the trial of the case below a verdict was rendered in favor of the plaintiffs for $516.76, which sum included interest from the time claimed up to the first day of the term. Deducting the interest, the verdict represents $472.10, and this sum represents the aggregate of two items of invoices claimed to have been sold and delivered by the plaintiffs to the defendants: one, July 15, 1910, $254.75, and the other, August 20, 1910, for $217.35.

The evidence in this case adduced at the trial shows that some time prior to September 26, 1910, a dispute and controversy arose between plaintiffs and defendants concerning the quality of the goods sent by the plaintiffs to the defendants, the amount of discount which should be allowed, and the question of the receipt of some goods, and other matters. On that day, September 26, 1910, a member of the plaintiff firm came from Philadelphia to Cincinnati and had a conference with Mr. Bettman of the defendant firm, after which it was agreed between the parties, and the agreement reduced to writing, that of the 625 suits of clothes held by Bettman, Cohen & Company, and shipped by the plaintiffs, 325 suits were to be taken back by the plaintiffs and credit given by the plaintiffs to Bettman, Cohen & Company for them; and it was further agreed that Bettman, Cohen & Company would pay the rest of the account at once after the return of the goods, deducting 4y2 per cent, discount upon the whole account, instead of payment upon the original terms. The goods were sent back, 325 suits, and on that day $2,000 was paid to the plaintiffs, and, laier, $2,0001 more was sent to the plaintiffs. The defendants wrote to the plaintiffs to send .an account, but no account was sent; and the evidence does not disclose that up to this time any account had ever been rendered by the plaintiffs for goods sold up to the 26th day of September, 1910.

The defendants not having received an account, finally, on October 17, 1910, sent a letter to the plaintiffs in which they “again request a complete statement so that we can mail you check.” On October 8th the defendants had written to plaintiffs remitting the $2,000 and asking them to send a correct and complete statement of the account, crediting the goods returned, and stating that upon receipt thereof the defendants would mail check. (See Exhibit 3.) On the 20th of October the plaintiffs sent what purported to be a complete itemized account of charges and credits, showing a balance due from the defendants to the plaintiffs of $3,116.35. Thereupon Mr. Bettman of the defendant company sat down and prepared a contra account, item by item, in which he omitted from the account sent by the plaintiffs, four items: One of July 15, 1910, for $254.75; one of August 20, 1910j, for $217.35; and two items of September 17, 1910, one for $659.25 and the other for $63.35. Mr. Bettman also in the contra account made deductions for basting, and a great many other items, and marked the deductions upon the itemized account which he made out. There were a great number of these deductions made in addition to the deduction of the four items. He also marked on the bill the credits —cash paid and goods returned; and took credit for 4y2 per cent, discount, as he claimed was agreed upon on September 26th. In the letter of the plaintiffs to the defendants containing their account sent October 20, they did not allow 4% per cent, discount, and claimed that inasmuch as the defendants had not paid promptly, as they said they would, that the 4% per cent, discount agreed upon on September 26th should not be allowed. Upon October 22, after Bettman had made out this contra account with all the deductions, which showed a balance of $1,553.31, he enclosed a check with the account, and also a letter to the plaintiffs. The check was payable to the plaintiffs, and in the body thereof contained a statement, “in settlement of the account in full.” The letter was dated October 22. The contra account was dated October 22, but the check was dated October 24, and that is the day the check, the account and the letter were sent — Sunday having intervened between the 22d and 24th. In this letter the defendants said:

“Replying to your favor of the 20th instant, we beg to state that when you left here you said that when you received the goods we shipped back to you, you would send us a statement, ■but you did not do it. We had to write you for the statement. We therefore distinctly hold you to the agreement in regard to the discount and enclose herein a check in settlement of account.
“Bettman, Cohen & Co.”

The evidence discloses that the check, the letter and the contra account reached the plaintiffs, and there is evidence tending to show that at the time the check was received it contained the endorsement above referred to. Furthermore the jury, in answer to an interrogatory, found as a matter of fact that the check when received by the plaintiffs did contain the above endorsement, “in settlement of account in full,” so that it is established in this case that the cheek was received in that condition. The plaintiffs banked the check, and after it had gone through the clearing house and been collected they then made a further demand upon defendants for some $1,600. Subsequently they admitted that from the $1,600 the two items of September 17, aggregating $722.60, should be deducted, because the defendants never received the goods charged.

Upon the trial of the ease, upon the conclusion of all the evidence, counsel for the defendants requested the court to give the following special charge, which the court refused to give:

“If the jury should find that on October 24th, 1910, there was a controversy existing between the plaintiff and the defendant regarding the amount due from the defendant to the plaintiff, .and that the defendant sent to the .plaintiff a check, upon which appeared the words ‘In settlement of account in full’ and that the plaintiff received this check and retained the same and used it, then I charge you that there was an accord and satisfaction in this case, .and the plaintiff can not recover, and the defendant is entitled to a verdict.”

We are of the opinion that under the evidence in the ease it was shown that there was a controversy between these parties on the 24th of October, 1910, when the check was received, and prior to that time. The question of discounts was in dispute, the question of the four items was in dispute, the question of the charge made for bastings, etc., was in dispute, and when the account was sent by the plaintiffs setting out all these charges and items and was received in Cincinnati by the defendants, and the defendants took up that account and made out what they claimed to be a corrected account .and forwarded that to the plaintiffs with a check for the balance shown, with the words quoted above endorsed thereon, and that account with the letter and the check went to the plaintiffs, they were chargeable with notice of the fact that the defendants disputed the correctness of their itemized account sent on October 20; so that when the plaintiffs took the cheek they took it with full knowledge that the defendants were disputing the correctness of their account and were tendering the check in full payment and satisfaction of the account. We are therefore of the opinion that the court erred in refusing to give this special charge.

We-think that there was error in the general charge of the court in this, to-wit, that the court (Record, page 74) used the following language in his charge:

“If you find by a preponderance of the evidence that it did contain these words ‘in full settlement of account in full’ when it was received by the plaintiffs in Philadelphia, then you will go further and consider whether it was in payment in full of the account enclosed by the defendants with the check, or whether it included in payment in full of the entire account between these parties, and if you find that it was in payment on the account that was enclosed by the defendants to the plaintiffs, then the plaintiffs would be entitled to recover whatever balance of the account they' had against the defendants, should you find that they are entitled to anything. Should you find it covered the whole account as presented between these parties, your verdict will be for the defendants, provided you find there is a bona fide dispute after 'September 26th and that these words were in the check when it was received by the plaintiffs. If you should find the check was only in payment in full of the account enclosed with the check, which was sent with the cheek by the defendants, then you will consider the other items not included in the account sued on by the defendants. These items, as the court remembers, are the shipments of July 15th and August 10th of two cases of goods. If you find they were not included in the cheek, then if they were ordered by the defendants from the plaintiffs and plaintiffs shipped them to the railroad company and they were received by the railroad company, they would be the property of the defendants and they would be liable for the amount and your verdict would be for the amount of the goods.”

We think this charge had a tendency to mislead the jury into finding in favor of the plaintiffs on the items of July 15 and August 20, 1910.

The jury, u-pon a special interrogatory submitted to them, found against the plaintiffs and in favor of the defendants on the question of the endorsement on the check, and this being true, we are of the opinion that it was the duty of the court, after .the return of the verdict, to have granted the motion of the defendants to enter a judgment in favor of the defendants, notwithstanding the verdict, and that the facts in the case were such that the defendants were entitled to a verdict.

We think the law point in this case has been settled by our Supreme Court in the case of The Seeds Grain & Hay Co. v. Conger, 83 Ohio St., 169, the syllabus of which reads as follows:

“1. When there is a bona fide dispute over an unliquidated demand and the debtor tenders an amount less than the amount in dispute, upon the express condition that it shall be in full of the disputed claim, the creditor has but one alternative; he must accept the amount tendered upon the terms of the condition, unless the condition be waived, or he must reject it entirely, or if he has received the amount by cheek in a letter, he must return it.
“2. Where in such case the creditor retains a cheek which was sent upon the condition that it shall be in full satisfaction of the debt claimed to be due, and receives the money thereon and notifies the debtor that the amount is placed to his credit, but that he does not intend that the same shall close up the matter in dispute, to which the debtor makes no reply, such silence by the debtor does not amount to a withdrawal of the condition which accompanied the tender, nor a waiver of it. The transaction is an accord and satisfaction. ’ ’

See also Brown-Ketcham Iron Works v. Hazen et al, 4 C.C. (N.S.), 582. In this decision of the circuit court of this county the court held:

‘ ‘ The law in Ohio as to accord and satisfaction does not differ from that of other states or of the federal courts in that, where a liquidated sum is due, the acceptance of a draft for a less sum in satisfaction thereof is binding as in full' satisfaction, notwithstanding a want of full satisfaction. ’ ’

This rule of course applies to an unliquidated claim such as the one in the case at bar.

To the same effect are the cases of C., M. & St. P. Ry. Co. v. Clark, 178 U. S., 353, and Ostrander v. Scott, 161 Ill. 339.

Counsel for defendants in error, plaintiffs below, have cited several authorities to the effect that the dispute must exist before the tender of the payment is made in order to constitute the payment of a smaller sum an accord and satisfaction of the larger sum claimed. Even if this be true, the court is of the opinion that in the case at har there was a controversy and dispute between plaintiffs and defendants in this case with reference to this account, and inasmuch as there was hut one account, there was no room for difference as to what account was in dispute. It was the account which the plaintiffs had against the defendants. The defendants had no account against the plaintiffs, and the memorandum sent by the defendants through Mr. Bettman was a restatement of the plaintiffs’ account as the defendants claimed it should he.

For the reasons stated herein we are of the .opinion that the judgment of the court of common pleas should be reversed and this court should enter a judgment in favor of the defendants, as the court of common pleas should have done on the motion for. judgment non obstante veredicto.

Judgment reversed, and judgment for plaintiffs in error.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.


author: Dunlap, J.

text:
    REGULATION OF PUBLIC LAUNDRIES.
    Court of Appeals for Cuyahoga County.
    Yee Bow v. City of Cleveland et al.
    Decided, July 15, 1918.

      Validity of Municipal Ordinance — Providing for the Licensing of Public Laundries — Definition as to What Shall Constitute a Public Laundry — Testing of Judicial Power in a Health Commissioner— Complainants Relegated to a Less Drastic Remedy than the Invalidating of the Whole Measure.

    1. An ordinance providing for the licensing and regulation of public laundries is not open to constitutional objection because of the inadequacy of indefiniteness of the definition contained therein of public laundries, where the class which it is sought to designate is described as laundries serving thirty or more customers per week for pay.
    2. Nor is such an ordinance rendered invalid by the delegation to the health commissioner of authority to determine what shall constitute adequate ventilation or plumbing.
    3. But even were it granted that such an ordinance contains some provisions in excess of the power granted to municipalities with reference thereto, there is ample opportunity in a court or elsewhere to invoke relief without resort to so drastic a remedy as the securing of a decree declaring the whole measure void.

      Boyd, Cannon, Brooks & Wickham,, for plaintiff in error.

      Alfred Clum, contra.
   Dunlap, J.

This cause is here on appeal from the judgment of the court of common pleas, and is a suit brought by the plaintiff, a citizen, resident and tax-payer of the city of Cleveland, engaged in the laundry business. It is brought on behalf of himself and all tax-payers of the city and all others engaged in the laundry business.

Complaint is made that a certain ordinance Number 42256, entitled “An Ordinance Providing for the Licensing and Begulation of Public Laundries,” which became effective May lstf 1917, is an abuse of corporate power and unconstitutional, being in violation of Sections 1, 2 and 19 of Article I, and Section 26 of Article II of the Constitution of Ohio, and of Section 8 of Article I of the Constitution of the United States.

The prayer of the petition is for an injunction restraining the defendants from enforcing said ordinance or .any part thereof. To this petition a demurrer is filed and the question for our determination is the sufficiency of the petition.

A copy- of the ordinance is of course before us, being attached to the petition. Its provisions will only be incidentally referred to in this opinion.

No technical question involving the propriety of the proceedings or the relief sought is raised, and we shall treat the case as involving simply the questions of the reasonableness and constitutionality of the ordinance.

The able brief of plaintiff concedes the power of the city of Cleveland to regulate the public laundry business as a means of public safety, thus distinctly and obligingly narrowing the inquiry, and urges only two main grounds or reasons for his claims that the ordinance is unreasonable and unconstitutional. ■ The first of these grounds is that “the definition of ‘public laundry’ is purely arbitrary, artificial and unreasonable.” Section 1 of the ordinance provides:

“Any building, structure, place, premises or establishment, which is used for the purpose of laundering wearing .apparel, table or bed linen, curtains, rugs, towels, or any or all of said articles for thirty or more owners of such articles per week, and for pay, regulated either by a flat-rate,- piece price, or by weight, shall be deemed a public laundry for the purpose of this ordinance.”

It must be obvious that an ordinance pretending to regulate public laundries should contain a definition of such a laundry; should explain what constitutes a public laundry, and such definition from the very nature of things, unless it is to include the humble home of every poor washwoman, must be more or less arbitrary. That is to say, a line of demarkation must be drawn between the public and the private laundry. Is it the number of the customers that is to determine? Or is it the character and quality of the work? Perhaps the very wise Legislature would adopt a definition which partook somewhat of both of these ideas. Thus it might be possible to have a wiser definition, one which would perhaps embrace a laundry which had many less than thirty customers, and basing the right of regulation upon the amount of work done rather than the number of customers, or perhaps with equal propriety it could be based upon the fact of the employment of a certain amount of help, providing all the time the idea of its being a public laundry was kept in mind. Any one or all of such provisions might wisely and properly be in this definition. There would still be an exception created in favor of the home of the poor washwoman, which may be the one thing that this ordinance intended to exempt from its operation. We are not claiming that a definition so amended would be ideal. We are not even claiming that it would be better or more practical than the definition contained in this ordinance. What we mean to say is that it is not in human experience for a legislative body to adopt the very best and wisest ideas upon its first attempt to enact a complicated but eoncededly wise regulative ordinance. Such laws must be started and watched and amended as occasion may arise and necessity decree. The very, idea of a “public laundry,” however, earries with it the idea of an unlimited number of customers. It could hardly be said that a laundry which was under contract to serve only certain customers was a public laundry, but even such a laundry comes within the provisions of this ordinance if its contracts exceed thirty. It can not then lay claim to privacy. And so it is apparent that the most natural basis for the determination of whether a laundry is public or private is that of the number of customers, and not the other considerations which we have so gratuitously offered. This proposition, if one granted, narrows the particular question we are now considering. Surely the number may as well be thirty as any other arbitrary number. It is a number that amply protects the home of the poor wash-woman from the visits of the health commissioner and his deputies, and yet which probably forces every person in purely public laundry business to look well to his surroundings to see that he complies with the law.

So far as we are aware legislation of this kind even though somewhat arbitrary has been nearly uniformly upheld. The principle is well stated by Mr. Justice Field in the case of Barbier v. Connolly, 113 U. S., 27, as follows:

“Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of ■complaint if they operate, alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.”

We are cited by the plaintiff to certain Ohio cases, which it is contended are in support of this particular objection to this ordinance, but we do not quote them here, for we think the provisions of the enactments questioned in them are clearly to be distinguished from the provisions of the ordinance in question. We think that the following authorities are more or less in point and that they are against the contention of plaintiff: Marmet v. State, 45 O. S., 63; Toledo v. Brown, 14 C.C.(N.S.), 165; Welch v. Swasy, 193 Mass., 364; St. Louis v. Bircher, 7 Mo. Ap., 169; Felgum v. Nashville, 8 Lea (Tenn.), 635; Cobb v. Durham County, 122 N. C., 307; Hubbell v. Higgins, 148 Ia., 37.

' In our opinion the definition of “public laundry” as contained in this ordinance sufficiently meets the requirements of our Constitutions, both state and national, and is a reasonable definition. We therefore find no valid objection to this ordinance for this reason, and we pass to a consideration of the second ground, which is that- — ■

■ “The ordinance grants legislative and judicial power to an administrative officer. ’ ’

It is argued that because certain sections of this ordinance provide for approval by the health commissioner before the license may issue, and that because such approval can only be obtained if the location, the construction, the ventilation, the floor space and the sanitary drainage arrangements are sufficient to properly protect the public health and the health of the persons to be employed in such proposed laundry, that thereby there is delegated to him judicial powers and perhaps legislative powers; that he is left to be the sole judge of what shall constitute “adequate ventilation,” “adequate plumbing,” etc., and that the delegation of such powers is in contravention of the Constitution of Ohio. We are not inclined to go deeply into this question. It is apparent that rules are laid down in this ordinance for the guidance of the health commissioner in many of the particulars requisite for the conduct of the lawful laundry, and these rules he must obey, and with regard to them it will hardly be contended that this ordinance is unconstitutional. The most that can be said for this contention is that there are some matters, such as “adequate plumbing,” “adequate ventilation,” upon which he passes with either judicial or legislative power. It would be .improper for us in the present case to pass upon the validity of all these sections, for even if we found some invalid and in contravention of the Constitution, we -would not be justified thereby in holding the ordinance as a whole invalid. The doctrine of sustaining the valid part of legislation in spite of what is known as “partial invalidity” of such legislation is too well settled in Ohio for such action upon our part. We are not conceding that the passing on “adequate plumbing” and “.adequate ventilation” is the exercise of a power forbidden by the Constitution, but even if such concession had been made, we are firmly of the opinion that the provisions of the ordinance granting this power to the health commissioner are not so interwoven into the fabric of the whole ordinance as to be unseparable or that their separation would invalidate or destroy the entire ordinance.

In our view at the present time and for the present case it becomes immaterial that there are or may be some unconstitutional provisions in this ordinance. It would perhaps be surprising if there were none. We are convinced that the ordinance has enough of validity about it, enough of virtue in it to be entitled to a trial. If in carrying out the provisions of this ordinance occasion should arise for individual complaints, there is ample opportunity in a court and elsewhere to adjust such differences without the drastic action sought by plaintiff’s petition.

The demurrer to the petition will be sustained and the cause dismissed at plaintiff’s costs.

Grant, J., and Lawrence, J., concur.


text:
    INADMISSIBILITY OF A MEMORANDUM WHICH HAS FAILED TO REFRESH WITNESS’ MEMORY.
    Court of Appeals for Hamilton County.
    Cincinnati Traction Co. v. May Hackett.
    Decided, May 24, 1915.

      Evidence — Memorandum Which Has Failed to Refresh Memory of Witness — Inadmissible as Substantive Evidence — Booh Account Distinguished from Records of an Incident.

    Where the memory of a witness as to an event has failed and a memorandum made by him soon after the event and relating thereto is offered as substantive evidence, his testimony 'being that it was made by him but he hasi little or no recollection of the event, the memorandum is inadmissible unless it is shown to have been virtually co-incident with the event, and this is especially true where the memorandum is one which was procured in view of possible litigation. with reference to the matter to which the memorandum- refers.

      Kinkead & Rogers, for plaintiff in error.

      Hackett, Yeatman & Rover, contra.
   Gorman, J.

This is ia, proceeding in error to reverse a judgment of the court of common pleas. The defendant in error, May ITackett', recovered a verdict and judgment against the plaintiff in error, in the court below, for the sum of $750, on account of personal injuries claimed to have been sustained by her on or about November 22, 1908, because of the sudden jerking of a car from which she was alighting as a passenger hear Eighth and John streets in Cincinnati.

Two grounds of error are claimed by plaintiff in error in its ■brief. The first is abandoned because of the decision of the Supreme Court, adverse to its contention on this point, in the ease of Brogan v. Cincinnati Trac. Co., 91 Ohio St., 403.

This leaves but one ground of error to be considered by this court, to-wit: error of the trial court in refusing to admit in evidence a written and printed statement made by a witness the day after the accident occurred.

The record discloses that the defendant, for the purpose of showing that the plaintiff attempted to alight from the car before it had come to a stop and while it was in motion, offered as a witness, Edward Pestrop, who testified that he was on the rear platform of the ear on November 22, 1908, when plaintiff was alighting from the car. He remembered the day of the month and that it was Sunday at about 7:30 p. M. and near the corner of Eighth and John streets that the accident occurred. He was then asked:

“Q. Tell the jury what you remember about it, won’t you?”

To which he replied:

“A. That is about all I remember. I don’t remember seeing the woman get off or don’t remember only what I have said on that statement there; that was my information of it at the time, the day after the accident. ’ ’

He was then shown a statement consisting of printed questions, some of which were answered, and others not answered, in the- handwriting of the witness and signed by him, purporting to have been made November 23, 1908, the day after the accident. The paper had been sent to him that day by the defendant, with the request that he fill in as many blank spaces as possible on the opposite side of the sheet of paper. The blank spaces filled in were in the handwriting of the witness. Among other questions and answers thereon were these three:

(Printed.) “Was the car standing or moving? If moving, how fast ?
(In witness’s handwriting.) “Was moving slowly.”
(Printed.) • “If there was anyone injured or any property destroyed, please state extent of same.
(In witness’s handwriting.) “A woman fell while leaving the car.”
(Printed.) “What in your opinion was the direct cause of the accident?
(In witness’s handwriting.) “The woman stepped from the car while it was in motion. ’ ’

After examining the paper he was .asked if reading the paper refreshed his recollection as to whether or not he saw the woman as she stepped off the car or went off the ear. He answered:

“No, I don’t remember seeing just how she stepped off now.”

'He was further asked:

. “And looking at that paper, that does not bring it back to your mind?”
“No, sir,” he answered.

He said he saw the woman on the ground as she was being assisted to the sidewalk. He was then asked if the statement was in his handwriting, and replied “yes.” Hs was asked if the statements made on the paper were correct. Objection was interposed and sustained by the court. To which ruling of court counsel for defendant excepted and offered to show by the Witness, if he were permitted to ¡answer, that' they were correct. Counsel for defendant then offered the paper in evidence. Objection was made and sustained, and an exception taken. The paper is attached to the bill of exceptions and made a part of the record. There were witnesses who testified that the car had come to ¡a stop and as plaintiff was in the act of alighting it was suddenly started with a jerk, throwing her from the ear. There were other witnesses who testified that she attempted to alight before the car had stopped and while it was in motion. The jury answered a special interrogatory that the injury was not caused by the manner in which the car was brought to ¡a stop near John street.

Was it error for the court to exclude this paper?

We think it was not. The only statement in the paper which can be claimed to aid the cause of the plaintiff in error is the one in answer to the question as to the witness’s opinion as to what was the direct cause of the accident. The question as to the opinion as the witness as to what was the direct cause of the accident was clearly objectionable, and if the witness had been asked that question directly, while on the stand, it would have been the duty of the court to sustain the objection. How then can it be claimed that the witness’s opinion may be secured indirectly by admitting a paper in which he states his opinion as to the direct cause of the accident, when it could not be obtained directly from him while under oath upon the stand ? The paper could not be admitted without admitting this objectionable question and answer, and therefore the entire paper was properly excluded on this ground. It will be noticed that the witness was asked for his opinion as to the cause of the accident; not what was the cause of the accident. His answer was an expression of his opinion as to the cause of the accident. His answer w.as tantamount to saying: ‘ ‘ In my opinion the woman stepped from the car while it was in motion.” The next question on the paper, which he failed to answer, was: 1 ‘ Give a full account of the accident as witnessed by you,” etc. Furthermore, on the stand he testified that he did not remember seeing the woman get off the car. This further bears out the conclusion that in his answer to the question as to his opinion he was merely giving his opinion, and not stating as a fact that she had stepped off the car while it was in motion.

Furthermore, we are of the opinion that this paper, which could be treated in no other light than as a memorandum made by the witness not at the time of the accident, but the next day, could be used only for the purpose of refreshing his recollection or memory, if it could be used for that purpose, which is doubtful in view of the fact that it was not made until the next day. There are authorities, and some of them are cited by counsel for plaintiff in error in their brief, which hold that, while a court will not receive as evidence a memorandum which has served to refresh the recollection of a witness, yet, where after reading it a witness testifies that he has no recollection of the facts therein stated, but that the memorandum was made by him at a time when the events recited were fresh in his recollection and is correct, such memorandum is admissible. An examination of these authorities will disclose that these are eases of book accounts, or transactions kept in the usual course of business and required to be kept in the course of business by the person making the memorandum or entries. But where the memorandum is prepared or made by the witness at the instance of an interested party, as in this case it w¡as, the court will not admit the memorandum in evidence or allow it to be used by the witness to refresh his recollection. 5 Jones, Evidence, Sec. 879, and I Wharton, Evidence (3d Ed.), See. 523.

Where, however, the witness’s memory of the event is extinguished, and the memorandum is offered as substantive evidence, he testifying to it as correct, but recollecting nothing as to its contents,- then - it is inadmissible unless it is shown to be virtually coincident with the event. This is eminently the case when it has been procured in view of litigation. Steinkeller v. Newton, 9 Car & P., 313, 315; Washington Ice Co. v. Webster, 68 Me., 449, 470 ; Church v. Perkins, 3 T. R., 749, 752, and Wigmore, Evidence, Sections 763, 902-905 (pp. 127, 139, Pocket Ed.).

In the case of Steinkeller v. Newton, supra, the witness eighteen mouths before the trial drew up a paper at the request of the party calling him, and the court would not even permit him-to refer to it to refresh his recollection, much less admit it in evidence.

We do not believe that any well-considered case can be found in which a paper such as this, prepared as this was prepared, at the request of a party to the suit, after the accident had occurred and not contemporaneous therewith, has been held admissible. We doubt the propriety of allowing the witness to use it to refresh his recollection, because of the manner in which it was procured — ¡at the request of a party to the suit. However, we do not hold that it was not proper to use it to refresh the recollection of the witness, as it is not necessary to so hold; but we do hold that no error was committed by the court in excluding it as substantive evidence.

There being no other prejudicial error claimed to exist in the record, the judgment of the common pleas court is affirmed.

Jones (E. H.), J., and Jones (O. B.), J., concur.


author: Powell, J.

text:
    RESTORATION OF AN INJUNCTION BY PERFECTION OF AN APPEAL.
    Court of Appeals for Wayne County.
    The Massillon Electric & Gas Company v. The Village of Orrville et al.
    Decided, September Term, 1914.

      Injunction — Order Dissolving, is Suspended by Perfecting an Appeal— Contempt of Court — Not a Defense that the Offense ~Was Due to the Advice of Counsel.

    1. The perfecting of an appeal by the filing of an appeal bond suspends the order of a lower court dissolving an injunction, and violation of the injunction after the filing of the appeal bond constitutes contempt of court.
    2. The plea that parties who are in contempt of court committed the offense while acting upon the advice of counsel, is not a defense but may be considered in mitigation of the offense.
   Powell, J.

In case No. 638 an application was made that several of the defendants named should be cited to show cause why they should not be proceeded against for contempt of court in violation of the injunction allowed in the court of common pleas in that they persisted in doing the things for which they were enjoined immediately after said injunction was dissolved in the court of common pleas, which was done upon the hearing of the case on its merits and before the perfection of an appeal by the plaintiff in the court of appeals.

The statutes provide that an appeal may be perfected upon the dissolution of an injunction within ten days, and that the court dissolving said injunction may suspend its order of dissolution for ten days to allow such appeal to be perfected. This, however, was not done in this ease. The dissolution of the injunction was entered as the order of the court on the 21st day of May, 1914, and the appeal bond was filed on the 26th day of May, 1914. Between these two dates certain contracts, which the village had entered into for the purpose of erecting an electric light plant, were changed and a large amount of money was paid or agreed to be paid in the construction of said plant pursuant to such change in the contract. Some of these changes were made after the appeal bond had been filed in this court which perfected the appeal.

It is contended that the fifing of an appeal bond did not renew the order of injunction that existed in the court of common pleas before the dissolution of such an order. This court is of the opinion that the filing of an appeal bond and the perfecting of an appeal suspends the order of the court of common pleas dissolving the injunction and thereby leaves the same in full force. This was held by the district court of Hamilton county in the ease of Caldwell v. High, 6 O. D. Re-print, 1037, and the judgment of that court was affirmed by the Supreme Court. The statute exists in practically the same form as it existed when this decision was made, and we hold that from and after the filing of the appeal bond the injunction allowed in the court of common pleas was in full force, and we find from the evidence that the different defendants charged with violating the order of injunction did violate the same. And while they claim that such violation was upon the advice of their counsel, the city solicitor, we think that is not a defense, although it may be considered in mitigation of the actions of the defendants in violating said injunction.

It is the judgment of the court that the charges against the defendants named, constituting the board of public affairs in said village, together with H. D. Shannon, one of the contractors of said village, are sustained, and that each of them should pay a fine of $25, together with an equal share of any costs made in such proceedings in contempt.

Motion for a new trial, if one is filed, will be overruled and exceptions may be noted.

Voorhees, J., and Shields, J., concur.


author: By the Court.

text:
    VALIDITY OF INDEBTEDNESS INCURRED BY A CORPORATION IN ACQUIRING ITS OWN STOCK.
    Court of Appeals for Hamilton County.
    Jerome Strauss v. The Imperial Motor Car Company.

    Decided, March 11, 1918.

      Corporations — Defense of Ultra Vires Not Available — In an Action Against a Company for Recovery of Indebtedness Incurred in Purchase of Its Own Stock, When — Estoppel Against the Owner of a Company Deriving a Benefit by Using the Alias of the Company.

    The prohibition against a corporation acquiring its own stock, except in satisfaction of a debt or to save it from loss, does not justify •the defense of ultra vires in an action against the company for foreclosure of a mortgage securing notes given by the company in payment for a block of its own stock, where to sustain such a defense would confer an undeserved benefit upon the owner of the great 'bulk of the stock of the company. Under such circumstances the virtual owner of the company is estopped from using its alias to set up a plea of ultra vires against the notes and mortgage.

      Murray Seasongood, for plaintiff.

      Johnson & Levy, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 28, 1918.

   By the Court.

This is an action for the foreclosure of a mortgage on real estate .and the collection of a debt which represents a consideration of one hundred shares of capital stock purchased by the mortgagor in its own company.

The defense of ultra vires is made, and by cross-petition the company seeks to have the notes and mortgage canceled, and offers to return to plaintiff the stock so purchased.

■ It is undoubtedly the law as sustained by the leading authorities that a corporation can not purchase or acquire its own stock except in satisfaction of a debt due to it, or under other exceptional circumstances to save the company from loss.

If the transfer of this stock of Jerome Strauss and the making of -the notes and mortgage to him by the Imperial Motor Car Company had been challenged promptly by the company itself or its creditors or stockholders, it is questionable whether it could have been sustained; but the situation as presented to the court shows that at the present time John F. Luhrman is not only the president of the Imperial Motor Car Company, but is the owner of almost the entire stock of said company, it being claimed that he owns 109-114ths of the entire stock and that the outstanding shares are held by others for purposes of organization.

The mortgage and notes in question were executed March 4, 1912. The contract for the purchase of 164 shares of stock by John F. Luhrman and Albert H. Luhrman from Harry C. Strauss was made April 4, 1918, and it was based upon a guaranty that said 164 shares constituted a majority of the capital stock of which 320 shares were then outstanding, and that the mortgage indebtedness of said corporation amounted to $22,800 which, as shown by the statements of the expert accountant made at the time for the purposes of this sale, included the mortgage now questioned.

Said contract further contained a provision that—

‘£ any objection or exception to the condition of the company as being different from the condition set forth in said accountant’s report shall be set up within thirty (30) days or be forever barred. ’ ’

i

It appears that no question was raised as to the validity of these notes and mortgages until the filing of this suit thereon, but on the contrary that the interest was regularly paid thereon by the company under Luhrman’s control on March 5, 1913, March 5, 1914, and March 5, 1915; that accountant’s statements were taken at the end of the years 1912, 1913, 1914 and 1915 respectively, which included among the liabilities of the company this mortgage of $10,0)00 to Jerome Strauss; that the capital stock of the company was increased from $32,000 to $34,300 by the issue of $2,300 additional stock for the purchase of the assets of the Cole Motor Sales Company.

The tender back therefore of 100 shares of stock under the present condition of the company is not an offer to put the plaintiff in the same position that he occupied at the time of the making of the mortgage.

So far ,as Mr. John F. Luhrman, the real party in interest, is concerned, his purchase of the stock, and his whole connection with the Imperial Motor Sales Company is based upon the validity of the transaction between Jerome Strauss and the company and the existence of the notes and mortgage as its valid debts and obligations.

. It would confer ,an unexpected and undeserved benefit upon Mr. Luhrman, as the present holder of practically the entire stock in the company to hold this mortgage and the notes secured by it to be invalid. Mr. Luhrman is estopped from using the alias of the corporation to set up a plea of ultra vires as against the notes and mortgage. State, ex rel, v. Standard Oil Co., 49 O. S., 137; Smith v. Gowan, 18 C.C.(N.S.), 99, 103; Old Dominion Copper Co. v. Lewisohn, 210 U. S., 206; Norma Mining Co. v. Mackay, 241 Fed. Rep., syl. 5, (C. C. A. 9).

The notes and mortgage must therefore be upheld as valid under the circumstances of this ease, and a decree of- foreclosure may be taken in favor of plaintiff.

Jones, P. J., Gorman, J., and Hamilton, J., all concur.


author: Houck, J.

text:
    RELIEF AGAINST OBNOXIOUS ODORS FROM A DISPOSAL PLANT.
    Court of Appeals for Stark County.
    Lewis F. Reifsnyder et al v. The Canton Fertilizer & Chemical Company.
    Decided, April 1, 1918.

      Garbage Disposal — Not Within the Power of the Legislature to Create a Nuisance — Emission of Noxious Odors May be Enjoined.

    1. The authority vested in municipalities by the Legislature to contract for garbage disposal does not authorize the creation of a continuing nuisance, which will be a menace to health and an injury to private property; on the contrary the power so granted must be exercised with due regard to the health and comfort of the community and rights of property owners, and where not so exercised injunctive relief may be granted.
    2. The fact that a garbage disposal plant, operating under contract with a municipality, is equipped with the most modern facilities and operated with skill and care does not preclude relief from smoke and noxious gases and odors emitted by such plant.

      Webber & Turner, for plaintiffs.

      Lynch, Day, Fimple & Lynch, contra.
   Houck, J.

This is a suit in equity in which the plaintiffs seek to enjoin the defendant company from operating its garbage disposal plant, located near the city of Canton, Ohio, and say that said plant throws off offensive gases, smokes and odors, which plaintiffs claim are injurious to their health, and further, that their homes, by reason of same, have become and are almost useless.

The pleadings being somewhat lengthy, we deem it necessary in this opinion to set out only such parts as we think essential to a proper determination of the facts and the law in the case.

Plaintiffs’ petition avers that—

“said so-called garbage disposal plant so erected by said company, and which is now opeiating for the so-called disposal of the garbage so delivered by said city of Canton to it, is either totally unfit and unsuited for the purpose of a garbage disposal plant and for the purpose of properly disposing of garbage, or the same has at all times by said defendant company been so unskilfully and inefficiently operated as to cause the same to be so unfit and inefficient. * * * Plaintiffs say that'they are not well enough acquainted with the mechanism of a plant of that kind and character to allege or aver as to whether or not the cause of said injuries is by reason -of the inefficient operation of said plant, or by reason of the fact that said plant is not adapted to nor is it fit for the purpose of a garbage disposal-plant.”

The answer of the defendant denies all of the material allegations of plaintiffs’ petition, and affirmatively sets forth—

“that defendant’s said plant complained of in plaintiffs’ petition was built, and was and is constructed and maintained upon the most modern sanitary and scientific plans, and was and is equipped and operated with the highest degree of care, ,and with the most modern and improved machinery, mechanism and devices for the elimination and destruction of any and all odors, vapors and gases which may arise in the operation of said plant, or which in any wise may be incident thereto, and that no odors, vapors or gases have arisen therefrom save and except such only as are unavoidable, and are necessarily incident to the conduct of said- business by the highest degree of care, and by the most skilled and improved methods, both as to the construction of said plant and in the manner of itsioperation.”

The defendant, .as a further defense, says—

“that on the 6th day of December, 1916, the defendant entered into a written contract with the city of Canton, Ohio, for the erection by defendant of a garbage disposal plant adjacent to its said fertilizing and rendering plant and for the disposal thereat by defendant of the garbage collected by said city within the limits of said municipal corporation during a period of ten years after said disposal plant was completed and 'ready for operation. That said contract between .said' city and defendant was duly made and entered into, and said disposal plant constructed and .operated under-it, and in accordanee with and as authorized by the provisions of law contained in Section 3809 of the General Code of this state, and under and in pursuance of an ordinance duly passed by the council of said city, on the 27th day of November, 1916, authorizing the making of said contract on behalf of said city. * * * Defendant especially denies that it- at any time in the operation of its said plant has caused plaintiffs or any of them any actual, substantial or material injury or annoyance in the use and occupancy of their homes, and avers that in the event the operation of said disposal plant is enjoined and discontinued, such action would result in great and immediate loss and damage to the city of Canton and to the defendant, and would result in great and irreparable injury to the health and welfare of the residents of said city and the community at large. ’ ’

Counsel for defendant in their printed brief say—

‘/that the garbage disposal plant in question, having been erected ‘by defendant at a place designated by the city of Canton, under a contract entered into by defendant for the purpose of conserving the public welfare, in pursuance of legislative tauthority conferred upon the city by S'ection 3809 of .the.General, Cede, its operation can not properly be enjoined, providing' the .plant is properly constructed, and equipped and operated with the highest degree of care and skill, so as to produce the least possible annoyance.”

To this' claim we can not and do not assent. While it is 'true that the Legislature has enacted a 'law authorizing' a city to contract for garbage disposal, yet the Legislature can not authorize the creation of a continuing nuisance; which in effect becomes a standing menace to health, and destroys private property. It seems to us that the power granted by the Legislature to municipalities in this respect is to be exercised with due regard for the health and comfort of a community, and when not so exercised courts of equity will not and should not deny an application for relief until violated private rights have been in-some way protected. Does the mere fact that a garbage disposal plant is constructed, equipped and operated with the highest degree of care and skill, so as to produce the least possible annoyance, bar and preclude plaintiffs from the relief asked by them in their petition, in the face of the fact that the evidence before us clearly shows that the plant as now operated emits gases, smokes, vapors and noxious odors, to the injury of the health of plaintiffs, as well as to the material injury of their property ? Certainly not.

The plant may be conducted with as little annoyance as those who operate it can produce, yet does not the law require it to be so operated as not to injure the health of persons living near it? Also that it shall not throw off destructive vapors,causing injury not only to human life but destruction to property as well? There can be but one .answer, and that is in the affirmative.

The owner of a garbage disposal plant has a right to send the smoke, vapors .and noxious odors from the same into the open air, provided no one is actually injured or annoyed thereby; but such owner has no right to cast off from such plant smokes, •noxious odors and unwholesome smells upon his neighbor’s home .and property, and then plead as a defense that he has done so with as little annoyance .and inconvenience as possible. Such owner will not be allowed to manage, control and operate his business according to his own notions of how it shall be done, in total disregard of the health and comfort of his neighbor. A person is bound to use his own property in such way and manner as not to injure the property of his neighbor: therefore a use which produces injurious and destructive vapors, smokes and noxious odors, causing an annoyance to property owners in the neighborhood, is such an annoyance as will authorize a court of equity to act and grant the proper relief.

We must bear in mind that the city of C'anton is not a party to this suit, nor~is it necessary or proper that it should be. The fact that it made a contract with the defendant in this ease to dispose of its garbage does not add to or take from the plaintiffs any of their legal or equitable rights in the premises, and it in no wise creates in the defendant any greater rights in law or equity as to the proper determination of this suit.

Coming now to a brief discussion of what appears to us to be the real question in the case, have the plaintiffs or any of them suffered any actual, substantial or material inconvenience or 'annoyance in their homes, or have any of them been injured in health? This must be determined by the evidence in the case, which consists of more than nine hundred pages of typewritten matter. We have read this testimony with much care and no small amount of labor. Before the plaintiffs are entitled to the relief prayed for in their petition they must establish by clear proof all of their material allegations, as set forth in their said petition. A court of equity is not authorized to grant injunctive relief unless the proof clearly warrants it. We are then led to inquire, how stand the issues of fact in this ease ? The great weight of the evidence is with the plaintiffs, and they, have fully satisfied us that the claim they make is right, and is clearly sustained by the evidence in the ease.

After a careful consideration of the whole case we are of the opinion that the plaintiffs are entitled to an injunction restraining and preventing the defendant from operating its said plant in such a way or manner as to cause offensive or noxious odors, vapors, gases and smokes to be thrown off or cast from its plant upon the homes or premises of said plaintiffs, or either of them, to the substantial or material injury or annoyance of the said plaintiffs or any of them.

Decree and judgment accordingly.

Powell, J., and Shields, J., concur.


author: Jones (Oliver B.), J.

text:
    LIABILITY TO ABUTTING OWNER. FOR DAMAGE TO SHADE TREES.
    Court of Appeals for Clermont County.
    Village of Amelia et al v. Hicks.
    Decided, November 10, 1915.

      Shade Trees — Abutting Owner May Recover For Unnecessary and Injurious Trimming by the Municipality or its Contractor — Not Necessary in Such a Case that a Claim for Damages Should be Filed Before Suit is Begun.

    1. A village and a contractor with such village, for the stringing of wires for supplying electric light for lighting the streets and for commercial purposes, are liable in damages to an abutting lot owner whose trees in front of his property and within the lines of the public highway are injured by being unnecessarily and recklessly trimmed by the employees of such contractor, where the council of such village attempted to grant a “free tree trimming privilege” to the contractor.
    2. In such a case a claim for damages on the part of the abutting lot owner is not such a claim as must be filed under the provisions of Section 3830, General Code, before suit is commenced.

      Allen M. Nichols and Davis & Paxton, for plaintiffs in error.

      C. B. Nichols, Eli H. Speidel and Joseph Sagmeister, contra.
   Jones (Oliver B.), J.

Plaintiffs in error seek to reverse the judgment against them-in the common pleas court by the defendant in error, who was plaintiff below, for damages done to her shade trees standing inside the curb line in front of her property upon a street in the village of Amelia.

Plaintiff in error, Charles Pommert, was the contractor with said village for the stringing of wires for supplying electric light ■both for lighting the streets and for commercial purposes in lighting the homes of its residents. Plaintiff below, Anna M. Hicks, claimed that in stringing these wires her shade trees had been unnecessarily, heedlessly, recklessly and maliciously cut and trimmed in such manner as to injure the beauty, health and probable life of the trees, and thus to damage 'her property.

There is no dispute as to the fact that the shade trees in question were the property of plaintiff, and that they had stood in the street in front of her property for many years and were highly desirable for the purpose of shade and in adding beauty, to the appearance of the property. The record shows that the trees were very severely cut, many large limbs being taken out of the centers and tops of the trees, and that great injury was thus occasioned to them. It is contended, however, on the part of defendants, that .all of the cutting that was done was necessary for the purpose of the proper stringing of the electric light wires.

Under Section 3618, General Code, the village has authority to establish, maintain and operate a municipal lighting plant and is empowered to determine the plan and method of its distribution. The stringing of wires upon poles in the streets is a usual method of conveying the current necessary for such lighting, ,and was the one adopted here, although other plans could have been used which would not have required any trimming of trees.

Our Supreme Court has recognized the property rights of the abutting lot owner in trees and shrubbery in front of his property and within the lines of the public highway. (Phifer v. Cox, 21 Ohio St., 248, and Daily et al v. State, 51 Ohio St., 348.) The village has, however, the power, by virtue of Section 3630, General Code, to regulate the planting, trimming and preservation of shade trees in the streets and highways.

On behalf of the plaintiffs in error it is contended that the council of the village has absolute discretion as to what constitutes an obstruction in a street, and that whenever a shade tree becomes such an obstruction in the opinion of council, the village has the right to cause its removal, and, therefore, that the village had the right to determine that it was necessary to trim and cut off all that portion of plaintiff’s shade trees necessary to provide a free area within which to string the necessary wires for the light plant; that only such trimming had been done by the village and its contractor, and that therefore plaintiff below was not entitled to recover.

In support of this claim of absolute discretion upon the part of the village officials counsel rely upon authorities such as Chase v. Oshkosh, 81 Wis., 313; Tate v. Greensborough, 114 N. Car., 392, and Vanderhurst v. Tholcke, 113 Cal., 147. Other cases leave the matter of necessity as a question of fact to be determined by the court and not arbitrarily by the officials of the municipality. Frostburg v. Wineland, 98 Md., 239, and Everett v. Council Bluffs, 46 Ia., 66.

In the case of Newcomerstown v. Dickenson, 14 C.C.(N.S.), 191 (affirmed 77 Ohio St., 597), it was determined that the officers of the municipality have no right to destroy shade trees in front of the property of an abutting property owner, unless their removal becomes necessary for street purposes. The question of this necessity was passed upon by the court, and a judgment rendered in favor of the property owner for damages because of the destruction of his shade trees was sustained.

In Massillon v. Huff, 14 C.C.(N.S.), 193, the question was left to the jury whether the contractors and the city engineer in the construction of the improvement of the street must of necessity have destroyed the trees, or whether the doing of the same was an unnecessary and wanton violation of plaintiff’s rights, for which he might recover.

These cases would indicate that the declaration of council as to the necessity of the trimming of plaintiff’s trees would not necessarily be final. A court could undoubtedly consider the facts in order to determine whether or not such official discretion had been abused, even if its existence to the extent claimed by defendants below were conceded. But in the case here presented by the record there was no determination by council as to the necessity of trimming plaintiff’s trees. On the contrary, whatever action was tafeen by council was simply to grant to the village contractor, Mr. Pommert, as called for in his proposition to string the wires, a “free tree trimming privilege.” The record fails to show any consideration by the council itself of what trimming was necessary or any order requiring any of the trees in question to be trimmed. And Mr. Pommert, tbe contractor, likewise failed to give any directions in regard to any specific tree. He simply bought four saws and placed them in the hands of his linemen, enjoining them, as he says, to do no more brimming than was necessary. Thus we find that if the absolute discretion is vested in council, they failed to exercise it, undertaking to devolve their rights in the matter entirely into the hands of their contractor, who in turn simply relied upon the good sense and discretion of his men, he himself not being present while most of this work was being'done.

The evidence shows that the jury were justified in finding that unnecessary trimming had been done and that plaintiff had been thereby damaged. Although plaintiff’s trees were the only ones trimmed in the stringing of the wires, no malice was shown in the matter, but a recklessness of her rights which seems inexcusable. And while the evidence might be considered unsatisfactory in fixing accurately the extent of this damage,, the judgment as finally entered is fully supported by the evidence.

A careful examination of the record fails to show that there was .any prejudicial error committed by the trial court either in the refusal of any of the special charges requested by defendants or in the general charge, which fairly submitted the case to the jury; nor do we find any other prejudicial error shown by the record.

A point is made by the plaintiffs in error that no claim for damages was filed under the provision of Section 3830, General Code, before suit was- brought. This section has been construed by the Supreme Court in Ironton v. Weihle, 78 Ohio St., 41, and would not apply to such claim as is presented in this case.

The judgment will therefore be affirmed.

Jones (E. H.), J., and Gorman J., concur.


text:
    DETACHMENT OF TERRITORY FROM MUNICIPALITIES.
    Court of Appeals for Cuyahoga County.
    The Village of Newburgh Heights v. H. L. French et al.
    Decided, June 26, 1918.

      Validity of Detachment of Territory Proceedings — Constitutionality of the Statutes Providing Therefor — Abandonment of Village Government and Erection of the Territory Into a Township Within the Discretion of Its Inhabitants.

      1. The entire matter of the creation and organization of municipalities, the enlargement or restriction of their boundaries, and the raising, division and distribution of their revenues has been committed in Ohio to the Legislature, and the constitutionality of measures enacted by the Legislature in that behalf depends in no way upon their wisdom.
    2. The statutes providing procedure for the detachment of territory from municipalities are constitutional enactments, and the result of an election for the. detachment of territory can not be invalidated long thereafter on an allegation that the election was not held within the twenty day period, or that the expenses were borne by persons interested in securing such detachment.

      Kraus & McMasters and J. A. Cline, for plaintiff.

      Samuel Doerfler and Locher, Green & Woods, contra.
   Dunlap, J.

This cause is here on appeal from the judgment of the court of common pleas.- The suit is brought -by the village of New-burgh Heights, a municipal corporation. The defendants are the members of the deputy board of state .supervisors and inspectors of elections for said county, who are sued in that capacity. Joined with them are the auditor of the county and the three members of the budget commission of the county.

The suit is the aftermath of an election and is brought to enjoin the holding of another and for further relief, which will be mentioned later in this opinion.

The facts disclosed by the petition are: that on November 16, 1917, a petition was filed with the board of deputy state supervisors and inspectors of elections of Cuyahoga county, Ohio, properly signed, containing a description of certain territory which the petitioners desired to detach from said village of Newburgh Heights, and praying for an election for the purpose of determining whether or not the same should be detached and become a new township; that upon the filing of said petition said board of elections ordered an election to be held on December 4, 1917, and then later on November 28, 1917, without a new petition being filed, ordered the election to be held December 11, 1917, which was more than twenty days after the filing of the petition, and was thus contrary to law; that the election was accordingly held and resulted in a majority of the votes being in favor of the detachment of said territory and its erection into a new township to be called Willow; and the result of said election has been certified to the Secretary of. State of Ohio.

It is then asserted that the territory described in said petition so sought to be detached from the plaintiff village contained about 1,800 acres of land, having a population of about 400 persons; that the total valuation of property on, the tax duplicate of Newburgh Heights village prior to said election was about $12,000,000), and that the tax valuation of property listed for the portion of said village sought to be detached was about $11,000,000, leaving a valuation in Newburgh Heights village if said territory is detached of less than a million dollars, which will be inadequate to support the governmental functions of, said village; that the portion which still constitutes the village has a very much greater population than the part here sought to be detached. It is also averred that the description of the part sought to be detached follows no regular or well-defined lines, but was drawn in such a manner as to include in it the large manufacturing plants of said village and farm land containing but few residences and mercantile buildings, and that said attempt to detach was instigated by certain large corporations owning valuable property in said detached part. It is claimed that the detachment of said part was an unreasonable, arbitrary and an unfair division of the village, and that its detachment will work an irreparable injury to the village and its citizens. It is also complained that contrary to law one H. IT. Shuler, an agent of the American Steel & Wire Company- and other large corporations, promised and offered the petitioners signing said petition, prior to the signing of the same, that if they would sign the petition requesting that an election be held, that the said corporations would defray all expenses involved in the holding of said election, and in filing, recording and transcribing the records necessary to secure said detachment, and thus save the petitioners from any expense, and that said petitioners would not have signed the petition but for said promise, and that the same invalidates the election held by virtue of said petition.

The claim is made that said corporation inspired said detachment of territory for the purpose of evading their fair share of taxation.

It is .also charged that no portion of said territory so sought to be detached is contiguous to an adjoining township as re-quired by law, but it is conceded in a supplemental petition, filed for the purpose of putting the eourt in possession of the exact facts regarding its contiguity to an adjoining township, that the territory sought to be detached from said village was at all times mentioned in the pleadings contiguous to and did adjoin the township of Cleveland, the township of Brooklyn Heights, the township of East Independence, and the township of South Newburgh; that the township of Brooklyn Heights was coterminous in boundary with the village of Brooklyn Heights; that the township of East Independence was coterminous- in boundary with the village of Independence; that the township of 'South Newburgh was coterminous in boundary with the village of South Newburgh; that the boundary line of the township of Cleveland was coterminous with the boundary line of the city of Cleveland at all points where said boundary line was contiguous to and adjoined the territory sought to be detached, but that at other points the city of Cleveland included territory not included within the township of Cleveland, and that no township officers perform any duties in the city of Cleveland adjoining Newburgh Heights village as originally constituted.

Having cited these claimed violations of the law in the proceedings leading up to and consummated in said election of December 11, 1917, and which it is claimed render all of said proceedings invalid and of no force and effect, information is then given to the court that the county commissioners have given notice that an election will be held on February 2, 1918, for the purpose of selecting officers of Willow township, being that portion of the territory sought to be detached, and that the deputy state supervisors and inspectors of elections are ■preparing to and will prepare, unless enjoined by the court, ballots for said election, and will hold said election for the purpose of choosing the officers of Willow township; that said election will be of no force and effect and will be an unlawful expenditure of the funds of the county and of Newburgh Heights village.

It is apparent that if said election has not been held on said date it never will be held on said date, and we are somewhat of the opinion that this obvious fact should have some bearing upon the remedy which plaintiff’s counsel should now attempt -to pursue. In other words, it seems vain to ask us to enjoin a matter which must either already be an accomplished fact or else impossible of performance; This consideration should perhaps dispose of this whole case. Very evidently we can not enjoin an election which has already been held. This point while not raised necessarily disposes of the question as to whether or. not we can enjoin this election.

Some further consideration upon our part of the facts plead' is perhaps necessary on account of the other relief asked for in the petition. It is sought to enjoin the budget commissioners from fixing the tax rate for said Willow township, and from depriving Newburgh Heights Village of the taxes so fixed in said Willow township, and depriving Newburgh Heights village of the taxes payable on said property. It is apparent that this additional relief can not be granted to the plaintiff if the township of Willow has a legal existence. If, by the election of December 11th, and by the certification of its proceedings to the Secretary of State, it came into legal existence, if those proceedings were not utterly void, then the granting of this relief would be improper. The territory which attempted to detach itself from said village had under the law an apparent right to do so, provided it was contiguous to a township.

The facts contained in the supplemental petition referred to above do, we think, bring this case within the provisions of Sections 3577-1, 3577-2 and 3577-3 of the General Code of Ohio, being the act of May 7, 1915 (106 Ohio Laws, 301), and we so hold. The fact that the election date for the original election for the detachment of this property was changed from December 4th to December 11th, whether that latter date came within the twenty day period or not, does not make the election void. Persons interested in’said election should have taken proper steps to see that it was legally held. They can not wait until long afterwards and then attack it collaterally when the new township so created seeks to operate under the powers and rights which were supposed to foe secured by the election. The claim that the petition for the original election was invalid because the .'petitioners were induced to sign on the representation that the expenses incident to the election would be defrayed by other parties, must be overruled. The statute merely provides that the ■expenses shall be defrayed by the petitioners and that the election officials may require the payment of such expense in advance as a condition precedent to the taking by them of any of the -steps provided for in the statute. It is a matter of common experience and common knowledge that such expenses are generally borne by some persons who are particularly interested, and we ■know of no rule or principle of law deciding that after an election has been held the same may foe over-turned by reason of such conduct upon the part of interested parties. We decide : against the plaintiff upon this point.

With regard to the claim that the provisions of the Gen-éral Code-under which this detachment was effected is uncbnsti■tutional, we think that in similar eases decided, by the Supreme .Court- of Ohio that court has sustained the constitutionality of such statutes. We refer particularly to the eases of the State Board of Health v. City of Greenville, 86 O. S., 1; Blanchard v. Bissell, 11 O. S., 96; Metcalf v. State, 49 O. S., 586; State, ex rel, v. Cincinnati, 52 O. S., 419. We believe that.these authorities establish the proposition that the entire subject-matter of the creation and organization of municipalities and of the enlargement and restriction of their boundaries has been unreservedly committed to the discretion of the Legislature by virtue of the -constitutional provision that the General Assembly “shall proMde for the organization of cities and incorporated villages by •general laws;” and that the extent to which the revenues and the future activities of a municipality may be affected by the detachment of a portion.of its territory is a matter for the consideration of the Legislature and for it alone. We believe that the question of the wisdom of the legislation which permits this detachment of property has nothing to do with determining its constitutionality. The question of the wisdom of such legislation is for the Legislature’. ' This ' court might think and perhaps does think that it is' the most' unwise kind of legislation, but this consideration can in no way control our action. It is solely a question of power. If the Legislature has constitutional power to enact a law, no matter whether the law be wise or otherwise, it is no concern of the court. Thus, in spite of the arbitrariness of the boundaries fixed for this detached territory; in spite of the damage that may be done to the remaining territory, it was within the province of the Legislature to enact the law under which this detachment occurred, and in our opinion the statute under which the detachment took place is constitutional.

We have no doubt that the situation which has occurred in this village is unfortunate, and we deeply deplore its occurrence, but our conclusion that the statute is constitutional deprives us of all power to consider the allegations of the petition to the effect that the line is arbitrary and unfair. Ail that we can say upon this point is that the Legislature did not see fit to define where such lines should run in its enactment and put no limitations upon the same. All that the court can say from examination of this petition is, that the inhabitants of a certain territory wished to relinquish their village government and again become a township. The laws of Ohio provide for the gratification of this desire.

So far as we are able to ascertain the provisions of the statute have been sufficiently complied with so as to at least insure their validity against a collateral attach such as we must necessarily regard this suit to be.

We regard the petition and supplemental petition as insufficient in law in that it does not contain facts sufficient to constitute a cause of action against the defendants or any of them, and the demurrer to the same will be sustained at the costs of the plaintiff.

Grant, J., and Lawrence, J., concur.