author: GRANT, J.

text:
    CORPORATIONS — EVIDENCE.
    [Hamilton (1st) Court of Appeals,
    May 28, 1915.)
    Meals, Grant and Carpenter, JJ.
    (Sitting in place of Judges Jones, Swing and Jones.)
    John N. Russell, Admr. v. Fourth National Bank of Cincinnati.
    Recital from Stock Ledger Erroneously Admitted in Action by Admin, istrator for Issuance of New Certificate for Old Certificate Found in Effects of Decedent.
    A recital upon the stock ledger of a hank, purporting to show a charge against an officer thereof and a corresponding credit, as of the same date, of a like number of shares, is a self-serving declaration by an interested party, of great advantage to the bank and corresponding disadvantage to decedent, and is not admissible in an action brought by the administrator for a transfer to him of such stock on the books of the bank in exchange for a certificate of a previous issue of stock, found among the effects of the deceased fifty years later, a condition of which and a by-law of the company requiring the surrender of an old certificate as a condition to the issuance of a new one.
    Error.

      Tuttle & Boss, for plaintiff in error.

      Charles B. Wilby, for defendant in error.
   GRANT, J.

This is a proceeding in error, the petition in whieh asks for the reversal of the judgment of the superior court of Cincinnati.

The facts which we regard as material in this cause, and which are essential to its determination here, are these: The plaintiff is the administrator named in the title. The defendant is a banking corporation.

In 1865 the plaintiff’s intestate became the owner of thirty shares of the capital stock of the defendant corporation, his ownership being evidenced by eertfiicate No. 123, of due form and signature.

That certificate bore upon its face a provision that it could be transferred on the books of the corporation only upon the surrender of itself, properly endorsed. At the time this certificate was issued there was in force a by-law or regulation of the corporation bank to the same effect as to the condition of transfer only upon surrender appearing on the face of the certificate.

The plaintiff’s intestate was paid the dividends to which his stock was entitled for two years after he became the owner of it, or thereabout, but no more, although dividends thereafter were earned to the corporation in whieh the stock represented by the certificate named was éntitled to share and be paid. It is not shown that the intestate had notice of the declaration of such subsequent dividends. After his death the certificate in question was found among his papers and came to the hands of the plaintiff as evidence of, and representing assets of the estate, to be administered by him, if it had value as such. Demand was made by the plaintiff of the defendant corporation for a transfer to him upon its boobs of the certificate referred to, and for an accounting to him for the dividends earned on the stock represented by it, but not paid, which demand was refused.

The prayer of the petition was that the defendant be required to make the transfer requested and account for the unpaid dividends.

The answer of the defendant denied generally, and then alleged a sale of the stock in 1867 to one Colburn, accounting for the nonsurrender of the certificate — which is not questioned— by an averment that it was at the time lost.

In a separate defense laches on the part of the plaintiff’s intestate in asserting any claimed right to the stock or its earnings was pleaded, as were also in other defenses several statutes of limitation in bar of the action. There was a cross petition which asked that the plaintiff be compelled to surrender for cancellation the certificate in his possession and be prohibited from disposing of it in thé meantime.

The reply denied the affirmative matter of the answer.

The trial below was to the court. The issues were found to be with the defendant, and there was judgment accordingly, dismissing the petition, ordering the surrender of the certificate for cancellation, and against the plaintiff for the costs of suit.

To reverse this judgment error is prosecuted here.

In the view we take of the record before us in this cause, our determination of it may proceed over a much narrower field than that traversed in the briefs and the arguments at the bar.

The plaintiff produced in evidence the original certificate, wholly unindorsed and unassigned by his intestate.

It did not appear by any evidence that the intestate had notice or knowledge of any dividend being declared subsequent to those which he took.

It appeared that the stock book of the bank covering the period during which the plaintiff’s intestate took dividends and later, that is to say, the book from which his certificate presumably was detached from its correlative stub, and to which regularly it should have been restored when surrendered for transfer, was long ago lost. At all events it could not be produced and was not forthcoming at the trial. If it had been it could not have shown the certificate as surrendered, for that was in the possession of the plaintiff. Consequently, it could not have shown a compliance with the inseparable condition of an effectual transfer through surrender, in accordance with the provision of the certificate itself and of the defendant’s own by-law. This inability to produce can not be traced to the intestate and is not to be imputed to him or his representative, the plaintiff, as a default in exoneration or excuse of the defendant’s otherwise liability.

The defendant offered in evidence — and it was admitted, over the objection of the plaintiff — an entry on one of its boobs —called, perhaps, the stock ledger (the name is not material) — purporting to show, as of January 9, 1867, a charge to the intestate of thirty shares of the bank’s stock, and a corresponding credit, as of the same date, of a. like number of shares to one W. F. Colburn, the account in the book produced being marked, “J. N. Russell.” Colburn, it is said, was at the time a vice-president of the defendant bank. He was dead at the ’time of the trial, and no witness undertook to say who made these entries in the stock ledger, or under what circumstances, or by whose or what authority they were made. Nothing appears that tends to connect the intestate with them, by act, assent, acquiescence, sufferance or knowledge. The inference from his position is deducible that Colburn, had the opportunity to make them, or cause them to be made. No explanation is forthcoming as to why the entries were made in the absence of a surrender of the certificate — the act of making them without the surrender doing violence both to the requirement of the certificate itself and failing to meet the like condition of the defendant’s self-adopted by-law. The averment of the answer to the effect that the certificate was then lost, that is, lost as far as Russell was concerned, was not made good by any evidence, the conclusion that it must have been lost because of his subsequent dire poverty resting in conjecture only.

From these observations it becomes apparent, we think, that the foundation upon which the judgment attacked by this petition rests, and tbe reasoning upon which the finding preceding it must have proceeded, was this entry upon the stock ledger, the admission of which in evidence is assigned as a principal error. If the contention is right and the foundation is swept away, the entire superstructure of the defense falls.

It is difficult to see upon what reasonable hypothesis, upon what rational footing of legal principle, this fundamental piece of alleged evidence was received and allowed to mould and coerce to effect the judgment complained of.

It is but a statement of an interested party, of advantage to the same party, and to the decisive disadvantage of the representative of the other party, but who was no party to the transaction which it purports to narrate. And this ex parte statement is now judicially forced into the service of the only one who made or agreed to it, so far as appears. Otherwise spoken, it is but the self-serving declaration of an interested party, allowed to be used to the detriment of one in no way responsible for, or acquiescent in it so far as the record shows. And not only so, but a party to the transaction is thus through a paper permitted to speak to a fact very much to the detriment of the man whose estate is adversely to be affected by it, while the mouth of that other man is closed in death — thus defeating one benign safeguard which the law puts up for dead persons, that of setting each upon an equality with the other in that respect.

The fact, the mere accident, that the statement appears in writing and on the books of the concern, does not make it any the less a statement, or raise it to any force or dignity above a statement, as seems to be mistakenly supposed in some quarters. Eeducing it then to its proper level of a statement and no more, and annexing to it its self-appearing quality of self servingness, and its incompetency to conclude one not served by it and a stranger to it, for aught that is shown, becomes clear, as we think. The admission of it, under ordinary circumstances, would seem to be at variance with two well settled principles of the law of evidence. It is the self-serving declaration of a party. It is allowed to speak against one who can not spea} ; for himself; it is permitted to weigh — conclusively in this case —against wbat might be the decisively opposing word of a dead man, were he alive again and could he speak.

The fact that the paper admitted is the book of a bank — national 'or other — is wholly beside the question. Banks are not sacrosanct, so that letters of marque must be granted to them by the courts in matters affecting the competency of testimony, and the paper has no greater or other probative effect than any statement, of farmer Smith, for example, to the effect that he owns farmer Brown’s horse, which, however, still remains in the latter’s pasture, with no bill of sale or other evidence of a change of title outstanding.

On the score of principle and the manifest reason of the thing, we are quite unable to agree that this, the only tangible defense to overcome and control the effect of the visible certificate produced, is itself defensible.

As was to have been expected in what we feel bound to regard as so plain a ease, authorities are not wanting to support this conclusion of our own.

Many of these, more or less in point, are marshalled and discussed in the briefs of counsel, with commendable industry and ability. We shall not comment upon them more particularly or seriatim, for the reason that we find what they amount to, to our apprehension, summed up in • a compact text-book statement to be cited presently.

It certainly is true that under some circumstances and for some purposes,, the regular and orderly writings of a corporation may be used in evidence. But they are so competent, it is believed, only as affecting the corporation in its capacity as a body, as a corporate entity; in other words, only qua corporation. They are so competent only in their relations to the internal affairs of the organized body. This limitation, or distinction will appear in the quotation about to be made. It is stated here only to show that it has not been overlooked and that the ease at bar does not come within its purview, or the allowed exception to the general rule to the contrary as is believed.

In 3 Jones, Evidence Sec. 516a, the law appertaining to this question, as we understand it to be, is tersely, but rather informingly stated, as applied to the matter in hand, as follows :

“Thompson, in his monumental work on corporations, clearly announces his conclusions. He says: ‘The general rule is believed to be that, except for the purpose of proving what the corporation did, or what action its corporators took in effecting its organization, its books and records are not evidence as against a stranger, or as against a stockholder holding adversely to it. * * * But where it is sought to use the records of a private corporation, as evidence of the facts which they recite, for the purpose of concluding, or even influencing the rights of third parties who are strangers to the record, then such records are not admissible, on the same principle which operates to exclude the records of legal judgments when offered for a similar purpose, on the principle that they are res inter alios acta or in plainer language, upon the principle that the rights of A can not be concluded or displaced by the facts that C, D, E and P met together in conclave, in the room of a board of directors of a private corporation, and there adopted a certain resolution, or passed a certain vote, or enacted a certain by-law intended to have that effect. The sound rule, then, is that the records of a private corporation can not be used in evidence for the purpose of sustaining a claim of the corporation against persons who are not members of it, or to defeat a claim of such a person against the corporation, or to affect strangers anyway. * * * As between members of the corporation, they are evidence of corporation acts therein recorded; but they can not be used in an action against a stranger to connect him with the corporation, unless made so by an act of the legislature. Nor can they be used in evidence in suits by the corporation against its members, for the purpose of proving, on behalf of the corporation, entries which are in its interest. If the contrary were the rule, a corporation might manufacture evidence in its own favor, and those who were its guilty agents in so doing would not be subject to the penalties of perjury. Nor are such books evidence to prove private agreements of the stockholders. Upon the same basis of reasoning, the records of a corporation are not evidence of the truth of the facts therein recited, as between a member of the corporation, and a stranger, or between two strangers.’ Wharton says that even in suits by a corporation against its members its books can not be used as evidence in proving in behalf of the corporation self-serving entries. ‘Entries in the books of a corporation of private pecuniary transaction with a stockholder are not admissible against him, especially when it does not appear by whom the entries were made. ’ ’ ’

Cognate following sections may also be read with advantage, but we shall not take the space to quote them. In one of these (517) it is said: “It has frequently been declared that the books can not in general be adduced by the corporation in support of its own claims, against a stranger, or to affect strangers in any way;” citing in support, Commonwealth v. Woelper, 3 Serg. and R. 29; Greenleaf, Evidence, Sec. 493; Wharton, Evidence, Sec. 628. It is to be said that in the transaction now under review the plaintiff is — as his testator was — a stranger-in-law to the bank. Being a stockholder did not make his less so.

The authorities cited to sustain the test do so abundantly, as we think, and this is said only after an attentive examination of many of them. And this is an added reason for a perhaps scant discussion here of those brought forward in the briefs.

Thus viewing the question, and finding the law so to be, it follows, manifestly, as we must think, that the admission of the entry purporting to recite that the testator parted with his stock holdings in the defendant was error. And as it went to the heart of the controversy and was the only thing that could have resolved the issue adversely to the plaintiff, it was of course prejudicial error and, therefore, reversible error.

As to the other considerations more or less vehemently urged upon us in the argument at the bar, we do not feel called upon to say very much, since obviously and as already intimated the paper which we have found should have been excluded but was admitted, formed the keystone of the entire arch of defense against the certificate in the hands of the plaintiff.

It is said — plausibly enough, to be sure — that it is impossible to think that the dead man should have lived in abject and miserable poverty and yet have been, by the ownership of this certificate, potentially a rich man. Perhaps so. But it will not do to push this supposed impossibility too far. It is a trick that misers have to appear to live poor while they are getting ready to die rich. At most, the consideration is but a conjecture, and when a conjecture comes against a very matter-of-fact stock certificate, the presence of which in wrongful hands— if it is wrongful — is solely due to the neglect of the sworn duty of the now conjecturer and to its own disobedience of its own laws — in such ease, we say, the conjecture is at a disadvantage and must go to the wall. It is, we suspect, small consolation that the patient dies according to the books — that is, in consequence of an infirmity which when it was acquired the sufferer had it within its easy power to prevent — namely, by requiring a surrender of the certificate before transferring the stock to any one, bank officer or no bank officer.

So also in regard to the statement in argument that the bank must have taken, and doubtless did take, an indemnity, before transferring Russell’s stock. Again, perhaps so.

But these are all inferences, suppositions, guesses. One guess is as good as another, and no guess cam push the law of evidence from its stool. The hard fact of an unsurrendered certificate of stock is a visible and workable thing, to the confusion of any number of might-have-beens, or even must-have-beens.

In regard to the other defenses alleged in the answer — those of laches and the barring of the action by limitation or lapse of time — we desire to say no more than that none of them seems to us to be of merit to control the conclusion otherwise reached here. They are denied.

Because of the error found the judgment complained of is without support in law and for that reason is reversed, and the cause is remanded to the court from whence it came, for such, further proceedings there as may be proper.

Meals and Carpenter, JJ., concur.


source: Caselaw Access Project

author: SHIELDS, J.

license: Public Domain

text:
    COURTS — DIVORCE AND ALIMONY.
    [Licking (5th) Court of Appeals,
    March Term, 1915.]
    Shield, Powell and Houck, JJ.
    Anna Betz v. Walter C. Betz.
    Sale by Execution to Satisfy Balance Due Under Judgment for Alimony Granted by Probate Court Enjoinable by Common Pleas.
    Where it is sought by execution to enforce payment of a balance due under a decree for alimony granted by the probate court, the common pleas court has jurisdiction to entertain an action by the defendant to enjoin sale of his property on the ground that the judgment entered against him upon which the execution is based has been fully satisfied, notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside.
    Error.

      Smythe & Smythe, for plaintiff in error.

      Carl Norpel and A. S. Mitchell, for defendant in error.
   SHIELDS, J.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas of this county.

It appears that a decree for alimony was granted the plaintiff in error against the defendant in error by the probate court of Licking county; that afterwards the plaintiff in error caused an execution to issue out of said probate court upon said decree for alimony to the sheriff of said county, who levied the same upon the property of the defendant in error to satisfy what was claimed to be an unpaid balance due on said decree for alimony, amounting to something like $900; that said sheriff was proceeding to advertise the property of the defendant in error, so levied on, for sale to satisfy said claim of the plaintiff in error, when the defendant in error, in an action commenced by him in the court of common pleas of said county, procured a temporary injunction against said sheriff restraining him from selling said property, on the ground that he had then already paid the full amount of said decree for alimony so awarded against him, and a sum largely in excess of said sum, and that said execution so levied upon his property was therefore wrongful and unjust.

An answer was filed in this proceeding, denying payment of the alimony as alleged by tbe defendant in error, wbo after-wards filed a reply thereto, and after a full hearing was had upon the merits of the claims of said parties said common pleas court found that payment of said decree for alimony had been made by the defendant in error, as alleged by him in his petition, and said temporary injunction was thereupon made perpetual.

The plaintiff in error afterward filed a petition in error in this court to reverse said judgment of said common pleas court on the ground that said court had no jurisdiction to hear said last named cause for the reason that the probate court of said county had first acquired and retained jurisdiction thereof, and that if the defendant in error was seeking any relief his remedy was by motion in said probate court.

The rule that a judgment or lien for alimony is a continuing and subsisting claim against the husband and that it does not become dormant, nor become affected by injunction or other proceedings until paid is well recognized; but mot unlike any other obligation created by the judgment of a court, when such judgment or lien for alimony is paid, such obligation is discharged. Here, it was claimed that the decree for alimony, made and entered by the probate court, was paid, and because of this alleged payment and satisfaction of said decree the sale of the property of the defendant in error, sought to be reached by the plaintiff in error on execution, was enjoined upon petition filed by the defendant in error setting up such payment and satisfaction of said decree. This action of the common pleas court is assigned as error, the plaintiff in error contending that said court had no jurisdiction over the subject-matter of said proceeding. The record herein shows that the defendant in error filed a petition in said court setting up payment of said alimony adjudged against him; that the plaintiff in error was duly served with process and voluntarily submitted herself to the jurisdiction of said court by filing an answer therein; that upon the hearing thereof she made the defense alleged in her said answer, and that said court, after hearing had upon the merits of the claims of the respective parties thereto, by its order made said injunction perpetual. Under this state of facts were the rights of the plaintiff in error determined and con-eluded in this proceeding? We think they were, and we further think that the proceeding instituted by the plaintiff in error in the common pleas court was a separate and independent proceeding from the action pending in the said probate court, and that said proceeding was not unauthorized by the facts and circumstances of the case. True, a motion filed in the probate court might have served the purposes of the defendant in error, and it might not. Surely it would have been of no avail if not heard and parsed on by said court favorably to the rights of the defendant in error before the sale of his property. Whatever the action of the court had it been so filed, we do not think such remedy was exclusive to work out the rights of the defendant in error as found by the court of common pleas; and having submitted to the jurisdiction of said court without objection, we think relief was properly granted to the defendant in error by injunction. In this connection we quote the opinion -of Judge White in Miller v. Longacre, 26 Ohio St. 291, 297, who cites therein with approval the principle of law laid down in Crawford v. Thurmond, 3 Leigh (Va.) 65:

“Jurisdiction in equity has been maintained to enjoin the enforcement by execution of a judgment which had been paid, notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside.”

We are of the opinion that the common pleas court had jurisdiction to grant the relief asked for, and the judgment of said court is therefore affirmed, at the costs of the plaintiff in error.

Powell and Houck, JJ., concur.


author: DONNELLY, J. Hurin, J:

text:
    EXECUTORS AND ADMINISTRATORS.
    [Logan (3rd) Circuit Court,
    October 8, 1909.]
    Donnelly, Norris and Hurin, JJ.

      John T. Kennedy, et al., v. John A. Price, Admr. de bonisnon.
    Expenses of Last Sickness and Funeral of Life Tenant Chargeable to Estate In Remainder.
    Where the consort of a deceased husband or wife received the entire property of said decedent by virtue of a devise for his or her support during life with the remainder over, and said consort died leaving no estate, the expenses of his or her last sickness and funeral are a legal charge against the estate which passed to him or her for life.

       Affirmed, no op., Price v. Kennedy, 83 O. S. 472.

   DONNELLY, J.

This is an action brought by Kennedy Brothers against Judge Price, as administrator, to recover for the funeral expenses and last sickness, etc., of Mr. Hover. The petition is about as follows: that in November, 1907, said Washington Hover died; that Maggie L. Hover, by her will, after directing that all her just debts and funeral expenses and those of her last sickness and expenses of administration of her estate be first paid, said testatrix, by said will, bequeathed and devised all of her estate to her said husband, Washington Hover, named therein as executor, for life, coupled with the'power of disposing of and using the same or any part thereof as he should deem best as the same should be necessary for his personal wants, necessities, comforts, etc., for and during the term of his natural life, and further provided that at the death of the said Washington Hover, all of the properties of said estate remaining unconsumed by the said Washington Hov.er should be applied to the payment of certain legacies therein named, amounting to $900, etc. The petition goes on and further alleges that after this time, Washington Hover died; and that the said John T. Kennedy and Harry Kennedy furnished the funeral expenses, coffin and such other things as were necessary for his proper burial; and brought an action against Judge Price, the administrator de toms non of Maggie L. Hover, the party who made the will and whose property it was.

To this petition, the defendant filed a general demurrer and it was tried on that question and the demurrer was sustained. The plaintiffs not desiring to plead further, judgment was entered and such, proceedings were had on the record that it is now presented to this court for review.

Wshington Hover died without any property, having nothing to pay any of his debts with. This case was submitted by counsel on both sides without any authorities that are applicable to this case being cited. The only question that thiá court is called upon to decide is as to whether or not the funeral expenses of a person occupying a position or relation under the will of a deceased wife is a necessary charge against her estate; in other words, are the funeral expenses such a charge, as for instance the expenses of his last sickness or doctor bills ? That is denied and that is the only question in the case.

There is no authority that we could find, except I have a decision of the circuit court at Findlay. That court decided a case that is very similar and in all respects, according to our idea, with the one at bar. It is the case of Charles v. Wachter. A decision was rendered in the circuit court of Hancock county, Ohio, on June 24, 1901, as follows:

“Anna Charles, et al. v. Mary Waehter, Administratrix.
“Norris, J.
“The plaintiff in error as plaintiff below filed their petition making the numerous parties to the action for the partition of certain real estate which they say they together with the other parties named are the tenants in common as the children and only heirs of one Philip Rauen, deceased. They plead the necessary facts for partition and ask that such finding be had as that each may take his interest in severalty. Mary Waehter, as the administratrix of the estate of Lucy Rauen, deceased, files an answer in the action and says, that on the eighteenth day of June, 1871, one Philip Rauen died, testate, seized of the land described in the petition. By his last will, Philip Rauen gave to his wife, Lucy Rauen, now deceased, all his property both real and personal, of which he died seized during her natural life, to be used for her support, and after her death to be divided among his ehidren according to the statute of descent and distribution. Said Lucy was made executrix of this will. Lucy Rauen, during her life, used and consumed for her support all of the personal property, and all of the rents and issues and profits of the real estate and died having no estate except that which she received under said will.
“The expenses of the last illness of Lucy Rauen and her funeral expenses and cemetery charges amount to $116.50, and the eosts of administration of her estate will amount to $20.
“The plaintiffs and defendants, except Mary Wachter, refuse to contribute to defray the expenses of the last illness and burial of Lucy Rauen.
“Mary Wachter presents and attaches to her answer a certificate from the probate court showing the amount necessary to pay the charges recited in her answer, and she asks for an order to sell the real estate to obtain the sum necessary to pay said expenses, or that an amount be set apart and paid to her, sufficient to cover these expenses, out of the proceeds of any sale of said property.
“To this answer and cross petition, plaintiff filed a general demurrer, which demurrer the trial court overruled. Plaintiffs not desiring to plead further to said answer and cross petition, the court finds the allegations of the same to be true and declares the’ sum set out in the cross petition to be a lien and charge on the premises described in the petition, and orders the same to be paid out of the proceeds of the sale of said premises. To this finding and judgment of the court, the plaintiff prosecutes error, because the court overruled said demurrer, that the court found the expenses of the last illness and funeral expenses of Lucy Rauen to be a lien on the premises described in the petition; that the court ordered that the same be paid out of the proceeds of any sale of said premises.
“By the allegations of this cross petition, Philip Rauen gave by his will, to his wife, Lucy, all of his property during her life to be used for her support. Now, what thought was the testator by this will giving this act? What did he mean by support— ‘for her support’? What had he in view when he used that word — ‘for her support’?
“As the court says in Davis v. Davis, 62 Ohio St. 411, 417 [57 N. E. Rep. 317; 78 Am. St. Rep. 725], the will should be fairly ‘ascertained * * * from a consideration” of all the provisions of the will and from his situation at the time. And it may well be added that the purpose of his bequest, when the purpose is given, and the situation and necessities of the object of his bounty were known to the testator, when the will itself indicates that he knew the situation and necessities present and prospective, as here, and made his wül for the express purpose of meeting the situation and .that which must inevitably follow— where all this appears it may all be kept in in view when the court is giving construction to the will. Now, what was within the sight of Philip Rauen when he was seeking to make provision for the support of his wife, to supply her means of maintenance, to furnish her that which she would need out of his estate? He knew that his wife was alive and likely to long survive him. He knew that for support she was dependent upon his estate; he knew that her last sickness would come and her death and her burial; he knew that these things were not contingent, but were inevitable; they were there present and were a part and helped to make the situation, for which he was then making provision. He did not intend to abandon her to charity in her last sickness ; it was not his purpose to fix a document which would consign her body to the potter’s field; a construction so shuddering and awful as this can not be contemplated. He intended his property should stand between his wife and a fate like this, and that she should take whatever estate in it was necessary to accomplish this, his intention. In other words, he intended that these things should be a charge upon his property, and so made them as plain as words could make them, and for such of his estate as was not so used, he made provision that it be divided among his children according to the law of descent and distribution.
“The court, by majority, are of the opinion the demurrer was properly overruled; the judgment of the common pleas is therefore affirmed at cost of plaintiff in error, and the cause is remanded for execution.
“Day, J, concurs.”
“Mooney, J. dissents.”

Now, following that ease, using that as an authority for this case, I think the court- below erred in sustaining the demurrer to the petition. It will therefore be reversed and remanded for such proceedings as required by law.

Norris, J. concurs.

Hurin, J:

I dissent, not because I don't think that ought to be the law, but I am unable to see, as yet, that it is the law.


text:
    RAILROADS.
    [Stark (5th) Court of Appeals,
    February Term, 1916.]
    Shields, Powell and Houck, JJ.

      Pennsylvania Co. v. Charles J. Gulling.
    1. Distance from Which to Look for Approaching Train at Crossing not Fixed Absolutely.
    The distance from which one, approaching a railway crossing on a public highway, must look before going upon the tracks is not absolutely fixed by law, the limit of the obligation on " the part of the person approaching the crossing is to exercise ordinary care under the circumstances, such as to enable the person to get across before a train within view going at the usual rate of speed of fast trains would reach such crossing. One after dark at forty feet from a crossing having a clear and unobstructed view of railroad tracks for a distance of three-fourths of a mile and neither seeing nor hearing a train approach, is not guilty of negligence preventing recovery, and a special request, stating that it was the duty of plaintiff, just before going upon the crossing “to look for the approach of trains,” is properly refused.
    2. Jury Determines Fact of Failure to Perform Statutory Requirement as to Headlight and Proximate Cause.
    Failure to display a headlight on a rapidly moving train after dark as required by Sec. $945-1 G. C., the statutory requirement being conceded, and if such failure was the proximate cause of a railway crossing accident are questions of fact for the jury to determine.
    ERROR.

      Carey & Armstrong and A. M. McCarty, for plaintiff in error.

      Amerman & Mills, Lombard, Eext & Washburn, for 'defendant in error.

      Motion to certify overruled, Pennsylvania Co. v. Gulling, 61 Bull. 168.

   SHIELDS, J.

Proceedings in error are prosecuted herein to reverse a judgment of the court of common pleas of said Stark county wherein the defendant in error in a certain action for damages recovered a judgment against the plaintiff in error for alleged negligence in operating a train of its cars over a public highway crossing east of the village of Louisville, in said county, thereby causing permanent injuries to the defendant in error, as set forth in his petition filed in the court below. The principal grounds of alleged negligence set out in said petition are “that said company on November 12, 1914, about 5:30 P. M. and after dark, operated its said train of cars in a westerly direction over a certain public highway crossing, commonly called the Niekle Plate crossing, east of the village of Louisville, in said county, when the defendant in error, driving a team of horses attached to a wagon, attempted to drive upon and over the tracks of'said company at said crossing, which cross said public highway at said crossing, and before attempting to drive upon and over said crossing listened for trains in either direction and hearing none, drove upon said crossing in the effort to cross the same, when said company’s said train of ears approached said crossing at a speed of thirty-five or more miles per hour, without giving any warning by signal or otherwise, and without displaying any headlight on the engine attached to said train of cars, and did then and there negligently and carelessly, and with great force and violence run into and against said wagon in which the plaintiff was riding, demolishing said wagon and its contents, and with great force and violence threw the plaintiff out of said wagon and upon the ground, causing him severe, serious and permanent injuries, which are particularly described in said petition, all of which occurred, as claimed by him, without any fault or negligence upon his part, to his damage, including the moneys paid for medical treatment and the value of the wagon, in the sum of $10,000.

“An answer was filed by said company admitting that its line of railway crosses said public highway at said crossing where the plaintiff collided with one of the defendant' company’s trains whereby he sustained some injuries to his person and property, but not to the extent charged.
1 ‘ It admits that it was its duty to maintain a headlight on its engine and to give certain signals as it approached said crossing, all of which duties it says were performed, and subject to said admissions the defendant denies all the other allegations of said petition.
“For a second defense the defendant says that if it was negligent in any of the particulars complained of, which it specifically denies, the plaintiff by his own negligent conduct contributed to the proximate cause of his injury by failing to look and listen with ordinary care and prudence for the approach of said train, and by 'failing to stop and look and listen immediately before driving on said railroad track, and by failing to take reasonable and prudent precautions for his own safety. It denies it was guilty of carelessness, negligence or improper conduct, and says that plaintiff’s injuries and damages were caused by the negligence of plaintiff himself.
“For reply to the answer of the defendant, the plaintiff makes a general denial of the allegations therein.”

After a verdict was rendered for the plaintiff, a motion for a new trial was overruled and judgment was entered on said verdict. Afterwards and within the statutory period, a petition in error containing various grounds of error was filed in this court for a review of said judgment.

An examination of the bill of exceptions herein sh'ows that this ease is singularly free of objections made and exceptions taken to the admission and rejection of evidence upon the trial, and upon such examination we find the rulings of the trial court in said respects to have been proper.

It was argued that the trial court erred in refusing to give in charge to the jury before argument, on behalf of the plaintiff in error, what is designated in the bill of exceptions as request No. 1, and which is as follows:

“It was the duty of the plaintiff, Mr. Gulling, just before driving upon the railroad track, to look for the approach of trains. If you find that the headlight on the locomotive in question was lighted and could have been seen by Mr. Gulling, had he looked just before driving upon the railroad track, then there can be no recovery in this case and your verdict must be in favor of the defendant.”

This request was refused, and, in our judgment, was properly refused. Reference was made by counsel in argument to the crossing cases of Cleveland C. & C. Ry. v. Crawford, 24 Ohio St. 631; New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], and the- entry in the ease of Wooley v. Railway, 90 Ohio St. 387, was also referred to and commented upon. What the facts were in the last mentioned case we have no means of ascertaining, but testing said request by the rule of law laid down in the first two eases cited, and applying the reasoning of the rule therein stated, we do not think that said request falls within said rule, nor de we think that any fixed, inflexible and absolute rule requiring one to look at any given distance before attempting to cross over a railroad at a public highway crossing has been laid down by our Supreme Court. In the case of Cleveland, C. & C. Ry. v. Crawford, supra, it is held that:

“1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do sc>, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.
‘ ‘ 2. But the omission to use such precautions, by a person injured, will not defeat his action, if, by due diligence in their use, the consequence of the defendant’s negligence would not have been avoided.
“3. Nor will the failure to use such precautions be regarded as negligence on the part of the plaintiff, if, under all the circumstances of the ease, a person of ordinary care and prudence would be justified in omitting to use them. ’ ’

Again, in the case of New York C. & St. L. Ry. v. Kistler, supra, it is held that:

‘: The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.”

And, in the case of Stuebenville & Wheeling Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325], the judge speaking for the court in that case in commenting upon the action of the court in the case of Cleveland, C. & C. Ry. v. Crawford, supra, on page 194 says:

“The effect of the entire holding is that the omission to look is not negligence in all cases and as matter of law, and it remains the law of Ohio today, though there are a number of decisions of courts of other states, notably Massachusetts, which appear to hold a more rigid rule. It is the Ohio rule respecting the crossing of a steam road, and for a much stronger reason, the rule as to crossing a street railway track.”

Hence we think that no absolute rule has been laid down as to the looking required to be done at any given distance before going upon the crossing, but that the limit of the obligation on the part of one about to cross a railroad crossing is to exercise ordinary care under the circumstances, and that it should be so done “as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.” In other words, the looking and listening required is to be at such proximity to the crossing as to make such looking and listening effective. Without reference to any given distance therefrom. We call special attention to the holding in the Kistler case because it serves to illustrate our view of the law on this feature of the case. Applying the principle just stated, let us inquire what the conduct of the plainiff below was before attempting to pass over this crossing. It appears that the tracks east of said crossing for three-quarters of a mile were straight and that there was nothing east or west of said crossing for said distance to obstruct a view of said tracks. Turning to the record we find that the plaintiff below testified as follows:

‘ * Q. Now about what time was it in the evening when you came to what we term the Nickle Plate crossing north of Louisville? A. Well, let us see, we always go by sun time, I call it 6 o’clock, that would be 5:30.
“Q. Was it dark or not? A. It was dark.
“Q. Now as you approached that crossing how was you driving, just tell the jury? A. As I approached the crossing I was driving along a slow trot.
‘ ‘ Q. Now tell the jury what kind of a crossing that is, that Nickle Plate crossing? A. Well that crossing the first railroad you come to is the street car line.
“Q. That is the Stark electric? A. Stark electric; and my recollection is that there was a street ear, not a regular street car, there wasn’t any lights in it, going east; I was coming this way.
“Q. Which direction was you going from Louisville now? A. North.
“Q. Street car going east? A. I was going this way and the street car -was going that way, and I was not sure that I could cross ahead of that car so I pulled in my horses to a stop.
“Q. About how close to the street car track? A. Of the street ear track of possibly twenty feet, because I had a lot of confidence in this team, they wasn’t afraid of anything of that kind.
“Q. Go ahead and tell what you next did? A. Then after this street car was past I started my horses on a walk, they walked across the street ea,r track, and I leaned forward, I was sitting possibly like this, (indicating) in my seat (indicating sitting forward on the seat, leaning forward); I leaned out of the front of the wagon and looked both ways to see if there was anything coming on the railroad track.
“Q. How many tracks is there there on that railroad crossing? A. Two tracks.
“Q. Double track? A. Double track.
“Q. How far is the closest track to the street car track, what is the distance approximately between those tracks? A. Sixty-five to seventy feet.
“Q. Do they run parallel to each other at that crossing? A. Yes, sir.
“Q. How does the road that you was traveling strike the crossing, does it strike it perpendicular or at an angle? A. It strikes it at a sharp angle.
“Q. What you call an acute angle or what you call a diagonal? A. I would call it a diagonal.
“Q. Now, then, Mr. Gulling, just go forward and tell the jury what you did as you crossed that crossing and what occurred? A. Well, after I crossed the street car track I leaned forward to look out for a railroad train; and I looked both ways twice at least, and when the team was on the railroad the last time I looked east there is something seemed to come down on me looked like a black mountain; I had a clear view, I looked around the front of that curtain, and the next thing they struck me; there was no use to reach for the whip; I had the whip in the socket, never used it, I had it for an emergency; I leaned forward and give the lines on my horses, give a command, — I don’t know what you call it — anyway they answered me and leaped forward and the train got the rear end of that wagon.”

It thus appears that said request wholly eliminated the existing conditions which were proper to be made known to and considered by the jury in determining whether or not the plaintiff was negligent before attempting to drive upon and over said crossing. If he looked when within forty feet of the track, as testified to by him, to see whether or not any train was approaching said crossing, and so looking he had a clear and unobstructed view of said company’s tracks for a distance of three-quarters of a mile, and neither hearing nor seeing any train approaching said crossing, he then drove upon said crossing for the purpose of crossing over the same, and believing and having good reason to believe that he could safely cross, and when attempting to cross was struck by said company’s train of cars, as the evidence here shows, such looking under such circumstances would not be negligence as a matter of law as would prevent a recovery.

It is contended on behalf of the plaintiff in error that the court below er.re.d in its general charge to the jury upon the subject of displaying a headlight on the engine of said company. Section 8945-1 G. C. provides that:

Every railroad corporation operating a railroad or a part of one in this state, shall * * * equip each of its locomotives, with a headlight of such construction, and with sufficient candle power to render plainly visible at a distance of not less than three hundred and fifty feet in advance of such engine, whistling posts, land marks, and other warning signals,” etc.

In its answer said company admits

“That it was its duty to maintain a headlight on its engine to give certain signals as it approached said crossing, and it avers that all of its duties in the premises were fully performed. ’ ’

As if adopting said admission said court instructed the jury as follows:

“The law requires, and counsel for defendant concedes, that the defendant must display, after dark, an adequate headlight on its locomotive, and that failure to do so is negligence. Now whether the defendant on the occasion in question failed in its duty in that respect, and if so whether such failure was the proximate cause of the plaintiff’s injuries, are questions of fact for you to determine.”

"While perhaps it is true that every failure to perform a duty imposed by statute is not negligence as a matter of law, in this instance the statutory requirement appears to have been conceded, and the ultimate question of whether or not said company failed to display a headlight on its engine on the night in question, and if so, whether or not such failure was the proximate cause of the plaintiff’s injuries, was submitted to the jury to determine. We find no prejudicial error in said charge in this respect.

It is also urged that said court erred in its charge to the jury in respect to the statutory signals required, when negligence in this respect was not averred in the plaintiff’s petition. An examination of said petition shows that it was drawn with no little care and indeed with greater particularity of statement and detail than is required under the existing system of code pleading in this state. Quoting from said petition on this subject, it recites that

“Yet the said defendant, well knowing its duties in the premises as aforesaid, did on, to-wit: the twelfth day of November, 1914, negligently and carelessly run its said westbound freight train, then and there being drawn by an engine propelled by steam, at, to-wit: 5 :30 o ’clock in the afternoon, upon and over the track of the said defendant and approached the said crossing at the intersection of the said tracks with the said highway, while it was dark, and negligently and carelessly failed to give due and timely warning of the approach of said train, engine and ears at a sufficient distance from the said highway crossing to give the said plaintiff, who was then and there approaching and attempting to cross the said track of the said defendant, in the exercise of due care . and caution for his own safety, and without fault or negligence on his own part, reasonable opportunity and time so that the said plaintiff could stop and avoid going upon and over the said tracks, and negligently and carelessly failed to ring the bell on the said engine, and negligently and carelessly failed to sound the whistle as a warning to the said plaintiff, and negligently and carelessly failed to give any warning or signal whatever of the approach of said engine and train as the said train approached and ran over the said crossing.”
“In an action founded upon negligence, the petition should state the acts of commission or omission which the plaintiff claims to have caused the injury; and that statement being made, it is sufficient to aver that such acts were carelessly or negligently done, or omitted.” New York C. & St. L. Ry. v. Kistler, supra.

It is also argued that the verdict of the jury was clearly against the weight of the evidence and contrary to law. Counsel for plaintiff in error both in their brief submitted and in oral argument, contend that the decided weight of the evidence is that the headlight on the engine on the night in question was lighted at the time of said accident. That there is a marked conflict in the testimony of the witnesses testifying upon this feature of the ease is apparent from a reading of the record, some of them giving positive testimony while that of others was negative in character. We recognize the rule that “all other things being equal, courts are naturally disposed to give more weight to affirmative than to negative testimony; to the witnesses who saw than to the witnesses who did not see, ’ ’ but when affirmative testimony is given as to the existence of a certain fact, both by the plaintiff and defendant, it then becomes a question of fact to be determined by the jury, under proper instructions by the trial court. In this instance there was such testimony before the jury tending to sustain the contention of both the plaintiff and the defendant in the respect mentioned, and it then became a question to be considered by the jury under instructions as indicated. Gibbs v. Girard, 88 Ohio St. 34 [102 N. E. Rep. 299; Ann. Cas. 1914C, 1082],

In the light of the record before us, we are of the opinion that the jury were fully justified in finding that the defendant in error was not guilty of contributory negligence, or that such negligence on his part was the proximated cause of his injuries, and that the verdict of the jury was not against the manifest weight of the evidence or contrary to law.

Finding no error prejudicial to the plaintiff in error in the record, and further finding upon the whole case that substantial justice has been done between the parties hereto by the verdict returned by the jury and the judgment entered in the court below, the judgment of the court of common pleas will be affirmed. Exceptions.

Powell and Houck, JJL concur.


author: JONES, O. B., J.

text:
    TAXATION.
    [Hamilton (1st) Court of Appeals,
    November 29, 1913.]
    Swing, Jones and Jones, JJ.
    Cincinnati Southern Ry. (Tr.) v. Charles E. Roth, et al.
    Property Acquired by Cincinnati for its Own Railway Use not Taxable While Being Improved.
    Property acquired by the city of Cincinnati for a viaduct or elevated track and additional terminals for the Cincinnati Southern Railway, owned by said city and operated by a lessee, which property so acquired is being improved by the city for said purpose and when completed is to be turned over to said lessee, is property which is being used in the exercise of a municipal function and while so held by the city is exempt under Sec. 5356 G. C. from taxation.
    Error.

      W. T. Porter and John B. Sayler, for plaintiff in error.

      Thomas L. Pogue, Pros. Atty., John V. Campbell and Charles A. Groom, Assist. Pros. Attys., for defendants in error.
   JONES, O. B., J.

Under an act of tbe general assembly found in 93 0. L. 637, supplementary to the act under which the Cincinnati Southern Eailway was constructed (66 0. L. 80), bonds have been issued — approved by a vote of the people — and with the proceeds the trustees of said railway acting on behalf of the city of Cincinnati have acquired certain land for the purpose and have partially constructed thereon a viaduct extending from Eighth and McLean avenue to Third and Front streets in said city. This viaduct is not yet completed, but has been and will be held by said trustees who are engaged in its construction, and when so completed it will become a part of the Cincinnati Southern Eailway, and will then be transferred to the lessee company operating that railway and will be used in connection with it and its terminals.

The question to be here determined is whether this uncompleted viaduct and the land on which it stands should be now listed for taxation, or whether as public property used exclusively for public purposes it is not taxable.

The general rule as to taxation of the property of municipal corporations is thus stated in 37 Cyc. 874:

“While in the absence of constitutional prohibition, a state may tax the property of its municipal corporations, or a municipality having general powers of taxation may tax its own property, an intention to tax such property of a municipality as is devoted to public or governmental purposes will not be implied, but on the contrary such property will be held to be exempt unless an intention to include it is clearly manifested. Lands, buildings and other property owned by municipal corporations and appropriated to public uses are but the means and instrumentalities used for public purposes, and consequently they are exempt from taxation, either by express constitutional or statutory provision, or else by necessary implication. This rule applies not only to counties and incorporated cities, incorporated towns and incorporated villages, but also to such strictly public and governmental bodies as sanitary or levee districts, directors of the poor and reclamation districts.”

In Van Brocklin v. Anderson, 117 U. S. 151 [6 Sup. Ct. Rep. 670; 29 L. Ed. 845], Justice Gray in the opinion of the court at page 173, says:

“General tax acts of a state are never, without the clearest words, held to include its own property, or that of its municipal corporations, although not in terms exempted from taxation.” (Citing cases.) “The reasons for this have been well stated in the cases in Massachusetts and New Jersey. Mr. Justice Dev-ens, delivering the opinion of the Supreme Judicial Court of Massachusetts, said: ‘The property of the commonwealth is exempt from taxation because, as the sovereign power it receives the taxation through its officers or through the municipalities it creates, that it may from the means thus furnished discharge the duties and pay the expenses of government. Its property constitutes one of the instrumentalities by which it performs its' functions’ (116 Mass. 194). And Mr. Justice Depue, delivering the opinion of the court of errors of New Jersey, said: ‘The immunity of the property of the state, and of its political subdivisions, from taxation, does not result from a want of power in the legislature to subject such property to taxation. The state may, if it sees fit, subject its property and the property owned by its municipal divisions, to taxation, in common with other property within its territory. But inasmuch as taxation of public property would necessarily involve other taxation for the payment of taxes so laid, and thus the public would be taxing itself in order to raise money to pay over to itself, the inference of law is that the general language of statutes prescribing the property which shall be taxable is not applicable to the property of the state or its municipalities. Such property is therefore by implication, excluded from the operation of laws imposing taxation, unless there is a clear expression of intent to include it. ’ ”

One of the recent eases upon the question of taxing public property is that of Foster v. Duluth 120 Minn. 484 [140 N. W. Rep. 129]. The city had purchased property for an incinerator plant, or crematory for the disposal of garbage, and same was constructed thereon and used by the city. The syllabus of the case is as follows:

“1. The property of the state and of its political subdivisions, arms and agencies, such as cities within its borders, when used for exclusively public purposes, is not subject to taxation, or to proceedings for the assessment of taxes, or for their collection by judgment and sale.
“2. Where real property, acquired by the state, or a city for exclusively public purposes, is, when so acquired, subject to a lien for unpaid taxes, all proceedings taken to enforce such lien, after the property is so acquired for public purposes, are void.”

The opinion of the court by Justice Bunn is especially strong, and holds that after its purchase by the city the property was devoted to public uses and became public property and was not thereafter subject to taxation.

An instructive case as to the power of a municipality to aid in the construction of a railway, and the taxability of the interest paid to the city by the railroad company on the bonds issued for such, aid, is found in United States v. Railway, 84 U. S. (17 Wall.) 322 [21 L. Ed. 597].

As said by Shauck J., in the opinion of the court in Cincinnati v. Lewis, 66 Ohio St. 55 [63 N. E. Rep. 588]:

‘ ‘ The policy of this state has its foundation in Art. 12, Sec. 2 of the constitution, which describes the property which shall be taxed as well as that which may, by general laws, be exempted from taxation: ‘Laws shall be passed, taxing by uniform rale * * * all real estate and personal property; but * * '* public property used exclusively for any public purpose, * * * may, by general laws, be exempted from taxation.’ That the public ownership of property was not alone thought sufficient to exempt it from taxation is made obvious by the requirement that an exclusive use for a public purpose shall coincide with such ownership. ”

In pursuance of the authority contained in Art. 12, Sec. 2, general laws have been passed exempting from taxation the different classes of property enumerated in said section. Such exemptions are set out in Secs. 5349 to 5365-1 G. C. inclusive. The section claimed applicable to the case at bar is Sec. 5356 G. C.:

“Market houses, public squares or other public grounds of a city, village or township, houses or halls used exclusively for public purposes or erected by taxation for such purposes, notwithstanding that parts thereof may be lawfully leased, shall be exempt from taxation.”

In Cincinnati v. Lewis supra, the property under consideration was a farm known as the Markley farm which had been purchased by the city for the purpose of locating thereon a reservoir and using it in connection with the city waterworks, but this plan had been abandoned, other lands acquired, and the reservoirs located elsewhere, and this farm was then rented and used for farming purposes. The court held that it was taxable, not being used in the exercise of a municipal function.

So, in Cincinnati v. Hynicka 20 Dec. 365 (9 N. S. 273) affirmed, no op., Cincinnati v. Hynicka, 84 Ohio St. 446, where wharf property and market place property had been leased to coal companies and railroads and was used entirely for private purposes, it was held to be taxable.

In the case of Zumstein v. Coal & Mining Co. 54 Ohio St. 264 [43 N. E. Rep. 329], certain wharf property belonging to the city of Cincinnati had been leased for a period longer than fourteen years. Under R. S. 2733 (now Sec. 5330 G. C.) the interest of the lessee was held to be taxable; but the city’s interest as lessor was distinguished from that of the lessee and was held not to be taxable. At page 271 in the opinion Shauek, J., said:

“It is not disputable that if the lands had not been leased, they would be exempt under the terms of the eighth subdivision of Sec. 2732, and it was held that in order to make such lands taxable the lease must be for a term longer than fourteen years. ’ ’

The question of the power of a municipality to levy taxes, and what constitutes a public purpose or a municipal function, is ably discussed by Dickman, J., in the opinion in the case of State v. Toledo 48 Ohio St. 112 [26 N. E. Rep. 1061; 11 L. R. A. 729], in which the court held:

“The supplying of municipal corporations and their citizens with natural gas, is a public use or purpose, for which the taxing power may be constitutionally exercised.”

The question of whether the property owned by the city of Toledo, and used for securing natural gas lying outside of the city itself was taxable or not, was considered by the court in Toledo v. Hosler 54 Ohio St. 418 [43 N. E. Rep. 583], and the court held that the gas wells, pipe lines, pumping stations and machinery owned by the municipal corporation was public property used exclusively for a public purpose, and was exempt from taxation.

What constitutes a city purpose, or a municipal or public function, as distinguished from private ownership that may sometimes exist in a municipal corporation, has been the subject of frequent discussions by the courts. Different views have been held upon the subject a The matter is well stated in the opinion of Judge Donahue in the recent case of State v. Lynch, 88 Ohio St. 71:

“I do not believe that governmental purposes include only the protection of life, liberty and property. On the contrary, I am firmly of the opinion that one of the most important duties of the state is to promote the health, convenience, comfort and welfare of its citizens and advance the standard of citizenship in every legitimate way. But I do not believe it is within the purview of municipal governmént to invade the sphere of purely private enterprise wholly disconnected and divorced from public needs or public purposes. It is difficult, perhaps almost impossible, to prescribe a limit where governmental functions end and private enterprise begins. In the last quarter of a century our views on this subject have so changed that a limit fixed along the line of the prevailing opinion on that subject at that time would seem absurd now, and so it may be a quarter of a century hence.
“As an index to what has been generally understood to be comprehended in the term ‘governmental powers,’ it is interesting to note that the general assembly of the state has heretofore conferred upon municipalities by statute the power to own and operate municipal lighting, power and heating plants; to provide for water supply, public grounds, parks and recreation centers; to hold property for charitable purposes; to establish municipal lodging houses; public baths and bath houses; to prevent the sale and distribution of vicious literature; to provide public libraries and reading rooms, to purchase books, papers, maps and manuscripts therefor, and to receive gifts and bequests of money for that purpose; and to maintain and regulate public band concerts. In addition to this, authority has been granted to municipalities to construct railroads, also to fill and improve lands for terminal facilities; to empower municipalities to erect machine shops and issue bonds to pay for them; also to construct glass works.
“It is true that statutes authorizing municipalities to build railways have been held unconstitutional (Pittsburgh, Ft. W. & C. Ry. v. Martin, 53 Ohio St. 386), but for the reason only that this legislation offended against Art. 13 of Sec. 1 of the constitution which provides that ‘the general assembly shall pass no special act conferring corporate powers.’
“In the ease of Walker v. Cincinnati, 21 Ohio St. 14, an act authorizing cities of the first class having a population exceeding 150,000 inhabitants to construct a railway, issue bonds for such purpose and levy a tax to pay such bonds, was held to be constitutional, * * *. However, the particular thing to which I desire to call attention is the pertinent fact that it was not even suggested in these cases, much less decided by the court, that the authority attempted to be conferred by these statutes did not come within the scope of governmental purposes. ’ ’

As is stated above in Judge Donahue’s recent opinion, the building and operation of the Cincinnati Southern Railroad was declared by the Supreme Court in Walker v. Cincinnati, 21 Ohio St. 14 [8 Am. Sep. 24], to be within the governmental scope of the powers of the city of Cincinnati. There was considerable doubt as to the constitutionality of the original law for the construction of the Southern Sailroad, and the decision in Walker v. Cincinnati, supra was distinguished by the same court in Taylor v. Ross Co. (Comrs.) 23 Ohio St. 22, in which ease the right was denied to county commissioners and township trustees to embark in the building of railroads; but however the question might be considered if it were presented afresh to the Supreme Court, the decision in the Walker case has become stare decisis, and our Supreme Court has so regarded it in all of the supplementary legislation that has since been held, and which has been repeatedly sustained by the courts. Cincinnati v. Taft, 63 Ohio St. 141 [58 N. E. Rep. 63]; Thoms v. Greenwood, 6 Dec. Re. 639 (7 Am. L. Rec. 320); Cincinnati v. Ferguson, 12 Dec. 439, affirmed, no op., Cincinnati v. Ferguson, 66 Ohio St. 658; Cincinnati v. Railway, 14 Dec. 466 (1 N. S. 361), affirmed, no op., Cincinnati v. Railway, 70 Ohio St. 476.

Property therefore acquired for the extension and terminals of said railway, held by the city through the trustees of the railway, not yet turned.over to the lessees, must be likewise held by the court to be used in the exercise of a municipal function, and therefore not taxable.

Judgment reversed, and injunction allowed.

Swing and Jones, E. H., JJ:, concur.


author: JONES, E. H., J.

text:
    CARRIERS.
    [Hamilton (1st) Court of Appeals,
    February 28, 1916.]
    Jones, Jones and Gorman, JJ.
    Moores Lime Co. v. Norfolk & Western Ry.
    Carrier Entitled to Demurrage from Consignor on Refusal of Consignee to Accept Freight.
    The carrier, upon refusal by the consignee of a shipment of freight after arriving at its destination, becomes the custodian or bailee thereof, and on notice thereof, the consignor becomes liable for all charges thereafter accruing.
    Error.

      Charles M. LesUe for plaintiff in error.

      Hollister <& Hollister, for defendant in error.
   JONES, E. H., J.

Three earloads of crushed stone were shipped prepaid from the Moores Lime Company at Springfield, Ohio, via the C. C., C. & St. L. and N. & W. railroads to R. Wilhelmy at Bond Hill, Ohio, one ear on each of the following dates: September 28, September 29 and October 10, 1910.

There is a written stipulation as to facts in this ease which recites:

“The consignee refused to accept and unload said cars. That after said refusal by said consignee to accept or unload said car, notice was given defendant, and defendant was requested to give disposition of same, which defendant refused to do for the assigned reason that it was not the owner of the contents of said ears and had no right,to dispose of same.”

This action below was brought by the railway company to recover demurrage charges which accrued after these refusals by the consignee and consignor — the refusal to accept the stone by the former and the refusal to give disposition or exercise ownership by the latter. There is no question raised as to any fact material to the determination of this ease. The question presented is one of law, viz.: Under these conditions is the consignor obliged to pay the demurrage charges accruing after the shipment is rejected by the consignee?

Certain principles discussed in argument as having a bearing upon this question are well recognized. For example, it must be conceded that the title to the crushed stone from the time it was loaded at Springfield until it arrived at Bond Hill was in Wilhelmy the consignee. It would be so considered in the determination arising while the stone was in transitu. But when the consignee refused to take the stone there was a changed situation. There was no contract between the carrier and Wil-helmy. The carrier had made a written contract with the Lime Company to carry and deliver the stone at a certain place, to a person named in the written contract. When the person so named as consignee refused to receive the consignment it became the duty of the carrier to ask for directions or disposition from its employer who was the only person in the transaction with whom it sustained a contractual relation or had any privity of contract.

The carrier could not be drawn into or be made to suffer by a dispute, of whatever nature, between the vendor and vendee simply because the goods sold were on its cars and in its possession. It had performed its duty in safely delivering the cars and placing same in the yard at Bond Hill.

When the shipment was refused at its destination a new and different relation arose between the shipper and the carrier. The latter became the custodian or bailee of the stone, with duties and responsibilities resting upon it similar to these of a warehouseman. The position taken by the shipper, as indicated in the part of the statement of facts above quoted is and was untenable. It should have promptly given disposition of cars, upon request from the carrier so to do. The railway company was then justified in looking to it as the owner of the stone, and under the eighth condition of the bill of lading it was liable as “owner” for all charges accruing thereafter.

Judgment affirmed.

Jones, O. B. and Gorman, JJ., concur.


text:
    CRIMINAL LAW — HOMICIDE.
    [Stark (5th) Court of Appeals,
    February Term, 1916.]
    Shields, Powell and Houck, JJ.
    George E. Dawson v. State of Ohio.
    Narration of Statements of Insane Patients not Admissible in Homicide Trial against Hospital Attendant for Death of Insane Patient.
    Narration of statements made by insane patients to a coroner and prosecuting attorney, shortly after an inquest, concerning the killing of a patient by an attendant are not admissible on the trial of such attendant for homicide, being in violation of Art. 1, Sec. 10 of the constitution, entitling accused to “meet the witnesses face to face.” Neither are such statements admissible to enable the jury to determine the effect of silence of accused when such statements were made, especially since such insane patients lacked “mental capacity” to testify concerning the circumstances to which the statements relate.
    Error.

      Chas. C. Ilpham, for plaintiff in error.

      A. T. Snyder-, Pros. Atty. and Henry Harter, Jr., Asst. Pros. Atty., for defendant in error.
   SHIELDS, J.

The plaintiff in error was indicted at the September, 1914, term of the court of common pleas of said Stark county for the unlawful killing of one Alfred Tiseh, on September 13, 1914. Upon a plea of not guilty, he was tried and convicted of said crime. A motion for a new trial was made wherein various reasons were set forth why said motion should be granted, which said motion was by the court overruled, and the plaintiff in error was thereupon sentenced according to law. A bill of exceptions was afterwards taken embodying all the evidence and proceedings of said trial, including the charge of the trial court to the jury, and by a petition in error filed the judgment of said court is now brought before this court for review.

The principal errors complained of by the plaintiff in error are that the court below erred in the admission of certain evidence upon the trial, that the verdict of the jury is not sustained by sufficient evidence to warrant the conviction of the plaintiff in error of the crime charged, and that said verdict was contrary to law.

It appears that the plaintiff in error was on the day in question and for a year or more prior thereto had been employed at the Massillon State Hospital as an attendant and as such he had charge of and was required to exercise supervision over and control of the decedent and forty-eight other insane patients in a certain ward in said hospital, in which said ward the decedent had been confined as an insane patient for over a year. That at an early hour on said morning, Sunday, September 13, said attendant went on duty and entered said ward and requested the decedent to make up certain beds in said ward as he had been in the habit of doing, when the decedent declined to do so and assaulted the plaintiff in error by striking him in the face, breaking his spectacles, as claimed by him, whereupon the two wrestled with each other and so continued until they reached an adjoining wash-room, when and where the decedent fell over and soon thereafter died. It further appears that on the following Wednesdey, September 16, the prosecuting attorney and Dr. Frank W. Gavin, the coroner of said county (and after a coroner’s inquest had been held, as claimed by him) went to said hospital and caused to be brought before them in a certain room therein, separately and in charge of a guard, certain insane patients confined in said hospital, in said ward, to-wit: William Ring, Edward E. Potter, James Mc-Cauley, Daniel M. Call and Austin Marsteller, and in the presence of the plaintiff in error, said insane patients were interrogated by the prosecuting attorney and said Gavin as to what had occurred between the plaintiff in error and the decedent on the said Sunday morning. That said insane patients at said time offered to show by the testimony of medical witnesses occur between said parties on said morning, and that the plaintiff in error who was present made no reply thereto, nor was any inquiry made of him. That the said Dr. Gavin in the evening of said day claimed to have made notes of the statements sd made by said insane patients concerning said occurrence. Afterward, and on September 18, 1914, the plaintiff in error was arrested before a justice of the peace charged with the unlawful killing of the decedent. After being indicted and when placed on final trial for said crime, the state sought to introduce in evidence by the witness Gavin the statements so made by the said insane patients to him and to the prosecuting attorney, to which the plaintiff in error by his counsel objected, and who at said time offered to show by the testimony of medical witnesses connected with said hospital, and who were familiar with the mental condition of said insane patents, that they were not mentally capable of either observing the incidents of said oc-curence on said Sunday, nor did they have sufficient memory to enable them to retain and afterwards state what they may have observed at that time, which said offer was objected to by the state and said objection sustained, and said objection made to the evidence proposed to be offered by the witness, Dr. Gavin, was also overruled, to which the plaintiff in error excepted.

Thereupon over the objection of the plaintiff in error the witness Dr. Gavin was permitted to give to the jury what he claimed to be the statements of the said insane patients made, under the circumstances and in the manner heretofore described, to the prosecuting attorney and himself on Wednesday, September 16. This action on the part of the trial court is assigned as prejudicial error.

Upon the trial it was admitted by the state that the said Ring, Potter, Call, McCauley and Marsteller were insane patients in said hospital and that they had been committed to and confined therein as such insane patients for a considerable period of time.

Under the laws and constitution of this state, could said admitted insane patients, confined as they were at the time of said trial in said hospital, be permitted to speak and testify to material matters through the witness Dr. Gavin, an intelligent and experienced witness in criminal trials as his official relation would imply, against a citizen on trial charged by indictment with a felony?

Article 1, Sec. 10, of the constitution provides, among other things:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court.”

In the ease of Summons v. State, 5 Ohio St. 325, it is held that:

“The clause of the tenth section of the bill of rights, providing that ‘on any trial, in any court, the party accused shall be allowed to meet the witnesses face to face, ’ which, like numerous other provisions in the bill of rights, is a constitutional guaranty of a fundamental principle well established and long recognized at common law, has reference to the personal presence of the witnesses called to testify, and not the quality or competence of the evidence to be given.”

And the judge delivering the opinion in said case says p. 340:

The scope and operation of it are clearly defined and well understood, in the common law recognition of it, and the assertion of it in the fundamental law of the state, was designed neither to enlarge nor curtail it in its operation, but to give it permanency and secure it against the power of change or innovation.”

This constitutional guaranty is now and always has been the sacred right of any one charged with a crime and in no case can it be invaded or taken away. In such case the accused is entitled to “meet the witnesses face to face” and to have an opportunity to cross examine such witness, or witnesses, and in addition, the accused likewise has the right to test the qualifications of a witness before testifying when his competency as a witness is questioned in good faith.' In the case before us it appears that the plaintiff in error was deprived of these legal rights, and each of them.

On the trial, the learned judge seems to have admitted the testimony of the witness, Dr. Gavin, in permitting him to narrate the said statements of the said insane patients on the ground that the jury were to judge of the effect of the silence of the plaintiff in error at the time said statements were made. There may be cases where parties accused of crime are called upon to speak, but the ease presented by this record leads us to the conclusion that under the circumstances the plaintiff in error wras not required to speak, and this conclusion is strengthened by the evidence of the witnesses of the medical staff connected with the hospital who knew of the mental condition of the said insane patients and who testified that they did not have “the mental capacity to properly observe the incidents of the occurrence between Dawson and Tisch and afterwards have mental capacity enough to relate properly and accurately what took place.”

Without pursuing this subject further, we are of .the opinion that the plaintiff in error was deprived of his constitutional rights in the respects hereinbefore indicated, that the admission of the statements made by the said insane patients to the witness, Dr. Gavin, was prejudicial error, that said verdict is manifestly against the weight of the evidence, and that said judgment of conviction and sentence is contrary to law.

The judgment of the court of common pleas will therefore be reversed, and said cause will be remanded to said court for such further proceedings as may be deemed proper.

Exceptions noted.

Powell and Houck, JJ., concur.