text:
    PRIORITY OF SURETIES OF GOVERNMENT OFFICERS AND AGENCIES.
    [Circuit Court of Summit County.]
    The American Surety Co. of New York v. The Akron Savings Bank Co.
    Decided, April, 1905.

      Priority — Of Claim of Surety — For a Designated Depositary — Of Assets of a Bankrupt — Paying to and Paying for the Government— Section 3468, TJ. S. Statutes.

    1. There is no doubt that the same right of priority which belongs to .the United States Government, attaches to the claim of an individual who as surety has paid money to the government; and it may be the same right of priority extended to one who has satisfied a moral obligation of the government by responding as surety for a federal officer or employe who has been guilty of misfeasance.
    2. But the surety of a bonded depositary of the assets of a bankrupt has the same means of judging of the solvency of such depositary as are possessed by others who are entrusting their funds to it, and to give- such surety a preference would be a manifest injustice and not within the contemplation of the law.
    Henry, J.; Winch, J., and Parker, J. (sitting in place of Marvin, J.), concur.
   The Akron Savings Bank Company was appointed by the United States District Court, for the Northern District of Ohio, as one of the depositaries for the funds of Aultman, Miller & Company in bankruptcy. It was required to give a bond to the United States of America in the sum of two hundred and twenty thousand dollars, which it did, with the American Surety Company of New York as its surety, to secure such deposits as the trustees might from time to time make in said bank, trustees in bankruptcy of Aultman, Miller & Company had on

At the time of the failure of the Akron Savings Bank the deposit in said bank, of the funds of said bankrupt, the sum of $18,543,11, The receivers have paid to the trustees a first divident, amounting to ten per cent, of this amount, to-wit, $1,854.31, leaving a balance of $16,688.80 still due to the trustees. The trustees made demand on the surety company for this balance, and the demand was complied with.

The claim of the American Surety Company, in this proceeding, is for said sum of $16,688.80, with interest from August 3, 1904. It furthermore prays that it may have a preference for the full amount thereof and that said claim may be discharged before payment to any other creditor of the Akron Savings Bank.

Section 3466 of the Revised Statutes of the United States, provides for the priority of payment of all claims due to' the United States. Section 3466 extends the same priority to sureties on bonds given to the United States. Said section reads as followsl:

“Whenever the principal in any bond given to the United States is insolvent, or whenever, such principal being deceased, his estate and effects which come to the hands of his executor, administrator, or assignee, are insufficient for the payment of his debts, and, in either of such cases, any surety on the bond, or the executor, administrator, or assignee of such surety pays to the United States the money due upon such bond, such surety, his executor, administrator, or assignee, shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of such insolvent or deceased principal as is secured to the United States; and may bring and maintain a suit upon the bond, in law or equity, in his own name, for the recovery of all moneys paid thereon.”

There is no doubt that the same right of priority, which belongs, to the government, attaches to the claim of an individual, who, as surety, has paid money to the government. And the same is perhaps true where a surety pays money, as it were, for the government of the United States, in a case where the latter is under a merely moral obligation to restore to persons who have suffered loss through the malfeasance of a federal officer or employe such sums as may be recovered or recoverable by it in that behalf. See U. S. of Am. v. The National Surety Company, decided by the U. S. District Court of Nebraska, a memorandum opinion wherein has been submitted to us.

Dayton A. Doyle, for plaintiff in error.

Grant & Sieber, for defendant in error.

It is claimed here that a trustee in bankruptcy, who is designated in the bankruptcy act as an ‘ ‘ officer, ’ ’ falls within the same rule. It is said that inasmuch as he is required by law to deposit funds which are in his official custody in bonded depositaries designated by the Federal court having jurisdiction, he, as well as such depositaries, must be deemed to be acting for the United States, and as an arm of the government in the administration of such funds for the uses and purposes provided by the bankruptcy act.

We think the analogy thus invoked is pressed too far. The sureties in such a case as this have the option to act or not to act in that capacity. They have the same means of judging of the' solvency of the depositary as the ordinary rank and file of individual depositors. To give such sureties a preference would be a manifest injustice which we think the law does not contemplate. The United States has provided by law for suretyship of this character in order to preserve the integrity of bankrupts’ estates, but it is not, nor has it assumed to become, the protector of such sureties by giving them the benefit of the preference which in other cases it claims for itself. We hold that the payment made by the surety in this case was not made to the United States, either directly or indirectly, within the meaning of the act above quoted.

The judgment or order below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DAMAGES TO PROPERTY FROM OPERATION OF RAILWAY.
    [Circuit Court of Lucas County.]
    Toledo Railway & Terminal Co. v. Bridget Meinen.
    Decided, February 18, 1905.

      Railways — Measure of Damages from Cinders, Noise and SmoTce — Form of Question in Arriving at — Charge of Court.

    Property situated within fifty feet of that part of a street upon which a railroad is operated is “near" thereto, within the meaning of Section 3283, and the measure of damages to which the owner is entitled is the difference in the value of the property before and after the alleged injury.
    Haynes, J.; Hull, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.
   This ease was brought in the court of common pleas by Bridget Meinen against the Toledo Railway & Terminal Company. The petition sets forth that the plaintiff was the owner of lot 25 Machen’s Addition to Ellenboro, East Toledo; that on lot 25 she had erected a building that was to be used as a boarding house, containing seventeen rooms, with several sleeping rooms on the second floor, and living rooms on the first floor. Lot 25 is bounded on one side, the easterly side, by an alley, and on the southerly side by Pratt street; it is triangular in shape and runs out to the point of the alley and Pratt street. The house that was built on this lot fronted on this corner and extends across the corner from the alley to Pratt street and leaves a little triangle in front, or a sort of a yard, and faces towards the east. It is a distance of forty-seven or forty-eight feet from the line of the railway on the northerly corner and on the southerly side it is forty-nine or fifty feet. The line of the railroad comes around in that neighborhood and then there is a spur to the blast furnace, so called; and this extends around to the north side of this property a distance, as I have said, at the northeast corner of the house forty-seven and seventy-five hundredths feet; that by reason of the operation of its cars upon this spur and also upon the main track, the property- is greatly injured by cinders, sparks, smoke and noise.

The case was tried to a jury before Judge Reed, of San-dusky, and there is a great volume of evidence. The case was very troublesome to try, so far as the witnesses were concerned, in propounding the questions to them and getting the answers, for the court said, as it should do, it would confine the damages to the injuries sustained, to the point where the railroad crosses Pratt street and confine them to such injuries as were not suffered in common with all the country thereabouts. In taking the testimony the questions were put mainly as to the value of the property before and after the operation of the railroad, and confined as far as possible to the crossing of Pratt street.

It is claimed on behalf of the railway company that this theory of the injury, the questions put to the witnesses, was all wrong. Objection was made to the form of the questions; and they contend here that the questions should not have been put in that form. As I understand the brief of counsel, they claim that the questions as to the effect of the operating the road by the place should be confined to the facts as to what was done' and to the noise, smoke, sparks and cinders — the injuries; that then the jury should find a verdict from those facts.

But we think the law of this case is- well laid in the case cited, Railway v. Gardner, 45 Ohio St., 309, a case which was practically followed and approved by the Supreme Court of the United States in a case brought under the same law, Shepherd v. Railway, 130 U. S., 426, decided in 1888; that form of question is approved and the- rule is laid diown. It is practically the difference in the value of the property before and after the alleged injuries.

Now the plaintiff below produced, I think, three witnesses; and the defendant below produced about a like number, and these questions in this form were put to the witnesses; and we think they were put with proper limitations and with proper care by counsel. It is difficult to get a witness to understand and answer specifically touching the injuries that would result from crossing Pratt street, and not to include the injury that would result from operations on either side of Pratt street; for virtually there is the same injury to the property from operations on either side of Pratt street. And some of the witnesses do not attempt to decide that; they said they would give the whole injury and let the count divide it up; that they could not do it. I think the highest estimate put by anyone on the damage to the property from operations in the street was $1,000. I think one of the witnesses estimating the damages arising on either side of the street placed it at $1,250; another witness placed it as low as $100 — some $200 and $300. It is quite evident that the damages from the operation of the road in Pratt street are not $1,000, as testified to by the witness, when the estimate that the witnesses placed on the value of the whole property was only $3,000. Only a small portion of the damage results from operations in Pratt street, and the whole damage, if that ratio Were, maintained, would eat up the property and have something to spare.

The truth is, that the damage was not as great as that witness placed it, or attempted to; and we think, after giving the matter very careful attention, that the highest damage that should have been awarded, or could properly have been awarded by the jury in favor of the plaintiff below was $250, considering the value of the property, and estimating the proportion that Pratt street ought to bear of those damages as compared with the whole damage to the property.

Now this woman built her house in that section of the country for the purpose of having boarders from the railway companies. They were not a great ways from the Lake Erie shops, and there were other 'institutions and manufactories down there; they were in a district of that kind; in a district where it was expected in the ordinary course of business there would be smoke and noise, those various elements of which she complains from the use of this railway.

Some objection is made to the charge of the court. Now we think the charge to the jury was very full, and fairly stated the law and was carried forward with great care on the part of the court, and kept within the decisions of the higher courts. It was difficult to explain. One of the difficulties that arose was from the failure of the witnesses to comprehend the subject, and another difficulty was, that the jury when they came to put on the damages that have been caused by the operation of the railroad, estimated it without stopping to pay much attention to the rule of law as laid down to them by the court, requiring them to consider only the damage resulting from the operation of the road in the street.

King & Tracy, for plaintiff; in error.

Kohn & Northup, for defendant in error.

Now as a result, we have come to this conclusion in this case: If the plaintiff will remit the damages down to $250, the verdict may stand; otherwise the verdict will be set aside as being excessive and the judgment reversed.

I omitted perhaps to state one point in the charge that was objected to, that the court stated that this property was so near to the railroad that it came within the statute (Section 3283). We think under the circumstances that the charge was proper enough, because it is so near, on the whole testimony, as to justify the charge that as a matter of law it was “near to” the railroad, within the meaning of the statute. A judge of the Supreme Court of the United States (Harlan) has decided and laid down the general rule for that court, that if the property was so near the railway'that it could or did receive injuries from the operation of the road in the form of cinders-, smoke, or matters of that kind, they were entitled to recover; and the evidence here is, that it was within a distance of fifty feet — ■ less than that. It was proper for the court to say that the distance was such and that it was within the statute.


text:
    ARE CITY FUNDS AVAILABLE FOR. WHICH BONDS HAVE BEEN AUTHORIZED.
    [Circuit Court of Lorain County.]
    John W. Emmert, Jr., v. The City of Elyria et al.
    Decided May 8, 1905.

      Street Improvements — Discretion Given Board of Public Service — As to Material to be Used — Section 45a of the Municipal Oode — Relating to Availability of Municipal Funds — Open to a Dual Interpretation — Officials not Bound to Adopt Correct Interpretation at Their Peril.

    1. The fact that council in authorizing a street improvement did not decisively specify the kind of material to be used, can not be held, in a suit by a tax-payer who has watched the contract to completion, to invalidate the action of the board of public service in awarding a contract for one of the materials named by council.
    2. Section 45a of the Municipal Code, relating to the .requirement that the funds for an improvement be in the city treasury before the work is undertaken, is fairly open to two constructions; and where a city solicitor in good faith’advises the board of public service that the funds for a proposed improvement may properly be certified as in the treasury, whereas the bonds therefor .have been lawfully authorized but have not yet been sold, the issuance of a certificate by the city auditor that the funds for the improvement are then available is not sufficient, should this interpretation be erroneous, to sustain a charge of fraud and thereby invalidate the contract.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an appeal from the Lorain County Common Pleas Court. Plaintiff, as a resident tax-payer of the city of Elyria, in said county, having applied in vain to the city solicitor to bring suit, commenced this action to enjoin further payments to the Barber Asphalt Company- on its contract of July 7th, 1904, with said city for the improvement of Middle avenue. Said contract is claimed to be void because:

First. The ordinance failed to specify definitely the kind of material to be used.

Second. Because no plans -and specifications were on file as provided by the ordinance.

. Third. Because no valid or seasonable certificate, as required by Section 45 of the Municipal Code, was filed by the city auditor, showing that there was sufficient money then available in the city treasury for said improvement.

Fourth. Because, to the knowledge of the asphalt company, when it entered into said contract, there was¡ in fact, no sufficient amount of money then available for said purpose.

The evidence shows that the ordinance of the city of Elyria passed May 10th, 1904, orders the construction of a pavement on Middle avenue in accordance with the prior ordinance passed April 12th, 1904. The ordinance of May 12th, 1904, specifically describes in detail the kind and other particulars of the improvement, and also orders the pavement to be constructed in accordance with the plans, specifications, etc., therein adopted. Section 6 of said ordinance of April 12th, 1904, reads as follows:

“That the plans, specifications, profiles, estimates heretofore prepared by the city engineer and now on file in the office of the board of public service be and the same are hereby approved. ’ ’

The resolution of necessity passed March 22d, 1904, provided for “brick, asphalt, or other material as may be hereafter determined. ’ ’

It is true that these proceeding’s did not decisively specify 1he kind of material to be used, but allowed the board of public service to exercise its discretion in choosing one of the materials named. This, it is claimed, was an unwarrantable delegation by council of its legislative authority. But council having at least authorized the use of the material that was in fact adopted, we can not now, at the suit of plaintiff, brought after he and all whom he represents, had watched this contract to its completion, give countenance to the claim that such authority was invalidated merely because the board was sought to be invested with a discretion whereby it might have chosen some other material. The advantages to be derived by the city from competitive bidding are plainly enhanced by clothing the board with a latitude of choice as to materials, and the Legislature has, in some measure at least, set the seal of its approval upon the practice, in Section 60 of the Municipal code, as amended April 21, 1904 (97 O. L., 123). This section proivides that special assessments theretofore or thereafter made shall not be invalidated by this practice; and, under the circumstances here, we hold that the contract in this case is also unaffected thereby.

The evidence further shows that there was no sufficient warrant in fact for the allegations of the petition that plans and specifications of the improvement were not regularly on file, and we find the contrary to be true.

It also appears from the evidence, that a certificate was made 'by the auditor in due form, showing that there was sufficient money in the city treasury to pay for the improvement, but that such certificate was not made until after the council proceedings were all had and the contract for the improvement was about to be let. We deem it unnecessary now to discuss the objection to which this situation gives rise, inasmuch as this court expressly held at a recent term in this county, in the case of Braman v. Elyria, 5 C. C.—N. S., 387, that a certificate thus filed is in due season.

The question of real difficulty, however, in the present case arises from the circumstance that the certificate filed was untrue in fact to the knowledge of all parties, unless it falls within the saving of Section 45a of the code, as contained in the amendment of October 22d, 1902. This section provides that “money to be derived from lawfully authorized bonds or notes sold and in process of delivery shall, for the purpose set forth in Section 45 of this act, be deemed in the treasury and in the appropriate fund.”

With much ingenuity and plausibility it is argued on behalf of the defendants that the hindrances to municipal improvements, sought to be obviated by this amendment are, on the one hand, those occasioned by the necessity of prolonged advertising in the case of the sale of bonds, and, on the other hand, those incident to the practice of selling municipal notes for future delivery from time to time as the money is actually needed by the city- for disbursement in the course of its business, thus saving the interest on premature loans.

D. J. Nye, for plaintiff.

E. G. & E. C. Johnson, W. B. Johnston and F. M. Stevens., for defendants.

In other words, this contention assumes that in two distinct classes of cases the money may be deemed in the treasury for the purposes of Section 45, viz., first, when bonds have been lawfully authorized, and secondly, when notes are sold and in process of delivery.

In the present case it is conceded that bonds had been lawfully authorized, but they were not sold and in process of delivery when the certificate was filed.

It is claimed by plaintiff on the other hand, that the two qualifying phrases “lawfully authorized” and “sold and in process of delivery” apply to bonds and notes alike.

The city solicitor, however, took the former view, and so advised the board of public service, at their request, before the contract was let. Tie is by law made the legal adviser of that body, and they acted in good faith in accordance with his view. The asphalt company, as we find, likewise acted in good faith upon a similar interpretation of the statute.

There was no actual fraud. Section 45 was literally complied with. The only question remaining, is whether constructive fraud can be predicated of this erroneous interpretation of the statute, if it was erroneous. We do not find it necessary to construe Section 45a further than to say that it is fairly open to either interpretation, and we can not hold that the parties were bound to interpret it correctly at their peril.

They were entitled, under the circumstances, to rely upon the literal compliance with Section 45. The fact that the certificate filed in accordance with that section might possibly prove to be false, when the parties in good faith and upon legal advice, provided for by law, believed it to be true, is not suffi-i cient to sustain the charge of fraud and thereby invalidate this contract. The petition will therefore be dismissed.


text:
    INJURY TO A PASSENGER BY A DERAILMENT.
    [Circuit Court of Lorain County.]
    The Cleveland & Southwestern Traction Company v. Theodore D. Ward.
    Decided, May 8, 1905.

      Evidence — That the one Injured has a Family — And as to an Old Bréale in a Gar Wheel — Negligence—Speed of Gar — Flat Wheel —Gare in Providing Safe Wheels — Charge of Gourt — Proximate Cause — Earning Power — Verdict not Excessive.

    1. The admission of evidence that one, suing for damages because of an injury, has a family does not constitute reversible error, when the court instiucts ¡the jury that no damages should be allowed because the plaintiff i-s married or has a family.
    2. Testimony to the effect that a break in a car wheel was an old break, is not rendered incompetent because the appearance of (the iron was not described.
    3. An allegation of negligence in running a car at a high rate of speed provides a sufficient basis for testimony to the effect that the wheels humped on the rails as the car ran.
    4. A charge, such as the one given in the case a.t. bar, with reference to the care required of an interurban railway company to avoid the use of cracked or imperfect car wheels, properly states the law; and the definition, of proximate cause is also sufficiently accurate.
    5. While it would be eminently proper to charge a jury to the effect that, in the absence of evidence as to the earnings of the plaintiff, the jury may use their common knowledge as to what persons similarly employed are accustomed to earn, yet a refusal to give suoh a chaige does not constitute error.
    6. A verdict of $4,000 to a laboring man, fifty-six years of age, who has sometimes worked on a farm and sometimes driven a team, and who has been permanently injured by the derailment of an interurban car upon, which he was a passenger, is not so high as to indicate passion or prejudice on the part of -the juiy.
    Marvin, J. (orally) ; Winch, J., and Henry, J., concur.
   The case of The Cleveland & Southwestern Traction Company -against Theodore D. Ward :s a proceeding in error, brought here for the purpose of reversing the judgment of the court of common pleas. The parties here are reversed from what they were in the court of common pleas.

Ward was a passenger on car No. 65 of the traction company, which left Oberlin westerly at a little after five o’clock on the evening of February 26, 1903. The car was derailed some distance west from Oberlin and AVard was injured. A suit was brought by Ward to recover for those injuries. The petition charges that the derailment was caused by the negligence of the railroad company, and that such negligence consisted of two things; that one of the wheels under the car on which Ward was a passenger was cracked and unsound, and that by reason thereof it broke, causing the derailment; and that the ear was run at an excessive rate of speed, which contributed to the derailment.

The evidence shows that immediately after the accident an examination was made, and that the front wheel on the right side of the forward truck was broken off. This wheel was of iron; it had openings in it between the outer rim and the hub, and the iron part of the wheel, bounded by the rim and hub and these openings were spoken of by the witnesses as spokes; one of these spokes was broken off and the rim broken off either side -of such spoke so that a considerable section of the rim was entirely broken out.

This may have been the cause or it may have been the result-of the derailment.

On the part of the plaintiff below it was urged that it was the immediate cause of this derailment, and was occasioned by the negligence of the company in not having a proper wheel on this truck.

The trial resulted in a verdict and judgment for the plaintiff below, and proper proceedings were had to bring the ease here.

One of the exceptions made by the plaintiff in error is, that the plaintiff below was permitted over the objection of the defendant below to answer this question — the plaintiff having first testified to the fact of his injury, the car being derailed and the like, and that he was fifty-six years of age; he was asked: “Are you married? A. I am.” “Q. Children?” Here objection was was made by counsel for the defendant. He answered, “I have one.” An exception was taken to each of these. Objection was not made to the first question, but an exception was taken, so that the plaintiff in error is entitled to have this considered.

Of course the fact of whether this man was married or single could have no bearing whatever on his right to recover, or on the amount which he should be permitted to recover. The fact that he was a father could have no bearing on that whatever.

It is urged, however, on the part of the defendant, that though technically these answers would have constituted no part of the plaintiff’s case nor in any wise affect his right to recover, fhat they were not prejudicial to the railroad company; that the fact of his being married would have come out, as it did, later on, by his saying he visited at some place with his wife, or perhaps that his wife took care of him in his sickness. Nothing came out about the child. But still, if this was an error, that fact, if it came out any other way, can not help it any. But the court in its charge to the jury, -at page 320, took away, as we think, any possible injury that could come or prejudice that could come to the plaintiff in error by the admission of this evidence. The court said: “If the plaintiff’s ability to labor and earn money has been impaired by reason of the injuries complained of, that circumstance may be considered; but no damage should be allowed because the- plaintiff is married or has a family.”

We think with that charge, taking from the jury any consideration as to the family, that there was no prejudice to the plaintiff in error in the ruling on this question.

The first witness introduced was a man by the name of Kearins, who was the motorman on the ear which was derailed — ear 65. He testified as to the accident, and as to the position of things, the ear and trucks and the like after the car was derailed and thrown over on its side, and then that he made an examination of the broken wheel, and, by the way, he examined it with a lantern, for it was dark when this accident occurred, and on page 12 he testified over objectio that the break in the spoke was black, showed where it had rubbed together, and was shining. And then further along he was permitted to testify that it was an old break. Not only was this witness permitted to testify this was an old break, but a number of other witnesses where objections were made.

It is urged on the part of the plaintiff in error here, that the court erred (as is shown on page 13) by permitting this witness to testify that one of the wheels had a flat side, that is, that the circumference was not a complete circle, or rather the boundary a complete circle, that the circumference did not completely surround a circle, but that it was flat on one side. An examination of the record shows the court took that out, not only at that place but every other place where attention was called to it; no witness was permitted to testify that there was any flatness to any one of the wheels of this ear. But he was permitted to testify this was an old break and, as I said, other witnesses were permitted to testify to the same thing. It is said that this is error, that the witness should only have been permitted to testify as to how it looked, what its appearance was, and leave it to the jury to say whether it was an old break or not; that testimony related to the break of the spoke and one of the breaks, at least in the rim of the wheel; and some of the witnesses, I think Kearins is one, testified as to the appearance of the break, saying it was an old break, both in the rim and spoke.

We think there, was no error in admitting this evidence, any more than there would be in admitting evidence that one appeared to be an elderly man; one could hardly be expected to say how many wrinkles there was in the face, how gray his hair was, but the general result; one looks over a man and says that is an elderly man or that is a young man; one looks at a house and is able to say from its looks whether it has been recently painted, or has been painted a long time; and a matter of common knowledge is the looks of iron which has been broken for a long time, without going into details as to just how it appeared on the surface, on the face. We think it was permissible for witnesses to testify there was an old break in the.wheel.

Kearins was permitted to testify and so were other witnesses that one of the wheels bumped along on the rail as it ran; that there was a bumping motion of the car; several witnesses were permitted to testify to that.

It is urged that that was error, because it is said that that tended to show that there was a flat place on the rim of this wheel or on the circumference of this wheel, and no negligence was charged on that account.

We think it was competent to show how this car was running; negligence was charged as to the rapidity with which the car was moving, and the bumping may have borne on that.

But whether or not it would be 'admissible on that ground, if one of the wheels was bumping along as it ran, it might have a tendency to cause that old break in the wheel to become a new break — or might have a tendency to cause that wheel to break, which is charged was negligently allowed to be on the car. We think it is admissible in the same way it would be admissible to show there was a bend in the road, a sudden bend in the road at the place of the break; no negligence charged and no negligence would exist because of the fact there was a bend in the road, but in describing the situation at the time ,of the- accident, and the fact that the wheel broke, we think it would be entirely competent to show that there was a bend in the- road a.t that place, as tending to show that the breaking -o£ the wheel was the cause, not the result of the accident.

Exception is taken to the action -of the court in reference to the charge, and requests- which were made- by the defendant below to charge; but we think that the court gave every one of the requests that should have been given. The fourth request which was asked was given, and that reads:

“While the defendant is bound t-o exercise the highest degree of care and diligence- in providing a car, safe in all its machinery and wheels, yet if the defendant is not a manufacturer of the ear wheels which it used under car 65, at the time of the injury to plaintiff, and used the proper care in the purchase and inspection of the said wheels, and purchased the same from a competent and reliable manufacturer and carefully inspected the wheel which broke, on the day in question-, a reasonable time before the plaintiff became a passenger on said ear, it is not liable for any injury resulting from any hidden ,or latent defect in said wheel which it could.not .have discovered and provided against in the exercise of due care and diligence.”

The ninth request was refused; but we think that every proposition of law, which was proper to be given, which is embodied in the ninth request, is covered by the fourth request which was given. The ninth reads:

“If the defendant used proper care in the purchase of the wheel in question, and carefully inspected it before it was used on the day the accident occurred, and such inspection disclosed no defeet-in said wheel, and said wheel had been purchased from a competent and responsible manufacturer, then the defendant is not liable for an injury occurring to plaintiff from hidden defects in said wheel which it could not and did not discover in the exercise of due care and diligence.”

There .was no occasion for the court to. repeat what had already been given in the fourth.

Complaint is made that the court did not give the eighth request, which reads: .

“That should they find that plaintiff is entitled to a verdict, then in arriving at the amount to be given him, one of the things from which the said amount shall be determined is the sum he earned theretofore; and if there is no testimony as to the sum he had theretofore earned, the jury may, in arriving at said amount, use their common knowledge of what men earned who did such work as the testimony shows the plaintiff did.”

The testimony shows that the man was a laborer; he worked sometimes at farm work, and drove team and the like; but no evidence was introduced as to his earning capacity, except as that comes from the common knowledge of what that kind of men earn.

It would have been eminently proper to have given this request, but we think there was no error in refusing it.

One of the eases cited is Fisher et al v. Janson, 21 N. E., 598. Another the case of Baker v. Manhattan R. R. Co., 118 N. Y., 533. Baker, the plaintiff, was a young woman, a teacher in the schools and of music. The evidence showed that she was injured, and that she was unable to use her hand on the piano as she had done, and that she was deprived of her income as a te-aeher in the school for some time; but no evidence was introduced tending to show what she earned, either as a teacher of music or a teacher in- the schools. The court of appeals held that nothing should have been allowed, because there was no evidence of what her earning capacity was. But that is not claimed here; this request reads:

“Then in arriving at the amount to be given him, one of the things from which said amount shall be determined is the sum he earned theretofore.”

In the case of Murry v. Missouri Pac. Ry. Co., 13 Southwestern Reporter, page 817, the second clause of the syllabus recites some facts, to-wit: That a man was injured and that the women in his family took care of him, nursed him, and no evidence was introduced tending to show what that service was worth; but the court said that it was proper for the jury to consider, just what was asked to be considered here, their knowledge of what such things were worth. But in the opinion the court used this language-:

“Jurors may well be presumed to be reasonably familiar with the value of such services (that is, the services of these women who nursed the man in their own family), and they may measure the same by their own knowledge and experience.”

Although it would have been proper to give the request, it was not error to refuse it. Jurors need not be instructed in what they are presumed to know.

Complaint is made of the definition of proximate cause given in the charge. The definition complained of is found on page 319 of the bill. The court said:

‘ ‘ By the term proximate cause is meant that which naturally and probably caused the injury.”

Perhaps complaint would not be made if the definition had ended here, but this is added, “that is, the cause which leads up to or might naturally be expected to produce the result.”

The difficulty with that, and there is a difficulty with .it, is, that the court said that the proximate cause was that cause which, might naturally be expected to produce the result. It must have produced the result. It is that cause which did produce the result, the court had before said that, and he says “or that might naturally be expected to produce the result.” He limited that a little too much for the defendant; for whether it might naturally be expected to produce the result or not, if it is the cause which did produce the result, then it is the proximate cause. If it is that which immediately produced it.

But in any event there was nothing to the prejudice of the defendant below in that definition of proximate cause. If it read, “by the term proximate cause is meant that which naturally and probably caused the injury,” then that language “which might naturally be. expected to produce the result,” there would be error; but he says, “It is that cause which produeed the result,” not a thing which does not turn out to be a cause, but might have been; so there was no error in the charge in this regard.

Complaint is also made of this language in the charge:

“If you find that said wheel had been so cracked or broken for some time before the accident, and that said defect was in-such a place and of such -a nature, that it could have been discovered by the defendant, by a most careful and thorough inspection of said wheel, then- you would be justified in finding that the defendant was negligent in that particular. ’ ’

Now it is said this required more of the defendant than ought to be required. It is conceded that the defendant was bound to use the highest degree of care, both' in providing machinery and in conducting the business, that- is conceded in the fourth request made by the defendant below, which has already been read’. And certainly to make a most thorough inspection is not using a higher degree than the highest degree of care. And the defendant below had requested this to be charged, and the court charged it: “While the defendant is bound to exercise the highest degree of care and diligence in providing a ear, safe in all its machinery and wheels,” etc. Now it is said it is requiring more than that to require a most rigid inspection. We do not think so. We think it does not require a higher degree than the highest degree.

C. W. Gollister and E. G. & H. C. Johnson, for plaintiff in error.

Sidles, Green & Sidles and Lee Stroup, for defendant in error.

It is urged the verdict was for too much. The damages allowed was for $4,000. The man is permanently injured; the verdict is not so high as to indicate that the jury was governed by bias or prejudice in allowing that much, and the judgment is affirmed.


author: Winch, J.

text:
    FALSE PRETENSES IN SECURING PAYMENT OF A DRAFT.
    [Circuit Court of Summit County.]
    Charles A. Semler v. The State of Ohio.
    Decided, April, 1905.

      Criminal Law — False Pretenses — By a Note Broker Who Procured the Cashing of a Draft — By Representing that Its Payment Had Been "Arranged For” — Checks and Drafts and What They Import)— Qualifying Verbal Representations — The False Pretense Charged, and the False Pretense Proved.

    1. A jury might well conclude from the facts and testimony disclosed in this case, that the cashier, who cashed the worthless draft presented by the defendant, was induced so to do by the representation that payment of the draft had been arranged for, rather than from trust and confidence in- the defendant arising from -a long course of similar dealings.
    2. A draft upon a bank, payable upon demand, is indistinguishable from a check, and either a draft or a check, considered alone, imports a representation that the drawer has funds to meet it.
    3. Where the false pretense proved was a different false pretense from the one charged, as a majority of the court find to have been the fact in this case, a judgment of conviction must he reversed, notwithstanding the aggravated nature of the offense committed.
    Henry, J.; Marvin, J., concurs; Winch, J., dissents.
    Error to the Court of -Common Pleas of Summit County.
   This is a proceeding in error prosecuted by Charles A. Semler to reverse a verdict and judgment of conviction rendered against him at the October, 1904, Term of the Court of Common Pleas of Summit County in the trial of an indictment for obtaining money by false pretenses.

The indictment charges that on January 23, 1902, Semler presented to Lorenzo D. Brown, as assistant cashier of The Second National Bank of Akron, a certain draft, reading as follows:

“$5,000.00. . Akron, Ohio, Jan. 23, 1902.

“On demand pay to the order of The Second National Bank, of Akron, five thousand dollars.

“To First National Bank, Sharon, Pa.

“Chas. A. Semler.”

The indictment further charges that he falsely represented to Brown that he then had on deposit in the First National Bank, of Sharon, Pennsylvania, a large amount of money, to-wit, five thousand dollars, which he had a right to draw out by draft in the ordinary mode, and that Brown, believing said representation to be true, cashed the draft at Semler’s request on the faith thereof.

Semler’s motion for a new trial was overruled, a bill of exceptions was duly perfected exhibiting all the evidence, and petition in error filed in this court. The error complained of is that the evidence fails to show that he made the fal°e pretense charged in the indictment.

An examination of the testimony discloses that Semler was a note broker; that he had formerly been employed by the First National Bank, of Akron; that both during and after his employment, he had been in the habit of making drafts for large amounts and having them cashed or placed to his credit at this bank, and that he thus acted in the transaction of his business as a note broker. On January 23, 1902, the Second National Bank of Akron held for collection a note in the sum of five thousand dollars made by the Cleveland Window Glass Company, and Semler called at the bank to take it up. lie told Brown, the assistant cashier-, that he had “another note to take up of the same amount at another bank. ’ ’ He procured the blank drafts from Brown and filled them out for five'thousand dollars each in the form already described, remarking that he had “arranged for the notes in another place.” He gave Brown both drafts, one to cover the note which was there held for collection, and the other to be cashed for the purpose of taking up the other note at the other bank. He told Brown that the draft had been “arranged for, ’ and, at his request, Brown gave him five thousand dollars in currency and the note which they held for collection, and with the money Semler absconded, both drafts being after-wards returned unpaid.

Brown testifies that he can not tell whether or not he would have let Semler had the money if no verbal representations had been made; he had frequently cashed Sender's drafts before; but this time Semler said they had been ‘ ‘ arranged for, ’ ’ and he relied on that statement. If he had known that Semler had no money in the Sharon bank he says he would not have cashed the draft.

The cashier of the Sharon bank testifies that Semler had no money in their bank at that time, neither had he made any “arrangements ’ ’ with them in regard to these drafts.

Sender's counsel contend, first, that the evidence shows that Brown did not rely upon any representation made by Semler, but that he cashed his draft merely because he reposed trust and confidence in him from a long course of similar dealings. Without stopping to discuss this contention at length, we are content to say that our examination of the evidence leads us to believe that a jury might conclude the contrary from the facts and testimony as above described.

A second contention by plaintiff in error is that the draft, as such, could not of itself amount to a representation that Semler had money on deposit wherewith to meet it; that a check imports such a representation, but a draft does not, and that the characteristics which distinguish this instrument as a draft are its form, in that it was made payable expressly on demand; its being drawn on a bank in another state and not on a bank in this state, and Semler being known to reside and to keep his commercial account here and not there; and, finally, the instrument being considered and called a draft by the parties themselves and by bankers generally. We think, however, in view of the definitions of these terms, “draft” and “cheek,” in the negotiable instruments law (95 O. L., 187), declaratory as it is in the main of the common law upon that subject, and especially in view of the discussion of the terms “check” and “draft’.’ in the case of Oyster & Fish Co. v. Bank, 51 O. S., 106, 109, that a draft upon a bank, payable on demand, is indistinguishable from a cheek, and that either, considered alone, imports a representation that the drawer has funds to meet it.

A third contention made on behalf of the plaintiff in error presents to our mind a far more serious question, namely, that the verbal representation made by Semler so far qualified the representation-which his draft alone would imply as to render the latter incapable of amounting to a representation that he actually had five thousand dollars of money on deposit in the Sharon bank wherewith to meet it. The latter is the false representation which the indictment charges him with making. The representation which he, in fact, made consists of whatever the draft itself implied when considered in connection with his statement that it had been “arranged for” and in view of all the circumstances surrounding it. Let us suppose, for example,. that Semler had really called up the Sharon bank and obtained its promise to take and carry the Cleveland Window Glass Company’s paper to the amount of five or ten thousand dollars, and to honor his drafts for the face of such paper when so placed with them. No deposit of money in Sharon would on this supposition be either necessary or contemplated. But would it not in such case be strictly true that the drafts had been arranged for, and is it not altogether likely that some such arrangement was the idea really conveyed by Semler’s words and conduct to Brown’s mind, instead of the notion of an actual cash deposit by Semler in the Sharon bank?

It is perfectly true that Semler’s representation, even as thus interpreted, was, under the evidence in this case, just as much a false pretense as the one with which the indictment in fact charges him, but is the false pretense that is proved here the same false pretense as the one that is charged, or is it a distinct and different one?

Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.

E. M. Eagelbarger, Prosecuting Attorney, and W. E. Slabatigh, for defendant in error.

The cashier of the Sharon bank illustrates this distinction clearly when he testifies in one place that on January 23, 1902, Semler had no funds in his (the cashier’s) bank; and in another place testifies further to the fact that “there was no ‘arrangement’ made with our bank.”

If the indictment had charged that Semler falsely represented that he had “arranged” with the Sharon bank to honor the draft, there would be no difficulty; nor, the indictment being as it is, would any embarrassment arise if the import of the draft it‘self had not been qualified by Semler’s oral statement. Was that import contradicted, or was it merely weakened, by the oral statement; or was it rather an alternative representation that that he had the money to meet the draft on deposit, or else that he had arranged with the drawee to honor it anyway ?

We are all of the opinion that the evidence in this case clearly shows that the offense of obtaining money by false pretenses was committed by Semler, and that, too, under peculiarly aggravated circumstances, which, so far from commending him to the leniency of the court, must invoke rather the law’s unmitigated penalty upon him; but a majority of the court find themselves unable to take any other view of the facts in evidence and the law applicable to this case than that the offense proved is not the one charged; and we, therefore, hold that the judgment of the court below, being contrary to law, must be and it is reversed for error in refusing the motion for a new trial, and the cause is -remanded to the court of common pleas for further proceedings according to law.

Winch, J.

I dissent in this case for the reason that I believe tha\ the pretense really made by the accused when he said he had arranged for the drafts was a matter to be determined by the jury from the circumstances connected with the uttering of the words, the conduct of the accused, his past relations with the 'bank, and all the pertinent facts of the case. The jury having found that he, in fact, meant that he had money on deposit at Sharon, it would seem that it is not for us to say that he might have meant something else.

It is to be regretted that the prosecutor, having asked a competent witness the meaning among bankers of the words “arranged for,” when used as in this case, subsequently withdrew the question and it remained unanswered. Had this question been answered there would have been no trouble or uncertainty in arriving at a conclusion one way or the other in this ease.


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    NECESSARIES FURNISHED TO A QUARANTINED FAMILY.
    [Circuit Court of Franklin County.]
    Aaron Meily v. The City of Columbus, Ohio.
    Decided, March, 1905.

      Municipal Corporations — Necessaries Furnished to Quarantined Family — Contract for, not in Writing — Later Act Controls Charter Law —Special Provision Controls a General Provision.

    A petition which pleads an oral contract with a board of health for the furnishing of necessaries to a family quarantined on account of small-pox is go'oid under Section 2128, et seq., against a general demurrer.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
   Plaintiff recovered a judgment before a magistrate for $33 and costs against the city of Columbus, on an account for necessaries furnished a family resident in the city during the time said family was quarantined for small-pox, in January, 1903, pursuant to an alleged oral contract with the board of health of said city. The city'appealed the case to the- common pleas court where a demurrer was sustained to the petition. Plaintiff not desiring to amend, submitted to a judgment against him for costs, and brought this proceeding to reverse the judgment of the common pleas court, alleging error in sustaining said demurrer.

The demurrer was evidently sustained upon the theory that the- contract, to be valid, should be in writing, pursuant to the requirement of Section 63 of the Charter Law of the city passed March 7, 1893, and found in 90 O. L., p. 147, to-wit:

“All contracts shall be in writing, signed and executed in the 'name of the city by the head of the appropriate department and approved by the board of public works by a yea and nay vote before they are binding upon the city.”

But, later (May 7, 1902), the Legislature enacted a general law regulating boards of health, and prescribing their duties (95 O. L., 421), of which Section 2128 provides in part as followsi:

“When a house or other place is quarantined on account of a contagious disease, it shall be the duty of the board of health having jurisdiction to provide for all persons confined in such house or place, food', fuel, and all other necessaries of life, including medical attendance and nurses when necessary, the expenses so incurred, except those for disinfection, quarantine or other measures strictly for the protection of the public, when properly certified by the president and clerk of the board of health, * * * shall be paid by the person or persons quarantined when able to make such payment, and when not, by the city,” etc.

By Section 2138 of the same act it is made the duty of the city council, in case of threatened epidemic, if funds are. not otherwise available, to borrow money to- meet the expenses of the board of health and “upon application and certificate from the board of health, to pass the necessary appropriation ordinances to pay the expenses so incurred and certified.”

It is averred that the necessaries were furnished pursuant to contract, that the account has been certified by the president and clerk of the board of health, that the quarantined family are not able to pay and that deoqjand has been made of the city.

This, we think, makes a good petition, as against a general demurrer.

The latter act, so far as there -may be any conflict between it and the charter law, governs. It would govern also because it is a special provision as against a general one; and because a contrary construction would defeat the whole purpose of the act.

O. H. Hosier, for plaintiff.

James H. Butler and David T. Keating, for defendant.

If dealers were required to wait for a written contract and the passage of an ordinance appropriating the money before furnishing supplies under such circumstances with any assurance of payment, the quarantined family might die of starvation or of cold.

If food and fuel were not forthcoming as needed, the family would be justified in breaking the quarantine in order to solicit or earn a living, thus spreading infection throughout the city.

The very emergencies of the case demand prompt and effective action upon the part of the board of health, without awaiting the slow processes of the law required in other matters.

The judgment of the common pleas court will therefore be reversed and the cause remanded with instructions to overrule the demurrer to the petition.


text:
    SPECIAL BENEFITS FROM STREET IMPROVEMENT.
    [Circuit Court of Franklin County.]
    Samuel Borger et al v. City of Columbus et al.

    Decided, March 25, 1905.

      Street — Improvement of — Evidence as to Special Benefits Conferred— Inferences from Character of the Improvement — And Conduct of Abutting Owners.

    1. There can he no doubt that the improvement of a street with the Hailwood block confers a special benefit on the abutting property.
    2. While abutting owners are not thereby estopped from challenging an illegal assessment, the fact that they asked that the improvement be of a certain character and the contract awarded to a specified company, may be taken as evidence that they were aware of the cost and acquiesced therein, and a special benefit was thereby conferred on their property.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
    Heard on appeal.

       Affirming Borger v. Columbus, 3 N. P.—N. S., 261.

   Plaintiffs in their petition in this cause admit that a special benefit accrued to their respective lots, by the improvement set forth in their petition, claiming, however, that it did not exceed the amount of $2.50 per front foot. The city, by its answer, claims that the assessment is not in excess of benefits.

The testimony of plaintiff’s witnesses, with one exception, is that there was no special benefit from the improvement. That the market value of the property -was no higher after than before the improvement, whilst that of the city is that the benefit is greater than the assessment. One witness, David Scolie, for defendant, states that the cost was too great in his opinion, but the benefits were $6 per front foot. The witnesses of plaintiff are residents, owners, and occupiers of the property assessed, whilst those called by the city are residents in other parts of the city, not owners of any property upon State street, and mostly persons engaged as real estate agents. All these, with the exception of Scolie, testified that the special benefits were greater than the assessments. Upon this testimony the court is asked to determine the 'amount of special benefits, if any, to the property from the improvement.

Plaintiffs contend that the testimony of those owning property and residing upon the street improved are for this reason entitled to more credit, being the better judges as to the values of their property before and after the improvement, whilst the city contends that its witnesses, because of their occupation as real estate agents' ’and wholly disinterested in the result of this cause, are the better judges, and hence their testimony is of greater weight. The question is to be determined from all the testimony considering the interest of witnesses along with the opportunities of knowing the matters about which he or they are called -upon to testify.

First, we have the admission of plaintiffs that their respective properties are benefited at least $2.50 per front foot — one of plaintiffs’ witnesses testifies it amounts to about $3 front foot. Scolie, who owns and occupies property upon the street that is assessed, considering the condition of the street before the improvement, is of the opinion that the benefit amounted to $6 front foot. Several witnesses testify that following the completion of the improvement came a serious depression in the market value of real estate; that the property upon this street like all other real estate similarly situated in the city was affected by the depression; that there was but little or no demand for real estate and scarcely any sales particularly upon this street, and hence it could not be said that the reason why owners of property upon this street were not able to get any more for their property after than before the improvement, was because it was not benefited. If there was no demand because of the depression in prices; the improvement could not create a demand. It must be admitted, as it is in this case, that a street improvement of this character is a special benefit to abutting property. What that benefit is here must be determined from the testimony, in which we find a serious conflict.

We notice by an exhibit introduced that some of the plaintiffs in this ease by petition to the board of public works asked that the improvement be made with Hailwood Block and the contract awarded to the Ohio Paving Company. This shows that these parties were aware of what the improvement would cost, and it may be properly treated as an acquiesence on their part, if not an expression of a desire, that the improvement be made. Whilst this does not estop them from challenging an illegal assessment, yet we think it tends to prove that owing to the change the improvement would make in the street a special benefit would accrue to their property.

Geo. B. Okey and F. A. Davis, for plaintiff.

James M. Butler, for defendants.

The conclusion we have reached is that eleven of the semiannual installments are equal to the special benefits .accruing to the respective properties of the plaintiffs from the improvement, and it is therefore ordered and adjudged that all assessments over and above said amounts be enjoined and canceled. Upon the question of interest we agree with the judgment of the court below, and the judgment here upon that question will be the same. The costs will be taxed to the city.


text:
    CONTROL OF MUNICIPALITY OVER. BRIDGES.
    [Circuit Court of Lucas County.]
    Harvey P. Platt v. The City of Toledo.
    Decided, February 27, 1905.

      Municipal Corporations — Ordinance Controlling Use of Bridges — Section 2640 — And the Powers Therein Granted.

    An ordinance requiring all drivers in passing over bridges within the municipality to keep on the right-hand side, and prohibiting passing around another vehicle going in the same direction while on the bridge, is a valid exercise of the power conferred upon council by Section 2640.
    Hull, J.; Haynes, J., and Parker, J., concur.
   Mr. Platt was prosecuted in the police court of this city for the violation of an ordinance passed for the purpose of regulating and controlling the bridges of the city, the manner of using them and driving over them. Mr. Platt was arrested for the violating of this ordinance in the manner in which he drove over the Cherry street bridge, which extends across the Maumee river. The ordinance prohibited driving over bridges, including the Cherry street bridge, on the left hand side, but-required all drivers to- keep to the right hand side, and also prohibited any -one driving upon the bridge from going by or passing another person driving in the same direction. Mr. Platt, in the affidavit, was charged with having violated these two provisions of the ordinance, to-wit, that he had passed over the bridge on the left hand side and that he passed by others going in the same direction. He was tried before Judge "Wachenheimer, in the police court, found guilty and fined five dollars and costs-. A bill of -exceptions was taken from the police court to the court of common pleas, where the judgment of the police court was affirmed. Then error was prosecuted to this court.

The plaintiff in error contends th-at the city had no power ■to- pass such an ordinance. The case seems to have been argued below mainly upon the power granted the city under Section 1692, Subdivisions X and XIII, relative to the control that is given to municipal corporations over vehicles for hire. This has been changed to some extent in the new code so as to- cover vehicles not for hire, but this transaction occurred bef-or-e the new code was enacted. In this court it vras argued by defendant in error that the city -had this power under •Section 2640, which provides that:

“The council shall -have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept -open and in repair and free from nuisance. ’ ’

It will be observed that this statute commits to the municipality th-e care, supervision and control of all bridges within the corporation. It seems to us that that carries with it the power to pass all necessary ordinances looking toward the care, supervision and control of bridges-. The city would be powerless to supervise and control bridges without the passage of ordinances, with that end in view. It is not necessary to give a definition of the word “control”; the best definition of “control” is the word itself: it means the control in the care of bridges in all reasonable ways. This statute gives to the city the supervision, also as well as the control, of the bridges and highways and their care. It evidently means that the city shall have power to do all that is necessary to control and supervise the bridges and the use of them, and as long as it exercises that power in a reasonable manner it is within this statute, and we think that an ordinance directing the manner in which drivers of teams shall pass over public bridges, is a reasonable exercise of this power. It is necessary for good order in the use of bridges of this character in a city of this size, where thousands of people are passing over them daily, as in this instance — it is necessary that there should be some provision as to the way in which drivers shall pass over the bridge. One of the most important things is to require all those coming from one direction to pass on one side and those coming in the other direction to pass on the other side, to avoid collisions, disorder and injury, perhaps to life.

The evidence in the bill of exceptions shows that when Mr. Platt came up to the bridge the right hand side of it was full of vehicles, with none on the other side, the draw being open, and, instead of taking his position in the procession, he passed over and. across the street railway track which lies in the center to the left hand side and drove up to the open draw so that he was the first one to go* over the draw when it was closed. There is no material dispute as to the facts, and in doing thus he did pass other teams on the bridge, which is prohibited by the ordinance. He drove alongside of them as they were standing still. The ordinance is not claimed to be unreasonable, but it is attacked on the ground that the city had no power to pass it. We are not required to determine whether the city has power to prohibit any one from going past another person driving in the same direction on the bridge. We might conceive of cases where this might seem unreasonable; for instance, to prohibit a man with a light buggy passing a wagon with a load of hay on it, but it is not necessary to consider that. The provision of the ordinance requiring drivers to always take the right hand side Mr. Platt violated, and it is clearly reasonable and proper, and, for a bridge like this, we may say a necessary regulation. It may be true, as claimed by counsel for plaintiff in error, that the city did not have power to pass such an ordinance as this under the old code — Section 1692, Subdivisions X and XIII, which relate to vehicles used for hire — but the power to pass it under Section 2640 is clear. We cite as sustaining our holding in this ease 11 O. S., 550, White v. Columbus. The judgments of the lower courts are affirmed.

W. H. A. Read, for plaintiff in error.

U. G. Denman, City Solicitor, and F. F. Crane, Assistant City Solicitor, for defendant in error.


text:
    DEATH FROM AN OVERCHARGED ELECTRIC LIGHT WIRE.
    [Circuit Court of Summit County.]
    Williard E. Wheeler v. Northern Ohio Traction Co.
    Decided, June, 1905.

      Electric Wires — Lamp in Panic, — Causes Death of Cashier — Wire Overcharged — '-Insulation—Prima Facie Case — Proof Required to Rebut —Negligence—Charge of Court.

    1. Where an electric light company contracts, with a bank to furnish it electricity for incandescent lights, requiring a current not to exceed one hundred and ten vo-lts, which is harmless, and such bank fits up its banking room with wires and lamps for that purpose, it owning the sarnie, and such company causes a current of electricity to pass over its secondary wires and into the bank, far in excess of the amount intended for lighting purposes, to-wit, of from seven hundred to a thousand volts, which kills the cashier of the bank while handling a lamp in the performance of his duties — Reid: That the fact of such excess of current entering the bank over the wires of the company makes a prima facie case of negligence against the company, and that it is error to refuse to so charge the jury when requested so to do.
    2. In such case, where the insulating material upon the cord attached to the lamp had become partially worn off by constant use, but still not sufficient to so impair the lamp as to produce any effect upon the person handling the same, when the current does not exceed one hundred and ten volts — Held; That it is error to charge the jury that if they should find that if the insulation had been perfect that the excessive current would not have killed decedent than they should find for the defendant.
    3. In such ca.se, it is not sufficient to rebut the prima facie case for the defendant to simply prove by witnesses that its transmitter was apparently in good condition after the accident and that its primary and secondary wires showed no evidence of having been in contact.
    Cook, J. (sitting in place of Henry, J.); Marvin, ¿T., and Winch, J., concur.
    Error to Common Pleas Court of Summit County.
   This ease is one of more than ordinary importance and presents some new questions, the solution of which is not entirely free from doubt.

The decedent, D. P. Wheeler, wias the cashier of the Citizens National Bank of the city of 'Akron.

The bank -had a contract with the defendant, the Northern Ohio Traction Company, to furnish it with electricity to light its bank with incandescent lamps and for no other purpose. The amount of electricity required for this purpose was 104 volts and should not exceed at furthest more than 110 volts as the incandescent lamp was only calculated to carry that amount of voltage, as the traction company well knew. The bank was the owner of the wires inside the bank and also of the lamps and placed the same in position, while the traction company was the owner and had exclusive control of the wires leading up to the wall of the bank where the same connected with the wires of the bank. Upon the alley adjoining the bank the traction company had a pole some thirty-six or forty feét high upon which there were three transformers. Into these transformers ran the primary wires of the traction company carrying a current of 1,040 volts and these transformers were intended to reduce the amount of the current to 104 volts which was carried over what is known as secondary wires to the various business places lighted by the company, and it was these secondary wires that carried the current into.the bank.

In this alley were also a large number of telephone and telegraph wires, but no other electric light wires but those of the traction company, as it was the -only person or company that had traction or light wires in the city of Akron. The bank for many years had had an electric lamp attached to a cord hanging from the ceiling which was used in opening the safe in the vault by throwing the light upon the dial of the safe. On Christmas morning, Mr. Wheeler, the decedent, as had been his custom for a number of years, on holidays, went to the bank at about 10 o ’clock in the morning for the purpose of opening his mail and seeing that every thing was right in the vault. He went to the vault, took hold of the handle of the door with his right hand and the electric lamp with the other to light him in opening the safe and immediately a current of electricity went through him of sufficient force to kill him. 1-Ie was found about 2 o’clock in the afternoon dead with his right hand tightly clutching the safe door and his left hand the electric lamp, two of the fingers on his left hand being entirely burned off.

The evidence shows that a current of electricity of 104 volts will not produce death or serious injury, and further that there were electrical disturbances the night before upon the wires connected with the pole on which the transformers were placed, and further there were electrical shocks in other business houses, the wires of which were connected with the same transformer as the wires of the bank. From these facts we are convinced that a very high current went through the deceased, certainly more than 500 volts and probably the full current of the primary wires, T,040 volts, and that this excessive current came from the secondary wires of the traction company leading into- the bank, and which was generated at its plant. Under these facts the plaintiff asked the court by special requests to charge the jury as follows:

“7. If'you find from the evidence that the defendant furnished to the Citizens National Bank electricity for pay and it was understood by the defendant and the bank and the employes of the bank, including the decedent, that the current so to be furnished was to be of a harmless voltage, and you further find that on this Christmas day the defendant sent or permitted to pass over its wires and into the bank a current dangerous to human life, without warning the bank or its employes, you may and should presume the defendant guilty of negligence, and the burden then would be on the defendant to remove the presumption and the plaintiff would not in the first instance be required to show how the dangerous current got on the defendant’s wires and into the bank.

“8. If you find from the evidence that on this day a dangerous current, one which would kill a man, passed over defendant’s wires into the bank building and onto the wires therein and such current killed Mr. Wheeler, the law will presume that the defendant was guilty of negligence and the1 burden would be on defendant to explain how the current was on the wire and remove that presumption. ’ ’

The court did not give these requests but gave two requests of defendant directly to the contrary. We think these requests of plaintiff should have been given to the jury and that the refusal and the giving of the requests of the defendant to the contrary was error on the part of the trial court. It will be- observed that the traction company- had impliedly at least agreed to furnish a current of electricity of not more than 104 volts, which was harmless. Contrary to its agreement it had sent a more excessive current through it, one that was deadly and did kill the decedent. It had exclusive control over the plant that generated the electricity and of the wires that carried it into the bank. Whatever voltage came from its plant and over its secondary wires must of necessity go into the bank.

The bank had no control whatever over these appliances of the traction company. True the bank had control over its own wires but that could not affect the case as it in no manner could control the amount of current that came over the traction company’s wires. Indeed for all practical purposes they were as much under the control of the traction company as its own wires. If the current was harmless it was harmless; if deadly it was deadly and the bank could not control it. The employes -of the bank were under the care and control of the traction company in this regard.

We think the case of Iron Ry. v. Mowery, 36 Ohio St., 418, and The Clev., C. & C. Ry. v. Walrath, 38 Ohio St., 461, in the facts and the questions decided are very much like the case before us. In the former it was held:

“On the trial of an action against a railroad company by a passenger, for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company.”

In the charge, page 419, the court said:

“It being admitted that the defendant is a carrier of passengers, that, on the occasion mentioned in the petition, the plaintiff was a passenger on defendant’s train, having paid his fare as stated, it was the duty of the defendant to carry him safely to the point of his destination without injury; and when it is shown that defendant failed to carry the plaintiff safely to the place of his destination, this 'failure puts the defendant, prima facie, in the wrong, and the burden of proof devolves upon it to show that the injury was the result of a pure accident, and that it could not have been prevented by the exercise of the utmost care and skill which prudent men are accustomed to employ under similar circumstances. ’ ’

Upon page 422, the court says:

“Whether a presumption of negligence arises, in all eases, against a railroad company, from the mere fact that an accident occurred from which a passenger receives an injury white being carried over the road of the company, is a question not arising in the present case, and therefore is not determined; but where an injury results to a passenger from a collision of trains of the company, we have no doubt that a prima facie presumption of negligence arises against the company, 'and that unless the company relieves itself from liability, by showing that the injury did not result from its carelessness, or by showing contributory negligence upon the part of the passenger, judgment should be rendered 'against it. ’ ’

In the latter case the rule laid1 down in the former is affirmed and enlarged and it was there held, page 462:

“On proof of an injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable. ’ ’

The charge, page 462, in that case complained of was:

“The burden of proof is on the plaintiff to show that he was injured by the defendant’s negligence, either in not providing safe and suitable ears, or in not properly inspecting and taking care of said ears. A mere statement that a person was injured while riding on a railway, without any statement of the character, manner, or circumstances of the injury, does not raise a presumption of negligence on the part of the railway company. But if the character, manner, or circumstances of the injury are also stated, such statement may raise on the one hand a presumption of such negligence, or on the other, a presumption that there was no such negligence. If the plaintiff was in fact injured while sitting in his proper place, by the falling onto his head of the upper berth, while said berth ought to have remained in place above, such fact raises a presumption in the ease of negligence, for which the defendant is liable.”

In the ease of Claflin v. Myer, 75 N. Y., 260 (31 Am. Rep., 467), it is held:

“In an action against a warehouseman for refusal to deliver goods entrusted to him, where the refusal is explained by the fact appearing that the goods were lost by a burglary, the burden is upon the plaintiff to establish affirmatively that the burglary was occasioned by, or was not prevented by reason of some negligence or omission of due care on the part of defendant; the court will not assume in the absence of proof that the loss was the result of his negligence.

“The warehouseman in the absence of bad faith is only liable for negligence, and one bringing an action against him for loss of goods must allege and prove negligence; the burden is never shifted; if plaintiff prove demand and refusal to deliver, this, unexplained, is prima facie evidence of negligence; but if it appear that the goods have been lost by theft, plaintiff must show that the loss arose from the negligence of defendant.

“Where, therefore, the facts proved are consistent with due care as with the want of it, plaintiff can not recover. ’ ’

On page 262 the learned judge says:

“The eases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, nevertheless, upon their being demanded, to- deliver them or account for such non-delivery, or, * *. * where ‘there is a total default in delivering or accounting for the goods ’ * * * this is to be treated as prima facie evidence of negligence. * * * This rule proceeds either from the assumed necessity of the case1, it being presumed that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he' actually retains the goods and by his refusal converts them.”

Mark the language, “either from the fact that the plaintiff’s evidence is exclusively within his knowledge,” or that he has converted the' goods to himsélf. When you make a demand upon the bailee for the goods, and he does not explain why he don’t deliver them, the presumption immediately arises that the goods were destroyed by his negligence, or he refuses to deliver them.

In Keasbey, Electric Wires, Section 271, the doctrine of res ipsa loquitur is distinctly laid down as being the generally accepted rule in cases of this character where injury is sustained by defective or overcharged wires, and many cases are cited in support of the text, that where contractual relations exist between the parties, and the plaintiff shows actual negligence or conditions so obviously dangerous as to admit of no other inference, the burden thus thrown on the defendant is not that of satisfactorily accounting for the accident, but of showing that it used due care. Stearns v. Spinning Co., 184 Pa. St., 519 (39 Atl. Rep., 292); O’Neal v. O’Connel, 167 Mass., 388 (45 N. E. Rep., 758); Harbison v. Railway, 9 App. D. C., 60; Burdon Cent. Sug. Refin. Co. v. Sugar Mfg. Co., 78 Fed. Rep., 417, 422; Anderson Lumber Co. v. Insurance Co., 79 Fed. Rep., 125; Donnelly v. Booth Bros. 90 Me., 110 (37 Atl. Rep., 874); Steiner v. Presbyterian Church, 17 App. Div., 500, 502 (45 N. Y. Supp., 524); Magee v. Brooklyn, 18 App. Div., 22 (45 N. Y. Supp., 473); McCray v. Railway, 89 Tex., 168, 169 (34 S. W. Rep., 95); Uggla v. Railway, 160 Mass., 351 (35 N. E. Rep., 1126); Clarke v. Railway, 9 App. Div., 51 (41 N. Y. Supp., 78); Trenton Pass. Ry. v. Cooper, 60 N. J. Law, 219 (37 Atl. Rep., 730); Suburban Electric Co. v. Nugent, 58 N. J. Law, 658 (34 Atl. Rep., 1069); Excelsior Electric Co. v. Sweet, 57 N. J. Law, 224 (30 Atl. Rep., 553); Newark Elec. L. & P. Co. v. Ruddy, 62 N. J. Law, 505 (41 Atl. Rep., 712); Bridges v. Railway, L. R., 6 Q. B., 377, 391; Larson v. Railway, 56 Ill. App., 263; Snyder v. Electrical Co., 43 W. Va., 661 (28 S. E. Rep., 733); Kepner v. Traction Co., 183 Pa. St., 24 (38 Atl. Rep., 416); Western Union Tel. Co. v. State, 82 Md., 293 (33 Atl. Rep., 763); Haynes v. Gas Co., 114 N. C., 203 (19 S. E. Rep., 344); Seybolt v. Railway, 95 N. Y., 562 (47 Am. Rep., 75); Denver Tramway Co. v. Reid, 4 Colo. App., 53 (35 Pac. Rep., 269).

We must not be understood as holding that the burden of proof is upon the defendant. Negligence is never presumed; but what we do hold is, that in a' case of this character where a contractual relation subsists evidence that this extreme current of electricity passed through the secondary wires of the traction company made a prima facie case of negligence which was its duty to explain and rebut.- The distinction is made clear in the case of McDonald v. Miser, 2 C. C. N. S., 313.

Two other instructions requested by the traction company were given by the court, numbers 18 and 22, which should not have been given:

“18. If you find that the electric light appliances in the building, in which the' decedent met his death, were not -owned or under the control of the defendant company, and that the same were defective, and that but for such defects the escaping of the primary current into the secondary wires leading into said building, if you find the same so escaped, would not have caused the death of defendant, the defendant .company would not be liable.”

‘ ‘ 22. If you find that at the time of the accident complained of in plaintiff’s petition, the defendant company had no control of the wires, lamps, sockets and other electrical appliances in the building of -the Citizens National Bank Company, and you further find that said appliances were defective and that said injury would not have occurred except for -said defective wires and electrical appliances within the building of the Citizens National Bank Company, then I say to you that the defendant company would not be liable in this ease -although the facts may show that an excessive current -of electricity was upon the secondary wires at the time of the death -of the decedent.”

There was evidence tending to show that the incandescent lamp which the decedent had taken hold of was not perfect for the reason that by -constant use part of -the insulating material which covered the wire had been worn off and that if it had been of a certain character of lamp or the same kind with perfect insulation it probably would have taken care of 1,040 volts; the glass bulb might have been broken but the shell would not have been affected.

The obligation of the bank was to take cane of not exceeding 110 volts. That was all it was required to do. This lamp had been performing that duty for a long time without any perceptible effect upon persons handling it and the bank had no right to expect that a current ten times as strong and of sufficient power to produce death would be sent into that lamp; but on the contrary it had a right to assume that the traction company would perform its duty and not do such a wanton and negligent act. Cincinnati St. Ry. v. Snell, 54 Ohio St., 197.

There was another question that was made specially prominent in the charge to the jury, and in the requests of the defendant given by the court, and .that is the claim of contributory negligence upon the part of the deceased.

We see no place for contributory negligence in this case and it was the duty of the court below, instead of emphasizing that question, to have entirely eliminated it. Certainly it could not be claimed that Mr. Wheeler was not in the exercise of dué care by taking hold of the incandescent lamp. He had done that day by day for years without any perceptible shock. It is true that the night previous when the porter turned the key to one of the lights in a back room there was a flash and the light went out in that room, and that Mr. Wheeler was aware of that fact and remarked that the wires in that room must be looked after, but the lights in the front room, where the one 'that caused his death was, were in no manner affected or gave any evidence of any derangement. Why then should Mr. Wheeler be charged with negligence? Should a consumer be required upon every casual disturbance of a lamp to secure an electrician and have all the lamps in the building examined; and if he had procured such an electrician he could only have reported that while the insulation upon this particular lamp was somewhat worn, yet it was all right for the purpose it was intended. We think the court should have told the jury that there was no evidence of contributory negligence in the case and that they should not consider it at all, and in not doing so there was error.

This brings us to the only remaining question and that is, Was the verdict of the jury supported by sufficient evidence ? •

We have seen that the fact that the extreme amount of electricity that went over the secondary wires of the traction company which took the life of the decedent made a prima facie case of negligence on the part of the company and that it was necessary for it to explain ‘and rebut this presumption of negligence. Did it do it in a sufficient manner to justify the verdict of the jury? We do not think so. Practically all it did was to show that it did not know how the accident occurred. The increased current came from its plant; it sent it through the secondary wires. At best what did it show? That soon after the occurrence some experts, not of very large experience or great ability, visited the scene and that they could not discover anything wrong with the transformers or any evidence of contact between the primary and secondary wires and two years afterwards more competent experts testified that the transformer, then in court, was all right, but in the meantime this transformer had been in use at several different places, stored in the jail and otherwise subject to control by any one desiring to do so. The evidence further discloses that the first one that examined the transformer and wires, which was immediately after the discovery of decedent,. was an employe of the traction company, whose evidence plaintiff in good faith attempted to procure but after great diligence was unable to do so.

The fact still remains that the excessive cux'rent went through its secondary wires and as we view the evidence from its plant. As we have seen wires leading from the same transformers produce' the same effect, not so disastrous, in another business house. Electrical disturbances were also seen around the pole on which the transformer was placed, and either in it or close to it. The claim that other wires might have crossed outside of the city of Akron running from other electric plants, and through telegraph and telephone wires in the alley communicated with the secondary wires of the traction company has no sxxpport in the evidence. W-hy then was the current from the primary wires communicated directly to the secondary wires'? The company says it does not know; but it should know, and the jury should have been in possession of the facts in order that it might say whether or not the prima facie case had been' met. It is not sufficient for the officers and employes of the company to say they do not know. That is what was claimed in the cases of Railway v. Mowery and Railway v. Walrath, supra, but it was not sufficient.

Musser & Kohler and Nolle, Pinney & Willard, for plaintiff in error.

Rogers, Rowley, Bradley & Rockwell and Squire, Sanders <& . Dempsey, for defendant in error.

Indeed, it seems to us, that taking the evidence altogether it pretty clearly appears that the transformer was defective or the primary and secondary wires, which were close together upon this high pole, which was liable to sway, became crossed, or they came in such close contact as to conduct or produce in the secondary wires the extreme amount of electricity complained of, and that the company did not rebut the prima facie case made by plaintiff below.

The judgment of the court of common pleas will be reversed for the reason of the refusal of the court to give requests 2, 7, 8, 10, 11, 17 and 22 requested by plaintiff, and in giving requests 2, 4, 17, 18 and 22 requested by defendant; also for error of the court in the charge upon the question of contributory negligence; also -that the verdict is contrary to the evidence, and the case is remanded for a new trial.