author: HULL, J.

text:
    ELECTRICITY — PRACTICE.
    [Lucas (6th) Circuit Court,
    February 2, 1902.]
    Haynes, Parker and Hull, JJ.
    George M. Katafiasz v. Toledo Consolidated Electric Co.
    1. A Pasty cannot be Permitted to Impeach his own Witness.
    A party will not be permitted to impeach his own witness by showing, by other witnesses, that he made statements out of court contrary to those made in court. Hence, evidence that a witness, when called upon by counsel outside of court, to state what he knows about the case, omits certain facts at the time, which he afterward states upon the witness stand, tends to impeach him, and such evidence is inadmissible if offered by the party calling him.
    2. Contributory Negligence — Plaintiff Having Notice of Defect of which he Complains.
    The business of furnishing electric lights is attended with danger, compelling a company carrying on such business to use a very high degree of care for the protection of its patrons, but this does not relieve persons using such, lights from the exercise of ordinary care. Therefore, plaintiff cannot recover for injuries resulting from an electric shock received while turning-out an electric light furnished by an electric company, where it appears that he had just been advised of the dangerous condition of the connecting wire, and had knowledge that it was overcharged and unsafe to handle in the ordinary way.

      ¿. Implication from Failure to put Material Witness on the Stand to Testify. ' .
    In an action in which the nature of an illness suffered by the plaintiff was a point in issue, which fact was peculiarly within the knowledge of plaintiff’s attending physician, and such physician is present at the trial, under subpoena of plaintiff, but is not called as a witness, the jury may reasonably infer that if called his testimony would have been adverse to the plaintiff.
    Heard on Error.
    Hurd, Brumback & Thatcher, for plaintiff in error.
    Smith & Baker, for defendant in error.
   HULL, J.

The plaintiff in error in this case was also plaintiff below, and brought his action to recover against the defendant for personal injuries which he claimed he sustained on account of negligence of the defendant. The defendant denied any negligence on its part, and averred that the plaintiff himself was guilty of negligence which contributed directly to his own injury. The plaintiff complains that the defendant was furnishing electric light for him in his place of business, and that, on account of negligence on the part of the defendant, the current of electricity which was brought into his place of business over and through the wire was so powerful as to render it dangerous to life, and that upon the occasion in question, which was the evening of September 24, 1900, he undertook to turn off the electric light in his place of business, and on account of this powerful current of electricity he received a severe shock, and was thrown to the floor, and, as he claims, sustained serious injuries, which resulted in his sickness and nervous prostration for some time afterwards. As stated, the defendant denied any negligence on its part, and claimed that the plaintiff himself was negligent. The case was tried to the court and a -jury, and a verdict returned in favor of the defendant, and judgment entered upon this verdict, and it is this judgment that it is sought to have reversed in this proceeding.

It is claimed bjr the plaintiff in error that the court erred on the trial of the case, especially in the exclusion of certain evidence, and that the verdict is against and contrary to the weight of evidence. There are some other errors complained of, but these are the two chief claims of the plaintiff.

It appears that the plaintiff, Mr. Katafiasz, had a grocery and saloon in the city of. Toledo, and that on the night in question in some way the electric wires belonging to defendant in that part of the city had become surcharged with electricity, and that quite a number of people sustained shocks, some trifling and some of more severity, and one man was killed in the cellar of his house on this night; and the claim is that Katafiasz was visited about midnight by three or fom friends and patrons, after he had'locked up his place of business and retired. Upon being aroused, however, he got up and came into the bar or the saloon part of his place after these men came in. They were the witnesses Grytzka, Korleski and Harmenschinski. The plaintiff’s claim is, that after waiting upon them, it then being twelve o’clock at night, he requested them to go, and after they went out he undertook to turn off the electric light which was suspended from the ceiling, and received such á shock that he was thrown down, and sustained the injuries complained of. ¡

The men mentioned —Grytzka, Korleski and Harmenschinski — were all called as witnesses, the first one being Grytzka, who is a doctor, having at least studied medicine in Europe, and is called “ Doctor,” and the »first question of importance that arises in the record is upon his testimony. Grytzka stated the facts as he claimed them in his testimony in chief, narrating the visit to Katafiasz’ place. He said that after they had gone out of the door, it was locked and with the electric light going out, they heard a fall then and some outcry, and upon again being admitted to the saloon by Katafiasz’ son, they found the plaintiff on the floor in an unconscious condition, and on the inside of three of his fingers there were slight burns about one-sixteenth of an inch wide and perhaps half an inch long on each finger; that Katafiasz recovered consciousness before long, and went to bed.

Upon cross-examination it was drawn out that Grytzka, on an occasion before he made this visit to Katafiasz, had visited the residence of the man who was killed, Mr. Herring, and had seen his dead body, and he testified on cross-examination that he told Katafiasz of the death of Herring, and that he had been killed on account of the electric wires being in this dangerous condition, and that he warned Katafiasz against the dangerous condition of the wires, and warned him not to touch them, and told him that the only safe way to turn off the light was with some wooden material, or other non-conductor, and that Katafiasz went into the grocery, adjoining the saloon, and procured a wooden clothes pin and brought it in, and that either he or Katafiasz turned on an electric light with this wooden clothes pin. Grytzka is not very clear which one of them did it. It was talked over and explained to Katafiasz, Grytzka testified, that it was dangerous to turn on the electric light in the ordinary way. Grytzka further testified that after they had turned on the electric light they performed some experiments, by putting a needle in a piece of wood and touching the wire, and noticed that it made “ the sparks fly,’’ showing that the wire was surcharged with electricity. All this was brought out on cross-examination, showing that within a few minutes before Katafiasz had turned off the electric light and was injured he had been fully warned of the condition of the wires and of the danger, and shown how to turn off the light with safety, and experiments performed before him showing the condition of the wires.

This testimony having been brought out on cross-examination, Grytzka- was re-examined by counsel for the plaintiff, and interrogated as to whether he did not make different statements at the time counsel took his statement in his office, in connection with that of Korleski and Harmenschinski, and the court permitted, over the objection of the defendant, questions to be asked which might tend to impeach Grytzka, and-he denied that he had made any different statement to counsel, but was of the opinion that he had stated the matter in regard to the clothes pin and the experiments, although he was not clear about that. He said he told all he was asked; if he did not state that, it was because he was not asked about it. Counsel were permittéd to interrogate him fully, upon reexamination, as to statements that he had made to counsel which varied from the statements which he had made on the witness stand upon cross-examination.

Afterwards, one of counsel took the stand, and testified as to an interview between him and Grytzka and the other two men at his office, and offered to testify to the statements made there by Grytzka, and offered to testify that in the conference at the office where the statements of the witnesses were taken, Grytzka had said nothing about the clothes pin, or turning on the light with the clothes pin, or in regard to the experiments with the needle in Katafiasz’ place. Counsel claimed they were taken by surprise by the witness, and that he had turned out to be hostile to them, and they claimed the right to have the jury know these facts, and to know the statement made out of court before he was called as a witness. The court refused to admit this testimony, on the ground that it would be impeaching their own witness. Exception was taken.

It is urged that the testimony offered through counsel for plaintiff was not for the purpose of impeaching Grytzka, as showing that he had made contradictory statements out of court, but simply for the purpose of showing that he did not state these facts in his statement to counsel. It is claimed that this did not, properly speaking, impeach the witness but permitted the jury to know all that he had said on this subject at a former time, when, it was urged, his recollection was fresher than it was at the time of the trial. Therefore, it was urged that the testimony ought not to have been excluded upon the ground that it tended to impeach the witness called by the plaintiff himself.

The rule seems to be well established in this state that a party may not impeach his own witness by showing by other witnesses that he has made statements out of court contrary to those made in court. The authorities in other states and countries are perhaps somewhat conflicting upon this question. In Hurley v. State, 46 Ohio St. 320, 343 [21 N. E. Rep. 645 ; 4 L. R. A. 161], the authorities are reviewed, and the question very fully discussed, in the opinion by Judge Williams. The court say in the syllabus:

“1. A party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him in respect to declarations and statements previously made by him, which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony or explain his apparent inconsistency, and for such purpose his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him
“ 2. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses.”

The court in the case at bar permitted counsel to interrogate the witness himself as to statements that he had made, or omitted to make,in his office, which appeared to be contradictory to those made upon the witness stand, but refused to permit other witnesses to be called to show the contradictory statements, or to show that he had made a different statement, by omitting to state certain things in the statement that he made out of court. This opinion of Judge Williams is long and a very full and able one, reviewing the authorities on both sides. The judge says in conclusion:

“ The rule that a party cannot discredit his own witness, by proving that he had made statements at other times inconsistent with his testimony on the trial, is the result of long experience, and has been steadily adhered to by the courts of this country and of Bngland. That the rule has generally operated favorably in judicial investigations, can hardly be questioned. If it be conceded it has not had that effect in every instance, as much may be said of any well established rules of law, and the general good result is to be regarded, rather than the particular inconvenience; and it may well be doubted whether it is not a sounder rule than that adopted by some statutes, which leaves it within the unregulated discretion of each judge to admit such and only such testimony as may seem to him expedient.”

In the opinion the judge points out the evils that might result from permitting testimony of this kind — that a person, through malice or otherwise, who desired to injure a party, but who is not willing to testify falsely, might make statements out of court which he knew to be false, and when called as a witness testify entirely different, or testify that he knew nothing about the case; that if in such cases other witnesses were called to prove that he had made these contradictory statements out of court, although strictly and properly speaking, the only effect would be to impeach the witness; yet, as the judge argues, the jury would be likely to make an improper use of the testimony, and in a doubtful case, in a criminal case, perhaps, it might turn the scale.

In this case here it is claimed that it is not a contradictory statement, and it is said they sought to prove simply that he did not state certain things that he testified to in court; but if a person is called upon out of court, under such circumstances that it would be his duty to.state all the facts, and if he omits certain facts at that time which he after-wards states upon the witness stand, it is proper to prove that in his former statement he omitted these important facts, and that has the efiect of impeaching the witness.

We had occasion in this court to pass upon that question in the case of Spaulding v. Railway Co., 10 Circ. Dec. 660 (20 R. 99), and we said in the syllabus: “ Whenever, on a former occasion, it was the duty of a witness to speak, his silence, or his failure to state the whole truth, concerning a material matter, may be shown for the purpose of impeaching his testimony on the witness stand.” And if the court had admitted this testimony, it would have tended to impeach this witness in that he had omitted this important statement when called upon by counsel to state what he knew about the case, and the rule seems to be well established that that cannot be done. As Judge Williams argues in the case cited, if a witness may be called in this way to impeach another witness called by the party himself, he might equally as well call a witness to impeach his general character for truth and veracity. A party may contradict the unfavorable witness by other witnesses, and in that way destroy the effect of his testimony. And in the case at bar other witnesses were called who were present on this occasion, in plaintiff’s saloon, and gave testimony which contradicted that of Grytzka, and that was properly admitted by the court, and the whole question then went to the jury.

We think that the ruling of the court in excluding this testimony was right; that it was according to the rule laid down by the Supreme Court of this state.

There was sought to be introduced during the trial of the case an ordinance of the city requiring the inspection of wires and other appliances by the city engineer before the same were used by the company, and that the company procure a certificate of such inspection before it began operation. This ordinance was excluded by the court, and we think properly so. There is nothing in the record to indicate that any failure to inspect the appliances of this company before they began operation had anything to do with this accident.

It is claimed that the verdict is against the weight of the evidence. The evidence shows that early that evening, perhaps about eight o’clock, it was discovered by some persons in the neighborhood that the wires were overcharged with electricity; that the electric company was notified and men were sent out in the locality to discover, if possible, what it was. Perhaps five or six men altogether were in that neighborhood off and on, and some of them at least until two or three o’clock the next morning. They testified that they were unable to discover what the trouble was; that in the darkness it was dangerous for them to climb up among the wires, and as early as possible in the morning they investigated, and found that a guy wire of the Postal Telegraph Company had come in contact with one of the wires of this company, and produced this dangerous condition of the wires.

No complaint can be made of the charge of the court upon the rule of law with which the defendant was obliged to conform. The court charged the jury that the business of furnishing electric lights was attended with danger, ánd that the company was bound to use a very high degree of care in protecting its patrons. The court further charged the jury in substance that if. the facts were as Grytzka testified as to Katafiasz’ knowledge of the condition of the wires and his knowledge of the wires and of the danger in turning off the electric light without some protection for his hands, and if notwithstanding this knowledge and information he turned off the light with his hands unprotected, that that would constitute contributory negligence. The court said :

“ It is claimed in this action that the plaintiff was himself guilty of negligence which contributed to his injury; and some evidence has been introduced tending to show that before he received this electric shock of which he complains, he had been advised of the then condition of the electric wire which furnished him the light in question; that he had been advised that it was overcharged, and that it was dangerous to handle in the ordinary way of turning it off. I will say. to you that, if as a matter of fact, short!y before the plaintiff was injured, he was advised that the wire furnishing him with the light in question was overcharged with electricity and dangerous, and that he was liable to receive a shock by attempting to turn it off, and notwithstanding such knowledge and advice he attempted so to do, and thereby suffered damage, he cannot recover in this action.”

No complaint is made of this part of the charge, and it clearly states the law; for if what Grytzka testified to is true, Katafiasz was guilty of contributory negligence which contributed directly to his injury. Grytzka testified that Katafiasz had full and complete information given him immediately before the accident happened. Although a number of witnesses testified contrary tto Grytzka’s testimony, we are not prepared to say that under all the facts and circumstances of the case the jury were not warranted in believing Grytzka. In the first place he was a witness called by the plaintiff himself. He offered him to the jury; he recommended him as a truthful man ; he endorsed him and asked them to believe him, and now when it appeared that his testimony was injurious to the plaintiff, can we say that the jury, although Grytzka was contradicted by Hermenschinski and Korleski and by the plaintiff, were not warranted in believing this witness whom the plaintiff himself had asked them to believe, .until it turned out that his testimony was damaging to pUintifTs claims.

There ire some things about the case that perhape gave the jury the impression that the plaintiff was not altogether frank and sincere in all of his claims. Had his it juries been of a very serious character, they probably would have been manifest continuously for some weeks after the accident. On the following day, however, he was in his saloon attending to business, although he said he was somewhat nervous. Dr. Grytzka treated him for some two or three days only. In December following, nearly three months after the accident, he suffered a severe illness, in which he was delirious for some time, and labored under the delusion, it is said, that his bed was surrounded with live wires, and that the room was full of them. But the claim of the defendant was that he was suffering from delirium tremens. Previous to that time he had been about his business as usual, and had attended meetings of the council, and had attended to business. No serious trouble manifested itself until the fore part of December.

Another thing that may have had some influence with the jury was the fact that although the physician who attended the plaintiff in the {llness which he had in December was subpoenaed by the plaintiff and was in the court room or about the court house, he was not called as a witness, although he, of all others, would have been able to give the jury the information that they most desired, as to whether plaintiff, in December, was suffering from an electric shock or delirium tremens, or what his real difficulty was. Where a party fails to call a person as a witness under these circumstances, and whom he would be expected to call, and who would be naturally friendly to him, it may be inferred that if called his testimony would have been adverse to the party who fails to call him. The fact that the plaintiff did not call his attending physician, when it was claimed that he was suffering from delirium tremens and not from the effect of an electric shock, could not have failed to impress the jury and influence them, and probably weakened their faith and confidence in the claims of plaintiff, in a great measure, and may have led them to believe that he had magnified his injuries, and perhaps had not stated the truth as to the accident or the cause of the illness from which he suffered in December.

So that, taking all the facts and circumstances together, we would not be willing to say that the jury were not warranted in believing Grytzka. They saw him on the witness stand. They saw his conduct, and they saw the conduct and demeanor of the other witnesses who were present in the saloon. We have before us only the written record.

The jury may have rendered their verdict against the plaintiff on the ground that he was guilty of contributory negligence; they may have found that the defendant was not guilty of negligence ; and we could not say, upon the record in this case, that the finding of the jury was wrong if they so found upon either one or both of these questions. They were proper questions to submit to the jury. They were the judges of the facts. The question of negligence is peculiarly for the jury; and as the Supreme Court has said, where the minds of reasonable men might differ, and the question has been submitted to a jury, the court will not disturb their finding.

We find no error to the prejudice of the plaintiff in error, and the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    CIVIL RIGHTS.
    [Cuyahoga (8th) Circuit Court,
    November 17, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Lewis E. Johnson v. Humphrey Pop Corn Co.
    1. Civie Rights Law Appeies to a Public Boweing Aeeey.
    A person who procures a ticket for the privilege of bowling, in a bowling alley maintained by a corporation as a part of a pleasure resort operated by it, who is denied the privilege of so playing for tbe reason that he is a colored man, may recover damages in an action against such corporation, under Secs 4426-1 and 4426-2 Rev. Stat.
    4. “Person” Inceudes Corporation Under Sec. 4426-2 Rev. Stat.
    The word “ person,” as used in Sec. 4426-2 Rev. Stat., providing “ that any person who shall violate” any of the provisions of the civil rights law shall be amenable thereto, is not restricted to natural persons, but applies to artificial persons, and hence Includes a corporation.
    Error to the court of common pleas.
    A. H. Martin, for plaintiff in error, cited:
    A corporation can be sued for its torts. Cleveland, C. & C. Ry. Co. v. Keary, 3 Ohio St. 201; Marshall v. Railway Co., 57 U. S. (16 How.) 314, 327; Ferguson v. Gies, 46 N. W. Rep. 718 [82 Mich. 358; 9 T<. R. A. 589; 21 Am. St. Rep. 576] ; Bartholomew v. Bentley, 15 Ohio 659 [45 Am. Dec. 596]; Bartholomew v. Bentley, 1 Ohio St. 37; Brundred v. Rice, 49 Ohio St. 640 [32 N. E. Rep. 169; 34 Am St. Rep. 589]; Baltimore & O. Ry. Co. v. Stankard, 56 Ohio St. 224, 232 [46 N. E. Rep. 577; 60 Am. St. Rep. 745],
    Smith & Taft, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court of common pleas.

The plaintiff filed a petition against the defendant, setting up that' the defendant is a corporation, and was, on July 17, 1901, and for many weeks prior thereto, the proprietor of and operated as such proprietor a pleasure resort, a place of public accommodation and amusement, called “Euclid Beach Park ;” that on the date last named the plaintiff was a patron of said pleasure resort; that he was lawfully upon the grounds of the defendant by permission and invitation of the defendant; that he ■duly procured a ticket for the privilege of bowling in a certain bowling -alley maintained and operated by the defendant as a part of the amusements of said resort and for the benefit of its patrons; that he presented himself at said bowling alley and requested the privilege of playing therein in common with other persons, his friends; that the defendant denied him the privilege of so playing, wrongfully and without legal-excuse; that by reason of this action of the defendant he was greatly disappointed, mortified and humiliated, and that he has been damaged1 as a result thereof in the sum of $275, for which he prays judgment. He says further in his petition that he is a colored man, a person of African descent, and that he. was so denied the privilege of bowling for no other reason than that he was a colored man, a man of African descent.

To this petition the defendant filed a general.demurrer, which was-sustained, and judgment of dismissal of the petition rendered against the plaintiff, and this is assigned as error.

Our attention is called by the plaintiff to Secs. 4426-1 and 4426-2. Rev. Stat., with the preamble to these sections. The preamble reads:

“ Whereas, it is essential to just government that we recognize and protect all men as equal before the law, and that a democratic form of government should mete out equal and exact justice to all, of whatever nativity, race, color, persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law, therefore

Section 4426-1. “That all persons within the jurisdiction of said-state shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, eating, houses, barber shops, public conveyances on land or water, theatres and all other places of public accommodation and amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens.

Section 4426-2. “ That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial shall, for every such offense, forfeit and pay a sum not less than fifty ($50) dollars nor more than five hundred ($500) dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed; and shall also, for every such offense, be deemed guilty of a. misdemeanor, and upon conviction thereof shall be fined not less than fifty ($50) dollars nor more than five hundred ($500) dollars, or shall be imprisoned not less than thirty (30) days nor more than ninety (90) days, or both; and provided further that a judgment in favor of the party aggrieved, or punishment upon an indictment, shall be a bar to either prosecution respectively.”

It will be noticed that the legislature declares the purpose of these statutes by the preamble to be, to enact a great fundamental principle into law, and that principle, as stated, is “ that a democratic form of government should mete out equal and exact justice to all, of whatever nativity, race, color, persuasion, religious or political.”

It will be noticed, further, that in the first of these two sections the rights of citizens in respect to the public places named in the section are declared. These rights are that each citizen shall be entitled to the full and equal enjoyment of the “ accommodations, advantages, facilities and privileges ” of the several places named in the section. Among these are “ theatres and all other places of public accommodation and amusement.”

From the allegations' of this petition it cannot be doubted that the defendant’s place of business was a place of “ public accommodation and amusement,” and that, therefore, the plaintiff was entitled, exactly as all other citizens, to the enjoyment of all the accommodations of such place, and that this section was violated by the defendant in refusing him, for the reason set out in the petition, the right to bowl at the bowling alley. This being so, a wrong was perpetrated upon the plaintiff. Whether this wrong was such as would entitle the plaintiff to a recovery in the absence of the succeeding section it is not necessary here to determine, because the next section provides that the party injured may recover, as well as that the party perpetrating the wrong may be prosecuted criminally.

It is urged on the part of the defendant that the language of the last section referred to, “ that any person who shall violate any of the provisions of the foregoing section,” etc., does not include a corporation ; that the word “ person” must be held to be restricted to a natural person. It is true that the word ‘,‘person ” sometimes in the statute must be construed to mean natural person only, and that sometimes it must be construed to include artificial persons.

Black, in his work on Interpretation of Laws, at page 138, says:

“ The word ‘ person ’ is a general or generic term. Hence, when used in a statute, it embraces not only natural persons, but also artificial persons, such as private corporations, unless the context indicates that it was used in a more limited sense, or the subject matter of the act leads to a different conclusion. That is to say, it applies to corporations in all circumstances where it can reasonably and logically so apply.

Surely if these statutes are to accomplish the purposes declared in the preamble and named in the first of the two sections, the word “ person ” must be held to include artificial persons, that is, private corporations ; otherwise, of what possible use would it be to provide that all persons shall have the privileges spoken of in the statute, among which are'*enumerated “inns, * * * public conveyances on land or water, theatres,” etc. So far as public conveyances are concerned, the statute would-be perfectly worthless. These conveyances on land are almost exclusively either railroad cars, operated by steam or electricity, and owned by corporations. On the water, they are mostly vessels owned,Iby corporations. Theatres are almost universally conducted by corporations. The same is true of hotels, and, to a considerable extent, is true of each of the places enumerated in the' statute. If the contention claimed on the part of the defendant in error is to be sustained, the result is that one may be denied the privileges mentioned in the'first of these two sections by street car companies, by railroad companies, steamboat companies, by hotel corporations, and be absolutely without remedy; and, so far as these several things are concerned, the statute might as well never have been passed. It was without doubt the intention of the legislature to enact into positive law what has come to be recognized as justice, that the colored man shall not be refused equal privileges with other people in these public places, and to permit them to be denied by corporations would be, in effect, granting to a creature of the state power to treat as a nullity an enactment of the legislature of the state.

A man is at liberty to select for his associates whom he will, provided only that the party whom he selects is willing to be his associate. He is at liberty to invite to his home whom he will, and to ■ exclude from his home whom he will, but this does not give to one citizen above another, under the same circumstances, the right to say who shall be admitted to the privileges of the public places enumerated in this section of the statute first referred to.

Apply the rule for the interpretation of the word “ person ” given in Black, and one cannot well conceive of a case where, in the nature of things, it should be held to include private corporations if it is not so to be held in the interpretation of this statute.

The case of Hargo v. Meyers, 2 Circ. Dec. 543 (4 R. 275), cited by counsel for the defendant in error, is not in point in this case. The holding in that case is that an action under the statutes under consideration will not lie against a partnership in its firm name alone to recover a penalty for the violation of the act. In the opinion in that case, however, attention is called to the case of State v. Fertilizer Co., 24 Ohio St. 611, 614. In that case it was held that the word person,” as used in a criminal statute for the punishment of those who maintain nuisances, did not include a corporation. In that case Judge Welch, in his opinion, said:

“ Criminal laws are to be construed strictly in favor of the accused. In its primary sense, the word ‘ person ’ means a natural person only. I know of no criminal statute in Ohio where the word has been held to apply to a corporation ; * * * the whole theory and machinery of our administration of criminal law seem adapted only to the prosecution and punishment of natural persons. There is no provision of law for bringing an indicted party into court by summons, or otherwise than by actual arrest of his person. Under such a state of legislation and practice, the legislature could not have intended, in the use of the word ‘ person,’ which is found in almost every criminal law of the state, to authorize an indictment against a corporation for this particular offense, without any special or further provision as to the liability of corporations, or the mode of proceeding against them.”

Prior to this decision there was a statute in force in Ohio providing for the prosecution of incorporated companies for maintaining a nuisance (see 63 O. L. 97), but there was nothing then, and, so far as we know, there is nothing now in the criminal statutes of the state declaring that the word “ person ” shall be held to include a private corporation. But it must be borne in mind that no effort is made in this case to prosecute the defendant as for a crime. It is true, the statute is penal in its nature, but it was passed for the purpose, as has already been said, of compelling those owning or conducting these places of public resort to make no discrimination against one because he is of African descent, and the only way to make that effectual, in the great majority of cases, is to hold that the word “ person,” as used in the statute, includes corporations.

The case of Ferguson v. Gies, 46 N. W. Rep. 718 [82 Mich. 358; 9 L. R. A. 589; 21 Am. St. Rep. 576], was decided by the supreme court of Michigan in 1890. The case arose under a statute similar to ours, except that no provision is made in the Michigan statute for the recovery of damages in a civil action by one who has been deprived of the privileges provided by the statute. A punishment is provided for a violation of the statute, and it is declared that one so violating is guilty of a misdemeanor.

In that case it was held that the defendant, who denied a colored person the privilege of eating at a table in a public restaurant in the city of Detroit, where other patrons of the restaurant were permitted to eat, the denial being because the plaintiff was of African descent, is civilly liable. The opinion seems to be well considered and supported both by reason and authority, and is instructive in this case.

The judgment oí the court of common pleas is reversed and the case remanded for further proceedings.


text:
    CRIMINAL LAW.
    [Summit (8th) Circuit Court,
    October Term, 1902.]
    Simeon Cameron Smith v. State of Ohio.
    Caldwell, Marvin and Hale, JJ.
    Sentence to Standi Committed Untie Fine and Costs are Paid not Authorized Under Sec. 3140-2 Rev. Stat..
    Section 3140-2 Rev. Stat., making abandonment of child by a parent a felony, does not, nor does any other statute in this state in case of felony, authorize a sentence of imprisonment until the fine and costs are paid. Hence, a court has no authority to pronounce, as a part of the sentence of a prisoner convicted of failing to provide a proper home, support and care for his child, under Sec. 3140-2 Rev. Stat., that he stand committed until fine and .costs are paid, as such offense is a felony under Sec. 6795 Rev. Stat., being punishable by imprisonment in the penitentiary.
    Error to the court of common pleas.
    W. R. Talbot, for plaintiff in error, cited:
    The defendant below, under Sec. 3140-2 Rev. Stat., could be found guilty of a felony alone, and the fact that he might be imprisoned in a jail or workhouse does not alter the case. See Secs. 6795 and 6862' Rev. Stat.; State v. Hamilton, 2 Circ. Dec. 6 (3R. 10).
    Authority cannot be created by implication, and none is granted under this statute to order a person convicted under it, to stand committed until the costs of prosecution are paid.
    Sections 7327 and 6801b Rev. Stat. apply to misdemeanors and not to felonies, and cannot affect this case.
    Plaintiff in error having served out the sentence of ninety days ’ imposed by the court is entitled to immediate discharge.
    Error, not habeas corpus, is the proper remedy. Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dec. 55]; Van Hagan, Ex parte, 25 Ohio St. 426; Dillon v. State, 38 Ohio St. 586; McAdams, Iu re, 11 Circ. Dec. 780 (21 R. 450). '
    H. M. Hagelbarger, prosecuting attorney, for defendant in error.
   MARVIN, J.

The plaintiff in error was convicted upon an indictment charging him under Sec. 3140-2 Rev. Stat. (94 O. L. 105), with having unlawfully, knowingly, wilfully and negligently neglected, refused and failed to provide his child, Rilla Smith, with a proper home, support and care.

After conviction the court pronounced sentence that “the defendant, Simeon Cameron Smith, be confined in the workhouse at Canton, Ohio, for the period of three months, and that he pay the costs of this prosecution and to stand committed until said fine and costs are paid, or he be otherwise legally discharged.’’

Thereafter there was filed in the court of common pleas a motion by-said Smith to modify this sentence by “eliminating that portion of said judgment and order which orders that the defendant stand committed until the costs of the prosecution are paid, or defendant is otherwise legally discharged.” This motion was overruled by the court.

The errors complained of are that the court was without authority of law to pronounce, as a part of the sentence of the prisoner, that he stand committed until the fine and costs were paid, and that the court overruled the motion for a modification of this sentence.

The petition in error is well taken.

The statute (Sec. 3140-2 Rev. Stat.) under which the plaintiff in error was convicted, authorizes punishment “ by imprisonment in the penitentiary for not more than three years, nor less than one, or in a county jail or in a workhouse at hard labor for not more than one year, nor less than three months.” There is nothing in this section which authorizes the imprisonment of the convicted party until the fine and costs are paid, nor is any authority found in any section of the statute for such imprisonment where one is convicted of a felony. The section under which this conviction was had, in terms, provides that whoever is guilty of the offense charged in the section is guilty of a felony.

Section 6795 Rev. Stat. defines a felony in these words: “ Offenses which may be punished by death or by imprisonment in the penitentiary are felonies ; all other offenses are misdemeanors.”

Section 7327 Rev. Stat. provides:

When a fine is the whole or part of a sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine and costs are paid, or secured to be paid, or the offender is otherwise legally discharged.”

This section is under the caption, “Execution of sentence for misdemeanor.” And it seems clear that the sections under this heading are confined to cases of misdemeanor. The language of the several sections, wherever the court is spoken of, is court or magistrate ” or the words “ magistrate or court,” clearly indicating that the cases to which these several sections apply are those which may be finally disposed of by a magistrate, and do not include cases of felony.

Entertaining these views, we hold that the sentence, in so far as it included imprisonment until the fine and costs were paid, is erroneous, and the court should have granted the motion to modify the sentence in that regard.

The case is remanded to the court of common pleas with the direction that the modification of the sentence be made as herein indicated. The remainder of the sentence is in force as pronounced. The costs of the proceeding in error will be taxed to the defendant in error.


author: CALDWELL, J.

text:
    INSURANCE — TRIAL.
    [Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Bell H. Snow v. Modern Woodmen of America.
    1. A “ District Yard Brakeman ” is a Railway Freight Brakeman.
    Although a man is called a “ district yard brakeman ” and is employed only within a limited territory, he is a “ railway freight brakeman ” within the meaning of a provision in the application for an insurance policy declaring such policy void should the insured be killed while engaged as a “ railway freight brakeman,” the duties of the two classes of brakemen, and the hazards incident to their employment being substantially the same.
    2. Request of Both Parties to Direct Verdict Authorize Court to Determine the Controversy.
    Where each party, at the close of the evidence, requests the court to direct a verdict in his favor, it is not error for the court to determine the cause upon its merits and direct a verdict for the party entitled thereto.
    Heard on Error.
    Metcalf & Cinniger, for plaintiff in error, cited:
    Provisions and exceptions in by-laws of insurance company are to be strictly construed against the defendant company. 1 May Insurance 174; Hobman v. Insurance Co., 32 N. Y; 405.
    Ambiguous words construed against the company. 2 May Insurance 533n.; Kratzenstein v. Assurance Co., 22 N. E. Rep. 221 [116 N. Y. 54; 5 L. R. A. 799]; Hoffman v. Insurance Co., 32 N. Y. 405; Foot v. Insurance Co., 61 N. Y. 571.
    E. G. Johnson, for defendant in error.
   CALDWELL, J.

(Orally.)

The son of Bell H. Archer Snow, on October 16, 1899, was engaged upon the electric railway, and he then made application for membership in the Modern Woodmen of America, which is a mutual benefit society.

He entered the service upon the steam railroad and lost his life. Bell Snow brings this action to recover on the policy in which she was the beneficiary. The action was tried below and a judgment rendered ior the defendant, and a petition in error is prosecuted in this court to reverse that judgment.

The question in this case is wholly one of fact. When the action was commenced and the answer first filed and also an amended answer, it was claimed on behalf ol the plaintiff below, Bell Snow, that the deceased was engaged in the work on the railroad as a railroad freight brakeman; but after the amended answer was filed and a reply filed to ihe amended answer, it was then claimed that he was what is known as a district yard brakeman, and that he was not a railroad freight brakeman. And the contention in the case in the evidence is, whether there is such a thing as a district yard brakeman, and whether there is such a thing as a railroad switchman; whether he acted in the capacity of a district yard brakeman or a railroad freight brakeman and whether he was acting as a switchman also. And the way that contention arose was this: There was a provision in the application or policy, that if he was killed while acting in the capacity of a railroad freight brakeman or railroad switchman his policy should become void, and if he was acting in that capacity then this policy is void; ii he was not, but acted in some other capacity, then if he is killed the insurance would be good, even if he did act in that capacity, and the plaintifl ought to recover.

It is not necessary to discuss this evidence, but there is considerable evidence to show that among the men there is what is known as a district yard brakeman, and that his duties or the place in which he works at least is different from that of a railroad freight brakeman, but we think the evidence shows that his duties are largely the same; notwithstanding he is called by the witnesses a district yard brakeman, yet he is really a railroad freight brakeman; he was a brakeman on freight cars exclusively, except as they might in the yards want to switch out passenger cars. He traveled from one point to another, but did not run over the whole line as a rule, and yet I notice these witnesses are wonderfully puzzled when the question was asked them, “Suppose he should go to Massillon or at times to Uhrichsville ?’’ The district in which he was working™and in which he generally worked was that of Elyria and Grafton.

“Now what if he went to~Massillon, what would he be?” I notice the witnesses were puzzled and confused to know whether he was then a railroad freight brakeman or still a district yard brakeman. Now under this evidence it is,necessary to see'what the parties were trying to get at when this contract was made. The parties had in their minds no such fine distinction as is drawn by some of these witnesses. The company was saying, we will not insure you if you are engaged in a certain line of work, because of its danger, it makes the hazard too great, we will not undertake it, and hence they said to the party, if you are engaged as a railroad freight brakeman or railroad switchman we will not insure you, and after you are insured if you become engaged in those avocations, then your policy shall be void. Now he assented to that. What did they understand, what were they trying to get at ? They were trying to get at this, a man who brakes on a freight train and is engaged in constantly coupling and in handling these height cars, is in a business that is exceedingly hazardous; he is on the ground, jumping on to engines, running from one car to another, he is stopping cars when they are kicked and when they are switched and under all circumstances. They say this is such a hazardous thing we will not take the ■risk on your life, or if you are a switchman in the same way you are jumping on to locomotives, you are jumping oft, riding on the cowcatchers, you are riding everywhere, and that is so hazardous we will not accept you as a risk; it you become such we will not take you.

That is what the parties were getting at, and the only way to avoid this testimony and the intent of the parties is by reason of applying to him a technical name, that of district yard brakeman. Yet he is still performing the same things, doing the same things, in substance, the same hazardous work that he would if he' was a freight brakeman. Thot is what the parties had under consideration when they made this contract, and we think this evidence shows that this work was quite hazardous, that he was a railroad freight brakeman, and he was not doing anything else but acting as a freight brakeman, although he had a limited territory, that is the only difference. I mean by that, it is ■the only difference that ought to bear on this contract. Of course there is a difference in pay, and other little differences that do not bear upon the intention of the parties in making the contract at all.

The case was decided in favor of the insurance company, and wé think justly so under this testimony.

Now it is contended there was error in the introduction of testimony. This question was asked:

“ What is meant by a railway freight brakeman?” Answer. ‘‘ A man who runs on a through train, a way train; a man who may brake on a through train or way train.”

That was objected to and an exception saved to the ruling of the court in overruling the objection. Then the testimony goes right on to ascertain from the witness the duties of a railway freight brakeman, instead of stating what the difference is, of what constitutes one or what constitutes another, he now goes on to tell the duties of each, which is the better way, so that the whole testimony which was sought in tüat case was determined, and that was not error.

This question was asked:

‘‘And is there any difference in the pay that they receive ?”

And that was objected to and sustained. It clearly appears from the testimony, and is not disputed on the other side, that there is a difference in the pay, so it could not possibly have been prejudicial, because we do not see it determined any question under this contract that is material to it. It was not to be void if he received less pay than somebody else, some other class of men; but it was to be void if he did a certain kind oí work, if he was engaged in a certain kind of work, and hence, the pay hasn’t anything scarcely to do with it.

Then there was a conversation between him and another party, and that party was called, after this insurance was periected; there was a conversation as to what he said about the validity oí his policy by the fact he was engaged upon the railroad, and doing the kind of work he was.

The court, after that testimony was partly introduced, made a ruling that it was not competent at all to deieat the plaintiff’s right, under that contract, she being the one to whom the money was to be paid; that he could not make any admission nor by any conduct of his, anything he might say, defeat her right to a recovery, and that seems to be the holding of the court, so the court ruled that testimony was not admissible ■Sor any such purpose as that, but only as showing what he was engaged in doing at that time, and that testimony was all received under that ruling, although different questions were asked thereafter and exceptions taken, yet that ruling of the court was made, and we do not see why it may not be used to show what work he was engaged in at the time of this conversation.

It was not necessary to show the kind of work he was then doing, and the purpose of the party might have been ior something else; but the court was ruling it might be admitted for one purpose, it was proper only for that purpose, although perhaps the purpose of the party introducing it was to get before the jury the fact he thought his policy was not good for anything if he was killed in the service, by reason of the occupation he was following. But that the parties could have easily taken care of by having the court charge the jury specially they should not consider the evidence for such purpose.

Then this objection is made, when the evidence was all in, the plaintiff asked the court to direct the jury to bring in a verdict in her favor. Immediately the defendant, with apparent pleasure so far as we can see, asked the court to direct a verdict in favor of the company, and the court thereupon took the case and disposed of it. The case, First National Bank v. Hayes, 64 Ohio St. 100 [59 N. E. Rep. 893], we think is decisive of this question, that it is the duty of the court, and it was no error in the court to do it, where both parties request the court to charge the jury to bring in a verdict in favor of himself. So we find no error in this record, and we affirm the judgment.


text:
    EASEMENTS — DEEDS.
    [Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    J. D. Bates v. Benjamin F. Sherwood.
    1. Easement in Private Road — How Constituted.
    A person using a well defined track across the land of another in reaching laa£ owned by him, otherwise inaccessable, which use has been adverse and continuous for more than twenty-one years, has an easement in the former laud.
    2. Deed to Reconvby an Absolute Conveyance, When.
    Although the grautee in a deed, by separate written contract, agrees to reconvey within a certain time upon payment to him of a specified sum, without interest, the deed is nevertheless an absolute conveyance and not a mere security.
    B. Way oe Necessity Created by Implication.
    A way of necessity, extinguished by union of seisin, is not revived upon-severance, but if the necessity continues a new way is granted by implication.
    Heard on Error;
    C. A. Metcalf, for plaintiff in error, cited.
    There is no implied reservation or grant of way of necessity in the deed in question. 2 Ballard Real Prop., Sec. 174; Boyd v. Woolwine, 21 S. E. Rep. 1020,1022 [40 W. Va. 282]; 4 Ballard Real Prop. 198; Nichols v. Luce, 41 Mass. (24 Pick.) 102, 104,105 [35 Am. Dec. 302]; Baker v. Willard, 50 N. E. Rep. 620 [171 Mass. 220; 40 L. R. A. 754]; Baxter v. Schweitzer, 58 N. Y. Supp. 163, 165 [40 App. Div. 519]; Opening One Hundred and Sixteenth St., In re, 37N. Y. Supp. 508, 512 [1 App. Div. 436] ; Huttemeier v. Albro, 18 N. Y. 48, 50; Hildreth, v. Googins, 39 Atl. Rep. 550 [91 Me. 227] ; Washburn Easements 32, 33; Seely v. Bishop, 19 Conn. 128, 134.
    I. A. Webster, for defendant in error, cited;
    Title to driveway by grant. National Ex. Bk. v. Cunningham, 46 Ohio St. 575, 586 [22 N. E. Rep. 924]; Shields v. Titus, 46 Ohio St. 528, 539 [22 N. E. Rep. 717]; Baker v. Rice, 56 Ohio St. 463, 476 [47 N. E. Rep. 653].
    Driveway is an appurtenance, and the right thereto passes without being expressed in deed. Shields v. Titus, 46 Ohio St. 528, 540 [22 N. E. Rep. 717]; National Ex. Bank v. Cunningham, 46 Ohio St. 575, 587 [22 N. E. Rep 924]; Morgan v. Mason, 20 Ohio St. 401 [55 Am. Dec. 464]; Meredith v. Frank, 56 Ohio St. 479, 489, 490 [47 N. E. Rep. 656]; Bell v. Bell, 7 Dec. 516 (7 N. P. 150).

      Defendant had right of way from necessity. Washburn Easements 162, 163; Gill v. Trout, Tap'pan (251) 293; Goddard Easements (4 ed.) 317; Baker v. Rice, 56 Ohio St. 463, 470 [47 N. E. Rep. 653].
    Necessity for driveway cannot he removed by fact that one may be purchased lrom a third party. Meredith v. Frank, 56 Ohio St. 479, 491 [47 N. E. Rep. 656].
    The deed not a mortgage. The rule when may be so declared. Slutz v. Desenberg, 28 Ohio St. 371; Miami Exp. Co. v. Bank, Wright 249 252.
    Contracts for repurchase is strong evidence that instrument was not intended to be a mortgage. 80 111. 188.
   CALDWELL, J.

(Orally.)

The plaintiff sets up that the defendants on February 1, 1900, and divers other times between that date and the time oi the commencing oi this action, wrongfully and unlawfully trespassed upon his property; that defendants are insolvent and cannot respond to an action for damages, and asks to have them restrained from trespassing in the future.

Benjamin F. Sherwood admiis he did drive upon plaintiff’s land at or about the time alleged in the petition, and then sets out facts in the petition to justify his acts in so doing. He pleads he is the owner oi ten acres of land adjoining plaintiff’s land over which he drives in reaching his land, and that there is no other way to reach his land, and the way in question has been used by him and his grantors for more than twenty-one years without interruption or hinderance; that he traveled in the same defined roadway over plaintiff’s land leading to said ten acres, doing no damage to plaintiff’s freehold.

He also pleads that plaintiff sold and deeded to him said ten acres and included in his deed all the appurtenances belonging thereto.

He says by reason of the facts set out, he has over plaintiff’s said land a way oi necessity. H. Sherwood answered he was working for his codefendant, and denies under the same facts set out in his codefendant’s answer.

And the action was dismissed as to him.

The reply denies that any way of necessity or by prescription or in any other form existed in favor oi defendant. The reply sets out that Mrs. Sherwood, who was the mother of the defendant, was the owner of said ten acres, and as such owner gave plaintiff a mortgage, on which there was due in April, 1899, $324; that she then agreed to and did convey to plaintiff a deed of said land, and this was done on an agreement that he would deed back to her or either of her sons she might designate said land, upon said $324 being paid to him without interest, and said deed to Benjamin F. Sherwood was made in compliance with said contract; that said first deed was a security and the second was only a mode of redeeming.

The pleadings and evidence raise the following questions:

First. Was the way in question used for more than twenty-one years by defendant and bis predecessors in title before the bringing of this action ?

Second. Was such way by license?

Third. Was the transaction of the two deeds, the giving of security in different form and a release of the same, or are they, in fact, deeds absolute ?

Fourth. The effect of the deeds if absolute.

Fifth. If the deeds are deeds absolute in fact, then is there a way by implication over plaintiff's land ?

Then the question, does the ten acres join plaintiff’s land, is there any other way, is a way necessary in view of all the facts, should the parties have contemplated a way, or did they contemplate a way ?

The piece of land over which it is claimed the defendant has driven without authority and he was stopped by the plaintiff just prior to bringing this action is reached by a lane from the highway, which goes back some little distance and then comes woodland which belongs to the plaintiff, and this way leads from the end of that lane in a diagonal direction across the plaintiff’s land, the woodland, to this ten-acre piece, and in that way the ten-acre piece has been reached.

Now the defendant claims that this way has been in common use for the purpose of reaching the ten acres he owns for more than twenty-one years, and he, therefore, has acquired a right, an easement, in this way. The evidence upon this is not much in conflict, but very little, and in fact it is almost conceded by the plaintiff that this way had a marked track where the wagons and vehicles had gone in reaching the ten acres, but some little question as to whether it did not deviate from the way claimed; but we find that the testimony shows that this way had been in use for more than twenty-one years when Mrs. Sherwood deeded the land to Bates and also when Bates deeded it back to the son, the defendant in this action, and that that way had a marked track or course that the wagons had pursued, as nearly in one track as wagons ever do go in going through a woods, and that the way was well marked clear through to the ten-acre tract.

This way was used not only by the parties owning the ten acres, Mrs. Sherwood, but was used more or less by the plaintiff in this case in drawing wood or timber and whatever he wished to draw from his own lot, and that use had continued for more than twenty-one years.

. In the second place it is claimed that this way was by license, and the testimony tends to show at a very early time, very soon after Mrs. Sherwood was married, that application was made to the lather oi the plaintiff for the privilege of driving over this wood lot to reach the land belonging to Mrs. Sherwood, the ten-acre piece, and there is evidence that application was made to the plaintiff after he became the owner, having inherited it from his father. He testifies he made complaint that they were driving over there when the ground was soft, and cutting up the lot, and that the understanding was when they got permission to drive through there that they should drive only when the ground was hard, and that he would stop them entirely if they did not refrain from driving when the ground was soft, so they would not cut up the woodland, and that then permission was obtained by a promise to either pay damages or not drive when the ground was soft, and that has continued.

She denies ever having made application when she was the owner of this property to either him or his father tor any permission, but she simply drove over and used this way across the plaintiff’s land, wood lot, as a matter of necessity to reach her lot and without objection on his part, and we find that the license is not established by the evidence.

Then w'e come to the question of the two deeds. Mrs. Sherwood owed the plaintiff $324 about April, 1899, on a mortgage that had been running for some time upon the ten acres she owned, and they met, he insisting upon having his money, and an agreement was entered into, by which agreement he deeded to him absolutely the ten acres, that is, by a deed absolute on its face in fee simple, and he says that he gave back an agreement at that time that if by December 1, (this occurred in April, 1899) following she would pay back the $324 without interest he would then deed back the land to her or to either of her sons which she might designate, and that she designated the deed to be made to Benjamin, the defendant in this action, and Benjamin took the deed and paid the $324, borrowing the money on this same land. Benjamin after that, perhaps in February or some time that winter or fall after the deed was given, was using the land, and the plaintiff stopped him from using it, drove his brother back with the team, would not allow him to cross, and he brings this action for the trespass, and asks to have them enjoined from crossing.

The first question that arises is, were those deeds absolute, or were they intended as a security and a mode of releasing the security ?

It appears that a written agreement was made at the time that this deed was made by Mrs. Sherwood to Bates in April, 1899, and it was supposed that was lost. It was left with the justice of the peace who made the deed and who drew up the writing, and he testifies and Mr. Bates testifies as to its contents; but the young man, the defendant, went to the justice of the peace about the time he received the deed to see this writing, and he copied it, and he testifies that he copied'the whole of the writing.

The contents of the writing as given by the justice and by Mr. Bates does not correspond exactly with the writing that he produced in this copy. The copy'that he produced was simply this: “April 10, 1899. This is to certify that J. D. Bates will deed ten acres of land to Mrs. Sherwood or either of her sons for $324 any time before December 1, it being the same ten acres sold to Bates by A. A. Sherwood (that was the mother) on this day.”

No doubt other matters weie there talked about, but we believe that this writing involves all that was put in it at the time. Other matters were talked about no doubt, and might have been agreed upon, but this writing is the contract which was entered into as to deeding back this land.

Now it is not necessary to discuss this whole matter as to how the parties acted and what they did, but we think those deeds were absolute deeds; that she had no right or authority to redeem that land, except by reason of this contract. It was a deed absolute, intended to be such, and if she wanted to buy back the land and have it deeded to herself or her sons by December 1, 1899, she could do so by paying Bates $324. No interest was charged by Bates. He gave up the note, gave up the mortgage, and taking all the surrounding facts and the testimony as it is before us on this question, we have concluded that those deeds were deeds absolute, that he was an absolute purchaser of the land, not taking the deed as security, and that when he deeded it back he made a deed absolute to the defendant.

Then the next question that arises is, what efiect has that upon the use that had been established of this way lor more than twenty-one years? In other words, the easement that had been established over this land by reason of user We meet this proposition, after the way had been thus established by long user of over twenty-one years the property the ten-acre piece, comes into the same ownership as the land over which the easement passes, both in the same person, that we think would destroy the easement, and the easement being destroyed by reason of the ownership, the defendant would no longer have any right to pass over it by reason of the easement being established by user.

The next question in the case is, what efiect did the giving of the deed by the plaintiff to the defendant have upon the right of defendant to pass over this land, and that involves several questions as I have stated. In the first place it is disputed, does the ten acres join the plaintiff’s land; they corner together, but the plaintiff's land passes by the corner of the other land to some' distance, far enough so that they have driven in there eilher over the plaintiff’s land or over his land and other land.

Now the question is, whether there is a way large enough there for a team to pass. They used this ten acres oi land; it is woodland, and the Sherwoods got their wood there, and they passed in and out frequently in getting their firewood. These lands nearly corner, but Bates* land laps over the ten acres some distance, it is in dispute what that distance is, and it appears that the fence that comes up against the side of the ten-acre piece near the corner, between Mr. Warren and the plaintifl in this case; it is claimed that fence has been moved onto plaintiffs land, and- that being so, if it is so, or suppose it is over, the way into this land has been narrowed up at least three or four feet according to some of the witnesses. ¡

Then there is no dispute that at that corner of Mr. Sherwood’s land and the party who owns the land lying by the side of his, or by the ten-acre piece there, the corner between him and his neighbor is marked by a stone, and the testimony seems to be quite conclusive that the wagons in passing in and out of the ten-acre lot onto the plaintiff’s land have gone astride oi that stone marking that corner. Whether that stone is correct or not there is no evidence to show. The mere fact that a stone was set there is shown by the evidence. As to whether or not this fence has-been moved or not is in dispute; but one thing is certain that teams did pass in and out there for a long time, it was so used, and the neighbor, if any of his land is being used, is not here making any complaint. But the Jact is established that these two pieces do join to some extent at least, and that extent is such that the plaintiff’s land has been used in passing to and from the ten-acre piece, and such use seems to be possible yet. And it has been practical so Jar, and we do not see any reason why, nnder this evidence, it may not continue to be so, and it affords a sufficient gap to reach one piece of land over the other.

The evidence is pretty strong in this case that Mr. Warren, in laying over that fence between him and the plaintiff, laid it over onto the plaintiff three or four feet, but he swears he put it in the same place. Mr. Bates swears he did, and it is quite conflicting, and whether it is on the true line or not there is no evidence to show, but the evidence is strong that it was moved, quite strong in this case, and we could easily see there might be a motive on the part of Mr. Warren to gain more land and on the part of the plaintiff in this case to cut off this way over his land to allbw Mr. Warren to gain some land there by reason ot laying the fence over. But, however, we think the lands do abut so a way is possible. The evidence shows there is no other way to reach this land, no road touches upon the ten acres, and he has no other way by which in law he is permitted to reach his land unless it is in this manner. He is cut off entirely from the use of his land so far as the evidence shows. He cannot appropriate a way, he is cut off, has got to torce a way out somewhere if he cannot get it through this, or else his land is useless, and the party who has taken the mortgage upon it his mortgage is worth nothing except what it would sell for to some one who has land adjoining.

In view of all the facts, are the parties to be held to have contemplated a way? As we say, the plaintiff was making the deed absolute of this property. Ii he was not making a deed absolute, then as I have already stated, the defendant has a right of way by user, by long use-If he simply took the deed from Mrs. Sherwood as a security, then it would not cut off the right to pass over this way by reasop of the easement being established by long use. If he took it by deed absolute then he knew when he deeded this land to the defendant that there was no other possible way to reach the land, except over his woodland. He knew that way had been long used, and he must have known that the defendant would expect to continue in its use. Knowing all these facts, he must have contemplated that that way would still be used, and the defendant, knowing all these facts, would, it seems to us, take it for granted that he should pass to and from that ten acres as it had always been reached. That being true, and there being no other way, and a way of necessity being required in the case, as the facts warrant, we think the defendant has a right to pass over this land in reaching his woodland, so long as he does no injury and follows the same marked path, and the plaintiff’s petition will be dismissed.

CALDWELL and MARVIN, JJ., concur.

HALE, J., dissents.


text:
    PROCEEDING IN AID OF EXECUTION.
    [Cuyahoga (8th) Circuit Court,
    November 24, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Anthony Carlin v. Hower & Higbee.
    Debtor oe Judgment Debtor Having Admitted Indebtedness m Aid oe Execution Proceeding Estopped to Deny it, When.
    A person who, on examination in a proceeding in aid of execution before a justice of the peace, admits indebtedness to the judgment debtor, and is thereupon ordered by the justice to pay a certain sum in money to the judgment creditor, is thereby estopped to deny such indebtedness in an action against him in the common pleas by the judgment creditor to enforce such order.
    Ben. C. Starr, for plaintiff in error.
    White, Johnson, McCaslin & Cannon, for defendant in error.
   MARVIN, J.

The parties here are reversed from what they were in the court of common pleas, but the terms “plaintiff” and “defendant” in this opinion refer to the parties as they were in the original case.

The plaintiff brought a suit against Anthony Carlin and another, but no service was had upon the other defendant, so that no attention need be paid to him in this opinion.

The petition sets out that the plaintiff recovered a judgment against one Quigley, beiore a justice of the peace; that such judgment has never been paid; that thereafter proceedings such as are authorized by Sec. 6680-1 Rev. Stat. et seq. were had before the same justice; that the defendant was duly notified, and that the same came on to be heard before said justice on May 2, 1899. “And thereupon, on said second day of May, 1899, such proceedings were duly had in accordance with such statute that, it appearing by the admission of said defendants, Anthony Carlin and Rose Carlin (the other defendant), that they were then indebted to said Quigley in a sum sufficient to satisfy said judgment and costs of said proceedings, which sum was then due and payable, by the consideration of said justice of the peace, this plaintiff duly recovered an order against said defendants, Anthony Carlin and Rose Carlin, ordering them to páy to this plaintiff the sum of $165.90,” and that the defendants have failed to pay any part of the amount so ordered to be paid.

To this petition the defendant, Anthony Carlin, filed an answer in which he admitted the recovery of the judgment by the plaintiff against Quigley and that the proceedings in aid of execution were had upon such judgment, as is set out in the petition. The answer, however, specifically denies that the defendant is now, or ever was, indebted in any •sum whatever to said Quigley, and there is also a general denial, which puts in question the issue of whether he admitted before the ■justice of the peace upon proceedings referred to that he was so indebted.

Upon motion of the plaintiff, which is a partnership, judgment was awarded it uopn the pleadings, and it is to reverse this judgment that the present petition in error is filed.

This raises the question of the effect ot the order made by the justice oi the peace in the proceeding before him under the statute referred to.

It is urged on the part of the plaintiff in error that the defendant is not estopped from denying his indebtedness to Quigley by this order of the justice. It is said that the proceedings provided for in the statute are summary, and that the defendant would, if he is not now permitted to deny the indebtedness, be precluded from having the question of his indebtedness to Quigley tried by a jury.

This'action was brought under favor of Sec. 6680-5 Rev. Stat., which reads:

“If the justice shall make an order, pursuant to the preceding section, directing the payment of money by the person, partnership or corporation, against whom the aforesaid proceedings are instituted, and if such person, partnership or corporation fail to comply with said order, the judgment creditor may proceed against such person, partnership or corporation by civil action; and thereupon such proceedings may be had as in other civil actions, and judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation not exceeding the amount of such order and the costs of the proceeding against such person, partnership or corporation. An appeal shall lie from such proceedings to the common pleas court in like cases and manner as from other judgments of the justices of the peace.”

It will be noticed that an appeal is provided for in this section. The language, “An appeal shall lie from such proceedings to the common pleas court in like cases and manner as from other judgments of the justices of the peace” is perhaps not altogether clear as to what may be appealed from.

It has been held, however, by the circuit court of Tucas county, in the case of Deveaux v. Leslie, 9 Circ. Dec. 480 (18 R. 482), that under this section an appeal lies from the order of payment made by the justices, and in the opinion Judge Haynes calls attention to the fact that if it was not intended by the statute to give an appeal from such order, there was no occasion to provide for an appeal at all, because the civil action provided for in the section to be brought against the debtor erf the judgment debtor would be appealable under the general statutes providing for appeals.

We are disposed to concur in this judgment of the laucas county court and to hold that the defendant, Carlin, might have appealed from that decision, and if so, the contention fhat he would be deprived of a trial by jury upon the question of his indebtedness to Quigley is disposed of. But, it is urged, that even if this be true, since the provision oi the statute is that upon suit being brought against the debtor of the judgment debtor "such proceedings may be had as in other civil actions, and judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation not exceeding the amount of such order,” etc., implies that the judgment may be for a less amount than the amount of the order, and that, therefore, the defendant must be permitted to set up that he is not indebted to the judgment debtor. Though this is not without some weight, we think it is not sound. Whatever defense Carlin could have made in an action brought against him upon a judgment he could doubtless make in this case, and no other.

In 3 Freeman Executions (3 ed.), Sec. 423a, p. 2269, speaking of proceedings in aid ol execution, it is said:

“ The orders made in supplementary proceedings involve the determination of issues of fact and the application thereto of rules of law; and, as they settle the rights of the parties before the court, they must be given the effect of res judicata in all subsequent proceedings between those parties and others in privity with them. Hence, if by such orders money is adjudged to be paid or property to be delivered, they establish the right of the one party to such payment or delivery, and the duty of the other to make it.
‘‘The parties before the court are the judgment debtor, the judgment creditor, and the persons cited to appear or voluntarily appearing. All these are bound by the order or judgment of the court or judge, because they are parties thereto and entitled as such to seek redress by some revisory proceeding if the order is erroneous.”

Our conclusion, therefore, is that the facts set up in the answer filed by the defendant do not constitute a defense to the facts set out in the petition and that the judgment of the court of common pleas was right, and the same is affirmed.


text:
    INSURANCE — PARTIES.
    [Medina (8th) Circuit Court,
    June 3, 1902.]
    CaldweTl, Marvin and Hale, JJ.
    Farmers’ Mutual Fire & Lightning Ins. Co. of Medina Co., O. v. Emily J. Ward and Hiram Hart, Partners, etc.
    1. Policy Issued in Name Indicating Joint Ownership not Void Because Property is Severally Owned.
    Where a building owned by one person, and certain personal property, the property of the tenant thereof, are insured in a mutual insurance company, the application for which and the constitution being signed by a name indicating ajoint ownership therein, the husband of the tenant so signing upon the suggestion of the managing agent of the insurance company, such managing agent having knowledge of the several interests in the property insured, the policy is not void on the ground of misrepresentation, there being no intent on the part of the insured to deceive.
    2. Joinder oe Parties — Who may be Joined Under Sec. 5005 Rev. Stat.
    Plaintiffs, whose interests are several, may jointly maintain an action, under Sec. 5005 Rev. Stat., where all are interested in the subject of the action ; are protected from loss, if at all, by one and the same instrument, and their loss occurs at one and the same time and all the rights of each can be fully protected in a single action without any prejudice to the defendant.
    Error to court of common pleas.
    Frank Heath and N. H. McClure, for plaintiff ib error.»
    J. W. Seymour, for defendants in error.
   MARVIN, J.

This is a proceeding in error brought to.reverse a judgment of the court of common pleas in an action wherein the defendants .in error were plaintiffs and the plaintiff in error was defendant. The result in the court of common pleas was a judgment in favor of each of the defendants in error. The terms, plaintiffs and defendant, used in this opinion, refer to the parties as they stood in the court below.

The petition upon which the case below was tried, was an amended petition and was filed by the plaintiffs jointly. The action was founded upon a policy of. insurance issued by the defendant on June 28, 1894. The defendant is a mutual insurance association organized under the statutes of the state, for the purpose of insuring its members against loss or damage to property by fire or lightning.

. The policy sued upon, though dated as hereinbefore' stated, purported to insure from April 12, 1894, at noon, until April 12, 1899, at noon. This policy was issued to E. J. Ward & Company.

By a provision of the constitution of the defendant, any person insuring in the association and complying with its rules, becomes thereby a member of the association. Before insurance was issued, it wa required that the party wishing to insure should file an application for such insurance, and, before any policy should issue, the applicant must subscribe to the constitution and by-laws of the association in compliance with Sec. 3690 Rev. Stat.

The application upon which the policy sued upon was issued was dated April 12, 1894, and the signature thereon appears in these words “ E. J. Ward & Co., by Agt.,” and the subscription to the constitution is in the same words and dated at the same time. This signature to both the application and the constitution and by-laws was actually written by R. D. Ward, who was the husband of the plaintiff, Emily J. Ward. At the time of the making of this signature both to the application and the constitution and by-laws each was signed by J. S. Hatch in these words : “ J. S. Hatch, Manager.”

The property purporting to be insured was a barn valued, in the application, at $700, and certain personal property. The application sets out that the property to be insured was owned by E- J. Ward & Co., and, as has already been said, the policy was issued to E- J. Ward & Co. As a matter of fact, the barn was owned exclusively by the plaintiff, Hiram Hart, and the personal property exclusively by the plaintiff, Emily J. Ward. The Wards, husband and wife, were occupying a farm owned by Hart, on which the barn was situated. There was an arrangement between the Wards and Hart by which Mrs. Ward might become, upon certain conditions, the owner of the farm, but she never did become such owner. And the trial court instructed the jury (properly under the evidence) that Hart had no interest in the personal property, and that Mrs. Ward had no interest in the barn.

On February 14, 1899, said barn was entirely destroyed by fire, and at the same time a considerable part of the personal property was also destroyed in the same way, to recover for the loss of which the suit was brought.

Numerous errors are charged in the petition in error, one of which is that neither of the plaintiffs was ever a member of the association because neither had ever made application for membership or subscribed to the constitution and by-laws.

The evidence shows that J. S. Hatch, whose name, as has already been said, is signed on the application as manager, was, as such manager, the authorized agent of the defendant. The evidence tends to show that at the time the application was signed “ E. J. Ward & Co., by Agt.,” Hatch was informed of the real facts as to the ownership of property, and that R. D. Ward was acting as the agent of both Hart and Emily J. Ward in signing the application and the constitution and by-laws, and that it was at the suggestion of Hatch that the signature to each was made as it was made. It is true that the signature would indicate that the property was owned by a copartnership, or, at least, was jointly owned by several persons; but with the knowledge on the part of the representative of the defendant that the property was owned in severalty, a part by one and a part by another person, and that the signature was made at the suggestion of the agent of the defendant, we think the association cannot be exonerated from liability because of the fact that on its face it would appear from the application and the signatures that the property was owned jointly by several parties.

In the case of Webster v. Insurance Co., 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719; 53 Am. St. Rep. 658], the court held that although the application for insurance represented that the property was owned jointly by Julia E. Webster and her husband, James E. Webster, while, in fact, the real estate was the sole property of the wife, Julia, and' the personal property was owned solely by the husband, James, yet the facts being known to the company at the time the application was made and the policy issued, the company was not relieved from liability on that ground. Judge Spear, in the opinion in the case, at page 565, uses language which would seem to be equally applicable to the present case, as follows: '

“ * * * These plaintiffs were not lawyers; the property was in the country, and they were, without doubt, plain country folk. Who would suspect them of intending to be understood that their ownership was that of joint tenants, or of tenants in common, within legal, definitions? Rather is it natural to presume that they used the word in the popular sense, implying that they owned the property together, and that no other person was interested in it.”

There was no error on the part of the court of common pleas in holding that the application and the signatures to the constitution and by-laws, under the facts disclosed to the agent at the time the application was made, were not sufficient to defeat recovery.

It is further claimed that, under the facts as disclosed by the evidence, the action could not be maintained by the plaintiffs jointly because their interests were not joint; whatever interest each had was wholly separate and distinct from the interest of the other. This claim is, in part, answered by the case of Webster v. Insurance Co., supra. It is true that, in that case, no claim was made for the loss of .personal property which was owned by the husband, and some stress is laid upon the fact that under the law and the relation subsisting between the husband and the wife, the husband had, in a sense, an interest in the real estate; so that the case is not, in that regard, parallel to this.

On the part of the Insurance Association we are cited to the case of Masters v. Freeman, 17 Ohio St. 323. The first clause of the syllabus in that case reads:

“ In an action brought by two plaintiffs for the recovery of a. personal judgment, on an alleged indebtedness' of the defendant to the plaintiffs jointly, the fact that the cause of action is not joint but several in its character, constitutes a good defense.”

The claim in that case was based upon an alleged misappropriation of certain funds belonging to the plaintiffs and the defendant jointly. The defendant answered that whatever indebtedness existed against him in favor of the plaintiffs or either of them, was an indebtedness to each of them severally and not jointly, and the court, on motion, ordered such allegations of the answer as undertook to show this state of facts, to be stricken out and this is held by the Supreme Court to be erroneous.

The case of Bartges v. O’Neil, 13 Ohio St. 72, is also cited to us on the part of the Insurance Association. This was a suit brought originally by Owen O’Neil and Bridget, his wife, setting out that the O’Neils had been induced, by false representations of Bartges, to pay $1,800 for certain real estate which was really practically valueless. The court held in that case, that the plaintiffs had no joint interest in the claims, and, on page 77, this language is used:

“ The petition, it is true, states the purchase of the Illinois lands to have been made by the plaintiffs; and the representations as to the situation, quality and value of the lands are stated to have been made by Bartges to them, the plaintiffs; yet, when taken all together, it appears from the petition that the purchase of the lands was made by Owen O’Neil, and that he paid the entire consideration; and' that Bridget O’Neil was in no way interested, except to receive a conveyance of the title of the land so purchased by Owen. But the action is brought to recover for a cheat practiced by the defendant; and if the alleged cheat was proved, the party cheated would be legally entitled to recover the damages thereby sustained.”

And then the court go on to show that in no event was Bridget O’Neil injured by any representation made by Bartges; that she parted with nothing, and that, whatever injury was sustained by anybody, was sustained by Owen O’Neil and by him alone, and for that reason, they could not maintain an action jointly for the fraud.

The present case differs from each of these cited, in that the plaintiffs claim under a contract issued to them jointly, although the facts show that their interests are separate. '

Section 5005 Rev. Stat. reads:

“ All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided.”

In commenting upon this section, as found in the codes of the several states, Mr. Bliss, on Code Pleading (3 ed.), Sec. 73, p. 116, uses this language:

“ There is a distinction between the rule requiring persons united in interest to be joined and the one just given (the section of the code above quoted), as the latter does not contemplate a joint interest, nor is the union made imperative. In the cases where it has been sanctioned the interest is called a common one — that is, certain persons are interested in that concerning which the wrong has been done, and will all be benefited by the relief which is sought; they have a common interest, and may join in seeking the relief. * * * In either case they may unite in an action, notwithstanding the technical common law rule confining the union to those having a joint interest.”

Again, in Sec. 74, the same writer says:

“ It shocks the prejudices of common law pleaders to speak of a union of plaintiffs where there is not a joint interest; and, such is the effect of legalv education and long habits of thinking, that, what seems so natural in a proceeding to prevent a common injury, or to set aside a sale for the benefit of common creditors, or to subject to their respective claims the assets of an estate, seems almost impossible, in case a sum of money is sought to be recovered in which sundry persons have a several, and perhaps unequal, interest. But it has come to be generally conceded that the rule is universal in "its application, as it is in its terms; and if two or more are interested in the subject of the action, and in the relief sought, they may unite as plaintiffs for the recovery of money, or of specific real or personal property.”

This subject is further discussed in the subsequent sections of Blisg; and also in Pomeroy on Code Remedies, Secs. 41, 62, 63. The purport of the discussion by each of these writers is, that, under the system introduced by the code of civil procedure, the rules which were in force under the common law system are so relaxed as to conform in large measure to the rules in equity pleadings, and to authorize, though not necessarily to require, all who have an interest in the subject of the action, to unite in bringing suit.

In this case both plaintiffs were interested in the subject of the action; they were protected from loss, if at all, by one and the same instrument; their loss occurred at one and the same time; and, in this action, all the rights of each could be fully protected without any prejudice to the defendant.

There was no error on the part of the court in holding that the actio-n might be maintained by the plaintiffs' joining in the petition. By direction of the court the jury answered certain questions propounded to them, as follows:

“ 1. Who were intended by the name E. J. Ward & Co., as used in said application and policy? Answer”: Emily J. Ward and Hiram Hart.
“ 2. How much, if any, of your verdict do you find as due to Emily J. Ward? Answer: $200.76.
“3. How much, if any, of your verdict do you find is due to Hiram Hart? Answer: $815.00.”

Under the evidence the jury might properly have answered each of these questions as it did. In conformity with these answers, the court entered judgment in favor of each of the plaintiffs for the amount found due to them severally as shown by the foregoing answers.

The questions discussed in the opinion .so far were properly raised by a motion filed for a new trial, and, so far as those questions are concerned, what has already been said in the case indicates that there was no error on the part of the court in overruling such motion.

Other questions are raised on the record — some as to the ruling of the court upon questions of evidence, as to the authority shown in R. D. Ward as the agent of the plaintiffs in making the application and effecting the insurance. Each of these has been carefully considered, and, without going into detail, we hold that there was no error in the ruling of the court as to any one of them which would justify a reversal of the judgment.

The judgment of the court of common pleas is affirmed.