text:
    ^ALLOWANCE OF ALIMONY TO A WIFE MANDATORY, WHEN.
    Court of Appeals for Lucas County.
    Jessamine M. McGinnis et al v. David W. McGinnis.
    Decided, January 28, 1918.

      Divorce and Alimony — Where a Divorce is Granted Wife Alimony Must he Allowed — Amount of Allowance Where Both are Darning Salaries.

    1. While the duty to allow alimony to the wife is mandatory under • the provisions of Sections 11990 and 11991 G. C., when a divorce is granted to her, yet those sections require the'trial court to allow only such alimony as is reasonable and to. make the same payable in such manner as is equitable.
    2. Where the parties are about 40 years of age, in good health, have no children, have lived together three years, and the wife has property of the value of $2,300 and is in receipt of a salary of $98 per month for ten months of the year, and the husband has no property and receives a salary of $100 per month, a judgment refusing the wife alimony other than $300 already paid her as temporary alimony, and $50 to be paid as an attorney fee to her counsel will not be reversed.

      O. S. Br-wmbach, for plaintiff in error.

      Marshall & Fraser, contra.
   Richards, J.

This is a proceeding in error to the' court of common pleas to reverse a judgment of that court relative to alimony rendered on granting a divorce to the plaintiff. The parties to this aeT tion were married on December 20, 1913, and the wife commenced an action for alimony alone on May 18,1916. Thereafter the husband filed a cross-petition for divorce, whereupon the plaintiff filed an amended petition asking for both cliveree and alimony.

During the pendency of the action the court of common pleas allowed to the plaintiff temporary alimony at the rate of $30 per month and under this order she has received some $300 by way of temporary alimony. On the hearing of the case in the court of common pleas, a divorce was granted to the plaintiff, based on the ground of extreme cruelty, the decree finding that the plaintiff was entitled to recover no alimony other than $50 which was therein allowed as attorney’s fees for her counsel. The court adjudged that the husband pay this sum and also the costs of the action. It is to reverse this refusal to allow alimony, other than as stated,, that she brings this proceeding in error.

The bill of exceptions discloses that the husband has no property, but is in receipt of a salary of $100 per month as a mail carrier in the city of Toledo, and that the wife is a teacher in the public schools of that city, receiving a salary of $98 per month for ten months in the year. She also has property which she received from her mother, amounting in value to about $2,300, a part of which is now in cash and the remainder represented by a mortgage held by her. Each of the parties is about forty years of age and apparently in good health, and they have no children. Under these, circumstances it is contended that the court erred in refusing to award to her a substantial sum by way of alimony, and it is insisted that the language of the statute is mandatory and requires the allowance of alimony. The right of the plaintiff to alimony is controlled by Sections 1199Q and 11991 G-. C. The first section requires, when a divorce is granted because of the husband’s aggressions, that the court shall restore to her any name she had before marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. The next section provides that such alimony may be allowed either in real or personal property or both, or in money, payable either in gross or installments as the court deems equitable. It will be noticed that by the terms of these statutes only such allowance is to be made as the trial court deems reasonable, having regard to the circumstances stated in the statute and that it may be allowed in such property and payable on such terms as the trial court deems equitable. The language of these sections has been held by our Supreme Court to be mandatory, but they can only be mandatory to the extent that the trial court shall make such allowance of alimony as it deems reasonable and payable out of such property and in such manner as it deems equitable. A large discretion appears to be vested in the trial court and this is, of course, a judicial discretion and subject to review by the court of appeals.

The trial judge in determining whether an allowance of permanent alimony should be made, manifestly' considered all the facts and circumstances disclosed by the record, .the duty to consider which is imposed upon him by statute. Considering the age and health of the parties, the fact of the salary received by each and that the husband had no property while the wife had the amount shown by the record, we can not see that the judgment is so manifestly against the evidence as to require a reversal nor that the action of the court was unreasonable or inequitable. The court allowed $50 as an attorney fee for plaintiff’s counsel and was, of course, advised of' the fact that some $300 had already been paid by way of temporary alimony. While the language of the sections is mandatory, these sections'do not require the allowance of alimony other than shall be found to be reasonable and equitable.

Finding no reversible error the judgment will be affirmed.

Kinkade, J., concurs; Chittenden, J., not sitting.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    ACCOUNTING AS TO PURCHASE OF STOCK.
    Court of Appeals for Coshocton County.
    Jesse McClain v. M. D. Custer, et al.
    Decided, June 17, 1918.

      Agency and Trust Relationship DistingtiAshed — Degree of Proof Required to Establish Agency and to Establish a Trust.

    A.n action which seeks to charge the defendant as agent and trustee must fail, where there is such a conflict in the testimony as to indicate the minds of the parties never met in contractual relationship, from which it necessarily follows that no contract being shown there was no trust relationship established.

      Joseph L. McDoivell, W. S. Merrell, and J. B. Shepler, for plaintiff.

      W. Ii. Pomerene and G. B. Hunt, contra.
   Houck, J.

Heard on appeal.

This is an action brought by the plaintiff, in which he seeks to charge the defendant M. D. Custer, as agent and trustee, for the purchase of twenty shares of the common capital, stock of the Fairfield Paper Company, which the said Custer is alleged to have purchased for plaintiff and in violation of his duties as such agent and trustee took the title thereto in his own name, and disposed of said stock without turning over any part thereof to the plaintiff. The answer of the defendants in substance is a general denial of all the material averments of the petition.

Two issues of fact are raised by the pleadings. First, was the defendant Custer the agent of plaintiff? Second, was the defendant Custer the trustee of plaintiff ?

The plaintiff has the burden of maintaining these facts, and he must sustain them by that degree of proof required by law. The degree of proof required as to the first issue of fact is by the weight of the evidence; and as to the second, it must be established by clear and convincing evidence.

This difference in the degree of proof required to sustain these two facts is readily understood when we call to mind that agency differs in many important respects from what is usually designated as a trust. While it is true that agency is sometimes defined as a relation of trust and confidence, and therefore property in the hands of an agent is frequently held to be impressed with a trust for the benefit of the principal, nevertheless, the two relations can not properly be claimed to be alike.

Agency is a contract, and it is necessary that the minds of the alleged contracting parties should meet, and this must be done, as shown by the evidence, before the claim of agency will be sustained.

While a trust involves control of property, agency, within itself, does not. A trustee usually holds the legal title, while an agent ordinarily does not. Trust is not considered a contractual relation, while agency is so regarded.

This leads us to the proven facts in the case as contained in the transcript of the testimony taken in the common pleas court, and the two transcripts of the testimony as taken in this court. We have read all of it with much care, and we find, upon the two issues of fact presented for our solution, a conflict of testimony of such a character that we find that the minds of the parties to this law suit never met in contractual relationship, as contemplated by law under the rules as hereinbefore laid down. And having thus found, it also naturally follows that there is a failure of proof to create a trust relationship between the plaintiff and the defendant Custer.

When the plaintiff filed his petition, setting forth his alleged claims, he took upon himself the burden of establishing each and all of the material allegations contained therein by that degree of proof required by law. The evidence offered in the case, as disclosed by the transcripts of testimony, does not measure up to the degree of proof thus required; and having thus found, it is the duty of this court to dismiss the petition of plaintiff, which is now done.

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


author: Middleton,, J.

text:
    COUNTY AND TOWNSHIP DITCHES.
    Court of Appeals for Clark County.
    Judges Middleton, Sayre and Walters of the Fourth District sitting by-designation in the places of Judges Kunkle, Allread and Ferneding of the Second District.
    Joseph Crabill, Jr., v. The Board of County Commissioners of Clark County, Ohio, et al.

    Decided, January 13, 1919.

      Ditches — Procedure for the Alteration and Repair of — Jurisdiction of County Commissioners — Not Dependent on Refusal of Township Trustees to Act — Improvement and Repair of Ditches Located in Part on the Line of a Township Ditch.

    1. The provisions of Section 6517, General Code, are cumulative and are intended to afford petitioners for the alteration and repair of ditches an additional remedy after refusal by the township trustees to act.

      2. This section does not limit or qualify the right of county commissioners to proceed under Sections 6443 and 6452, General Code, and refusal by the township trustees to act as provided in Section 6517, supra, is not necessary to give county commissioners the authority to do the things specified in Sections 6443 and 6452, supra.

    3. County commissioners may alter, improve, or repair a ditch located in.part over the line of a township ditch without any prior refusal by the trustees to act in respect to such improvement. Sollars et al v. Sever et at, 8 C. C. (N.S.), 364, not followed.

      W. Y. Mollar, for plaintiff in error.

      Stafford & Arthur and Keifer dé Keifer, contra.

       Motion to certify record overruled by the Supreme Court, May 13, 1919, because no error had intervened.

   Middleton,, J.

Heard on'error.

In December, 1916, certain resident freeholders of this county duly filed a petition with the county commissioners, praying for the construction, widening, straightening, deepening and tiling, as far as practicable, of a ditch on a route beginning,

“ At a point in the lands formerly owned by Laura J. Tuttle, in section 9, township 5, range 9, M. B. S., where the tile drains of the Tuttle ditch now empty into an open ditch; thence southerly, following the line of an open ditch or water course, through the said Tuttle lands and the lands of William S. Adams and Ellen W. Alt, in said section 9, and of Joseph Crabill, Jr., in sections 8 and 14, township 5, range 9, M. B. S., to the south line of the right of way of the Detroit, Toledo & Ironton Bailroad Company.”

Such proceedings were subsequently had on said petition as that the same was granted by the county commissioners, from which action of the commissioners an appeal was taken by the plaintiff in error to the probate court. The ease thereafter came on to be heard in the probate court to a jury, which returned a finding, as required by statute, in favor of the petitioners for said ditch. The plaintiff in error then prosecuted error to the common pleas court of this county, which court affirmed the finding' and judgment of the probate court, and he now prosecutes error to this court to reverse all of said judgments below.

It appears from, the record that from the point of the beginning of said ditch, for a distance of 736 feet, the proposed route of the new ditch lies over and along a county ditch, and from that point the remainder of said ditch lies along the route of an established township ditch. The entire length of the proposed ditch is about 4,950 feet; the first 1,600 feet thereof was to be tiled and the remainder was to be cleaned out, deepened and widened.

The main contention of the plaintiff in error is, that under the provisions of Section 6517, G. C., the county commissioners were without jurisdiction to entertain the petition herein, as no application had been made to the township trustees to repair the township ditch involved in the improvement, and that until there was a refusal by the township trustees, as provided for in said section, the county commissioners were without jurisdiction to proceed. In support of this claim attention is directed to the case of Sollars et al v. Sever et al, 8 C.C.(N.S.), 364, in which it is held that,

“County commissioners are without authority to locate and establish a ditch in a township ditch until there has been a refusal by the township trustees to act as provided in Section 4510 (R. S.).”

It would seem from the facts, as they appear in the record of this case, if the construction therein given Section 4510 R. S. (now said Section 6517, G. C.), is the proper and correct interpretation of said section, it is decisive of the instant case. We are not, however, convinced that the learned cour; in that case was correct in the conclusions it reached or that its construction of this section is in harmony with the legislative plan or scheme for the repair of ditches, either county or township as that plan is shown by the whole legislation on that subject. In other words, Section 6517 is to be construed, not only with regard to its express provisions, but in the light of all provisions of the statutory law. of this state in respect to the subject of repairing ditches, both county and township. Sections 6443 and 6452, G. C., grant full and complete authority to the county commissioners to do all the things involved in the improvement proposed in the instant case. Section 6644, G. C., gives like authority to the township trustees. These sections and Section 6517, stipra, appear to cover the whole field of legislation on this subject.

Without attempting to give a .full legislative history of these various sections, it may be said that Section 6443 now appears to be a combination of Section 1 of an act passed March 27, 1851 (58 O. L., p. 49) and Section 1 of an act passed April 25, 1868 (65 O. L., p. 107). Said last named section provided:

“That the county commissioners of any county in this state shall have power, at any regular or called session, whenever in tHeir opinion it is necessary and will be conducive to the health, convenience or welfare of the public, in case where any ditch, drain or water course has been established and constructed uuder the provisions of the act to which this is supplementary, to cause the same to be cleaned out, widened or deepened, as hereinafter provided. ’ ’

While the jurisdiction of the county commissioners was limlited in this section to county ditches, that limitation seems to have been removed at some subsequent time, and as Section 6443 now stands it expressly provides that the county commissioners may straighten, widen, alter, deepen, box or tile any ditch. This is also true of Section 6452, G. 0., in which provisions are .found equally as broad and comprehensive. Section 6644 was first enacted March 9, 1866, and may be found in Yol. 63 O. L., p. 38, and as then passed provided :

‘ ‘ That the township trustees of any township in this state shall have power, whenever in their opinion it will be conducive to the health, convenience or welfare of the public, in eases where any ditch, drain or water course has been constructed under the provisions of the act to which this is supplementary or otherwise, to cause the same to be cleaned out, deepened, widened or repaired, as hereinafter provided.”

The act to which this section was supplementary was an act authorizing township trustees to construct ditches. But it is important to observe that their activities in the repair of ditches were not limited in the above section to township ditches, but included all ditches “otherwise” constructed.

At the time of the enactment'of Section 6517 all of the foregoing sections contained practically the same provisions that they now have. So that at the time of the enactment of said section both- the board of county commissioners and the board of township trustees were fully authorized under said sections to repair any ditch, either county or township, and each had in respect thereto equal and concurrent authority. The construction, therefore, of this section as given by the learned court in dollars v. &fever, supra, makes its provisions apply to the repair of county ditches by county commissioners the same as they would apply to township ditches. There is nothing in its provisions by which they may be limited to the repair of township ditches. The section makes no distinction whatever between county and township ditches, but by its express provisions it is made applicable to any ditch provided for in the title under which it is found. That title includes all of the sections hereinbefore noted. It follows from this that if Section 6517 is intended to be jurisdictional and that the Legislature proposed by its provisions to subordinate the right of county commissioners to repair ditches to an action first by the township trustees, and to make the right of the county commissioners to act in the repair and improvement of ditches dependent upon the refusal of the township trustees to so act, we have in its provisions an implied repeal of all the authority granted to the commissioners in Sections 6443 and 6452, supra. This is further evidenced by the fact that said Section 6517 provides a complete plan for its execution and specifically provides how county commissioners shall proceed.

It is unnecessary to discuss the law of repeal by implication. It is a familiar rule of statutory construction that such repeals are not favored, and that a statute will not be construed as repealing by implication prior acts on the same subject unless there is an irreconcilable repugnancy between them and it is plainly evident that the Legislature intended the new law to completely supersede the old.

The jurisdiction granted to the county commissioners in Sections 6443 and 6452, supra, is expressed in terms plain, positive, direct and unqualified. Unless the jurisdiction thus granted is repealed by terms equally plain and unqualified in Section 6517, we do not feel warranted in saying that the latter section is controlling, but must regard it as merely cumulative and not as abrogating the former law. This we do for the following reasons -.

It is a familiar principle that when two courts have equal and concurrent jurisdiction in respect to the same subject-matter, the one first obtaining jurisdiction retains it and determines the questions involved. As a corollary to this, when such tribunal exercises its jurisdiction and determines the matter submitted its action concludes all parties, the subject litigated is res adjudícala, and the jurisdiction of both tribunals as 'to that particular subject is exhausted and at an end. These principles apply also to boards of quasi judicial functions, like county commissioners and township trustees. (Marsh v. Commissioners, 26 Weekly Law Bull., p. 3; see, also, 33 Weekly Law Bull., pp. 121-131.)

Prior, therefore, to the enactment of said Section 6517, when a petition for an improvement like the one involved in this proceeding was presented to the township trustees and they refused to act, the petitioners were concluded by their decision. By the enactment of this section the Legislature intended to give such parties, under such circumstances, a further remedy by expressly empowering the commissioners to entertain their petition, notwithstanding it had been refused by the township trustees.

This section, therefore, is merely cumulative and affords an additional remedy only, and gives additional jurisdiction to the county commissioners to act in the repair and improvement of ditches.

We are, therefore, unable to accept the construction adopted in Sollars v. Sever, supra, and must hold in the instant case that the county commissioners were fully empowered to entertain the petition and act upon it, notwithstanding a part of the ditch proposed to be improved and repaired was over and along the line of a township ditch, and that no application for said improvement had theretofore been made to the township trustees.

To the further contention of the plaintiff in error that the verdict and finding of the jury was and is against the manifest weight of the evidence, it is sufficient to say that there is ample evidence in our judgment, as disclosed by the record, to sustain the finding and verdict of the jury.

Judgment affirmed.

Sayre, J., and Walters, J., concur.


author: Shohl, J.

text:
    EMPLOYEE OF OHIO COMPANY INJURED OUTSIDE OF THE STATE.
    Court of 'Appeals for Hamilton County.
    The Industrial Commission of Ohio, Wallace D. Yaple, M. B Hammond, and T. J. Duffy, Comprising the Said Commission, v. Lena Ware.
    Decided, 1919.

      Workmen’s Compensation Act — Not Applicable to Employee of Ohio Company — But Injured Outside of the State, When — Claim of Lawful Wife not Barred by Bigamous Marriage — Evidence—Jury May not Return a Yerdiot Fixing Compensation to be Paid in a Lump Sum.

    1. The Industrial Commission of Ohio is not liable for the death of a workman occurring outside the state, when he was neither hired in Ohio, nor employed to work there, merely because he was in the employ of a concern that complies with the Ohio workmen’s compensation law.
    2. The workmen’s compensation law may have some extra territorial operation.
    3. The fact that the decedent had contracted a bigamous marriage does not bar the claim of his lawful wife.
    4. A question to a witness is not improper as tending to impeach a witness previously called by the same party merely because the .answer might incidentally reflect upon such other witness, if the evidence to be elicited thereby tends to prove any fact relevant to the issues.
    5. In cases arising by way of appeal from the decision of the Industrial ■Commisison denying the right of a claimant to participate in the state insurance fund, a jury is without power to return a verdict fixing compensation to be paid in a lump sum.

      John V. Campbell, Prosecuting Attorney and Henry G. Hauck, Assistant Prosecuting Attorney, Attorneys for Plaintifü. Fulford, Shook & Wilby, contra.
   Shohl, J.

Lena Ware brought suit against the Industrial Commission of Ohio in the court of common pleas of Hamilton county, Ohio, alleging that she was the widow and dependent of Sam Ware, who was killed in the course of his employment while working for Platt & Dickinson, contractors, who were members of and participants in the state insurance fund of Ohio. Compensation had been refused by the commission. Judgment was rendered in her favor in the court of common pleas, and the Industrial Commission brought the case to this court on error. This court decided that the trial court was without jurisdiction and reversed the case on that'ground.

Lena "Ware then took the case on error to the Supreme Court, and that court reversed the judgment of the court of appeals, and by its mandate directed this court to consider all the allegations of error.

The ease was again presented and is now submitted to this court for decision. We are guided only by the mandate of the Supreme Court from which it is apparent that the tribunal regarded the provisions of Section 1465-90, requiring the action to be brought in the county in which the injury occurred, to be directory and not mandatory. Other questions "were argued in the briefs, but not decided.

The most important question arose out of the overruling by the court of "the motion for judgment on the pleadings, filed by the Industrial Commission. The petition which is required by statute, Section 1465-90, to be in ordinary form, after alleging the representative capacity of the members of the Industrial Commission says:

"Appellant further states that she is the widow of Sam Ware, deceased, and that at the time of his death, and prior thereto she was his wife, and as such dependent upon him for support. That on or about the 30th day of July, 1915, her said husband, Sam Ware, was employed by Messrs. Platt & Dickinson, brick work contractors who were members of and participants in the state insurance fund of Ohio; that while working for said Platt & Dickinson, in Covington, Ky., a brick fell from the top of the structure on which he was working for the said Platt & Dickinson, causing his death, on or about the said 30th day of July, 1915. That at the time he was killed, as aforesaid, and prior thereto, he was working as a hod carrier and receiving wages of $3.40 per day.”

Then follows a statement of the application to the commission, and the disallowance of the claim.

The foregoing extract contains all the averments in respect to the employment and the injury of Sam Ware.

It will be noted that it is not averred that the contract of employment was made in Ohio, or that the labor was to be performed in Ohio. It does appear that the injury took place in the State of Kentucky.

The bald question is presented as to whether the Industrial Commission of Ohio can be liable for injuries to a workman neither hired in Ohio, nor employed to work there, because he is employed by a concern that does comply with the Ohio laws. The record discloses no evidence in respect to these matters, absence of which in the pleadings has just been noted.

There are at least three different types of questions that arise in consideration of the extra territorial operation of the workman’s compensation law. An Ohio employer may hire a workman who lives in Ohio in different ways. First, a workman may be employed in Ohio.to do work partly or primarily in Ohio, and be injured while temporarily or casually out of the state. Second, a workman may be employed in Ohio to do work entirely outside the state, and receive injuries at such place of work. Third, a workman may be employed outside the state of Ohio to do work entirely beyond the limits of the state, and be injured at the place of work.

It will be seen that the foregoing examples are not intended to be exhaustive of the possible situations.

An illustration of the first type of case is Spratt v. Sweeney & Gray Company, 168 App. Div. (N. Y.) 403. There an employee was required to go from New York into New Jersey for two days. His absence from New York was regarded by the court as a mere incident to the employment within the state.

The second type is illustrated by the ease of Gardner v. Horseheads Construction Co., 171 App. Div. (NY.) 66. It was adjudicated in that case:-

“Where an employee of a general contractor, with an office in this state, has not performed any services here for several years, and Ms contract of employment did not contemplate any work within the state, no recovery may be had under the statute for his death sustained while employed in the state of Pennsylvania. He was engaged in an independent service in a foreign state, which employment does not come within the benefit of the statute.”

It is interesting to note that while the decision in the case of Post v. Burger & Gohlke, 216 N. Y., 544, has language which might appear to be inconsistent with the Gardner case, the facts in the Post case are regarded by the court, at page 68 of the opinion in 171 App. Div., as distinguishing. Further color is given to the inference that the cases are not in conflict by the decision in the case of Smith v. Heine Safety Boiler Co., 224 N. Y. 9 (119 N. E. 878), wherein both the Post case and the Gardner ease appear to be cited with approval.

So far as we have been able to determine there never has been any decision stating that a case of the third type was within the provisions of the Workmen’s compensation law.

Judge Merrell, of the superior court of Cincinnati, in the case of Cody v. Packet Co., 15 N.P.(N.S.), 529, states that a case of the so called third class would not give the injured person any right to relief, regarding it as falling within the rule of Alexander v. Pennsylvania R. R. Co., 48 O. S., 623.

It becomes important to determine the nature of the right of the injured person rising under the compensation law. That question is the subject of an article by Ernest Angell, 31 Harvard Law Review, 619. The author states that text writers and courts have demonstrated that the right to claim or the duty to pay compensation does not arise out of tort. A discussion follows as to whether the duty or right are imposed by law or arise from the relation, after the relation has been created by contract. The American authorities are commented upon. The general subject is likewise discussed in the note in L. R. A., 1916 A, 443, and in the decision of Gooding v. Ott, 87 S. E., 862 (W. Va.), L. R. A. 1916 D, 637.

The authorities are not uniform and we regard it as improper to express our views now upon cases of the second type because that question is not before us. However, we regard the decision of the Supreme Court in this case as necessarily implying that there may be liability in a case of the first type.' If there could not have been any extra territorial operation of the workmen’s compensation law, it would have been useless for the Supreme Court to have directed us to consider the other errors assigned.

Whether an injured workman can recover compensation from the commission, when he is employed in Ohio to do work entirely without the state, or whether a workman employed outside the state to do work partly within and partly without the state, has any rights must be left for adjudication when those cases arise. It is clear that to come within the policy of the statute the claimant must be an Ohio workman. lie must be either employed in Ohio or employed to work in Ohio. So far as the allegations of the petition show neither of these elements was present. There is no room for a difference of opinion as to the construction of the allegations of the petition. There can be no possible inference to be drawn of the plaintiff to the effect that because he was working for a contractor of Ohio, or he made his contract there, or that his contract called for work to be done there. Without either of these averments it can not be said that the petition alleges that Ware was an Ohio workman. It follows, therefore, that the court below erred in overruling the motion for judgment.

The question of the dependency of plaintiff upon Sam Ware was argued at great length. Many of the questions are foreclosed by the affirmance by the Supreme Court of the case of Musselli v. Industrial Commission, 28 O. C. A., 97. If plaintiff can bring herself within the rules laid down in that case, the fact that Sam Ware had contracted a bigamous marriage would not bar her right to recovery.

The Industrial Commission offered evidence of Gabriel Rohn. He was asked whether he knew with whom Lena Ware was living. The question was one of a series of questions whereby the commission offered to prove that plaintiff was living with William Carroll as man and wife. The commission had already offered Carroll as a witness. Objections was made to the questions asked Rohn in regard to the conduct of plaintiff and Carroll. The objection was on the ground that it constituted an impeachment of defendant’s own witness, and was sustained by the court. The question was proper, and the mere fact that the answer might incidentally reflect upon a person who had previously been a witness did not render improper the evidence to be elicited thereby, if such evidence had a tendency to prove any fact relevant to the issue in the ease. Hurley v. State, 46 O. S., 320, 322; I Greenleaf on Evidence, Section 442, 443b.

The court awarded judgment for a lump sum. The law is that in cases arising by way of appeal from the decision of the Industrial Commission, denying the right of the claimant to participate in the state insurance fund any award, must provide for periodical payments and not a lump sum. Roma v. Industrial Commission, 97 O. S., 247. Had this been the sole error, we would have directed a modification of the judgment. In view of the other errors, however, the judgment will be reversed.

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


author: Grant, J.

text:
    LIABILITY UNDER A LEASE.
    Court of Appeals for Cuyahoga County.
    J. M. Halliday v. G. L. Taft.
    Decided, January 20, 1919.

      Landlord nnd Tenant — Leased Premises Abandoned before Fully Occupied — Lessee Liable for Rent until New Tenant was Found.

    Under a written lease covering a dwelling, upon which $20 was paid at ' the time the lease was executed, the refusal of the tenant after entering into possession and partial occupancy to carry out the further terms of the lease because of some alleged interference on the part of the landlord, entitles the latter to judgment for the full amount of rental falling due until such time as another tenant could be secured.

      B. W. Jeremiah, Esq., for plaintiff in error.

      Jacob H. Schoen, Esq., contra.
   Grant, J.

Error to the Municipal Court of Cleveland.

The plaintiff declared on a written lease for the rental of a property of his at $480 for the year, the same to be paid in sums of forty dollars for each month, in advance. The defendant paid twenty dollars at the time the bargain was struck, and no more at any time. There was no counter-claim.

The trial below was to the court. There was evidence which the court had a right to believe, and which to make the judgment consistent the court did believe, tending to show the following facts: After the execution of the lease and the initial payment-on it, the defendant sought and obtained permission from the plaintiff’s tenant then occupying it, whose term had not at the time ended, to store some of his goods in the house, which he did. He bought from the outgoing tenant an individual lock, which the latter had put on the door to prevent intrusion by the landlord, with its key. The defendant’s family, for the purpose of cleaning it at least, exercised acts of occupancy in the house, and were for all purposes of the action in actual possession of the premises.

After this the defendant concluded to go back from his bargain and moved into other premises which for some reason appeared more satisfactory to him. The excuse alleged was thgf the plaintiff was disposed to interfere — too furtively, as his wife thought — with the latter in her operation of scrubbing the floor. He told the plaintiff he would not abide by his contract, doing some blustering, as the latter says, about the lease not being worth the paper it was written on, saying he was in the government service and so bullet-proof as far as collections were concerned, and making the usual inconsiderate talk of the man who is proud of being independently poor.

The landlord, however, was not affected by the terrors surrounding government understrappers, and in effect answered, as did Paul the Apostle when he sent back the box of compound cathartic pills to the elders of the Church at Ephesus, “None of these things move me,” and notified the tenant that he should hold him to his bargain.

By its terms the lease was to become operative November 1st.

After the defendant informed the plaintiff that he would no longer occupy his house, the latter made seasonable and suitable efforts to rent the property to others, advertising it in the newspapers. He, however, obtained no other tenant, and about the middle of January sold the property. The sale seems to have been absolute as of that date, no right of possession beyond that time being reserved by the deed or otherwise, so far as appears. The purchaser did not in fact take possession until some time in the early part of February. "We express no opinion upon the effect of this retention of possession through the entire month of January, as it is not material in the view we take of the case.

The plaintiff sued for one hundred dollars, being the rental for the months of November, December and January, at the agreed rate of forty dollars a month, less the twenty dollars down payment. He is entitled to recover, upon the facts which the trial court must have found in order to allow him any sum at all, the rents at least for November and December, which, applying the credit of twenty dollars paid in hand, would amount to sixty dollars. For this sum, and for no less — leaving out the month of January, in the course of which the sale of the premises was made — judgment should have been rendered, if any judgment at all was rendered.

Without rhyme or reason, so far as we can see, the judgment actually rendered was for twenty dollars only.

The plaintiff prays to have it reversed.

The prayer is granted.

Dunlap and Washburn, JJ., concur.


author: Richards, J.

text:
    LIABILITY FOR ASSAULT COMMITTED BY AN EMPLOYEE.
    Court of Appeals for Lucas County.
    Harry H. Moon et al v. Ernest O. Conley.
    Decided, January 21, 1918.

      Assault — Measure of Duty Resting on Proprietor of Hotel and Bar— Where a Patron is Assaulted t>y an Employee while off Duty — Patrons Entitled to Protection from Insult, Annoyance or Danger— Charge of Court.

    Tlie proprietors of a hotel and bar operated in connection therewith owe to a patron the duty to exercise ordinai'y care to protect him from an assault and battery by another patron or by an employee, and are liable for the damages resulting fr'om the assault and battery, if, by tbe exercise of ordinary care they could have prevented tbe same.

      P. J. Phelan, for plaintiffs in error.

      M. D. Merrick, contra.
   Richards, J.

Error to the Court of Appeals for Lucas County.

The plaintiffs in error, Harry H. Moon and Charles W. Boisoneau, were partners operating a hotel and bar in connection therewith on Huron street in the city of Toledo. One of their employees was a man named Charles Brown. The original action, out of which this proceeding in error grows, was brought in the court of common pleas by Conley for the purpose of recovering damages for an assault and battery claimed to have been committed on him by Charles Brown, while an employee of Moon and Boisoneau and in their place of business. The trial resulted in a verdict and judgment in favor of Conley in the sum of two hundred dollars against the defendants, Moon and Boisoneau. The plaintiff claimed that he was a guest and patron of the hotel and bar and that the assault and battery was committed by Brown while a servant of the other defendants, and that this occurred in the presence of the defendant Moon. The transaction was on November 24, 1916, in the bar-room attached to the hotel, operated by the defendants, Moon and Boisoneau. Conley and Brown had been playing a game of cards known as rhummy. After playing one game peaceably, a quarrel arose between them, and in that quarrel Conley was struck in or near the eye and seriously injured. He contends that the defendants, Moon and Boisoneau, violated their duty to exercise ordinary care for his protection as a guest and patron in their place of business. The testimony, as is usual in eases of this character, is directly in conflict.

An examination of the charge to the jury discloses no error to the prejudice of the defendants below. In the course of the charge to the jury, the trial judge used the following language:

“Now, gentlemen, consider the evidence in the case, and if you find from the evidence that Brown assaulted Conley, that is, wrongfully struck him, and did this in the presence of the- defendant Moon in the bar of the hotel, and the defendant Moon, by the exercise of reasonable precautions upon his part, could have prevented the alleged assault and injury, and did not do so, the plaintiff, Conley, is entitled to recover the damage he suffered thereby. ’ ’

This, we think, is a fair statement of the law on the issues between the parties. It is substantially in accordance with the rule laid down in 14 R. C. L., 506, 508. On the latter page of the authority cited we find this language:

"A proprietor of any public house of entertainment may be answerable for the act of one of his.patrons as well as of his servant. He owes a duty to those that come to his place to protect them from insult and other annoyances or dangers. But by the great preponderance of authority, this duty is not absolute, but is limited to the exercise of reasonable care, and the proprietor is liable only when he is negligent.”

We take this to be a fair statement of the' measure of duty resting on Moon and Boisoneau on the occasion under investigation. And while the evidence as to whether that degree of care was exercised is in serious conflict, yet we can not say that the finding of the jury is so manifestly against the weight of the evidence as to justify a reversal of the judgment. The evidence tends to show that although Brown was an employee of the other defendants, he was not on duty that evening, but he and the plaintiff, Conley, were both at the time patrons of the bar which was being attended by the defendant Moon. Moon claims, in his testimony that he did what he could to prevent the parties entering into the quarrel and to separate them, but this is in direct conflict with the testimony of the plaintiff, whose testimony is to the effect that he was assaulted by Brown in the presence of Moon, and that he, at numerous times, called on Moon for protection from Brown. The issues of fact between the parties were fairly submitted to the jury, and, finding no prejudicial error, the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.


author: Shohl, P. J.

text:
    APPEAL FROM AN APPRAISAL UNDER THE MIAMI CONSERVANCY ACT.
    Court of Appeals for Butler County.
    Patrick Brady v. The Miami Conservancy District.
    Decided, June 4, 1919.

      Appeal by Land Owner — Dissatisfied with Appraisal of Benefits as Made under Conservancy Act — Character of the proceeding — Burden of Proof — Verdict.
    1. A land owner in the Miami conservancy district, who appeals from ■the appraisal of benefits made in his case, has the burden of proof to establish that the. finding and judgment of the Conservancy Court exceeds the actual benefits conferred.
    2. In such a case complaint does not lie that the court charged a concurrence of all twelve jurors was required to return a verdict, where . it appears that the verdict was unanimous against the land owner and he was therefore not prejudiced by the fact that the court required it should 'be returned by the full jury.

      F. A. Belden and Boyd & Bake, attorneys for plaintiff in error. W. G. Shepherd, J. F. Neilan and B. F. Ilarwitz, contra.
   Shohl, P. J.

This is a proceeding in error by Patrick Brady against the Miami conservancy district. In order to understand the ease as a whole, it will be necessary to recite certain matters of general public knowledge.

The Miami conservancy district is a body corporate and a public subdivision of the state of Ohio, duly established and organized under what is known as the Conservancy act of Ohio, enacted after the disastrous flood of 1913, being Sections 6828-3 to 6828-79, inclusive, of the General Code of Ohio. Its general purpose was to prevent floods in the valley of the Miami river and its tributaries, and to protect life and property. The validity of the act has been determined by the Supreme Court of Ohio. Miami County v. Dayton, 92 O. S., 215, and by the Supreme Court of the United States, Orr v. Allen, 248 U. S., 35. The district was established and organized in June, 1915, by a decree of the common pleas court of Montgomery county, and embraces lands in the nine counties of Hamilton, Butler, Warren, Preble, Montgomery, Greene, Clark, Miami and Shelby.

In May, 1916, the board of directors of said district, as provided by law, duly adopted an official, plan, which plan provided for the construction and maintenance of dams, retarding basins, levees and other works designed to accomplish the purpose for which the district was organized. Objections having been made thereto, the plan and the objections were duly submitted to said court, and on November 24, 1916, the objections were heard and overruled, and the plan was approved by the court, and thereby became and is now the official plan of said district. Pursuant to the act, three appraisers were appointed and qualified by said court and on May 9, 1917, they filed their report designated and referred to as the appraisal roll, showing therein, among other things, their appraisal of the value of the lands and certain interests in lands'and other property required to be taken for the execution of said plan, and also their appraisal of the benefits to accrue from the execution of said official plan to the real estate which was owned by the plaintiff in error.

In accordance with the act, plaintiff in error filed exceptions to said, appraisal of benefits, which said exceptions -were heard and overruled by the court on July 30, 1917, and on that date the court modified and amended the appraisal, and as so amended approved and confirmed it, including said appraisal of the benefits to accrue to the property of Patrick Brady. Patrick Brady thereupon perfected an appeal from said decree with respect to the amount of award of benefits assessed against his property, and gave bond ,as required by law. Thereafter, the court ordered the said Miami conservancy district to file in the common pleas court of Butler county, in which the lands of Patrick Brady were located, a petition embodying the facts and the claim that the conservancy district made with respect to the said benefits, and this petition was filed. Patrick Brady filed an answer admitting the allegations of the petition, excepting that the assessment was made under a uniform rate and averring that the benefits assessed against his property were excessive.

The case was tried to a jury and a verdict was rendered finding that the real estate of Patrick Brady would receive benefits from the execution of the official plan of the Miami conservancy district in fhe amount shown by the appraisal roll, as set out in said petition. A motion for a new trial was overruled, and judgment was entered on the verdict, to which Brady now prosecutes error. His contentions are that the court erred in its charge to the jury that the burden of proof was on the land owner to show that the benefits assessed by the appraisers and confirmed by the court were excessive. He also charges as error that the court charged that the verdict required the concurrence of all twelve jurors to render a verdict.

Proceedings under the conservancy act differ from any other proceeding known to the Ohio law. The act regulates proceedings in conservency and nothing else, and its provisions are peculiar to the problems arising out of the flood situation and the relief to be provided for. In order to understand the nature of the so-called appeal thereby granted, an examination of the entire act is necessary, but we shall refer to a few of the most important provisions. Section 26 provides that:

“ * * * the court shall appoint three appraisers whose duty it shall be to appraise. the land or other property within or without the district to be acquired for the right of ways, and reservoirs and other works of the district and to appraise all benefits and damages accruing to all lands within and without the district by reason of the execution of the official plan. * * *”

This section also provides;

“* « * That each appraiser shall, before taking up his duties, take and subscribe to an oath that he will faithfully and impartially discharge his duties as such appraiser and that he will make a true report of such work done by him. * *

Section 27 provides:

‘ ‘* * * * When the official plan is filed with the secretary of the district he shall at once notify the boa,rd of appraisers and they shall proceed, to appraise the benefits to all real property within and without the district, which will result in the organization of said district and the execution of said official plan.”

Section 30 of said act provides:

“* * * The board of appraisers shall prepare a report of its findings which shall be arranged in tabular form and bound in book form, which shall be known as the conservancy appraisal record. Such record shall contain the name of the owner of the property appraised as it may appear on the tax duplicate or the deed records, a description of the property appraised, the amount of benefits appraised, the amount of damages appraised, etc. # *

Section 31 provides: •

“ * * * Upon filing of the report of the appraisers, the clerk shall give notice thereof as provided in this act in each county of this district. * * *”

Section 32 provides:

“A property owner may accept the appraisal in his favor of benefits or damages or many acquiesce in their failure to appraise damages in his favor and shall be construed to have done so unless he shall within ten days after the last publication provided for in the preceding section file exceptions to said report or to any appraisal of either benefits or damages, etc. * * * all exceptions shall be heard by the court. * * * The court may, if it deems necessary, return the report to the board of appraisers for their further consideration and amendment, etc. * * *•>>

Section 33:

“If it appears to the satisfaction of the court after having heard and determined all said exceptions that the estimated cost of making the improvement contemplated is less than the benefits appraised, then the court shall approve and confirm said appraisers’ report * * * and such findings shall be final and incontestable.” •

Section 34:

“Any person or public or private corporation desiring to appeal from an award as to compensation or damages or benefits shall within ten days of the judgment of the court confirming the report of the appraisers file with the clerk of the court a written notice making demand for a jury trial. He shall at the same time file a bond with good and sufficient security to be approved by the clerk in the sum of not more than $200 to the effect that if the appellant does not recover more by the- verdict of the jury than the sum awarded by the appraisers or if the verdict is not more favorable to him he will pay costs of the appeal. He shall state definitely from what part of the order he appeals. The appeals shall be from the award „pf compensation or benefits or damages or one or more of them, but from no other part of the decree of the court. * * * In case an appeal is taken to a jury from the assessment of benefits the court shall direct the directors to present the petition embodying the facts and the claim they make in short form, which shall be filed in the county in which the land is situated. Whereupon-a jury shall be empaneled according to law to try the issue presented. ’ ’

The act directs “a jury shall be empaneled according to law to try the issue presented. ’ ’ What, then, is the issue presented ? When we ascertain that, the established principles of procedure will apply and will fix the burden of proof. The burden is upon him who asserts the affirmative of the issue whether he happens to occupy the position of plaintiff or defendant. Commissioners v. Whisler, 82 O. S., 234, 235.

From all of the foregoing it appears that there is provided a special method of attack on the determination by the board of appraisers and the court in respect to the benefits. While it has been designated an appeal, in determining its nature and in construing how the Legislature intended it to operate, consideration may be given to the character of the finding which it is to review.

By the English common law, the judgments of inferior courts were brought under the review of the King’s Bench for revision and correction by writ of error, writ of certiorari, or writ of false judgment. In courts which derive their procedure from the civil law, namely, equity, admiralty and ecclesiastical courts, the process for reviewing all decrees is designated an appeal. 3 Corpus Juris, 299. In popular parlance the word “appeal” is frequently used to cover other methods of review than that which is technically and properly so called. Miami County v. Dayton, 92 O. S., 215, 218. The Constitution, Article IV, Section 6, provides for appeals to the court of appeals in chancery cases and indicates a well defined and well known method of procedure whereby the whole case is tried anew. Such, however, does not appear to have been contemplated by the conservancy act, which specifically limits the matters to be passed upon at the jury trial to three specific questions only: compensation, damages and benefits.

The imposition of the assessments under the act is in the exercise of powers of taxation, and is not the taking or condemnation of property. The matter of taxation should not be confused with the power of eminent domain. Each is governed by its own principles. Houck v. Little River Drainage District, 239 U. S., 251, 261.

The remedies of property holders in resisting assessments vary throughout the several states, and there áre several methods by which assessments are attacked. See 2 Page and Jones, Taxaion by Assessment, Oh. 25.

The conservancy act has been compared by the Supreme Court in the Miami county case (supra) to the drainage district laws of some of the other states. We have made an examination of such laws, and while they do not control in ascertaining the meaning of our conservancy act which depends upon the intent of the Ohio Legislature, yet they reveal the origin of some of the language and provisions of the Ohio act and are illuminating when we undertake to construe it. See Rev. Stat. of Missouri, 1909, Ch. 41, Hurd’s Rev. Stat. of Ill., 1917, Ch. 12, Burns’ Annot. Stat. of Ind.', Oh. 56 and cf. Section 6113, Code of Iowa Suppl. 1913, Title and Oh. 2-A and cf. 1989, All.

In Missouri the issue is (Section 5560) "whether the assessment of benefits * * * is too high.” And in all the instances found the complaining party, the "remonstrant” or "appellant” has the burden of proof. Freesen v. Scott County Drainage Dist., 283 Ill., 536; Rogers v. Venis, 137 Ind., 221; Conwell v. Tate, 107 Ind., 171, 172; Collins v. Board of Supervisors of Pottawattamie County, 158 Iowa, 323; Beals v. Brookline, 174 Mass., 1; Catron v. Deep Fork Drainage Dist. No. 1, 35 Okla., 447; Page & Jones Taxation by Assessment, Section 923.

Plaintiff in error cites Commissioners v. Whisler, 82 O. S., 234. The appeal authorized under the statute there in question was an appeal from the entire judgment of the commissioners, and the final determination of all matters was left to a trial de novo in the probate court. The distinction between such a case and the partial appeal on the sole question of the amount of benefits is made in the case of Conwell v. Tate, supra. The assessments levied under the conservancy act more nearly resemble street assessments in accordance with benefits authorized under the municipal laws of this state. In those cases there is a determination by the municipal council that corresponds to the adjudication by the conservancy court.

As a general rule, the decisions of officers and tribunals specially created and charged, in tax laws, with the duty of fixing valuations for tax purposes, are final and conclusive. Wagoner v. Loomis, 37 O. S., 571; Haggerty v. Huddleston et al, 60 O. S., 149, 165; McKnight v. Dudley, 148 Fed., 204, 206.

And when an assessment has been levied the property holder must establish that it is excessive. Cormany v. City of Cincinnati (decision by this court March 24, 1919); Spanger v. Cleveland, 43 O. S., 526, 536, 537.

The form of the bond required to be given by the property holder who appeals indicates that the question at issue is only whether or not the assessment for benefits should be reduced. If the whole matter were to be tried de novo there .might conceivably be a finding by the jury” that the benefits were greater than the amount assessed. The act does not disclose that the complaining property holder can be more unsuccessful than to fail to change the amount assessed. He can not make himself liable to an increased assessment by the result of the appeal. He was the remonstrant before the conservancy court to sustain his claim that the amount fixed by the appraisers was excessive and his appeal gives an opportunity to raise that same question in a jury trial. The appeal, then, is a short method for the property owner to attack the assessment. The issue presented, is whether the finding and judgment of the court as to the benefits exceeds the actual benefits conferred. The affirmative of that proposition is maintained by the appealing property owner and the burden of proof is on him. It follows, therefore, that the court was correct in instructing the jury that the burden was upon the defendant.

Complaint is also made by the plaintiff in error that the court charged that the concurrence of all twelve jurors was required to render a verdict. The jurors were unanimous in their decision against him. It could not therefore have been prejudicial to him to require a unanimous verdict even if the law were that a verdict by nine jurors is sufficient. The result here shows that he is merely claiming that three more jurors found against him than the law required. It is unnecessary therefore for this court to consider whether or not there was error in that regard.

The judgment will be affirmed.

Hamilton and Cushing, JJ., concur.


author: Washburn, J.

text:
    GUARD RAILS ON CERTAIN STREET LINES.
    Court of Appeals for Cuyahoga County.
    Florence Dalton, an Infant, by Thomas Dalton, Etc., v. The Cleveland Electric Illuminating Company.
    Decided, January 13, 1919.

      Guard Rails — Application of Ordinance Requiring Erection of— Whether Applicable to an Interior Areaway a Question for the Jury.

    Whether an ordinance requiring owners of property along street lines and on areaways hack from streets, where the level is above that of the street, to erect guard rails to prevent injury to persons passing by, applies to the owner of a lot which he had permitted to 'be generally and extensively used for many years by persons on foot and by vehicles, as a passage way leading from a street to an alley and along which and adjoining his building he has constructed a side walk and a paved drive way, is a question for the jury, and a determination by the court that the ordinance, was without application and inadmissible in evidence, as a matter of law, constitutes error requiring a reversal of the judgment based thereon.

      Payer, Winch, Minshall db Karsh, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
   Washburn, J.

Error to the court of common pleas.

Plaintiff in error, a child about four years of age, while playing on the property of defendant in error, in the city of Cleveland, Ohio, fell into an areaway and broke her arm. She brought suit to recover for her injury. At the trial, in support of the allegations of her petition, she offered certain ordinances of the. city of Cleveland which she claimed required the defendant in error to guard said areaway by a railing along the same. Objection to this evidence was sustained and exception duly noted. At the close of plaintiff’s evidence the trial court sustained the motion of defendant in error for a judgment in its favor, to which ruling plaintiff in error excepted, as she also did to the overruling of her motion for a new trial.

The theory of the defendant in error which seems to have been the basis of the court’s action, was that the plaintiff in error was a trespasser, or at least a bare licensee to whom the defendant in error owed no duty which it violated, and that the ordinances in question were not applicable to the situation, or did not create a duty to the plaintiff in error.

The evidence, as shown by the record, tended to prove that the ground where the plaintiff in error was injured, which was a part of a vacant lot, had been used for more than twenty-one years as a passageway from the street to an alley, along which were manufacturing plants, and that it had been very generally and extensively used by persons on foot and by vehicles of all descriptions; that about three or four years before the accident the defendant in error constructed a building on the portion of said lot just west of said passageway, and that on the east side of said building and along said passageway it constructed an areaway about 16 or 18 inches below the surface of the ground, and that it built a coping along the edge of said areaway about 12 or 15 inches high, so that the -areaway was a little less than three feet deep from the top of the coping. This areaway was along the east side of said building, and the defendant in error constructed along the east side of the areaway and immediately adjoining it a stone sidewalk leading from the street to the rear of the building, and also paved said driveway, which immediately joined said sidewalk on the east.

Said driveway, after said improvements were made, continued to be extensively used by the public in going from said street to and along said alley, and in the photographs in the record it has the appearance of being a street, but it is conceded that it is, in fact, private property.

The ordinances in question require protection by railings along areaways along street lines and also along areaways back from the street, but for whose protection the railings along area-ways back from the street are required is not stated, and we need not determine in this case; nor does it appear how deep the excavation must be in order to be an areaway within the meaning of the ordinances.

In view of the situation disclosed by this record, we do not feel that it was the province of the court to determine, as a matter of law, that a railing along the areaway in question was or was not required by said ordinances.

The ordinances provide for guard rails on areaways adjoining streets; there could be no two opinions about the matter, and therefore a question properly to be determined by the court, if the areaway was along the line of the sidewalk on a dedicated public street. But the ordinances also provide for guard rails on area-ways along public spaces or any passageway or court.

The defendant in error, having built the sidewalk and created the situation which has the appearance of a street, and having, so far as the record now discloses, permitted it to be in all respects used as a street or passageway, we think that it.was a question for the jury, under proper instructions by the court, to determine whether or not, under all the circumstances, this areaway was so situated as to be within the purview of said ordinance, and therefore was required to be provided with a guard or rail. Sovignac v. Garrison, 18 Howard, 136.

But defendant in error contends that, conceding that the ordinances required a railing under the circumstances here disclosed, still that requirement was not for the benefit of plaintiff in error, who had no business upon said property and was at best a mere licensee; that its duty to such is fixed by the common law, and that the effect of the ordinances is not to extend its duties to those to whom it theretofore owed no duty, but rather to define and fix the extent of the duty to those to whom it already owed a duty.

It is conceded by the plaintiff in error that but for these ordinances the plaintiff in error was, under the laws of Ohio, a mere licensee, and could not, at common law, recover damages for her injury from the defendant in error-; but she claims that said •ordinances required a guard rail along the areaway in question and that such requirement was for the benefit of the public generally, herself included, and that the common law rule of duty owed by property owners to trespassers and licensees has been modified by said ordinances.

The question thus presented is not a new one; it has been before many courts and there is an apparent diversity of opinion in reference to the matter.

We may eliminate those cases where the ordinance or statute imposed duties to or for the benefit of the municipality or the public, as an entity, for in such cases individuals, as. such, have no right o ’ action growing out of the violation of the ordinance or statute.

There is also a class of cases where duties are imposed for the benefit of a particular class, and in such cases only the persons coming within the particular class can complain of the violation of the ordinance or statute.

There is, however, a third class of cases in which the ordinance or statute imposes duties for the benefit of the public considered as a composite of individuals. It ig said in one of the eases, speaking of this class of ordinances, that:

‘ ‘ These are police regulations for the protection of the public relative to matters with which the public contact is commonly through individuals, and as to which the individuals are entitled to assume that the law has been observed. ’ ’

The line of demarcation between the second and third classes above mentioned is not clearly defined in the cases, and it is not our purpose to try to lay down any general rule on the subject.

It is sufficient to observe that the cases where the ordinance or statute has been held to be for the benefit of a particular class are cases where the thing or object which is the subject of the law and required to be guarded is usually or almost necessarily removed from contact with the general public, or cases where, because of the peculiar wording of the law, it is apparent that it is for the benefit of a particular class.

, None of them, so far as we have been able to ascertain, have been eases where the thing to be guarded is close to and open to a public street, and although upon private property is at a place where the public generally have a right to go or by long continued custom have been in the habit of going.

In the case at bar the evidence tends to prove that the areaway in question was close to a public street and was alongside of the part of defendant in error’s property which it had improved, so as to give it the appearance of a street, and which it had permitted to be used as a street by the general public for many years.

If, under the court’s instruction as to the objects and purposes and meaning of the ordinances, the jury should find facts which brings this areaway within the terms of the ordinances, then under the situation which the evidence as it now is tends to prove, we hold that the requirement of a guard or railing on said areaway is not for the benefit of a particular class but for the benefit of the public, considered as a composite of individuals, and that a right of action arises in one of the public when he has sustained some special injury hy reason of a non-compliance with the ordinances, irrespective of the fact that at common law he would be considered, a mere licensee. Conway v. Monidah Trust Co., 132 Pac. Rep., 26, and cases therein cited.

Although not directly in point, this conclusion is aided by a consideration of the cases on the question of what constitutes an invitation by an owner to the public to come upon his premises. While it is definitely settled in Ohio that a mere permission by the owner of the use of his premises will not be considered as an inducement, or an allurement, or an enticement so as to amount to an invitation, still it has not been determined that where an owner improves his property so that it may be used by the public as a street, and permits the public to so use it as a street, that under such circumstances there may not be an implied invitation on the part of the owner to so use his property; at least it has not been determined that under such circumstances the trial court is justified in finding as a matter of law that such person is a trespasser to whom the owner owes no duty.

It must be remembered that we have before us a ease where the various questions which we have been discussing were determined by the court as matters of law, and that the rule as stated by an eminent authority, is that:

“Where the facts are undisputed, and where, although undisdisputed, the inference to be deduced from them is clear and certain, it is a question of law for the court. Although the facts are not controverted, yet if different minds may reasonably draw different conclusions, the question is one for the jury as one of fact, and not for the court as one of law. ’ ’

It is further claimed by the defendant in error that even if it was negligence on its part not to have a railing on said areaway, still such negligence is not proven by the record to have been the proximate cause of plaintiff’s injury.

Whether or not a non-compliance with the statute was the proximate cause of plaintiff ”s injury is not, as we view it, under the evidence now in the record, a question for the court to determine. Proximate cause is usually a mixed question of law and fact. It is not necessary to prove the cause to a demonstration; if the evidence establishes circumstances from which it may fairly be inferred that there is reasonable probability that the neglect complained of caused the injury, then it is clearly a question for the jury. Haynes v. Mich. Central Ry., 111 U. S., 228, p. 238.

We hold that the evidence offered was competent and that the case should have been submitted to a jury, and that it was error for the court to direct a verdict for the defendant in error.

Judgment reversed and cause remanded.

Grant and Dunlap, JJ., concur.


text:
    REDUCTION OF VERDICT WHEN AN ACT OF GRACE.
    Court of Appeals for Cuyahoga County.
    Paul Pecsok and Mary Pecsok v. John Ertler.
    Decided, February 7, 1919.

      Verdict — Error may not he Based hy Defendants on a Reduction in the Amount of the Verdict, When — Exemplary Damages may Prohahly he Predicated on an Assault — Notwithstanding Malice is not Averred in the Petition — Bad Motive in Fixing Amount of Verdict.

    Where a verdict for injuries sustained was reduced by the trial judge sua sponte and not because deemed by him to be excessive, it is an act of grace or judicial clemency on his part and Complaint does not lie in the mouths of the defendants because "the benefits of the reduction were not apportioned among them.

      David & Heald for plaintiffs in error.

      Strong, Desberg, Bernstein & Mooney, contra..
    Error to the Municipal Court of Cleveland.
   Grant, J.

In the court below the plaintiff there — defendant in this court —declared against both defendants, the present plaintiffs in error, for injuries resulting, as he said from an assault on him, committed by them, laying his damages in that respect at $700.

In a second cause of action he laid claim to $300 from the defendant Paul Pecsok only, for causing the plaintiff’s arrest, maliciously and falsely.

The case was tried to a jury. There was a verdict against both plaintiffs in error for $400 on the first cause of action and for $150 against Paul Pecsok alone, on the second cause of action.

The trial judge sua sponte, reduced the amount of the verdict by $150, generally, and entered judgment for the remainder of $400, first overruling a motion for. a new trial.

The errors assigned in the briefs are, or appear to be first, that the court below reduced the amount of the verdict, but did not apportion the reduction among the two defendants, or designate which one was to be the beneficiary of it.

We do not think the complaint is available to those who make it. The question of amount being for the jury, unless the amount found by them is to be disturbed because unconscionably large, or unwarranted by the evidence, a court of review would have to uphold the verdict in its entire amount, as at first returned. So that, in that view — which is the view we take of this case,— the reduction ordered by the court below can be regarded only as an act of grace or judicial clemency on his part, of which it does not lie in the mouth of the beneficiaries to complain. A litigant may not be heard to object to being done good to. His luck is not the less for having to share it with another in any proportion at all, provided some of it falls to him, if the amount at first found is not to be deemed excessive.

As the questions tried were wholly of fact and the testimony was in dispute, — it was for the jury alone to resolve it and assess the consequences, within legally allowable bounds. ■ We think' those bounds were not transgressed in the present case.

It is said in the brief that as punitive damages could not be awarded in the first cause of action. — no malice being averred in that, — the reduction made by the court not being distributed among the two defendants, may have operated as a hardship on the woman who was not in fault under the second cause of action, that being the only one in which exemplary damages could have been allowed.

If this argument is comprehended, it has already been answered, the cutting down being an uncovenanted mercy, a sheer piece of good luck in any event, the objector having no ground of complaint if no part of it came to him.

Besides, it is more than doubtful, we think, whether exemplary damages may not be predicated of an assault, without in terms pleading the maliciousness of it. Ruling Case Law, Yolume 2, p. 582, states the principle underlying the rule thus:

“In most cases of assault and battery the actual physical injury suffered by the plaintiff is insignificant as compared to the mental suffering caused by the wanton a ess and malice of the defendant and the indignity, vexation and disgrace to which the plaintiff was subjected by the defendant’s acts.” Chicago and N. W. Rwy. Co. v. Williams, 55 Ill., 185.

Second, it is complained that the judgment is so excessive in amount as to fall under the condemnation which the law annexes to deliverances made from the bad and corrupt motive of passion or prejudice. . And our holding in Cleveland Worsted Mills v. Coates, Gdn., is appealed to in support of the argument.

We distinctly declined to weigh the evidence in that case to see whether the bad motive had operated or not. We held that to so find, the verdict by the single force of its amount must be so large, in comparison with the visible case, as to shock the conscience of a reviewing court into the conclusive inference that the corrupt motive had intervened and coerced the verdict.

Such is not this case, as we view it.

We find no error of substance in the judgment under review.

It is therefore, affirmed.

Dunlap, J., and Washburn, J., concur.


author: Kunkle, J.

text:
    VALIDITY OF AN ASSIGNMENT OF THE PROCEEDS OF A CONTRACT.
    Court of Appeals for Franklin County.
    State of Ohio, ex rel Clinton Cowen, State Highway Commissioner, v. Robins & McDaniel et al.
    Decided, December 10, 1918.

      Workmen’s Compensation — Priority of Lien of Judgment Obtained by Injured Employee Against Contractors — As Against Claim for Material Furnished under Pledge of Proceeds of the Contract— Legality of Assignment of Proceeds.

    1. An agreeent whereby a firm of contractors pledged -to a company from which they were receiving material, for the purpose of guaranteeing payment for said material, the sum of $2,000 then due under the contract and any further sums to become due on account of material so received, does not constitute a valid assignment of the full amount called for under the contract, where -the full amount was largely'in excess of the sum then due, and the amount which would become due for the material in the future was uncertain, as was also the amount which would become due to the contractors because of the fact that they might not complete the work, and there was an express provision that the balance over was to ne paid to the contractors,- and the checks to be sent to -the pledgee were to be made out to the contractors and endorsed over by them.
    2. No valid assignment having been made of the whole amount to become due under the contract, it follows that the lien of a judgment of an injured employee which Toy provision of the workmens’ compensation aet covers all the assets of his employers, is prior to that of the company which furnished the material.
    3. Whether a party who secures the assignment of the proceeds of an improvement contract -takes it subject to the provisions of the workmens’ compensation act — Quaere?

      W. L. Connors, Frank Davis, Jr,, and James I. Boulger, for Albertus B. Swank.

      Carey & Hall and C. H. Duncan, for The National Quarries Co.
   Kunkle, J.

In brief it appears from the record that in July, 1916, Albertos 13. Swank was in the employ of Robins & McDaniel, a partnership, and received serious personal injuries in the course of his employment; that Robins & McDaniel were employers of more than five workmen, and failed to comply with the provisions of the workmen’s compensation act.

An application was made by said Swank to the Industrial Commission for an award under Section 27 of the workmen’s compensation act, which provides that when the employer is not directly or indirectly insured in the state fund his employee may elect to proceed before the commission for the allowance of compensation.

In October, 1916, the Industrial Commission made an allowance in favor of said Swank in the sum of $444 as part compensation and continued the cause for further investigation.

On April 3,' 1917, the Industrial Commission made a final award-to said Swank in the sum of $12,829.53.

Robins & McDaniel failed to comply with such award, and suit was brought in the court of common pleas of Clark county where the defendants reside, and in October, 1917, judgment was rendered in such court against Robins & McDaniel and in favor of' said Swank for the amount of said award, which judgment is still unpaid.

On April 2, 1915, Robins & McDaniel entered into a contract with the state for the improvement of the Springfield and Washington C. H. road.

On February 9, 1916, Robins & McDaniel entered into a contract with the National .Quarries Company, by which they pledged some $2,000, due them on their contract with the state, and also pledged any further sums to become due said Robins & McDaniel on said contract for the purpose of protecting and guaranteeing payment to the National Quarries Company for an existing indebtedness of $4,733.13 for crushed stone used on said improvement.

The contract further provides that all subsequent checks due Robins & McDaniel from the state highway department upon said contract shall be sent to the National Quarries Company at Carey, Ohio; that said Robins & McDaniel were to enclose all such checks to said cprarries company and the quarries company was to retain such portion of the amount of such checks as would pay for any stone furnished in the future on said improvement, and the excess was to be paid to the said Robins & McDaniel.

It was further provided that upon the final completion of the work the check or checks issued for the retained percentage should be sent to the quarries company and should be endorsed by the said Robins & McDaniel, and applied on the indebtedness of the quarries company, the balance, if any, to be paid to Robins & McDaniel.

It was also agreed that the quarries company should be authorized to indorse the name of Robins & McDaniel upon any and all checks sent to the quarries company under the provisions of said contract.

On the same day, viz., February 9, 1916, Robins & McDaniel wrote Clinton Cowen, the state highway commissioner, a letter, of which the following is a copy:

“Springfield, Ohio, Feb. 9, 1916.
Clinton Cowen, State Highway
Commissioner, Columbus, Ohio.
Dear Sir:
On and after this date please send all our checks for work done on the Springfield-Washington C. IT. Road to the National Quarries Company of Carey, Ohio, and oblige.
Tours very truly,
Robins & McDaniel.
James C. Robins,
Frank E. McDaniel.”

On February 28th a letter, of which the following is a copy was sent to Robins & McDaniel by the state highway commissioner, viz:

'“February 28, 1916.
Robins & McDaniel,
Springfield, Ohio.
Gentlemen:
Replying to your favor of recent date, will say that in the future all estimates on the Springfield-Washington C. H. road will be mailed to the National Quarries Company at Carey, Ohio, as requested. The warrants will be made payable to you, but sent to them.
Yours very truly,
Clinton Cowen,
State Highway Commissioner.”

Subsequent to this, in answer to an inquiry of the National Quarries Company as to when further payment would be made, the state highway commissioner referred to the contract aforesaid as “your assignment.”

The original contract price for the construction of said highway by said Robins & McDaniel was $23,966. Prior to September 12, 1916, there was paid to said Robins & McDaniel on said contract the sum of $11,133.51, all of which was paid prior to February 9, 1916, leaving unpaid on the entire contract price the sum of $12,832.19.

On September 12, 1916, the state highway commissioner removed said Robins & McDaniel from the work of constructing said highway, and completed the same by force account, as provided in Section 1209, General Code, and expended in completing said work a total sum of $7,130.60.

After the payment of all bills there remained in the hands of the state the sum of $5,701.89.

The National Quarries Company claim this sum under its alleged assignment, and Albertus B. Swank claims the fund under Section 30 of the workmen’s compensation act, which provides that—

“All judgments obtained in any action prosecuted by the board or by the state under the authority of this act shall have the same preference against the assets of the employer as is now or may hereafter be allowed by law on judgments rendered for claims for taxes.”

The highway commissioner has paid this money into court for the purpose of having the same turned over to the party entitled thereto.

The common pleas court found in favor of the National Quarries Company and ordered the said money, less the court costs, turned over to said the National Quarries Company.

From such judgment Albertus B. Swank appeals to this court.

Under Section 30 of the workmen’s compensation act said Albertus B. Swank has a, prior lien upon all the assets of his employer.

It is contended, however, by the National Quarries Company that the agreement of February 9, 1916, together with the letter of the state highway commissioner dated February 28, 1916, constitutes a valid assignment of the amount due Robins & McDaniel on said contract, and that said sum formed no part of the assets of Robins & McDaniel at the time the accident occurred to said Swank, viz: July 8, 1916, or at the time the award in his favor was made by the Industrial Commission and the judgment was rendered on such award by the court of common pleas of Clark county, Ohio.

Albertus B. Swank, on the contrary, claims that there was no valid assignment of said fund, and that his claim to priority under the statute is superior to the claim of the National Quarries Company.

This case presents a very interesting question and counsel have greatly assisted the court by their helpful briefs. Many eases of a somewhat similar nature have been cited by counsel on both sides. «,

While we have carefully considered such cases, yet we will not attempt to review them in detail.

Upon a consideration of the authorities, when applied to the facts in the case at bar, we are inclined to the opinion that the National Quarries Company did not have a valid and legal assignment of the entire amount due Robins & McDaniel upon said contract, and that there was no such acceptance on the part of the state highway commissioner as would give the National Quarries Company the absolute right to the fund in controversy.

Among other things, it appears that out of the alleged assignment there was unpaid on the contract price the sum of $12,-832.49, and the amount actually due the National Quarries Company from Robins & McDaniel was $4,733.13.

The amount which might finally become due Robins & McDaniel upon said contract was uncertain because of the possibility that the said, work might not be -completed by them; and the amount of the future indebtedness to the National Quarries Company for stone to be furnished was also indefinite.

The agreement between Robins & McDaniel and the National Quarries Company shows that Robins & McDaniel did not intend to transfer to the National Quarries Company more than was sufficient to secure them for such material as they might furnish, and it was expressly provided that the balance, if any, was to be paid to Robins & McDaniel.

In addition, the contract does not provide that the future estimates or checks should be made payable to the National Quarries Company, but, on the contrary, provides that the future checks should be made payable to Robins & McDaniel, and that said Robins & McDaniel should indorse the same from time to time, either personally or through the agency of the National Quarries Company.

This feature is also evidenced by the letter of the state highway commissioner to the effect that warrants would be made payable to Robins & McDaniel, but would be mailed to the National Quarries Company.

We think these documents, in connection with the circumstances and the nature of the contract, show that it was not the intention of the parties to make an unconditional assignment of the entire fund nor of any definite and specified portion thereof.

We think the weight of authority is to the effect that an agreement of this kind will not constitute a valid assignment without an unqualified acceptance thereof, and it appears in the case at bar that no such unqualified acceptance was given by the state highway commissioner.

The acceptance of the state highway commissioner expressly recognized the legal right of Robins & McDaniel to the warrants in question. The mere delivery to the. National Quarries Company of such warrants, which are made payable to Robins & McDaniel, would not extinguish the title of Robins & McDaniel therein, nor would it confer upon the National Quarries Company the legal title thereto. There was still required the additional act of securing the endorsement of Robins & McDaniel, ‘ ‘ either personally or through an agent, ’ ’ before the title to such warrants could be legally transferred to the National Quarries Company.

It is contended by counsel for the National Quarries Company that the provision in the agreement by which the National Quarries Company was authorized to endorse the warrants from time to time is equivalent to a full extinguishment of the legal title of Robins & McDaniel in such warrants.

Taking into consideration the entire contract and the nature of the transaction, we do not think such provision in the contract would amount to a total extinction of the legal title of Robins & McDaniel in such warrants. In any event such provision was not binding upon the state highway commissioner and formed no part of his alleged acceptance.

It is claimed by counsel for Albertus B. Swank in a supplemental memorandum that the principle involved in the case of Brown, Administrator, v. Winterbottom (98 O. S. p. —) sustains the doctrine that a party securing an assignment of the proceeds of an improvement contract similar to the one in question, takes the same subject to the provisions of the workmen’s compensation act, and the possible lien therein provided in favor of injured employees.

This suggestion presents an interesting question, but in view of our conclusion as to the validity of the alleged assignment we do not find it necessary to express an opinion thereon.

The said fund, subject to the payment of the court costs, will be awarded to the said Albertus B. Swank.

Allread and Ferneding, JJ., concur.


text:
    RIGHT OF LAND OWNER TO CROSSING OVER RAILWAY UPON WHICH HE ABUTS!
    Court of Appeals for Cuyahoga County.
    The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Mary S. Bradford et al.
    Decided, February 7, 1919.

      Railways — Not Compelled to Construct Crossings for Abutting Owners, When — Farm and Not Industrial Crossings Contemplated by the Statute — Presumption that Compensation was made Originally When the Tract was divided, into Two Parcels.

    1. The provisions of Section 8858, General Code, for the construction of private crossings for abutting owners of tracts of fifteen acres or more through which a railway .passes, has reference to farm crossings where the two parcels so divided are used in a reciprocal or interdependent way, and not to tracts of land used for industrial purposes.
    2. Such a crossing can not be required as a way of necessity, where the tract on either side is accessible to a highway, not as convenient perhaps as the short-cut desired, but affording ample and much safer ingress and egress.
    3. A presumption arises in such a case that the inconvenience arising from the division of a tract into two parcels by the building of the railway was considered and discounted when the righty-of-way was acquired.

      Cook, McGowan & Foote, for plaintiff in error.

      Edward Bushnell, Esq., contra.
   Grant, J.

Appeal from the court of common pleas.

Owing to calls upon our time, over which just now we have little control, and which counsel will appreciate, as well as because they are themselves so thoroughly conversant with the facts, we shall do little more here than state our position in terms of conclusion.

The case is in equity, to restrain the location of a crossing over the right-of-way and tracks of the plaintiff company in the city of Cleveland.

The defendants claim to be entitled to the crossing on two grounds:

First, because the statute gives them the right to it;

Second, because it is a necessity to them.’

The statute thus referred to and which is claimed to be the enabling act for the location of the crossing in this ease, has in its history passed through various forms and changes as to its verbiage, but probably not much affecting its purpose or application to the circumstances with which we have to do here. As first passed in 1859, it read as follows:

‘ ‘ (S. & C. 331). Every railroad is required to make and maintain a sufficient number of suitable crossings for the accommodation of the public and of persons living near the line of such railroad. * * Any person or persons desiring a private crossing or crossings and cattle guards, as contemplated by this act, shall be responsible for one-half the expense of constructing and m aintaining same. ’ ’

The amendment of 1871 is not material here.

In 1874 the act was changed to the following form of preamble recitation:

“Any farmer or person owning fifteen or more acres of land in one body, through which such railroad may or does pass, and which is so situated that the owner thereof can not use one of said crossings in a public street, road, lane or highway, over said railroad in passing from his land on one side of said railroad to that on the other without great inconvenience, ’ ’

and continuing with provisions and requirements calculated to make effectual its purpose for the benefit of the farmer or land proprietor.

When the Ohio laws were revised in 1880 the word “farmer,” as the alternative of the owner of the acreage, was omitted, probably in the interest of brevity and word-compression.

In its present form, the statute is in the following language:

“G-. C., See. 8858. When a person owns fifteen or more acres of land in one body, through which a railroad passes, and which is so situated that he can not use a crossing in a public street, lane, road or other highway, in going from his land on one side of the railroad to that on the other side without great inconvenience, at his request, and within four months thereafter, the company or person operating it, at the expense of such company or person shall construct a good and sufficient private crossing across such railroad and the lands occupied by the company, between the two pieces of land to enable such landowner to pass with a loaded team, and over which he may go at all times when such railroad is not being used at the crossing, or so near to it as to render passing thereat dangerous.”

Upon a full consideration of the language of this enactment, in the successive stages of its development, the purposes we think it was intended to subserve, and the public policy underlying it, we have reached a substantial agreement with the plaintiff’s contention that the legislative end in view was a farm crossing. The amount of land designated as the least that could be served by the crossing would, it appears to us, be quite irrational if an industrial use was contemplated by it. Service tributary to a tract as small as fifteen acres would take care of the gardener or trucker, while the larger farmer of course would share in it, and the well-known policy of the state to encourage agriculture would be promoted by the legislation. Judge Shauck’s use of the term in the Gratz case, 76 O. S., 230, as well as the syllabus, would have been more guarded had not the court regarded the crossing as a “farm crossing” in the sense we are puting upon it.

Our opinion also is that the statute intended to deal with a reciprocal or interdependent use of the land on both sides of the plaintiff’s right-of-way.

We fail to find evidence in the case that, if the crossing were allowed, the two parcels could normally or providently be used together for agricultural purposes.

Their appropriate use, for any purpose, so far as appears, is a separate use; for farm purposes, practically speaking and having regard to constant liability during farming hours to the paramount use of the railway company, the advantage of the crossing would be negligible.

Starting from the premise that the crossing contemplated by the statute is a farm crossing, we reach without difficulty the conclusion that the crossing sought by the defendants is inadmissible under that law.

Coming to the remaining contention that the crossing ought to be allowed as a way of necessity, the difficulties accompanying that view are, as we think, so considerable as to be insuperable.

The tract on either side of the company’s right-of-way is accessible from another highway.

There is an outlet to each; not as short, not as direct, it is true, as the cut proposed across the tracks, but still such as to afford means of approach and egress, inconveniently, perhaps, but far safer than by the direct route, which appears to us to be in practical disobedience to the wholesome public policy in Ohio against grade crossings in cities; it looks to us as if it would be not far from a nuisance, if permitted, taking into account the dominant use by the railroad in operating its trains at that point.

It is not certain that the invonvenience said to result to the defendant’s property from the tracks being interposed between the two parts of it, was not considered and discounted when the parties sold and got their pay for the right-of-way which served to split the theretofore use of the whole. If the right-of-way had been acquired by appropriation instead of purchase, the jury by a separate verdict must have returned the entire lessened value of both tracts involved here; by reason of the right-of-way being interposed and cutting them off from the access which the defendants are seeking to restore by the crossing claimed; and the company would have been required to pay that lessened valuation. Perhaps it did pay for it.

The lessened value could have been estimated upon the basis of any reasonable use to which the severed parcels could in the reasonable future have been put, if instead of being cut in twain they had been left as one parcel.

We are not, however, founding our conclusion on this consideration. What we do say at this point is that the proof fails to justify a way of necessity, under the circumstances of this case.

We find the equities with the plaintiff. A perpetual injunction is awarded. Decree accordingly.

A request has been made for a finding of facts. As claimed by the requesters and extracted from what we have now said, a draft of such finding may be prepared by counsel asking for it, and submitted to the other side, but to the court in any event, for approval if correct.

Dunlap and Washburn, JJ., concur.