text:
    CRIMINAL LAW — FALSE PRETENSES.
    [Cuyahoga (8th) Circuit Court,
    February 13, 1912.]
    Marvin, Winch and Niman, JJ.
    J. A. C. Golner v. State of Ohio.
    1. Three Counts Averring False Pretenses in Representing Ownership of Property not Inconsistent or Repugnant.
    Three counts in an indictment for obtaining property under false pretenses are not inconsistent or repugnant, the first of which charges that it was falsely represented that Snyder owned property on the lake shore east of Cleveland, the second that Pollock owned property on the lake shore east of Cleveland and the third that Snyder and Pollock jointly owned certain property, describing it, on the lake shore east of Cleveland, the title being in Pollock with authority from Snyder to convey.

      2. False Pretense in Obtaining Deed Though not Possession of Land.
    The crime of obtaining property under false pretenses is made out, if the property obtained unlawfully under the false pretenses is a deed selling and conveying a farm to another, though possession of the farm was never surrendered by the prosecuting witness.
    3. Cross Examination of Witness to Shady Transaction, Assuming his Connection, not Ground for Reversal.
    The cross-examination of a defendant in a criminal case who offers himself as a witness, as to shady transactions which the questions assume he was connected with, such cross-examination being solely for the purpose of testing his credibility, .is limited only by the sound discretion of the court, and a judgment will not be reversed for permitting such cross-examination, unless it appears from the record that such discretion was abused to the prejudice of the accused.
    [Syllabus by the court.]
    Error.

      Westenhaver, Boyd, Rudolph & Brooks, for plaintiff in error.

      J. A. Cline and W. D. Meals, for defendant in error.
   WINCH, J.

Plaintiff in error was convicted of obtaining property under false pretenses from one E. W. Reeves, who was the owner of a farm of 168 acres in Brecksville township, Cuyahoga county, Ohio.

While numerous false representations are alleged in the indictment to have made and to have induced Reeves to part with title to his farm, only three of them were submitted to the jury under the charge of the court. They are as follows:

“That the said Arthur L. Snyder was then and there the owner of a valuable tract of land which had a frontage 'on the shore of Lake Erie east of the city of Cleveland, Ohio; that said Arthur L. Snyder had then and there paid for said real estate east of the city of Cleveland, Ohio, the sum of more than $10,800; that said Arthur L. Snyder had then and there a good and lawful title to said real estate east of the city of Cleveland, Ohio, on the shore of Lake Erie, in his oto name.
“That said F. Pollock was then and there owner of a valuable tract of land which had a frontage on the shore of Lake Erie, which real estate was situated east of the city of Cleveland, Ohio; that said F. Pollock had then and there paid for said real estate east of the city of Cleveland, Ohio, on the shore of Lake Erie, the sum of more than $10,000; that said F. Pollock then and there had a good and lawful title to said real estate east of the city of Cleveland, Ohio, aforesaid, in his own name.
“That certain real estate situated in Willoughby township, Lake county, Ohio, and known as part of land allotted by the Willoughby Land & Improvement Company, in tract No. 16, and being lots Nos. 67, 68, 69, 70, 71, 72, 131, 132, 133 and 136, in tract No. 16 of said company’s survey, and recorded in Lake county, Ohio, records of plats, was then and there located on the shore of Lake Erie and •was worth the sum of $10,000 and was jointly owned by said Arthur L. Snyder and F. Pollock and that the title to the same was in the name of F. Pollock and that F. Pollock had been authorized by said Arthur L. Snyder to convey the same by deed to E. W. Reeves; that scow's had been sunk in Lake Erie off the shore of and near real estate which was owned by the said Arthur L. Snyder; that additional land was forming in Lake Erie by reason of said sunken scows and that said land which was forming would be joined to the land owned by said Arthur L. Snyder.”

It will be noticed that it is not alleged that the land on the shore of Lake Erie represented to be owned by Snyder was the same land represented to be owned by Pollock nor is it alleged that the ten lots in the Willoughby Land & Improvement Company’s allotment were represented to be the same land as that previously represented as owned by Snyder or by Pollock.

On the trial it was shown in evidence that Golner, having opened negotiations with Reeves with reference to his farm, introduced Snyder to him and the latter, by arrangement with Golner, took Reeves out in an automobile to stop 130% on the Shore Line Electric Railroad, and there pointed out to him ten lots, five of which bordered the lake for five hundred feet, and falsely represented to Reeves that he owned the said lots.

Snyder also told Reeves that he had paid $10,800 for said lots, and he proposed to give Reeves a mortgage on them in payment for the equity in Reeves’ farm, the latter being under mortgage.

Negotiations proceeded for several days, Golner being present and participating in some of them, but Snyder became apprehensive of the situation he was getting into and dropped out of the negotiations.

Thereafter Golner introduced Reeves to Pollock, representing that while Snyder owned the lots, the title was in Pollock, and Pollock was authorized to convey, and Reeves agreeing to the deal, Pollock gave him a mortgage on tbe ten lots therein described, representing that they were the lots on the lake front at stop 130%, whereas in fact they were ten miles from there and not on the lake front.

Reeves delivered the deed of the farm to Pollock and received the mortgage in question securing certain notes which, it was agreed between Golner and Pollock, should be endorsed by Snyder, but Snyder never endorsed them.

In this state of the evidence it is claimed that there is a repugnancy in the representations relied upon for a conviction, not apparent on the fact of the indictment; that the representation that Snyder owned the lots at stop 130% is repugnant to the representation that Pollock owned the same lots, and that this repugnancy became material and developed prejudicial error in the charge of the court, for the court charged more than once that the jury might convict if they found any one or more of these representations had been made.

This claim of error is somewhat difficult to grasp and express, but may be clearer, perhaps, if stated as follows:

“The court might properly have charged that the jury might convict if it found that the representation had been made that Snyder owned the lots, or if it found that the representation had been made that Pollock owned the lots, but it could not convict if it found that both representations had been made, because they are inconsistent and repugnant; both c'an not be true; one contradicts the other.”

One answer to this is that the jury might well have found frqm the evidence that the representations were not as to concurrent ownership by Snyder and Pollock. It was first represented that Snyder was thé owner and thereafter that Pollock was the owner. There is nothing inconsistent in such representations, if it was represented that meanwhile title had passed from one to the other, and said suggestion is borne out by the evidence.

Nor can it. be said that if the jury should find that it was represented that Snyder once owned the lots and thereafter Pollock owned them, that the representation that Snyder owned them ceased to be material and would not warrant a conviction, for there is another aspect of the representation regarding Snyder’s ownership — such representation tended to mislead Reeves into a belief that he was dealing with men of substantial means and evident financial responsibility. He might properly conclude that though Snyder had conveyed the lots to Pollock, the latter had paid value for them which would leave Snyder worth as much in money as he had been worth in land, and he was to have Snyder’s endorsement on the notes.

This thought becomes more important in consideration of the next assignment of error.

It is claimed that the indictment does not charge Golner with the crime which the record shows was committed by him.

On this proposition it is argued by counsel for Golner that the only false representation which had a decisiye influence upon the mind of Reeves and caused him to part with his property was the representation that the lots described in the mortgage were, in fact, the lots located at stop 130% which had been pointed out to him by Snyder; that it was this belief which caused him to part with his title; 'that without this belief he would not have parted with it, and this false representation is nowhere charged in the indictment, for the indictment alleges only that it was represented that the lots described in the mortgage were on the lake front, and not that they were at stop 130% and were the same lots pointed out by Snyder.

There is some degree of sophistry in this argument.

We can not know with certainty that only one of the many false representations made to him had a decisive influence upon 'the mind of Reeves. It may have been and it probably was all of them together which brought about that state of mind which induced him to part with his title.

It is*but a matter of evidence that the land represented as owned by Snyder, and pointed ont to Reeves at stop 130% and then represented as owned by Pollock, is the same land as that which was represented as being lake front property and included in the mortgage.

It was alleged, in the indictment that it was represented that Snyder was the owner of a valuable tract of land which had a frontage on the shore of Lake Brie east of the city of Cleve ■ land. It was shown in evidence that the land Snyder was represented to own was at stop 130%.

It was alleged in the indictment that Pollock was the owner of a valuable tract of land which had a frontage on the shore of Lake Erie, which real estate was situated east of the city of Cleveland. It was shown in evidence that the land Pollock was represented to own was at stop 130%.

It was alleged in the indictment that the ten lots described in the mortgage were represented as located on the shore of Lake Erie. It was shown in evidence that the particular place on the shore of Lake Erie -where they were represented as located was at stop 130%.

There was proof, then, of each representation, and, if the indictment alleges a crime, that crime was proved.

As already said, the representation as to Snyder’s ownership of lake front property was not only material as connecting his representation with Reeves’ mistake in supposing the land described in the mortgage was on the lake front, but as inducing him to believe that Snyder was a man of financial responsibility -and so, that he could trust him and those who claimed to represent him and be interested with him.

The same may be said of the representation as to Pollock’s ownership of the land.

As to the representation that the land described in the mortgage was upon the lake front, that was material, for it is a matter of common knowledge that lake front property near the city has an increased value by reason of said frontage. Its exact location at stop 130% was not , so material, and we can not say that Reeves would not have been induced to part with his property if the land he supposed was described in the mortgage had never been pointed out to him, but all that had been represented was that it' had a lake frontage.

The questions thus far discussed cover many of Golner’s requests to charge which the court refused to give, and reference will therefore be made only to those requests which involve other questions.

By request number 17 the court was asked to charge that representations regarding the lands described in the mortgage, so far as they related to the joint ownership of said lots and the authority of Pollock from Snyder to convey said lots to Reeves, were wholly immaterial because it is not denied in the indictment that Pollock had title to said lots, and full authority to convey the same, though the truth of the representation as stated in the verdict is negatived in the indictment.

The representations of joint ownership of Snyder and Pollock and Pollock’s authority to convey are not wholly immaterial, for they connect up with the former representations that Snyder was the owner, and make plain the whole scheme of deception planned by Golner, one inducement and one representation naturally leading on to another, the whole having such consequence as to induce Reeves to part with his property, but being so insidiously interwoven that we can not say that any one representation would have induced Reeves to act, or that he wrnuld not have acted if any one representation had not been made. This inquiry was properly put before the jury for its final answer.

Pollock’s sole and undivided ownership of the lots described in the mortgage needed no denial, for no such representation had ever been made to Reeves. If it had been made it would undoubtedly have made him suspicious, for he had previously been told a different story.

By the twenty-second and twenty-third requests the jury’s attention was called to the defendant’s claim that Reeves never parted with the possession of his farm.

As the charge in the indictment was only that by reason of the false pretenses, the defendant unlawfully obtained from Reeves a deed of general warranty, selling and conveying his farm to Pollock, these requests were properly refused. State v. Toney, 81 Ohio St. 130 [90 N. E. 142; 18 Ann. Cas. 395].

The defendant twice submitted his requests to charge, once before argument and again, the same requests, after argument.

The court refused to give the requests before argument though some of them were given after the argument.

We are content to let this question rest upon the decision in the case of Umbenhauer v. State, 2 Circ. Dec. 606 (4 R. 378), where it was held:

“Upon .the trial of a criminal case it is not error for the court to refuse to instruct the jury, at the request of the defendant, upon matters of law, before the argument begins. ’ ’

That case was affirmed by the Supreme Court, no opinion, Umbenhauer v. State, 23 Bull. 167.

The defendant submitted himself as a witness in his own behalf and was cross-examined by the prosecuting attorney; in that cross-examination he was asked many questions with regard to a shady transaction about some Beach City bonds, with which the state tried to connect him. Most of his answers were denials but it is claimed that it was wrong to permit inquiry as to this collateral matter, for it amounted to an attempt to prove another distinct offense, for the purpose of raising the inference of the prisoner’s guilt of the particular crime charged, which would be prejudicial error, as explained in the case of Hanoff v. State, 37 Ohio St. 178, 180 [41 Am. Rep. 496].

A reading of the remainder of said opinion, however, shows that such examination of a witness, whether defendant or not, for the purpose of testing his credibility, rests in the sound discretion of the court, and a judgment will not be reversed for permitting such cross-examination, unless it appears from the record that such discretion has been abused to the prejudice of the party.

There was no such abuse of discretion in this case; such answers as Golner gave to questions asked him probably tended to shake the confidence of the jury in his credibility and were legitimate for that purpose.

The weight of the evidence in this ease is so overwhelming as to the guilt of plaintiff in error, that that question has not been raised in this court. The several technical objections raised by his counsel have not been without difficulty, but, being of opinion that there is no reversible error in the record, the judgment is affirmed.

Marvin and Niman, JJ., concur.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    CONTRACTS — PLEADING—RELEASES.
    [Lucas (6th) Circuit Court,
    February 10, 1912
    Richards, Wildman and Kinkade, JJ.
    Charles A. Brown v. Harriet E. Farr.
    1. Failure of Petition to Allege Amount Due not Fatal Defect.
    A judgment will not be reversed solely by reason of a defect in the petition in failing to aver that the amount claimed is due, where issues have been joined and the cause tried on its merits and it appears from the record that the defective petition did not result in prejudice to the adverse party.
    2. Release Relied Upon as Defense Obtained Through Misunderstanding Requires no Separate Action to Cancel.
    Where it is clearly apparent that the plaintiff was led to sign the release relied upon by the defendant through a misunderstanding as to its character, or it appears that the instrument signed was a mere nudum pactum, it is not necessary to set the instrument aside by a separate action nor to demand a cancellation of such release by a separate cause ot action.
    3. Claim for Services Rendered by Member of Family must be Established by Unequivocal Proof.
    No contract to pay for services can be imp’ied where a family relationship existed between the parties, but such a contract must be established by clear and unequivocal proof; and this rule is as applicable to an action against the head of a family during his lifetime as against his administrator after his death.
    Error.

      Bay & Cor dill, for plaintiff in error.

      James E. Southard, for defendant in error.
   RICHARDS, J.

Tbe original action in the court of common pleas was brought by Harriet E. Farr to recover of Charles A. Brown upon two causes of action set forth in her petition. In the first cause of action she claimed a balance of $5.50 upon a promissory note executed by Brown to her. In the second cause of action, she claimed a sum of about $750 for services claimed to have been rendered by her to Brown.

It appears from the evidence that Harriet E. Parr, had been an inmate of the Children’s Home near Maumee, and that she was indentured to Brown until she was eighteen years of age, at which time he was to pay her the sum of $50, and that she continued to reside in the family of Brown as a member thereof for some years after she became of age. Upon her arriving at the age of eighteen he executed to her a note in the siim of $50 upon which he subsequently paid $10, and upon September 25, 1909, he paid to her the sum of $44.50. The trial in the court of common pleas resulted in a verdict and judgment in her favor in the sum of $313.50. At the time the payment of $44.50 was made, she signed an instrument which she delivered to Brown., reading as follows:

“Swanton, Ohio, September 25, 1909.
“Received of Charles A. Brown the sum of fifty ($50.00) dollars, the same being in full payment and settlement of note given by him to me of date of March 26, 1908, and said sum is also in full payment of any and all claims of every kind and description which I have against him.
“Miss Harriet E. Parr.”

Miss Parr alleges in her reply after quoting the above instrument that the defendant desired to settle the balance of the note and that he represented to her that he had seen her attorney and that her attorney sent word that she should accept the balance due on the note, and that she should sign the said paper. She avers that Brown said to her that said paper receipt related to, covered and was intended to settle said note, and such matters as grew out of their indenture agreement and nothing else, and that a receipt was necessary because the note was lost. She further avers that it was not true that her attorney had directed that she should sign the paper, but that he had sent no directions whatever, and that she was induced to sign the instrument through the false and fraudulent representations of said defendant, communicated to her as just stated.

Upon the impaneling of a jury in the common pleas court, the defendant below objected to the introduction of any testimony for the reason that the pleadings showed that there was a settlement between' the parties and a contract of settlement entered into and set up in the answer and admitted in the reply, and that this contract must stand until set aside by a court of equity. The defendant upon the overruling of that motion,^further moved the court for judgment on the pleadings which motion was also overruled, and exception taken to the action of the court upon both motions.

The petition contains no averment that the amount of $5.50 which is claimed upon the promissory note was due; neither is it averred in the petition that the amount claimed in the second cause of action for services was due, but the second cause of action does contain the averment that the defendant is indebted to her upon the claim, therein set forth. The reply contains an averment that she had presented to Brown a statement of the amount dué her for services and that he was not disputing that she was entitled to receive from him the amount due on the note.

In view of these allegations and of the language of the Supreme Court in Yocum v. Allen, 58 Ohio St. 280 [50 N. E. 909], and also in the case of Dayton Insurance Co. v. Kelly, 24 Ohio St. 345 [15 Am. Rep. 612], we think that the judgment ought not to be reversed by reason solely of the defects in the pleadings just stated, and that the action of the court in that respect was not such prejudicial error as to require a reversal.

It is insisted, however, that the instrument quoted above, if its validity is to be questioned at all, should be questioned by appropriate allegations contained in the petition rather than in the reply. The instrument itself is plainly in form something more than a receipt and amounts, without doubt, to a contract as well as a receipt. See Jackson v. Ely, 57 Ohio St. 450 [49 N. E. 792]; Cassilly v. Cassilly, 57 Ohio St. 582 [49 N. E. 795]. The rule by which it is to be determined whether an instrument of the character set forth must be assailed in the petition, or whether it may be sufficient to set it up in the reply, depends upon whether it is a void instrument or one which is voidable only. The principle of law controlling is laid down by the Supreme Court in Perry v. O’Neil & Co. 78 Ohio St. 200 [85 N. E. 41]. A careful examination of the language of the reply leads to the conclusion that if Miss Farr believed the statements to be true, she was led to sign the instru-. ment because she believed it was one of a different character from the one which it was in fact. It is perfectly apparent that she is not a woman of the keenest business sagacity, and that she acted upon the supposition that the instrument was nothing other than a receipt for the amount due upon the note. Such being the case, the instrument would be absolutely void and it would not be necessary to set the same aside either by a separate action or by a separate cause of action in this case, before maintaining an action to recover the amount claimed by her.

An additional reason exists which is sufficient to justify us in reaching that conclusion. The amount actually paid was $44.50 and beyond all question, at least that amount remained due upon the promissory note and was not in any way in dispute between the parties. It was a liquidated sum and nothing having been paid upon the promissory note, in addition to the amount conceded, no consideration existed for a release of the amount claimed to be due for services. The instrument, therefore, in so far as it purports to be more than a receipt, would be absolutely void. It would be what lawyers term a nudum pactum. See Seeds, Grain & Hay Co. v. Conger, 83 Ohio St. 169 [93 N. E. Rep. 892; 32 L. R. A. (N. S.) 380]. We find no prejudicial error to have been committed by the trial court in overruling the motions made by the defendant below for judgment upon the pleadings and for the exclusion of all evidence.

Upon the trial of the case a large amount .of evidence was .introduced pertaining to the relations existing between the plaintiff below and the family of Charles A. Brown, and to the services performed by her. From the evidence, it appears that from the time she went to live in the family, she continued to reside in the family as a member thereof. She alleged in her reply that she had lived in the family since childhood and that the defendant had occupied the position of a father toward her. The ease as made by the allegations contained in the second cause of action, and the pleading's subsequent thereto is one where during the existence of a family relation one member has performed services for the head of the family, and seeks to recover therefor.- In the general charge of the court, we find this language:

“The burden is upon the plaintiff as to both causes of action, to prove by a preponderance of the evidence the allegations of her first -and second causes of action before she can recover upon them.. * * * Before she can recover on the second cause of action, she must prove that there was an agreement between herself and defendant, either express or implied, that she should perform services and that she should be paid for such services.”

In view of the circumstances shown by the evidence in this case as to a family relationship existing between the parties to the case, it was manifest error to instruct the jury as was done in the language above quoted. It has long been the established rule in cases of this character that no contract to pay for services rendered would be implied, and that before a recovery can be had, it must appear from the evidence that an express contract to perform the services and to pay for the same existed. The language quoted would authorize a recovery in the absence of an express contract. Again, the instruction permits a recovery if the plaintiff’s case on the second cause of action is established by a preponderance of the evidence only. This language is in direct conflict with the rule laid down by the Supreme Court in Hinkle v. Sage, 67 Ohio St. 256, 262 [69 N. E. 999], In the case cited the principle is announced by our Supreme Court that to entitle a plaintiff to recover under such circumstances, the contract must be established by clear and unequivocal proof. It is true that the case of Hinkle v. Sage, supra, was an action brought against the estate of a decedent, and in that respect it differs from the case now under consideration. But the language used by the court in the course of the opinion, and also as found in the syllabus is so broad as to embrace an action of this character, whether brought against an executor or administrator or against the head of a family during his lifetime. Were it not for this general language, the members of this court might not be agreed that the rule requiring the plaintiff’s case to be established by clear and unequivocal proof should be applied except when the action is against the estate of a deceased person. Much argument may be adduced upon both sides of the question, but we are convinced, in view of the language of this decision, that the rule in our state is equally applicable whether the action be against an administrator or between members of a family still living. A very interesting discussion of this and some other questions may be found in an exhaustive note contained in Hodge v. Hodge, 11 L. R. A. (N. S.) 873-913 [47 Wash. 196; 91 Pac. 764], Speaking of the degree of proof required the annotator upon page 902 states the rule as follows:

“The emphatic language used is probably to be accounted for, in some measure at least, by the fact that, in the great majority of instances, it was used with relation to claims against the estates of decedents. But, as the statements of the courts are perfectly general, it can not be assumed that the standard specified was regarded as being appropriate only in eases involving such claims. ’ ’

For the error indicated, prejudicial to the rights of the plaintiff in error, the judgment will be reversed and the cause remanded for further proceedings.

Wildman and Kinkade, JJ., concur.


author: MARVIN, J.

text:
    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    February 12, 1912.]
    Marvin, Winch and Niman, JJ.
    American Shipbuilding Co. v. Frank P. Whitney.
    Stockholder of Foreign Corporation has Right to Inspect Records and Papers.
    A stockholder of a foreign corporation which is doing business in Ohio, after having obtained the right to do so by complying with the laws which provide how a foreign corporation may do business in this state, and has records and papers within the state, has all the rights of inspection of such records and papers as a stockholder in a domestic corporation has.
    Error.

      Griswold & White and Thompson & Sine, for plaintiff in error.

      Soyt, Dustin, Kelley, McKeehan & Andrews, for defendant in error.
   MARVIN, J.

Tbe American Shipbuilding Company is a corporation for profit, organized under the laws of the state of New Jersey. It is doing business in Ohio, having obtained the right to do so by complying with the laws which provide how a corporation, organized under the laws of another state, may do business in this state. It has property, offices, records and papers here.

Frank P. Whitney is a stockholder in said corporation. He resides here. He has demanded of the officers of said corporation an inspection of certain records and papers of the corporation now in Ohio. This inspection has been refused. His demand for such inspection is not accompanied by any reason given by him for such inspection except that he is a stockholder in the corporation.

He brought a suit in the court of common pleas seeking an injunction against said corporation and its officers to prevent their refusing him this inspection. The corporation bases its refusal upon the ground that until the stockholder shall show a reason for this inspection, he is not entitled to it, The court of common pleas decided in favor of the stockholder and granted the injunction, and the proceeding here is for the purpose of determining whether such order of the court shall be sustained.

It is provided by Sec. 8673 G. C., that “the books and records of such corporations, at all reasonable times, shall be open to the inspection of their stockholders.” This section is found in the chapter providing for the organization and conduct of corporations for profit in Ohio. There is no doubt, therefore, that if this weré an Ohio corporation, the stockholder would be entitled to the examination. This is absolutely settled by the case of Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189 [56 N. E. 1033; 48 L. R. A. 732; 78 Am. St. 707]. The syllabus of this case reads :

“Injunction is the proper form of remedy to enforce the right of a stockholder in a private corporation, given by See. 3254 R. S., to inspect the boobs and records of the corporation.
“The right to inspect does not depend upon the motive or purpose of the stockholder in demanding such inspection and a petition which shows that the plaintiff is a stockholder; that he has requested the defendant to allow him to inspect the books and records of the corporation, and fix a reasonable time for the same, which request has been refused, states a cause of action.
“As incident to such right is the right to have such inspection by a proper agent, and to take copies from such books and records.”

It is urged, however, that the statute does not apply to foreign corporations, because the language is that the “books and records of such corporations” shall be open to the inspection provided for, and that the word “such” refers to the bind of corporations provided for in the chapter, to-wit; domestic corporations.

It is, however, provided in Sec. 5508 G. C., as amended in 102 O. L., 251, Sec. 119 of the amendment, in these words:

“All foreign, corporations, and the officers and agents thereof, doing business in this state, shall be subject to all the liabilities and restrictions that are or may be imposed upon corporations of like character organized under the laws of this state, and shall have no other or greater powers. ’ ’

That this applies to all foreign corporations, other than certain ones named later on in the section, is clear from the fact of those exceptions being made.

We have not found it necessary to consider other questions raised in this case. We regard the case as settled by these statutes and the decision of the Supreme Coiirt already named. The result is that the judgment of the court of common pleas is affirmed.

Winch and Niman, JJ., concur.


text:
    BENEFICIAL ASSOCIATIONS — INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    February 13, 1912.]
    Marvin, Winch and Niman, JJ.
    Blanche Mahar v. Rosie Mahar et al.
    Divorced Wife not Entitled to Benefits From Fraternal Association.
    Under Sec. 9467 G-. C., payment of death benefits by a fraternal beneficiary association can not be made to one who was the wife of the member when a certificate was issued to him, and named therein as his beneficiary, without after change, but was divorced from him before his death and hence before the death benefits became payable.
    Error,

      Hidy, Klein &■ Harris, for plaintiff in error.

      E. P. Strong, J. D. Clark aud George C. Johnson, for dofendants in error.
   MARVIN, J.

The Independent Order of Foresters filed its petition in the court of common pleas, alleging that it is a fraternal beneficiary association, organized under the laws of the Dominion of Canada! and doing business in Ohio by authority of law. That on January 19, 1909, one William Mahar died,'being then a member of said association, to whom it had theretofore issued a benefit certificate in the sum of one thousand dollars, which was then in full force, and setting out that it was ready to pay said sum to the person entitled to receive the same, and brings the amount into the court to abide its order. That Blanche Mahar and Rosie Mahar each claimed payment of this benefit fund to herself, and so the question of the party entitled to the payment was submitted to the court.

Both of these parties answered, each setting up facts which she claimed entitled her to the money. The court ordered that Rosie Mahar was entitled to it and made its order accordingly. To this finding and order Blanche Mahar prosecutes this proceeding in error.

Theéacts are these: one William Mahar and the plaintiff in error, Blanche Mahar, were married June 20, 1900, at Lorain, Ohio. Soon after their marriage and in November, 1901, the said William Mahar became a member of Court Huntington-tower No. 3835 I. O. F. and took out insurance in the sum of $1,000, which insurance under the mortuary certificate was made payable to Blanche Mahar, the plaintiff in error, who was then his wife. The parties lived together from that time on until 1908 when they separated and the said William Mahar secured a divorce from his wife in the court of common pleas of Cuyahoga county. Ohio. Thereafter the said William Mahar, on or about December '2, 1908, married the defendant in error, Rosie Mahar, and the following month, to-wit, January 19, 1909, died, and during all of the time aforesaid the said William Mahar resided either in Cleveland or in Lorain, Ohio. The beneficiary was at no time changed. The policy now reads, and the certificate evidencing the insurance is made payable to Blanche Mahar, the plaintiff in error. No children were born to either the plaintiff in error or the defendant in error.

The contention on the part of the plaintiff in error is that Blanche Mahar, having been designated originally as the beneficiary in the beneficial certificate, and no change of beneficiary having been made, as it could have been made by William Mahar had he applied to the association to have such change made, the person entitled to payment remains unchanged, and so the court should have ordered that the money be paid to Blanche; whereas, on the other hand, it is argued that though Blanche was named as the beneficiary in the certificate, yet the fact of the divorce of WiHiam from her took away from her all right to any payment under this certificate.

The certificate itself provides, among other things:

“The supreme court doth further agree, subject to the proviso hereinafter contained, on the death of the said member being established to the satisfaction of the executive council, to pay to the beneficiary or beneficiaries designated hereon (the said member reserving the power of revocation and substitution of other beneficiaries in accordance with the provisions of the constitution and laws of the order) a mortuary benefit of one thousand dollars, less the amount paid on account of the total and permanent disability benefit,” etc.

It is further provided that the certificate is issued “subject to the provisions of the constitution and laws of the order as they existed at the time the said applicant became a member of the order, and as they may be amended from time to time thereafter. ’ ’

The act of incorporation in the Dominion of Canada, under and by virtue of which the association was created and chartered provides, among other matters, that the purposes of such association shall be:

“A. To unite fraternally all persons entitled to membership under the constitution and laws of the society;
“E. To establish a benefit fund, from which, on satisfactory evidence of the death of a member of the society who has com plied with all its lawful requirements, a sum not exceeding $3,-000 shal' be paid to the widow, orphans, dependents, or other beneficiary whom the member has designated, or to the personal representative of the member; or from which upon the completion of the expectancy of life of a member, as laid down in said constitution and laws, such shall be paid to himself.”

The constitution of the organization provides, among other Things:

“The insurance or mortuary benefit of a member shall be paid to the member himself, or to the wife or husband of, or to the affianced wife of, or to the affianced husband of, or to the children of, or Lo the blood relations of, or to persons dependent on the member.”

It is manifest that if the right to payment of this mortuary benefit depends upon the relation which subsisted between the member and the person named as a beneficiary at the time of the issuing of the certificate, this money should be paid to Blanche Mahar. And it may here be said that if she is not entitled to such payment, she was not prejudiced by the order of the court fixing Rosie Mahar as the person to whom the money should be paid. This is said because objection was made to some evidence offered in support of the proposition that Rosie Mahar and William Mahar were legally married after the divorce between Blanche Mahar and William Mahar. Since, however, it is a matter of indifference to Blanche Mahar to whom this money should be paid provided she is not entitled to receive it, no prejudice came to her because of any railing upon evidence in relation to the marriage of Rosie Mahar and William Mahar.

Our attention is called by counsel for the plaintiff in error to a considerable number of cases in which it is held that the person designated as the beneficiary, if entitled £o be so designated at the timé the certificate is issued, remains such beneficiary, notwithstanding a change of relation thereafter occurring between the parties before the death of the person procuring the issuing of the certificate.

The case of Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251], is such case. The second clause of the syllabus reads:

“.A policy of life insurance, originally valid, does not cease to be so by the cessation of the assured party’s interest in the life insured, unless such be the necessary effect of the provisions of the instrument itself. So held, where, subsequently to effecting an insurance by husband and wife, upon their joint lives, payable to the survivor upon the death of either, they were divorced a vinculo matrimonii, and she, having thereafter paid the premiums to the time of his death, brought suit on the policy. ’ ’

In the opinion of this ease, Mr. Justice Bradley, at page 461, uses this language .-

“We do not hesitate to say, however, that a policy taken out in good faith and valid at its inception, is not avoided by the cessation of the insurable interest unless such be the necessary effect of the provisions of the policy itself. ”

Other cases cited by counsel support this proposition as applied to regular life insurance companies, but it is to be remembered that the company now being considered is governed by the statutes applicable directly to fraternal beneficiary associations.

In White v. Brotherhood of American Yeomen, 124 Ia. 293 [99 N. W. 1071; 66 L. R. A. 164; 104 Am. St. 323], a case arose under the provisions of See. 1824 of the code of Iowa, and it is said in the second clause of the syllabus:

“The code, See. 1824, provides that no fraternal association shall issue any certificate unless the beneficiary be the husband, wife, relative, legal representative, heir or legatee of such member. An association which expressed its object to be a bestowal of financial benefits on the family, widow, heirs, relations and such others as may be permitted by the laws of the state, and constitution and by-laws, and which permitted a change of beneficiary, issued a certificate payable to a certain person by name, such person being the wife of the member when the certificate was issued. Subsequently she was divorced and the member remarried, but made no change of beneficiary. Held-.,That on the death of the member, the first wife was entitled to the proceeds of the certificate.”

In the opinion of this case, Judge Sherwin uses this language:

“The statute provides only for the relationship that shall exist when the certificate is issued, and does not in words, or by fair implication, limit payment to those only who occupy such relation at the time of death. It was the evident intent of the legislature to prohibit anything in the nature of gambling contracts, and to so limit the beneficiaries as to accomplish such a result. ”

And further along in the opinion it is said:

“It is a well recognized rule that a policy of life insurance or a designation of a beneficiary, valid in its inception, remains so although the insurable interest or relationship of the beneiiciary has ceased, unless it is otherwise stipulated in the contract.” Citing, Connecticut Mut. L. Ins. Co. v. Schaefer, supra, and Bacon, Benefit Societies, Sec. 253

Turning to the section referred to in Bacon, we find this:

“The general rule undoubtedly is that a policy of life insurance or a designation of beneficiary, valid in its inception, remains so, although the insurable interest or relationship of the beneficiary has ceased, unless it is otherwise stipulated in the contract.”

In support of this a large number of authorities are cited which sustain the doctrine in the text and as stated in the cases from which quotations have hereinbefore been made.

Bacon then follows in these words:

“Where, however, the beneficiaries of members of benefit societies were, by statute, restricted to the family dependents or relations of their members, and a member of one of such societies designated his wife from whom he afterwards was divorced, it was held that sl:e lost her rights under the designation in consequence of such divorce.”

This case will seem to be apparently against the authorities, but the reason given is that under the statute the relationship or status must exist at the time of the maturity of the contract. Especially is this true if the regulating statute specifies certain classes to which payment of benefits shall be made.

Bacon then calls attention to the Iowa case, White v. Brotherhood of American Yeomen, supra, and this, as has already been shown, is reasoned by the court upon the proposition that the statute fixes who may be named as. beneficiaries, but it does not fix to whom payment shall be made.

The section of our statute, which has already been quoted, expressly provides that the payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption affianced husband ‘ or affianced wife, or to a person or persons dependent on the member.

Attention has already been called to the law of the association which provides for payment to be made to parties other than the beneficiary named, where the payment to the beneficiary would be repugnant to the laws of the state or country at the time of the death of the member causing the certificate to be issued.

The case of Supreme Commandery v. Margaret Everding, 10 Circ. Dec. 419 (20 R. 689), is cited in support of the claim of the plaintiff in error, Blanche Mahar. In that case nothing is said with reference to the statute of Ohio fixing the persons to whom payment should be made. The decision seems based entirely upon the proposition that the person to whom the money was awarded was the wife of the member at the time the certificate was issued, and was therefore a proper person to be named as beneficiary, and then to reach this conclusion because of the cases which hold that a person, properly a beneficiary at the time of the issuing of the certificate, remains such beneficiary so long as no change of beneficiary is made in the certificate. But the eases cited are those where the policies were issued by regular life insurance companies.

That ease was decided by a very able bench, consisting of Judges Scribner, Bentley and Haines, and. the opinion was prepared by Judge Haines, for whose opinion we have the highest respect, as has the entire bar of the state. However, that case was decided in 1893. A later ease, Brotherhood v. Taylor, not reported, decided by the circuit court of Ross county in 1906, holds the contrary doctrine. This case was also decided by a very able court, and we fell disposed to follow this rather than the Lucas county ease. In that case there had been a divorce between the member on whose account the certificate was issued and the beneficiary designated in the policy, who was his wife at the time the certificate was issued. The third clause of the syllabus m this case reads:

“Under the laws of Ohio, beneficiary certificates are to be construed with reference to the status of the beneficiary at the time of payment (meaning payment of the loss). The words ‘Alice B. Taylor’ in the certificate are descriptio personae, and may be rejected as surplusage, and the certificate is construed to mean that if there be no wife living, the benefits go to the administratrix in trust for his heirs.”

In the opinion in this case Judge Jones uses this language:

“In the determination of this case, it may be said at the outset that the various rules of law applicable to ordinary life insurance companies do not apply in this ease, for the reason that it is provided by statute that such associations shall be exempted from provisions of the insurance laws of this state, and no law hereafter passed shall apply to them unless they be expressly designated therein.”

"We reach the conclusion, both from the spirit and purpose of the statutes in relation to these associations, and from the express language of Sec. 9467 G. C., that there was no error in the decision of the court of common pleas, and the judgment is affirmed.

Winch and Niman, JJ., concur.


author: METCALFE, J.

text:
    MASTER AND SERVANT.
    [Ashtabula Court of Appeals,
    January 31, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Guarrino v. Union Dock Co. et al.
    Responsibility as Between Dock Company and Steamship Company For Safety of Employees Unloading Vessel.
    Plaintiff, an employee of a dock company, was by the direction of his employer engaged in unloading a steamship belonging to another company. While so engaged he was injured by reason of the unsafe condition of the place where he was working. Held:
    1. The duty of furnishing a safe place for the plaintiff to work rested on his employer, the dock company, and not on the steamship company.
    2. The plaintiff by engaging in the employment, by direction of his employers and without objection on his part of unloading the boat of another company, did not assume the risk of the unsafe condition of the place where he was working.
    3. The duty which plaintiff owed to the steamship company was that of ordinary care only.
    [Syllabus by the court.]
    Error.

      Anderson &• Lamb, for plaintiff in error.

      E. E, McKeéhan, for defendant in error.
   METCALFE, J.

The plaintiff in error, Stefano Guarrino, was plaintiff below, and brought this action for damages for injuries oeeasionea by the alleged negligence of the defendants. Upon the trial at the close of the evidence the trial judge, on motion of the Union Dock Co., directed a verdict in its favor. Thereupon the case was‘submitted to the jury as between the plaintiff and the Interstate Steamship Co. and a verdict was rendered in the favor of the defendant steamship company. The errors here assigned are, first, that the court erred in directing a verdict in favor of the Union Dock Co., and that the court erred in the charge to the jury. The Union Dock Co. is the owner and operator at Ashtabula Harbor of a number of machines used in unloading iron ore from boats. The Interstate Steamship Co. is the owner of a boat known as the B. F. Jones. At the time the plaintiff was injured the B. F. Jones was unloading at the docks of the Union Dock Co., and the machines of the dock company were doing the work of unloading. The men who had charge of the machines and who were doing the work of unloading, including the plaintiff, were in the employ of the Union Dock Co., and not of the Interstate Steamship Co. The hold of the boat where the iron ore is stored consists of several compartments, each of which has a separate hatch. As the machines progressed in the-work of unloading it became necessary to move them from one hatch to another, and when they were so moved it was necessary for the workmen who were in the hold of the boat attending to the filling of the hoppers to move to the different hatches as the machines moved. In so doing it was necessary to climb a ladder to the top of the compartment and then travc-l along a passageway on the side of the boat from one hatch to another. At the time of the accident to the plaintiff the unloading machine upon which the plaintiff was working had been moved from one compartment to another and the plaintiff was going from the one where he had been at work to the one where the machine had been moved. He was going in the usual manner and along the usual route. There was upon the shelf or gangway where the plaintiff was obliged to walk in going from one hatch tó another some timbers which are called strong-backs. Tt was dark in going through the place where these things were left, and the plaintiff, as he came to the top of the ladder and stepped over the side of the hatch onto the gangway or shelf, as it is called by some, stepped upon one of these timbers and was thrown or knocked to the bottom of the boat, and there received some injuries.

There is evidence in the case tending to show that the gangway where these timbers had been left was not a proper place for them, and clearly it was a question for the jury whether or not there was negligence on the part of the defendant companies, or either of them, in leaving the,m in that place, and whether or not the plaintiff had been furnished a safé place to work.

The duty of furnishing a safe place for his workmen rests upon the employer, and the fact that the place where the men were working belonged to another company does not excuse the dock company from its duty in that respect in the least, but the fact that the duty of furnishing a safe place in which to work rested upon the dock company, could not in any way excuse the steamship company from the consequences of its negligence in leaving the place where the plaintiff was working unsafe. The plaintiff in engaging in the work of unloading boats assumed no greater and no different risk than he would have assumed if the boat had been owned by the dock company, his employer; consequently he did not assume the risk of the unsafe condition of the boat. It being a question for the jury to determine whether or not the place provided by the defendants for the plaintiff to work was a'safe place it was error in the trial judge to direct a verdict in favor of the dock company.

Was the charge erroneous? The part of the charge complained cf was as follows:

“The plaintiff is presumed to have assumed the risk of such injuries from accident which were incident to the nature and character of the work in which he was engaged, and against which the defendant could not, in the exercise of ordinary care, have protected him.”

And again:

‘ ‘ The plaintiff is not entitled to relief against the defendant for injuries resulting from known and obvious dangers avoidable by the exercise of ordinary care on his part, notwithstanding the defendant may have been negligent. Such injuries, together with such as may have happened, if you so find, with no fault on the part of the defendant were assumed by the plaintiff.”

The question of assumption of risk is a question between employer and employee. The plaintiff’s contract of employment was with the Union Dock Co. and not with the Interstate Steamship Co. He did not assume the risk of any negligence on the part of the steamship company; neither did he assume the risk of the unsafe condition of the place where he was working. We think, therefore, that the charge is erroneous and misleading, and for these reasons judgment is reversed, as to both of the defendants.

Judgment reversed.

Norris and Pollock, JJ., concur.


text:
    APPEAL — RECEIVERS.
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    August Becker v. Citizens Real Estate Co. et al.
    Order Disallowing Report of Receiver not Appealable.
    An appeal will not lie to the circuit court from an order of the common pleas court disallowing a partial report of a receiver appointed in a case pending in that court and directing the receiver to file an amended report.
    Appeal.

      W. W. Hole, for plaintiff.

      Stearns, Chamberlain <£• Royon, Parsons & Fitzgerald and Myers & Green, for defendant.
   MARVIN, J.

August Becker brought a suit in the court of common pleas against the Citizens Real Estate Co., a corporation, setting up that-he was a creditor of such corporation, and averring other facts, which, if established, would justify the appointment of a receiver to take charge of the property of the corporation, convert it into money and distribute the avails thereof.

Such proceedings were had in this action that Howard A. Byrns was appointed such receiver and as such made a partial report to the court on June 14, 1911.

On July 6, 1911, F. L. Wenham, one of the creditors of the corporation, filed objections to this report, specifying a large number of items for which the receiver had taken credit to himself in the report, and concluding in these words:

“The said receiver has disbursed the funds of said estate, as shown by his partial report, in the payment of unnecessary expenses, the maintenance of an office in the Citizens Building, including office rent, telephone service, the salary of a stenographer and various other items of expense, which are not properly chargeable to said estate; that said report should not be confirmed, but that the said report should be disallowed and the receiver be ordered to file a correct statement of his transactions. ’ ’

On October 24, 1911, the court entered its order on this motion in these words:

“The objections of F. L. Wenham to the report of the receiver and motion to disallow same is heard and granted, at the receiver’s costs, for which judgment is rendered against him, and said receiver is ordered to file an amended report by November 4, 1911. The amount of the bond for appeal is fixed in the sum of $200. ’ ’

The receiver gave his bond for appeal, and did all things necessary to perfect such appeal, provided the order is one from which an appeal may be taken. If this matter is a proper subject of appeal, it is because it eomes within the provisions of Sec. 12224 G. 0. This section provides that:

“An appeal may be taken to the circuit court by a party, or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist. ’

We are clearly of the opinion that the order made in this ease is not a final order within the meaning of the section quoted above. Nobody’s rights are fixed by it. The amount which the receiver is to distribute is not fixed. The amount of credits to which the receiver is entitled is not fixed. Nothing is fixed but that the report as a whole is not approved, and the court orders that a new report shall be filed. It is no more final than an order sustaining a demurrer to a petition is final, where leave is given to amend the petition.

To construe this order as determining that no part of the credits objected to will be allowed, is to give it a construction which it clearly was not the intention of the court it should have. Had such been the intention of the court, the order should, and doubtless would have been, that certain items of credit claimed would not be allowed, and having specified such as should be so disallowed, there would have been no occasion to require an additional report to be filed, because the report taken in connection with the order would have shown the amount in the receiver’s hands to be thereafter accounted for.

If there were no other reasons for holding that this is not a final order, the foregoing would be sufficient, and would require us to sustain the motion to dismiss this appeal.

The case of Evans v. Dunn, 26 Ohio St. 439, relied upon by the appellant does not, as we view it, support his contention. There a final report by a master was filed, stating an account between partners. Exceptions were taken to certain items in the report. The-allowance or rejection of these items, or any of them, affected the amount to which each of the parties was entitled. The settlement of this account, the order of the court approving It, disposed of the entire controversy. The court ordered the modification of the report, and as so modified, it was confirmed. This was held to be a final order from which an appeal could have been taken. It was not taken, and therefore the court refused to hear evidence touching the questions settled by the order.

Whether any order made by the court of common pleas, in the settlement of the accounts of a receiver, can be appealed from, need not here be determined. Counsel are familiar with the case of Scheidler v. Railway, 1 Circ. Dec. 584 (2 R. 453), where the holding is that the only remedy open to the receiver, who feels aggrieved in such a case, is by proceedings in error. See also Cincinnati, S. & C. Ry. v. Sloan, 31 Ohio St. 1.

The motion to dismiss the appeal is sustained.

Winch and Niman, JJ., concur.


author: VOORHEES, J.

text:
    COUNTIES — INJUNCTION—LEVIES.
    [Coshocton (5th) Court of Appeals,
    March, 1914.]
    Powell, Voorhees and Shields, JJ.
    Mathew Crawford v. John I. Miller, et al.
    1. County Commissioners May Join with State in Construction of Levy to Protect State Property and County Road from Floods.
    Under favor of Sec. 7483, G. C., county commissioners have the right to join with state officers in the construction of a levee for the protection of state property from damage from floods, where hy so. doing they are able to accommodate the public by protecting a county road from overflow and injury.
    2. Property Owner Injured by Joint Construction of Levy by State and County has Adequate Remedy against County, Injunction Denied.
    A property owner whose lands will probably be damaged by the construction of such a levee has an adequate remedy at law against the county commissioners, who in such a case would be joint tort feasors; hence, injunction does not lie upon the petition of such landowner against proceeding with the wort.
    [Syllabus by the court.]
    This action was brought by the plaintiff against the above named defendants, to obtain a. temporary restraining order restraining the defendants and each of them from building, erecting or. constructing a levee as described in the petition, until the final hearing of this cause, and upon the final hearing a perpetual injunction be granted as prayed for in the petition.

      The plaintiff alleges that he is the owner of the real estate described in the petition; that the lands are farming lands of great value and adapted to the growing of com, wheat, grass and other farm crops.
    The defendant, Gilbert J. McKee, is the owner and in possession of the land described in said petition, and which land adjoins the lands of said plaintiff on the east and border on the Walhonding river hereinafter mentioned.
    Plaintiff further avers that his said lands are bounded on the east by the land of said Gilbert J. McKee and on the south by the Walhonding river and Walhoñding canal, which canal was abandoned by the state of Ohio about the year .1896.
    The defendants, Henry Clark, J. C. Crile and J. H. Elder, are the duly qualified and acting county commissioners of Cos-hocton county, Ohio.
    The said Walhonding river has an uninterrupted flow along its natural watercourse except for a dam in said river heretofore constructed and maintained by the state of Ohio and the department of public works of said state of Ohio. Said dam is known as the six mile dam in said Walhonding river. The abutments erected at each end of said dam as a protection and support therefor are several feet higher than the top of said dam, to-wit, about twelve feet, and the plaintiff’s said land lies north and wrest of said dam; and said river flows in an easterly direction along said plaintiff’s said land. The defendants, John I. Miller, as superintendent of the department of public works of the state of Ohio, and Boss Hamilton as superintendent of the construction of a certain levy, as officers of the department of public works of the state of Ohio, and Henry Clark, J. 0. Crile and J. H. Elder, as commissioners of the county of Coshoc-ton, Ohio, threaten and are about to erect and will build and construct a levy from the north abutment of said dam in a northwesterly direction across the lands of the said Gilbert J. McKee to a point on the southeast comer of the lands of said plaintiff, and will so construct said levee unless restrained by this court. Said levee so to be constructed by said defendants will extend to a height of four and three-tenths feet above the plaintiff’s said lands at its lowest point; in case of a flood or sudden rise of the waters of said river it will cause said river or a part thereof to overflow plaintiff’s said land before the same will flow over the levee erected by said defendants, and said levee will obstruct the natural flood channel of said river and cause said river to flow in a new and different flood channel on and over the lands of the plaintiff; that said defendants in constructing said levee are doing so without due process of law, without any license, sufferance, consent or agreement, contract or grant with or from the plaintiff, who is the owner in fee simple of said premises; and said defendants are so threatening to overflow and prepare said new flood channel without securing the right so to do by any process of law, and without making or paying to the owner thereof any compensation therefor by placing on it in the event of a flood in said river the burden of furnishing a channel for said flood water to pass through and over the land of said plaintiff, without said construction of said levee, which will improve the natural regular flow of said flood water, the land of the plaintiff would not be subject to said burden. A large part of said premises that are now well suited for the growing of said crops and which is and for a long time has been used therefor at great profit to the plaintiff, will by the erection of said levee be overflowed by the waters of said river and rendered unfit for growing corn, wheat, grass and other crops, and render said premises worthless for farm purposes;, that the waters flow on in their natural course over the depression where defendants threaten to construct said levee, it spreads out over a large tract of one-half mile in width and again returns to the channel of said river without overflowing the lands of plaintiff; that said levee is permanent in its character and will obstruct the flow of the flood waters of said river in its natural flood channel and cause said waters to flow on and over said premises of plaintiff, to the irreparable damage of plaintiff; and plaintiff has no adequate remedy at law for the wrongs herein complained of.
    The plaintiff prays that a temporary restraining order be allowed, etc., and upon the final hearing a perpetual injunction be granted, etc. A temporary restraining order was granted by the probate judge of Coshocton as prayed for. Motion by defendants to the common pleas court to dissolve and set aside said temporary restraining order was granted and the plaintiff appeals to this court. Thereupon the defendants, the county commissioners of said Coshocton county, filed their answer in which they say in substance that they admit that plaintiff is the owner of the lands described i-n the petition; that a part of the Walhonding canal was abandoned as alleged in the petition; that they, Henry Clark, J. C. Crile and J. H. Elder, are the duly elected, qualified and acting commissioners of Coshocton county, Ohio.. They further admit that a dam has been constructed and maintained by the state of Ohio as alleged in said petition, and they deny each' and every other allegation.
    Said commissioners further answering say that they have entered upon their journal an entry to the effect that $1,000 be paid to the state of Ohio, and the state of Ohio is to take care of a right of way for the levee proposed to be constructed by the state of Ohio; that said $1,000 be paid when the levee is completed; that said participation in the construction of said levee is considered by the commissioners of public importance, and that if said levee is not constructed that portion of the highway leading from Warsaw to Coshocton and beginning on the Wilson lands and running south toward Coshocton will be greatly damaged. They ask that said action as to them may be dismissed and that they be permitted to carry out their part of the construction of said levee.
    The defendants, J. I. Miller and Ross Hamilton, on October 13, 1913, filed their joint answer alleging in substance that they admit the ownership of the lands by the plaintiff described in the petition. They say that a part of the Walhonding canal was abandoned by act of the legislature of the state of Ohio about the year 1896, and the remaining part of said canal is still maintained as a part of the public works of the state of Ohio. They admit that the said defendants, Clark, Crile and J. H. Elder, are the commissioners of Coshocton county; that the state of Ohio has constructed a dam in the Walhonding river in the vicinity of plaintiff’s lands; that said dam is a part of the public works of the state of Ohio and is maintained to secure a supply of water for the Walhonding canal, which is owned and maintained by the state of Ohio; said dam has been constructed, used and maintained by the state of Ohio for such purposes for more than twenty-one years last past. They admit the abutments of said dam are several feet higher than the top of said dam. They deny each and every allegation in said petition not herein admitted to be true.
    The defendant, John I. Miller, is the duly appointed, acting and qualified superintendent' of the public works of Ohio, and as such superintendent has the charge and control of the maintenance and management of the dam mentioned in the petition; and as such superintendent as the agent of the state of Ohio and to protect and maintain said public works of Ohio, he is proposing to construct, to repair a certain levy on the north bank of the Walhonding river extending from the north abutment of said dam in a northwest direction for a distance of about 1695 ‘ feet. In such construction said John I. Miller is not acting in- his individual capacity but as an official of the state of Ohio and under direction and authority of the general assembly and of the constitution of the state of Ohio. Said defendant, Ross Hamilton, is in the employ of the state of Ohio as superintendent of the construction of said levee. Defendants say for more than twenty-one years last past the state of Ohio has constructed, used and maintained a levee as a part of the public works along the north shore of said Walhonding river from the north abutment of said dam in a northwesterly direction; that a part of this levee was destroyed and washed away by the extraordinary flood of March, 1913; that by reason of this damage of said flood to said levee a large amount of the property of the state of Ohio, a large part of the public roads of Coshocton county, Ohio, and a large amount of farming lands situated north and northeasterly from said levee have been placed in jeopardy; that if this levee is not repaired before spring the property will be placed in danger and particularly by a sudden rise of the Walhonding river, which usually occurs in the spring months of each year, and said Walhonding river will ultimately cut a new channel through said farming land.-
    Defendants say that said proposed new levee proposed to be constructed is to be so placed that the new channel of said river at this point will be greatly widened and the, width of said river will be at least doubled. That the top of the proposed levee and the top of the former levee are of about the same level. The defendants specifically deny that said proposed levy will cut off the flood channel of said river and cause said river to seek a new channel over plaintiff’s lands.
    Plaintiff has an adequate remedy at law. They say that the floods of March, 1913, caused a large amount of damage of the public works of the state of Ohio throughout the state-, that the department of public works was taxed to its utmost capacity to make such repairs as were immediately necessary; that it was necessary to secure a specific appropriation of money from the legislature to repair the levy herein mentioned; that the legislature appropriated the sum of $10,000 to repair said levee; that in order to estimate the amount of money needed measurements and surveys had to be made and were made; that after said appropriation was allowed it was necessary to make plans and specifications to reconstruct said levee and a complete survey of the ground was made; that after said plans and specifications were proposed and approved advertisements for bids were inserted in newspapers as required by law and bids received; that the bids so received were irregular and exceeded the appropriation and were rejected; that thereupon new bids were asked for and said bids also exceeded the appropriation and were therefore rejected.
    Said measurements, sounding and surveys were made upon the land in question and were known to plaintiff and he made no objection thereto. Bids were advertised for in newspapers of general circulation in Coshocton county, Ohio, for said construction and it was generally known that said proposed levee was to be constructed, and plaintiff made no objection; that plaintiff has been guilty of laches and should not have the relief sought and prayed for in his petition.

      The plaintiff files replies to the joint answer of the defendant, John I. Miller, and others, also to the answer of the county commissi on era, but they are in the nature of denials to the affirmative allegations of the answer. The plaintiff files an amendment to his petition, but these additional pleadings do not raise any new issues, and this brief reference to the replies and amendment to the petition are sufficient to present the questions arising in the case.
    The case was submitted to the common pleas court upon the pleadings, evidence and exhibits, resulting in a finding and judgment for the defendants, and the temporary restraining order theretofore granted was dissolved and the petition dismissed at the cost of plaintiff.
    An appeal was taken by the plaintiff to the court of appeals of this county and the same is submitted to the court on the pleadings, evidence and exhibits at the November term of said court.

      Thomas H. Wheeler and J ames Glenn, for plaintiff.

      Timothy S. Hogan, Atty.-Gen. W. J. Wieland, Joseph L. McDoivell and George D. Klein, Pros. Atty. for defendants:
    That plaintiff has an adequate remedy at law. Hosher v. Fairfield Go. (Gomrs.) 32 0. 0. C. 415 (14 N. S. 198); Smith v. Wayne Go. (Comrs.) 50 Ohio St. 628 [35 N. B. Pep. 796; 40 Am. St. Rep. 699] ; Wrightsel v. Fee, 76 Ohio St. 529 [81 N. B. Rep. 975; 13 L. R. A. (N. S.) 233] ; Newton v. Taylor, 32 Ohio St. 399; 38 Oye. 485, 590; Bice v. Coolidge 12.1 Mass. 393 [24 Am. Rep. 279] ; Taylor Water Go. v. Dillard, 9 Tex. Civ. App. 667 [29 S. W Rep, 662] ; Picherill v. Louisville^ 125 Ky. 213 [100 S. W. Rep. 873] ; McGary v. Street By. 85 Ill. App. 610; St. Louis Bridge Go. v. Niller, 138 Ill. 465 [28 N. E. Rep. 1091] ; Humphries v. Bailway 84 S. C. 202 [65 S. B. Rep. 1051] ; Bichmond v. Mills Go. 102 Y-a. 165 [45 S. E. Rep. 877] ; Brown v. Webster, 115 Iowa 511 [88 N. W. Rep. 1070]; Green v. State, 73 Cal. 29 [11 Pac. Rep. 602; 14 Pac. Rep. 610]; Simonson v. Bichardson 15 Dec. 33 (2 N. S. 170).
    Injunction does not lie. High, Injunction (4 ed.) Sec. 22 Spangler v. Cleveland, 43 Ohio St. 526 [3 N. B. Rep. 365] ;
      Cincinnati v. Bowman 12 Dec. Re. 125 (Han. 246); Potter v. Schenek, Fed. Cas. (1 Biss.) 515; Batsche v. Kisinger-Ison Co. 25. Dec. 30; Cincinnati, C. & W. Tpk. Co. v. Hamilton Go. (Comr.s.) 7 Dec. 509 (5 N. P. 423); Attorney-General v. Perkins, 2 Dev. Eq. (17 N. C.) 58; Hall v. Rood, 40 Mich. .46 [29 Am. Rep. 528] ; Bigelow v. Bridge Co. 14 Conn. 565 [36 Am. Dee. 502] ; Ruge v. Oyster Co 25 Fla. 656 [6 So. Rep. 489]; Cincinnati & D. Ry. v. Transportation Co. 25 O. C. O. 117 (I N. S. 146) ; Crawford v. Ramio, 44 Ohio St. 279 [7 N. E. Rep. 429] ; Cooper v. Hall 5, Ohio 320; McElroy v. Goble, 6 Ohio 187.
    Defendants are required to anticipate ordinary and not extraordinary floods. Crawford v. Rombo, 44 Ohio St. 279 [7 N. E. Rep. 429] ; Weity v. Vulgamore 24 O. O. C. 572 (1 N. S. 553) ; Farnham, Waters & Water Rights 361; Bryston Hydraulic Co. v. Boyer, 67 Ind. 236; Madison v. Boss, 3 Ind. 236 [54. Am. Dec. 481] ; Eagan v. Railway, 81 Vt. 141 [69 Atl. Rep. 732; 16 L. R. A. (N, S.) 928; 130 Am. St. Rep. 1031] ; Cooper v. WilUams, 4 Ohio 253 [22 Am. Dec. 745] ; Philadelphia, W. B. Ry. v. Davis 68 Md. 281 [11 Atl. Rep. 822; 6 Am. St. Rep, 440].
   VOORHEES, J.

This action is brought by the plaintiff against the county commissioners of Coshocton county and the representative of the state of Ohio, as superintendent of the department of public works of the state, and Ross Hamilton, as superintendent of the construction of the levee mentioned in the petition, to enjoin them from constructing said levee. The object of the suit is to enjoin said commissioners and said officers of the department of public works of the state from making the improvements mentioned and described in the petition.

To state the case more accurately, it is a suit against the state of Ohio and the county commissioners of Coshocton county, to enjoin them from improving and protecting the property of the state, and to enjoin the county commissioners from protecting some, or in protecting at least one, of the public highways of the county from danger and injury from flood waters in the Walhonding river.

At the very threshold of the investigation the first question that confronts us is, Can such a suit be maintained against the state or its officers ? It will be conceded, no doubt, that the state can not be sued in an action of this kind. If the state does a wrong or commits an act in improving its property, such as its canals, the remedy is not by injunction. But under Sec. 455 of the act of the general assembly of Ohio, passed March 5, 1913, and approved by the governor March 19, 1913 (103 O. L. 125), wherein it is provided:

“That when private property is injured by a break, leakage. overflow of a canal, slack water, pool, reservoir or other public work, or by the insufficiency or by the filling up of a culvert thereof, or by the washing away of earth caused by a dam under the control of the superintendent of public works, the owner of such property shall apply in writing to the superintendent of public works for damages within one year from the occurrence of the injury, but no such application shall be received after such period.”

Sections 457, 458 and 459 of said act point out the proceeding and remedy secured to the property owner, which shows the remedy is not by injunction and that the owner of property claimed to be damaged has a remedy under the statute stated which gives him a complete and adequate remedy at law. If the state can not be sued, what effect has it in a ease where there are joint tort feasors, one of whom can not be sued? Does it change the rule of law that, where there is not an adequate remedy at law, resort can be had in a court of equity by way of injunction to prevent an act being done that is claimed to be an invasion of the rights of the party complaining?

In this case the county commissioners have joined the authorities of the state in constructing the levee contemplated. Their reason for so doing is to protect one of the public highways of the county from injury from the flood waters of the Walhonding river at times of floods in the river.

The commissioners have the legal right to make levees or embankments to protect public highways. Section 7483 G. C. provides when county commissioners shall build embankments, etc.:

“When a principal public road in a county, except a turnpike road over which tolls are collected, is subject to overflow or inundation so as to render it at any time unfit for public travel, or hinders free and necessary transportation, the commissioners of such county may repair or reconstruct said road by changing the beds of small streams to avoid crossing, changing roads to avoid bridges when the public travel would be better accommodated, or build an embankment or levee sufficiently elevated above all such overflows or inundations; the expense of such embankment, changes or levee shall be paid out of the money in the county treasury raised by taxation for road or bridge purposes.”

Under favor of this section of the General Code, we think the commissioners had the right to join the state officers in constructing the levee in question, if it would better accomodate public travel from the overflows or inundations of the same from the flood waters of said river.

The fact that the state can not be sued, may render the county liable for any damage to the private owner of lands who is damaged by the improvement; or if the state is exempt, this fact will not exempt the commissioners from liability to the party injured. If said improvement is wrongfully made by the commissioners, or, in other words, the remedy at law is not destroyed by such condition, it is contended by the plaintiff that by constructing this levee as planned and intended by the state, assisted by the commissioners, it will and has interfered with the flow of the waters of said river, and by interfering with the natural flow thereof, the lands of plaintiff are and will be damaged, and to avoid such damage this action brought to restrain and enjoin the defendants from constructing or maintaining such levee or improvement.

The levee may not be in the nature of a permanent improvement, one that could not be removed if it were unlawfully constructed; neither is it a case where the damage to plaintiff’s land, if any, is complete when the improvement is completed. It is not a ease of injury that could not be abated by the removal of the levee. Then the question is presented, Is it such an action that the plaintiff would have an adequate remedy at law, under the act hereinbefore cited from 103 O. L. Secs. 455, 459 and 449?

The last section cited contemplates a trial by jury under certain conditions, but what right the plaintiff may have as to damages against the state for constructing this levee or whether he has any right to damages against the state the court is not called upon to decide. The question here presented is as to the right of the plaintiff to maintain a suit for injunction against either the state or the county commissioners restraining them from constructing the levee mentioned in the petition.

That a court can not and will no.t interpose to control the discretion of public officers in the absence of evidence of bad faith or corrupt and malicious motives is too well settled in Ohio to be controverted. We think the commissioners have the right to join with the state or to act alone in constructing this levee, acting in good faith for the purpose of protecting one of the public highways of the county. If it were necessary for the benefit of the public to construct this levee to protect the highways leading from Warsaw to Coshocton from the flood waters of the Walhonding river, thfe commissioners, under the section of the General Code above cited, have the right to do so. If by so doing the plaintiff should be damaged, the county may be liable and may be required to make him whole for whatever injury he has sustained by reason of the improvement. We think there is no question but the commissioners have the right to make or to join the state in constructing and maintaining this levee across the flood channel of the Walhonding river at the place and in the manner proposed and intended by the officers of the state for the protection of the state’s property, including the dam in the river, known as the six mile dam, and if the commissioners believe the public highway described in their answer will be improved and benefited and protected from the flood waters, they have the right so to do, and they can not be enjoined from making the improvement or maintaining said levee.

We have been greatly aided in this discussion by the able and exhaustive brief of the attorney-general and his assistants by giving the authorities cited therein touching the question involved in this acton.

Without pursuing the discussion further, we are unanim-imous in the opinion that the plaintiff’s action for an injunction or restraining order as prayed for can not be maintained, and we find the issues in favor of the defendants.

The petition of plaintiff is dismissed at his costs .and if the temporary restraining order as heretofore allowed is still in force the same is dissolved.

Powell and Shields, JJ., concur.


author: JONES, E. H., J.

text:
    CRIMINAL LAW — DELINQUENCY—INFANTS.
    [Hamilton (1st) Court of Appeals,
    April 10, 1914.]
    Swing, Jones and Jones, JJ.
    William Walton, alias Hop, v. State of Ohio. Herman Breiner v. State of Ohio.
    1. Jury Waived in Juvenile Court without Written Waiver.
    A jury may be waived by a defendant in the juvenile court, and where he elects so to do it is not necessary that the waiver be in writing.
    2. Negative Averments as to Jurisdiction and Delinquent Children not Necessary in Affidavits for Contributing to Delinquency.
    It is not necessary that the negative averments of Sec. 1642 G. C., relating to jurisdiction over and with respect to delinquent and dependent and neglected minors, shall be incorporated in the affidavits under which arrests are made.
    3. Workhouse Sentence Proper on Delinquency Charge Sustained.
    It is not error to sentence to the workhouse one found guilty of contributing to the delinquency of a minor under the age of seventeen years.
    Error.

      James S. Myers and E. J. Franks, for Walton.

      Powell & Smiley, for Breiner

      Thomas L. Pogue, Pros. Atty., and A. J. Zanone, Assist. Pros. Atty., for defendants.
   JONES, E. H., J.

The plaintiffs in error were tried and convicted in the juvenile court for contributing to the delinquency of a girl named Mary Iding, who at the time is alleged to have been fifteen years of age.

The affidavits charge an offense defined by Sec. 1654 G. C., which provides:

“Whoever aids, abets, induces, causes, encourages or contributes towards the delinquency of a minor under the age of seventeen years, as herein defined, shall be fined not less than ten dollars nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both,” etc.

The cases were tried by the court without the intervention of a jury, and each of the defendants upon conviction was sentenced to pay a fine of $200 and to imprisonment in the workhouse for a period of three months.

In support of their prayer for a reversal of the judgment below the following points are urged in argument:

1. That there was irregularity and illegality in the proceedings below in that there was no jury impanelled to try the issues raised by the pleas of “not guilty,” and that the record does not show that the jury was waived in writing by the defendants.

2. That the negative averments of See. 1642 G. C. are not contained in the affidavits upon which the arrests were made and conviction had.

3. That the sentence, in so far as it provides for imprisonment in the workhouse is illegal and without authority of law.

With reference to the matter of trial by jury, the judgment entry in the court below contains the following language:

“This day came into court, the prosecuting attorney, on behalf of the state of Ohio, as also the said defendant, William Walton, alias Hop, who, being duly arraigned at the bar of our court, and examined of and eonceming the charge contained in the complaint herein, as to how he will acquit himself thereof, for plea thereto saith that he is not guilty, and waives his right of trial by jury.”

Section 1651 G. C., found in the chapter relating to the juvenile court, provides in part as follows:

“A person charged with being responsible for or with causing, aiding or contributing to the delinquency, dependency or neglect of a child, arrested or cited to appear before such court, at any time before hearing, may demand a trial by jury, or the judge upon his own motion may call a jury.”

So we see that under the terms of the statute describing the mode of trial of this class of eases it is provided that the accused may waive the right of trial by jury. The records in these eases show affirmatively that this was done orally by each of the defendants. According to a long line of decisions in our state, dating from an early period in our jurisprudence, it has been repeatedly held and is now well established that it is not necessary in the trial of a misdemeanor case under provisions of law similar to that above quoted that the jury be waived in writing. See Dailey v. State, 4 Ohio St. 57:

“Section 42 of an ‘act defining the jurisdiction and regulating the practice of probate courts’ passed March 14, 1853, providing that ‘upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to trv the issue,’ is a valid and constitutional enactment.

“A record showing that the accused ‘did not demand a jury’ sufficiently shows a waiver of the trial by jury.”

Also, to the same effect, Dillingham v. State, 5 Ohio St. 280:

“The constitutional right of trial by jury is not infringed when the option is given to the accused to have the issue tried by the court or the jury, and he submits the cause to the court.”

And Billingheimer v. State, 32 Ohio St. 435:

“In a trial before the police court of Cincinnati for a violation of the statute forbidding common labor on the first day of the week (S. & S. 289), unless the record shows that defendant demanded a jury, he will be deemed to have waived it. ’ ’

Under these and other decisions which might be cited it appears well settled that the waiver of a jury is not required to be in writing. The record showing affirmatively in the eases that the accused “waives his right to trial by jury” we find no error in this respect.

The second point, viz., as to the absence of negative aver-ments in the affidavit, is answered by the second paragraph of the syllabus in Billingheimer v. State supra:

“A negative averment to the matter of a proviso in a statute, is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it. ”

An examination of Sec. 1654, under which these affidavits were drawn and which defines and describes the offense charged, shows an absence of any negative provisions. The negative provisions referred to by counsel are found in Sec. 1642, which section related to the matter of jurisdiction, and has nothing to do with the definition of this or any other offense, so that under the authority above cited it can not be claimed that it is necessary to embody the negative provisions of this latter section in an affidavit charging an offense under an entirely different section.

• The third and last assignment of error related to the sentence imposed by the trial court. It is claimed that the court was without authority to sentence the plaintiffs in error to the workhouse. The statute under which' they were arrested and convicted provides for a sentence of fine or imprisonment for not less than ten days nor more than one year or both.

Section 12370 G. C., defines the word “imprisoned” and provides as follows:

“In the interpretation of part fourth the word ‘imprisoned,’ where the context does not otherwise require, means imprisoned in the county jail if the maximum term prescribed for the offense is one year, and imprisoned in the penitentiary if the maximum term prescribed for the offense is longer than one year. ”

If this section has any application to the imprisonment provided for in Sec. 1654, such imprisonment must be in the county jail. It-will be noticed, however, that the operation of See. 12370, by the language of the section, is limited to the term “imprisoned” as found in “part fourth.” Section 1654 is nQt embodied in part fourth, of the General Code, and it is doubtful whether Sec. 12370 has any application or can throw any light upon the meaning of the term “imprisoned” as found in Seo. 1654. But without any such aid to interpretation we are of the opinion that the imprisonment for one year provided for in the latter section means imprisonment in the county jail. If we are correct in this conclusion, then Sec. 4128 clothes the trial court with the authority to sentence offenders under See. 1654 to the workhouse.

‘ ‘ Section 4128. When a person over sixteen years of age is convicted of an offense under the law of the state or an ordinance of a municipal corporation, and the tribunal before which the conviction is had is authorized by law to commit the offender to the county jail or corporation prison, the court, mayor, or justice of the peace, as the case may be, may sentence the offender to the work house, if there is such a house in the county. ’ ’

The case of Lemmon v. State, 77 Ohio St. 427 [83 N. E. Rep. 608], is relied upon by counsel for plaintiffs in error as sustaining their contention upon this point, and from a superficial examination it would appear that the case is applicable and determinative. However, the section of the statute construed by the Supreme Court in the Lemmon case was amended within three months after the decision of the Supreme Court, and the obstacle in the way of sentence to the workhouse there pointed out was removed by the legislature. This section, as it stood at the time of the decision in the Lemmon case contained the words “is directed” instead of the words “is authorized” appearing in italics above.

The reasoning of the court in the Lemmon ease is to the effect that before a sentence to the workhouse can be legally imposed, it must appear that the section under which the sentence is imposed directs the court to imprison the convict in tbe county jail. The Lemmon case was a prosecution under the se-called Valentine antitrust law, which law provided for a fine or imprisonment or both, as does Sec. 1654 in this case. The Supreme Court held that the imprisonment under this language was discretionary or optional with the court,'and was not “directed ” and hence, the section now numbered 4128 as it then read, gave the court no authority to sentence to the workhouse. The change of the words “is directed” to “is authorized,” it will be seen, removes this objection, and the decision in the Lemmon ease is rendered ineffectual by the amendment referred to. The amended section, we think clearly authorized a court having discretionary power to impose a sentence of fine or imprisonment or both (in case imprisonment is ordered), to provide said imprisonment be in a workhouse, in a county where a workhouse is located.

Having found, therefore, no error in the records, the judgments below are affirmed.

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