text:
    (Sixth Circuit — Lucas County,O., Circuit Court,
    January Term, 1895.)
    Before Haynes Scribner and King, JJ.
    WILLIAM HULL v. JOSEPH HULL.

      Will construed — limitation of devise to natural life of devisee in one item applied also to other items—
    (1) . A testator in making provision for his wife,devised to her four distinct pieces of property, in four paragraphs, the first second and fourth of which contained the limitation “during her-natural life, which was omitted in the devise in the third paragraph. In a subsequent item the testator directed that after the decease of his wife the remainder of his estate should be divided equally between his two sons. Held : considering the will as a whole and in all its parts,that the testator intended the limitation to the natural life of his widow to apply to the devise in the third paragraph also.

      Power of court to apply devise to other lot than the one named—

    (2) . The will devised lot No. 94, in a certain subdivision, to one of his sons. At the time of making the will testator owned lots No. 95, 96, 23, etc., of the said division, but did not own lot No. 94, although he afterwards acquired it. The court was asked to make the devise apply to lot No. 95, instead of lot No. 94 which he did not own at the time of making the will, and testimony was introduced to show that that was really the intention of the testator, Held, that there being nothing in the will itself' that when the defective description was stricken out, would enable tbe court to apply the devise to the property supposed to-be intended by the tesiator to be devised, the court cannot, on the proof of extrinsic facts and circumstances existing at the time the will was made, apply the devise to lot No. 95, instead of lot No. 94 as named in the will.

      Gift from father to son — What sufficient consideration—
    (3) . One of the sons of testator having concluded to remove with his family to another state, testator promised him that if would stay, he might select a lot which testator would buy for him, and build a house on, as a homestead for the son. The son agreed to this and selected a lot which testator then purchased and improved, and which the son has ever since occupied as a homestead. On the death of testator the son claimed the lot and' house as his property. Held, that the agreement between testator and his son was valid and based on a sufficient consideration, and that the son was entitled to the ownership of the lot and house.
    Appeal from the Court of Common Pleas of Lucas county.
   Scribner, J.

This case is brought into this court by way of appeal from the judgment rendered by the court of common pleas.

On December 26, 1861, one Isaac Hull departed this life, being the owner at the time of his death of a large amount of property, both real and personal, situated in the county of Lucas. This property consisted largely of farming property, farming utensils and implements, and other personal property usually found on farms. There was also-a number of houses and lots in the village of Maumee, where the decedent resided for a long period of time prior to his death. There were store buildings, dwelling houses and merchandise, household utensils and other property not necessary to enumerate particularly. He left surviving him his widow, Chloe Hull, and two sons, William. Robert Hull and Joseph S. Hull. About a year after the death of the testator, William Robert Hull died and left, as his heir at law, the plaintiff in this action, William I. Hull, and also his widow who has married again, and who. appears in this proceeding as Emma A. Crosby. On August 24, 1858, he made and published his last will and testament, in due form. On December 23, 1864, some three days before his death, he added a codicil to his will, by which he revoked a pecuniary legacy contained in his will,, for one thousand dollars, to his son William Robert Hull, and reaffirmed his will in all other particulars.

The present proceeding was brought partly to adjust and determine the rights of the parties in the property left by the deceased,and partly for a partition of the real estate remaining undisposed of subsequent to the death of the deceased, by arrangement among the parties. The only questions presented to us relate to the construction of certain, provisions contained in the will of the deceased testator in connection with certain transactions growing out of those-provisions, it being suggested on the trial that as to all other matters except those growing out of the disputed construction of the will, an agreement and arrangement had been entered into between the parties. We are not called-upon to decide any matters excepting questions arising out of and resulting from the will which has been mentioned.

Chloe Hull has deceased,and is not at present before the court. One of the principal questions in controversy here-is as to whether or not, under the provisions of the will, the widow was given, by its terms, a life estate, or a full fee-simple estate in certain farm property described in the instrument.

The will is short, and a consideration of all its provisions seems necessary to reach a proper conclusion, and is as follows:

“Be it known that I, Isaac Hull, of Maumee city, Lucas county, do make and publish this may last will and testament.
“Item First. I give and devise to my beloved wife Chloe in lieu of her dower the lots and appurtenances on which I now reside including the brick dwelling house, old brick store, wood.house, well, etc,, with all the household goods, furniture and other property that may be thereon, during her natual life.
“Also I give and bequeath to her lot No. 97 in the old plat of Maumee aforesaid with its appurtenances, with all the goods, wares and mechandise and property of every kind within or upon said lot to me belonging during her natural life.
“Also the farm with its provisions, produce and stock of every kind and implements of husbandry thereto attached, lying'upon and near the plank road running N. W. beyond the residence of A. D. Williams containing four hundred acres more or less.
“Also one sixth part of the toll bridge between Maumee city and Perrysburg with all other property,real and personal,to me belonging, freely to use and enjoy during her natural life, except lot No. 94 in the old plat of Maumee, which I hereby give and bequeath to the heirs of my son Joseph S. Hull.
“Item Second. I do hereby nominate and appoint my sons, Joseph S. Hull and W. Robert Hull, executors of this my last will and testament, hereby authorizing and empowering them to compromise, adjust, release, and discharge in such manner as^they think proper the debts and claims due me.
“Item Third. I dc hereby give and bequeath to my son, W. Robert Hull, the sum of one thousand dollars to be collected from claims and debts due or from funds that may be on hand at my decease,
“Item Fourth. After the decease of my aforesaid wife, Chloe, it is my will that the remainder of all my estate, real and personal, be equally divided between my two sons or their heirs, Joseph S, Hull and W. Robert Hull.
“If it shall become necessary in order to pay my debts, I do hereby authorize and empower my executors aforesaid 'to sell by private sale, in such manner as they may think .proper., all or any part of my real estate, and deeds to purchasers to execute, (acknowledge and deliver in fee simple.
“In testimony whereof I have hereunto set my hand and fSeal this 24th day of August, A. D. 1858.
“Isaac Hull (Seal). ”

It will be observed that in the clause immediately preceding the last one which I have read, there are contained ■no words of limitation upon the estate devised,and no words •of perpetuity, and the question is, whether the limitation contained in the concluding clause of that paragraph immediately following applies to and limits the force and effect of the previous clause. I will read it again:

“Also the farm with its provisions, produce and stock of ■every kind and implements of husbandry thereto attached, ¡lying upon and near the plank road running northwest beyond the residence of A. D. Williams, containing four hundred acres more or less.” “Also one-sixth part of the toll bridge between Maumee city and Perrysburg, with all other property, real and personal, to me belonging, freely to use and enjoy during her natural life, except lot No. 94 in the •old plat of Maumee, which I hereby give and bequeath to the heirs of my son, Joseph S. Hull.” “Freely to use and ■enjoy during her natural life.” If the clause or expression ■which I have made use of is to be allowed to attach to both ■of these gifts, then, of course, the widow takes but a life ■estate. If it has no application to the preceding clause, ■then she takes, under the statute, although there are no words ■in perpetuity, an estate in fee. And it is upon the entire will, upon the objects and purposes of the testator to be gathered from the language of the entire will, that we are to resolve this question of doubt arising upon its face, where appears at the commencement of the first clause upon which this question arises, a blank, which, apparently was left for th purpose of filling in the number of acres contained in the tract. The testator has proceeded to write, apparently with his own hand, this will, until he has got to that part of the description which closes by saying: “lying upon and near the plank road running northwest beyond the residence of A. D. Williams, containing — ■” and there follows the blank, and that is filled in, evidently at another time from the face of the writing, with the number of acres according to the estimate of the testator — “four hundred acres more or less;” and that is immediately followed by the other-clause which gives certain other property, and closes with the expression “during her natural life.” That is followed by the exception as to lot No. 94, which is given to the heirs of the son, Joseph S. Hull; and, in respect to that provision, another question arisesjwhich will be considered further-on.
“Item Second. I do hereby nominate and appoint my sons, Joseph S. Hull and W. Robert Hull, executors of' this my last will and testament, hereby authorizing and empowering them to compromise, adjust, release and discharge in such manner as they may think proper the debts, and claims due me.”
“Item 'Third. I do hereby give and bequeath to my son, W. Robert Hull, the sum of one thousand dollars to be collected from claims and debts due or from funds that may be on hand at my decease.” That is the clause revoked by the codicil of December 23, 1864, but the will is not affected in any other respect by the codicil.
“Item Fourth. After the decease,” etc. This item, in our judgment, is of importance in construing this question and in reflecting upon the purpose and intent of the testator at the time he prepared this will.
“Item Fourth. After the decease of my aforesaid wife, Chloe, it is my will that the remainder of all my estate,real and personal, be equally divided between my two sons or their heirs, Joseph S. Hull and W. Robert Hull.” “If it shall become necessary in order to pay my debts, I do hereby authorize and empower my executors aforesaid to sell, by private sale,in such manner as they may think proper, all or any part of my real estate, and deeds to purchasers to execute,acknowledge and deliver in fee simple ”

If the clause in controversy stood alone by itself, that is to say, if that were the only gift to the widow, and there was nothing else in the will tending to qualify the expressions used by the testator in reference to that clause,it would seem tolerably clear perhaps that the object and purpose of the testator was to give to his wife the fee simple of the farm in question. Rut we think that clause, when you come to take the will as a whole and consider it in all its .parts — that it is manifest upon the face of the will that the ■testator intended to apply to the clause in question the limitation that is affixed to all other gifts to the wife, and that •the limitation contained in the cause immediately following was intended to apply to both parcels of property described at that point of the will. ‘ His first gift is to his wife of the lots and appurtenances upon which he resides, including the dwellings, etc., which may be upon it, with all the household goods, furniture and other property that may be thereon during her natural life. And also “I give and bequeath to her lot 97 in the old plat of Maumee aforesaid with its appurtenances, with all the goods, wares and mer- • chandise and property of every kind within or upon said lot ■■to me belonging, during her natural life. Also the farm with its provisions, etc., containing four hundred acres more or less. Also one sixth part of the bridge,' etc., * * •freely to use and enjoy during her natural life. ” * *

We cannot resist the conviction and it appears to us that upon the face of this instrument, taking the terms and provisions in all their parts, that the testator intended to apply the same limitation upon the gift of the farm property as is applied to the other property, and the view we take is .greatly strengthened by the fourth clause, which provides that after the decease of the widow — “It is my will that all the remainder of my estate, real and personal, be equally divided between my two sons,” etc. The object and purpose, as it seems tc us, of the testator was to give the use of all this property to his wife excepting this one lot withdrawn from its operation, and that after his death it should be divided equally between his two sons. If by the terms “The remainder of all my estate real and personal, ” contained in the fourth clause of his will, the testator meant the property not before described in the will, and did not mean to include the entire remainder in the lands which were specifically devised to his wife for life, then he died intestate as to such entire remainder; for unless the estate in the‘3remainder so devised comes within the operation of this clause, it remains undisposed of. If that clause was intended to apply to and dispose of so much of the property which the widow might lawfully use for her subsistence and should remain unconsumed at her death, and is limited to that, then thejremainder in fee in the lands secured to the wife for life would in like manner remain undisposed of, If it was intended to apply to the lands which had been already devised in fee, then it would be inoperative, as inconsistent with such devise. In our opinion, the fourth clause of- the will was intended to, and did embrace the estate in remainder in the lands devised to the widow for life, and, in that sense, the term was used to apply to all the property described in the will as being given to the wife..

It was suggested in'the argument that if that should be the construction as to this particular farm, the same effect would be given as to the devise of lot 94 to the heirs of the son Joseph. But it will be observed that as to this devise it is the only one that is made to the son or to any other person outside of the devise or bequest made to the wife — ■ to the widow; that is to say, all the other property, both real and personal,is given to the widow; at her death it is to-be divided equally between the two sons, excepting, however, from the general language by which all of the property not before described is given to the wife for her life, this-particular lot 94, and we do not feel that in giving to the language of the whole will, such a construction as vests in the widow the property for her use during her life, that we are doing any violence to the language used, in holding that as to lot 94, specifically devised to the children of the-son, this limitation did not apply.

There was introduced upon the trial, under objection and exception, a large amount of testimony tending to show- — - or I might say in advance of that — that after the death of the testator the widow, with the aid and assistance of' Joseph, and probably the other son, conducted a merchandizing business at Maumee, the business which had been left by the testator; and this was in compliance with a suggestion contained in the codicil, that his business should be carried on by the wife, with a view of giving aid and assistance to the son employed in the business. She became bankrupt, and proceedings in bankruptcy were taken against her. In the course of those proceedings the assignee o.f the bankrupt — -the widow — made a sale of all her property, including her interest in this farm property under the will. In the application, this property was described as a life estate. The language of the order of the court was not very clear as to what was sold — or rather, to be sold — except that, if fairly construed, it might be said to order the sale of her interest in this property. By amended proceedings here on the part of the plaintiff, it was insisted that if the widow was invested with a fee under the will, nevertheless in this bankruptcy proceeding it was understood by the assignee and by Joseph — by all parties interested, that in point of fact, in a true construction of the will, she had but a life estate, and if by reason of these proceedings and under the order of the court, Joseph became the purchaser, if Joseph did in fact acquire the fee of the land, yet as to the remainder after the expiration of the life estate of the widow, he held that,it is said, in trust for the creditors if they were unsatisfied, and if they were satisfied, then for the heirs. But, under the view"we have taken of the case, and the construction put upon the will, it is not necessary to consider it now, and the testimony introduced tending to show the understanding of the parties as to the effect of the bankruptcy proceedings we regard as immaterial and irrelevant, and therefore rule it out, subject, however, to the right of the plaintiff in the case to preserve their exception.

Another phase of the case which remains to be discussed is this: In the clause to which reference has already been made, after devising to the widow “with all other property real and personal to me belonging, freely to use and enjoy during her natural life” occurs this: “Except lot No. 94 in the old plat of Maumee, which I hereby give and bequeath to the heirs of my son, Joseph S. Hull.” At the date of this will, the testator was not the owner of lot 94. He was the owner of several lots as numbered upon the old plat of Maumee — there was 95 and 96, 92, 28, and part of 24, if I remember the description correctly. After the making of that will, and before the date of the codicil, he acquired the title to lot 94 in an adjustment that was made between the parties, and acqu red an interest by mortgage and other transactions,and after the death of the testator lot 94 was surrendered to one of the lien-holders in a cross-petition .filed in this case by the children of Joseph S. Hull,and it is claimed that it was intended in and by this will to give to them — to these children —lot 95 instead of lot 94 which the testator didn’t own at the time he made the will, and ■considerable testimony is introduced tending to show that in point of fact the testator did intend in his description ■here to describe lot 95, which he did own at the date of the will, and not to describe lot 94 which he did not own, and that the description of lot No, 94 was due, we may say, to ■a mistake of the scrivener or the testator.

Now, in the view that we take of all the testimony that has been introduced here, we are of opinion that this question is really a matter of no importance in this case. The question, however, as to whether or not it is competent upon the proof of the extrinsic facts and circumstances existing at the date of the execution of this will, to apply the terms of the will to lot 95, instead of to lot 94, is fairly and ■squarely before us, and we are called upon to express an opinion upon it,although we think that the plaintiffs in the cross-petition are entitled to substantial relief whatever our conclusion may be upon this particular proposition. There was a determination by this court a short time since, Judge Moore sitting with my associates in the consideration and determination of the case' — of a question which we think was identical in principle, and thaUwas a case where a testator devised certain lots, say 455 and 456, in a certain addition of Toledo. He did not own lot 455, or lot 456, but he did own lots 155 and 156. Upon very careful consideration of the authorities bearing upon the proposition involved in that case, my brethern and Judge Moore came to the conclusion that no relief could be afforded in the case — ■ that there was nothing in the will itself, when the defective description was stricken out, that would enable the court to apply the devise or gift to the property which it was supposed it was intended should be devised and in reference to which the testator or the scrivener or draughtsmen of the will had undoubtedly made a mistake.

In this case, if the testator by this will had specifically devised all the other lots which he owned as numbered upon the old plat of Maumee, except this lot-95 — be at that time not being the owner of lot 94 — perhaps it would not be doing violence to the rules applicable to such cases to hold that the testator intended thereby to describe lot 95 and to bring the case within the rule which permits that to be done and apply the will to the supposed subject matter; but in this case, there was at least one other lot — -96—as well as lot 95; to which, if the number here were stricken out and' it were left as “lot No. blank” — this description would apply as well as to lot 95, although the proof made in the case tends strongly to show that lot 95 and not 96 was intended by the testator; but that, as it appears to us, would be in the nature of reforming the will by correction rather than making the application of the blank in the will to the supposed subject matter. But, aside from this consideration, these facts appear in the case: About the year

1858, Mr. Joseph S. Hull had made a visit to Kansas. His home before that had been at Maumee. He had gone to Kansas with a view to looking about and determining whether or not he would remove to Kansas with his family. He returned from that visit somewhat undetermined in his mind as to what he had best to do. Thereupon it was proposed to him and his wife, Mrs. Hull, that if he would abandon his contemplated purpose of removing to Kansas and would remain there at Maumee with them, with his father and mother, that he would buy a piece of property for them — -would assist them in improving it and put it in proper shape for them to use and occupy as a home for themselves and their family. This proposition so made by the father was accepted by Joseph S. Hull and his wife, and at the suggestion of their father, Mrs. Hull selected the property which should be theirs. The testator was not the owner of it, but she selected it, and upon her selection it was purchased by the father, and purchased for them and for their home to own for themselves and for their children. At the time of this selection it appears from the testimony • — -which is undisputed — the father rather spoke in terms of approval [and commendation of Mrs. Joseph Hull, of the modesty which she had displayed in the selection of the home which he had authorized her to make, in selecting a home of moderate cost and expense, and it was bought and improved, and Joseph S. Hull and his family were put in possession'of that for their home, and they have occupied it since 1858 under the arrangement so made between them and their father.

Upon a careful examination of the authorities bearing upon this state of facts, we are of opinion that there was a sufficient consideration on the part of Joseph S. Hull moving to the father, in the renouncing and abandoning of his purpose to remove to Kansas and his determination to remain with his father and occupy this property as a home, to constitute a binding obligation on the part of the father to secure to the family this particular lot 95 as a home.

Without stopping to read particularly from the authoiiies referred to and as supporting this proposition, we refer to Waterman on Specific Performance, secs. 271, 283, 284, and to notes on pages 388 and 389. And in a case reported in Law v. Henry, 39 Ind., 414, I find this syllabus:

“Where a father induced his daughter, her husband and children, to break up their residence and remove a long journey, at considerable expense, to a place near his home, that he might enjoy their companionship, by a promise to convey land to the daughter, and he accordingly purchased and placed them in possession of land upon which they made valuable improvements, and of which he made a deed but did not deliver it to his daughter when he died; held in an action by the husband and children (after the death of the daughter) against the father, for the specific performance of the contract, that there was a good valuable consideration for the contract,and it was not within the statute of frauds,and must be enforced in their favor.”

Now, there was not here a breaking up of their home abroad; there was no removal, but that would only go to the extent of the value of the consideration,and not to the principle. The doctrine there laid down, in our judgment, applies here. And the same doctrine is declared in several of the cases cited in Mr. Waterman’s book. There is a case decided in 1876 — Ungeley v. Ungeley, 4 Law Reports, Ch. Div., 73, where this was held by the Lord Chancellor:

“A father verbally promised, in contemplation of the marriage of his daughter, to give her a house as a wedding present, and immediately after the marriage he puts his daughter and her husband in possession. The father was 4hen the-owner of the house, which was a leasehold, and was •subject to a charge in favor of a building society, payable in instalments. The father paid those which fell due during his life time, and at his death there remained a balance of £110, which fell due shortly afterwards: Held, that the verbal promise to give the house having been established, the possession was a part performance which took the case out fo the statute of frauds; that the contract was to give the house free from incumbrances, and that the £110 was payable out of the father’s estate.

The father in that case had been making the payments. This case was appealed, and is found again reported in 5 Law Reports, Ch. Div., 887, where upon appeal, all of the judges concurring, the decree of the Vice Chancellor was affirmed.

Now, upon the allegations in the cross-petition of these ■children (one was born before they moved upon this property, and several were born after) the allegations of the cross-petition of the children, which were supported by the proofs, show that — miter showing that they are the children and the only heirs at law of the defendant Joseph- S. Hnll, they set up that during the year 1858, and shortly prior to the making and publication of the said last will and testament, said Isaac Hull purchased said lot 95; that he was mot the owner of lot 94; that he intended to devise to said ■children said lot 95 for a permanent home; that they have been in continuous, open, notorious and adverse possession of said lot 95 as and for a homestead, and are now in such occupancy, and other averments. These allegations, as I have remarked, are distinctly proved by the testimony, and ■proof was made of the arrangement between Joseph S. Hull and his wife and his father respecting the abandonment by Joseph S. Hull of his project of removing to Kansas and remaining there, and this is"the prayer of the petition.

Now, we think that without any further allegations in this cross-petition, the defendants are entitled to a decree which shall protect them against any partition of this particular Jot 95, and which shall secure them in their possession and occupancy and enjoyment of that lot, and with a slight amendment to this cross-petition alleging this arrangement •to be based upon the consideration which I have mentioned, we should be of opinion that there should be granted affirmative relief; that is to say, that this plaintiff here and his mother should be decreed to quitclaim and surrender any such claim that they set up against these children. I name these children, because, although in our judgment we are not permitted to undertake to reform this will — to correct the statement of the testator — yet we may look upon the language as used in this will as we might look upon any other document he had written, as showing a purpose upon his part to secure to these children the title to this lot 95, and the decree of the court will be in accordance with this opinion.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    CHARLES B. SNELL v. THE CINCINNATI STREET RAILWAY COMPANY.

      Change of venue under see. 5033, R. S. — Not a special proceeding —See. 5033 unconstitutional—
    The application for a change of venue under sec. 5033, R. S., is not a special proceeding, as meant by sec. 6707 R. S., and to bring the action of the reviewing court on such application up for review on error, it is not necessary that a petition in error should be filed within six months from the date of such action of the court below ; but, on exception properly reserved, the case should proceed to final judgment and the action of the trial court on the application then brought before the reviewing court by petition in error filed within six months from the date of such final judgment.
    The Judge is of the opinion that sec. 5033 R. S. is unconstitutional for the reason that it withholds from a corporation a right which'it gives to the adverse party, and therefore is in violation, of the constitutional guarantee of equality of rights.
    Dissenting opinion by Smith, J.
    (For opinion of majority of court,see ante, p. 633.)
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

As I do not concur with my associates in holding that the petition in error in this case should be stricken from the files on the ground that the application made to the court of common pleas for the change of venue under section 5033, Revised Statutes, was a “special proceeding’’, and that it was necessary in order that the ruling refusing such change could be reviewed by this court, that a proceeding in error should be prosecuted within six months from the making of such order, and this too, although there was no final judgment in the action in which it was made, until shortly before the prosecution of this error proceeding. I state my views on this point as well as on the questions raised by the petition in error.

In the first place, I am of the opinion that the application for a change of venue in the original action was not a “special jroceeding”, under the terms of sec. 6707, Rev. Stat., which give to parties the right to prosecute! error to “an order affecting a substantial right made in a special proceeding”, and that the order complained of was not one “affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment.” It seems to me that the filing of such motion in a pending action, and the ruling thereon by the court, were simply steps in the progress of the action, and that the party aggrieved by such ruling was not bound or permitted under our statute to seek reversal thereof until the final determination of the action in which the ruling was made. That it is analogous to the case where a party to the action before the trial commences, challenges the array of the jury summoned to sit in his case, or challenges one or more jurors for cause; or,under sec, 5191,seeks to have the jury sent to see the subject of litigation or the place where a material fact occurred — in none of those cases would error lie to the action of the court until the final determination of the action, In the case of a ruling against a party on these and other questions, it would be strange if the progress of the main action should cease until the propriety or correctness of the ruling could be tested by the filing and determination of proceedings in error. On the contrary, that the law, and the practice is, that the action proceeds to final judgment, and then, if the party has saved his exception to the ruling in due form, he may within the time limited by the statute from the date of such final judgment, by proceedings in error, seek its reversal,on the ground that the court erred in the disposition of such motion,

There has unquestionably been some doubt and difference of opinion as to what is a “special proceeding” under the language of sec. 6707, which provides, in substance, that an order affecting a substantial right in a special proceeding is a final order which may be vacated, modified or reversed as provided by the statute, and whether proceedings in error in certain cases may be prosecuted before the action or proceeding in which the order complained of was made, has been terminated. This is probably due to the fact that in division 7 of the Revised Statutes, under the head of “Special Proceedings”, are enumerated nineteen different actions or proceedings, and among them are dower, partition, real actions and replevin, all four of which must be considered as “actions” under our code of civil proceedure, There are other remedies and applications provided for by the statute, not enumerated in the statute under the head of special proceedings, which have been held to be such; for instance, it was held in 56 Ohio St., 405, that an application to the probate court to admit an alleged will to probate is a special proceeding within the meaning of that clause of sec. 6707 which provides that an order affecting a substantial right in a special proceeding is a final order which may be vacated, modified or reversed as provided in title IV. of the Revised Statutes. And in the Burke case, 45 Ohio St., 631, it was held that an order fof the common pleas court overruling a motion to dissolve an injunction may be so reviewed by the circuit court.

In the case in 56 Ohio St., above cited, Judge Spear in deciding the case, holding that the application to the probate court was a special proceeding, says:

“Our code does not,as does the code of New York, specify that every remedy which is not an action is a special proceeding. Nor does our statute give any definition of an action or a special proceeding. But we suppose that any ordinary proceeding in a court of justice by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving proofs and pleadings, and ending in a judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or order, is a special proceeding”.

There is no doubt but that the'original case of Snell v. The Railroad Company, to recover damages for a personal injury, was an action. The application for a change of venue was in that action — under the same title and number as the pleadings in the case, and was an application , to the court.

I am therefore of the opinion as before stated, that the application for the change of venue was but one of the steps in the original action, and that error could not be prosecuted as to a ruling thereon, by either party until the termination of the action, any more than could' be done to the overruling or the sustaining of a demurrer, or the rulings of the court as to a continuance of the case, oras to the admission of evidence, or in the other matters before referred to.

And for the reasons hereinbefore stated, I am of the opinion that the claim of the counsel for the defendant in error, that the plaintiff in error waived his right to complain of the ruling of the court on his motion for a change of venue, by proceeding with the trial of the case in this county without further objection, is not well founded. If I am correct in the views before expressed, that he could not prosecute error until after a final judgment in the case, what else could he do than proceed and try it? He had already excepted to the ruling, and had taken his bill of exceptions presenting the queston, and it would be folly for him to formally object to a trial, when that was just what he wanted. There must be a disposition of the case before he could avail himself of the error, precisely as if the court had erred to his .prejudice in overruling or sustaining a demurrer on the case.

Other questions however are presented by counsel for defendant in error, as to which I have more doubt. The first is as to the effect of the overruling by the court of common pleas of a previous motion made by the plaintiff below, for a change of venue, based on the same statute, but supported by other and differnt affidavits. Those affidavits were not brought into this case by any bill of exceptions, and consequently they are not before us. The journal entry of the common pleas simply shows the overruling of a motion, for the change of venue, and so far as the record shows, it. may have been overruled on some technical point. I may say however outside of the record, that after the first motion was overruled, the plaintiff in error by proceedings in mandamus sought in this court to compel the trial judg9 to grant the change of venue. The writ was refused however, on the ground,as I recall, that the affidavits filed on the first motion did not comply with the law, and did not justify the court in granting such change. Afterwards, and perhaps at a subsequent term, the second motion was filed, on affidavits contained in the bill of exceptions, and which were not open to the same objections as those originally filed. The second application was heard by the court, no objection being taken by the railroad company to the filing of the same or its consideration by the court, and no plea was interposed that the same question had already been adjudicated by the court in the same case. But the court again overruled the application. It is now claimed that the decision on the first motion was a bar to the successful prosecution of the second, and that on what appears from the record it should be so held in this court, though the question was not presented or passed upon by the common pleas court. It seems to be the rule, and it is a reasonable one, that it is not a matter of right for a party to an action to file a second motion, where one based on the same grounds has already been passed upon by the court, and overruled. Why should precisely the same question be again presented? The court might properly refuse to hear it and strike it from the files. But if the motion presents wholly different grounds, or by mistake or otherwise the affidavits on whichjjit is based were not sufficient, and the defect could be corrected, I can see no'good reason why it ought not to be done. But at all events, it seems to me conceded that the court in which it is filed may allow it- to be done, and in a case like this, where no objection to the filing of such motion was made by opposing counsel or the court itself, but the motion was heard and decided upon its merits, I think that a reviewing court should be slow to hold that the decision of the first motion is a bar to the filing or hearing of the second on its merits.

The next question is whether the section of the statutes under which this change of venue was sought, is unconstitutional. Section 5038, Revised Statutes, provides that “When a corporation having more than fifty stockholders is a party in an action pending in a county in which the corporation keeps its principal office or transacts its principal business, if the opposite party makes affidavit that he can not as he believes have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties.”

Section 5032 is the one which makes general provision for a change of venue in civil actions. It provides that “When it appears to the court that a fair and impartial trial can not be had in the county where the suit is pending, the court may change the place of trial to some adjoining county”. But it is clear that under this section such change of venue will be more difficult to obtain than under section 5033. In the one case it seems obligatory upon the court to grant the motion, if the six affidavits filed comply with the terms of the statute, and no counter affidavits are provided for. While under the other, a full hearing may be had, and proofs offered by the opposing party, and, the change is not to be made unless it is made to appear to the court that a fair and impartial trial can not be made in the county where the suit is pending. The result of this is that under section 5033, greater rights are given to the person desiring the change of venue, than are given to the party making the application under 5032.

It cannot be questioned but that the legislature has the right to provide that the parties to an action for good cause shown, shall be entitled to a change of the place of trial of such action to a county in the state adjoining that in which the action may have been brought, and that it has a very broad discretion in providing as to what shall constitute such good cause, and as to the mode and manner in which such change shall be made, and that unless in the provisions so made, the parties, or some of them, are thereby deprived of a constitutional right, the law thus enacted is valid, and the courts have no right to decline to enforce it on the ground that such legislation is unreasonable or ill advised; and the courts must proceed upon the idea that a strong presumption exists that the law is constitutional and valid. But if it clearly infringes upon the constitutional rights of a party to an action, the courts are bound to protect him in such right and hold the law to be invalid.

The question whether the statute under consideration is, or is not of this character, is one as to which I have entertained grave doubts. It has seemed to me that the manifest purpose of the legislature in its enactment was wise and wholesome. It might well be considered that a corporation having a very large capital stock, and with hundreds and perhaps thousands of persons stockholders therein, and with its principal office, or the place where it transacts its principal business, in the county in which the action .is brought, .and which corporation may have a very large number of employes, naturally being strongly interested in favor of the corporation in which they hold stock, cr by which they are employed, presented such a state of the case as made it fair and just that the trial should be had in another county, if either of the parties to the action desired it, and could comply with the terms prescribed by the statute. The fact that the statute in this case provides that it may be done if the corporation has more than fifty stockholders does not seem to me to militate against the constitutionality of the act. If the stockholders are few in number, manifestly there is less necessity for a change of venue than if there is a much larger number, and I am of the opinion that in such case the legislature in fixing fifty as the number, has only exercised that discretion which is given to it by the constitution, and which can not be controlled or interfered with by the courts.

But in this statute, the legislature has provided that the right to institute proceedings to obtain a change of venue in such case, shall be exercised by one only of the parties to the case, viz, the party opposed to such corporation. What is the effect of this provision ? Does it so operate as to deprive one of the parties to the action of the equal protection of a right guaranteed to him by the constitution? It seems to me that it does. It might well be that in such a case, the corporation, on being sued, might be the party who was desirous o£ having the change of venue, for the reason, it may be, that from the prejudice which is some times claimed to exist against large corporations, or for some other reason, it was apprehensive that a fair or impartial trial could not be obtained in the forum in which the action was brought. Why should it not have the same right, on complying with the provisions of the statute, to obtain the change of venue as the opposing party? I think that this is so, and that in depriving the corporation of this right given to its adversary, the statute denies to it. the equal protection of the law to which it was entitled, and which was guaranteed to it by the constitution.

It is urged by the counsel for plaintiff in error that no substantial right of the corporation can be infringed under this statute; that no burden, or anything in the nature of a penalty is imposed thereby on the corporation as was done in the case of the Goal Company v. Rosser, 53 Ohio St., 12. But the right to have the action tried in the county in which it was brought is granted by the laws of the state to all of the parties thereto, unless a change of the place of trial is granted by the court, under the authority of a valid act of the legislature. And so far as the question of burden is concerned, it is evident that, in most cases at least, a substantial burden would be imposed on both parties, perhaps, making much expense and trouble, by sending them to another place for the trial of the case. If the statute under consideration had given the same right to each of the parties to avail themselves of its provisions, I would not be able to see any reason why it should be held invalid. But as it does not do so, I am of the opinion that it is invalid, and I therefore think the proper judgment would have been to affirm the judgment of the court of common pleas. The conclusion reached I think is warranted by the holdings in the following cases:

Coal Co. v. Rosser, 53 Ohio St., 12; Ohio ex rel. v. Ferris, 53 Ohio St., 314; Ohio v. Gardner (57 Ohio St.), 40 Bulletin, 119; and the decision of the circuit court, 2nd circuit, in Yeazell v. State, 40 Bulletin, 63.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    AUGUSTUS H. MOORE v. THOS. CASSILY, Executor of Henry H. Devenney, Deceased.

      A contract by which one public officer contracts to perform the duties of another is against public policy and illegal, and can not be enforced.

    Error to the Court of Common Pleas of Hamilton county.
    The plaintiff and the testate of the defendant in error were respectively U. S. Inspector of Hulls of steam vessels and U. S. Inspector of Boilers of steam vessels for the district of Cincinnati from January, 1880, till May 24, 1894, at the same annual salaries; and defendant being in bad health, requested plaintiff to assist him, and plaintiff, during the entire period, did perform the greater part of the work connected with plaintiff’s office. Suit was brought for this service in the sum of $10,339.30, or at the rate of $60 per month.

      8. T, Crawford, for plaintiff in error.

      Charles H. Stephens,and Frank M, Coppook, contra.
   Swing, J.

The action in the court of common pleas was to enforce an illegal contract. It was an action on the contract itself, and not an action for an accounting in equity, as was the case in Brooks v Martin, 2 Wall, 79, cited by plaintiff in error; nor does the case come under the principle decided in Horton v. Blinn, 39 Ohio St., 145, which was to recover money belonging to one in the hands of another. What right in an action on a quantum meruit Moore might have had it is not necessary for us to intimate. It is sufficient to say here that this action is to enforce the contract, which is admitted to be an illegal one, being against public policy.

The judgment below is affirmed.


author: Mabvin, J.

text:
    (Eighth Circuit—Summit Co., O., Circuit Court
    Nov. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    THE CLEVELAND TERMINAL AND VALLEY RAILROAD COMPANY v. RAYMOND GILBERT MARSH.

      7Injury to infant while at work at railroad, engaged by an agent of R. R. Go. to do his work, without authority from Co. — •
    An infant of between ten and eleven years of age, who is injured _by the negligence of the employes of a railroad company while in the discharge of their work as such employes, is not necessarily precluded from a recovery against such company for such injuries, by the faet that at the time of such injury such infant was in the performance of work which it was the duty of an agent of the company to perform, the infant being engaged in such work by the employment of such agent of the company without any knowledge on the part of the company, and such agent being without .authority from the company to so employ such infant.
    Error to the Court of Common Pleas of Summit county,
   Mabvin, J.

The proceedings in this court are brought to reverse a judgment of the court of common pleas of this county rendered at the April term, 1898.

In the original action Raymond Gilbert Marsh, an infant, by his next friend Amanda M. Marsh, brought suit against the Cleveland Terminal and Valley Railroad Company seeking to recover for personal injuries sustained by him on the 18th day of April, 1896, and which injuries, he says, were caused by negligence on the part of the railroad) company.

The line of railroad owned and operated by the defendant below passes through the village of Myersville in this county, at which village is a station of said road,

The station agent at Myersville, at the time of this injury, was Milo Swinehart. A part of his duties was to place lighted lamps at switch stands north of the railroad station each evening at about dusk, and to take in such lamps on the following morning and clean and fill them preparatory to being again put out in the evening. At the time of the injury to the-plaintiff complained of and for several months prior thereto, the plaintiff had performed the duty of placing these lamps in the evening, taking them in in the morning and preparing them again for use. This he did as an employe of Swinehart and not as an employe of the railroad company.

The line of the railroad, as it passes through the village and by the station at Myersville, is substantially North and South. A few rods North from the railroad station is a public' highway running east and west. There is also a public highway leading to the southwest from Myersville, but extending no further north than the east and west road already mentioned. There is another public highway running north and south and passing the village of Myersville some twenty rods east of the railroad track.

At the time of the injury complained of, the plaintiff was ten years and about eight months of age. On the evening of the date already giv.en, between five and six o’clock, he started out from the engine-house of the. railroad company which’is near to the station, to the north with two switch-lamps in his hands, ready to be placed at the switch-stands. He placed one of them at a point a little south of the east and west road already mentioned, then passed along across the. public highway for the purpose of placing the other lamp. Before reaching the switch-stand, however, the plaintiff observed an object lying upon the track,. which turned out to be what is known as a signal torpedo, a. small metallic device containing a highly explosive substance.

Upon noticing this, he placed his lamp, upon the ground and proceeded to investigate this torpedo, striking it with a stone which caused it to explode, from which explosion he was very seriously injured, resulting in the loss of one eye.

On the part of the plaintiff below it'is claimed . that this torpedo was placed upon the track by some agent or servant of the railroad company, and that so placing it and leaving the same was well known and acquiesced in by the company, and was negligence on the part of the company in view of the further claim that this part of the right of ■way of the railroad company between the east and west road and the switch-stand where he was to place the lamp which he still had with him at the time of the injury, and on for a considerable distance further north, was at the time of the injury, and for a long time prior thereto had been, used by the public,including children, as a thoroughfare for pedestrians where they were accustomed habitully to walk between the village of Myersville and localities farther north, and that this use was well known and acquiesced in by the railroad company.

A considerable number of witnesses were introduced by the plaintiff, on this subject; among.them, the plaintiff himself, Isaac J. Kramer, Wilson Myers, Clyde Treash, and John J. Marsh — the grandfather of the plaintiff. The. question of this use, by .the public, including children, of the right of way, was fairly submitted to the jury, and if the witnesses named and others who testified on the subject on the part of the plaintiff, were believed by them, the finding that the right of way was so used, was justified. The question of whether such use by the public was material in the case is considered later in this opinion.

The claim is further made on behalf of the ^plaintiff )[below, that the railroad company, through its officers and agents, had knowledge of the employment of the plaintiff by Swinehart, and were bound to conduct the operations of the road at Myersville with reference to such employment. This question will also be considered later in the opinion.

The trial in the court of common pleas resulted in a verdict and judgment for Marsh. Motion for a new trial was filed and overruled and proper exception taken.

The railroad company, by its amended answer upon which the case was tried, denied that it was responsible in any way for the presence of this torpedo upon tbe railroad track. It denied that it was negligent in any manner contributing to the injury of the plaintiff, and alleged that whatever injury was sustained by the plaintiff, was contributed to, if not entirely, caused by his own negligence.

Numerous exceptions were taken by the railroad company to the rulings of the court at the trial upon the introduction and rejection of evidence.

Dr. M. M. Bauer, a witness on the part of the plaintiff, who was called for the purpose, among other things, of making it appear to the jury that the torpedo was placed upon the track by an employe of the company after having received it from Swinehart, another employe of the company, testified to having been in the station of the^defendant company at Myersville on the day of the injury, at about the middle of the day, and to having then over-heard a conversation between Swinehart, the stationjjagent, and another man whom he designates as “one'jof the train crew’r (there was standing at the time at Myersville a freight train). He states that he did not know this man, but that he was “one of the train crew”.

A motion was made to take this statement from the -jury on the ground that the testimony of Dr. Bauer showed that he did not know whether or not the party whom he thus designated, was a member of the crew connected with the train of the railroad company. It is urged that as he did not know the man, and does not describe him, he could not have known whether or not he was one of the train crew.

The court overruled the motion, and, we think, correctly. The witness might well be warranted in saying that the man was “one of the crew” of a railroad train, by his appearance, his being with the train, his conduct in regard to the train, and though he might be mistaken in supposing one who to all appearance was a member of the crew, to be such member, still we think that the answer which he gave should not have been taken from the jury. Suppose that Dr. Bauer had not known Mr. Swmehart at all, but had stepped into the railroad station at Myersville, found him in the office, asked for a ticket to Akron or elsewhere, purchased it from him and paid for it to him, would it be claimed that he might not say that he saw and purchased a ticket from the station agent although it might turn out that he was mistaken in this and that some person had impersonated the station agent? Still the court would hardly be justified in saying that the answer made by the witness, that he purchased a ticket of tfye station agent, should be taken from the jury.

Dr. Bauer heard something said by this train-man to the station agent, but did not understand what it was. He heard the agent answer, however, “Here is one; I have got one”. The agent then stepped to a cupboard which was in his room, and took therefrom an object which Dr. Bauer says he distinctly saw; and the station agent then said: “Yes, here is one; I have got one;” and he saw this taken by the train-man, who thereupon went out of the station and to the north toward the rear of his train. Dr. Bauer says that at the time he did not know what this object was, but he now knows it was a signal torpedo.

The railroad company asked that this evidence be taken from the jury, and its motion was overruled.

It is urged that since Dr. Bauer did not at the time know that this was a signal torpedo, he ought not to be permitted to say that he now knows that it was, because it is said that at the best such knowledge must be simply hear-say. We do not regard the act of the court in this matter as erroneous. Dr. Bauer may very well have since learned that the object which he saw distinctly on the 18th day of April, 1896, and the name of which or the character of which he did not then know, is a signal torpedo,and this not by hearsay in the sense in which that term is used in the law of evidence, but by actual knowledge.

It can hardly be said that each of us has not often seen some object which at the time he did not know the name of or the character of, but which he later became so familiar with as to know certainly what the object which he saw was. To hold otherwise would be to hold that one may not learn so as to certainly know what a given thing is that he did not know the name of or the character of when he first saw it.

Milo Swinehart was called as a witness by the defendant, and upon his cross-examination was asked if he did not on the evening of the day of the accident, at the home of the plaintiff's mother, say to her “This is the torpedo that he struck; he may have known what it was, but he did not know that it was explosive. It is hard for a boy of his age to know that they were explosive,’’ Objection was made to this, and the objection was overruled. It is urged that this was error.

In his direct-examination Swinehart had testified that he had told the plaintiff at a time when he was in his office, what these torpedoes were (there being several of them present,and the plaintiff examining them), and that he then told him that they were explosive; that he must not handle them because they were explosive and might hurt him. Clearly the question asked in cross-examination was to test the credibility of the witness and, if possible,get an admission from him that he had made a statement out of court wholly inconsistent with his statement in court. Upon being permitted to answer, the witness said, “No, sir.”

Thereafter the plaintiff’s mother was upon the stand,and was asked about this conversation at her house, and testified that Swinehart did say at her house at the time referred to in the question put to him in cross-examination that the plaintiff knew what the torpedo was, but did not know that it was explosive. This, although objected to, was permitted to be answered, and an exception taken. As this was directly in contradiction of the testimony given by Swine-hart, it was proper.

Dr. Bauer was again called by the plaintiff in rebuttal, and asked and, over the objection of defendant, permitted to answer this question:

“At the time you testified before that 'you were in the freight department of the station there and someone came in and had a conversation with Milo Swinehart, I will ask you if you saw Milo Swinehart, give to this man a car seal?”

And also this question:

“Was it one of those locks that he gave to this man?’’

Each of these questions was answered in the negative, and a proper exception was taken. It is urged on the part of the plaintiff in error that answers to these questions should not have been permitted, because nobody had testified that at the time referred to, Swinehart gave to anyone either a car seal, or a car lock; but Swinehart in his direct examination had testified that m the cupboard from which Dr. Bauer says the torpedo was taken, there were at the time car seals and car locks, and be describes each of them. The object of the railorad. company in eliciting this testimony from Swinehart was clearly with a view to making the claim that if Dr. Bauer sawjanything given to a trainman at this time, it was either a car seal or a car lock, and to rebut this was the object of the plaintiff below in asking the questions complained of, of Dr. Bauer.

Without doubt, since by the description of the car seal and car lock, neither of them was very dissimilar in appearance to the torpedo, the claim would have been made to the jury that the witness might well have mistaken one of those for a torpedo, and we think such claim would have been legitimate and that it was therefore, entirely proper to rebut such inference by asking these questions of the witness.

While John J. Marsh was upon the stand as a witness for the plaintiff and was being inquired of in reference to the use, made by the public of the portion of the right of way of the railroad company at the place referred ' to, he was asked “How often per week or day have you seen people go up and down the track?” And, again, this question:

“You do not quite understand my .question, I do not mean how often have you seen a particular person go up and down the track, but how often have you seen people go up and down the track per week or month as the case may be.” To each of these questions an objection was interposed and overruled, and a proper exception taken. It is said that this was permitting the witness to testify as to the use of the right of way by the public after the injury and up to the time of the trial. The witness had, prior to this time, testified that he had been the keeper of a grocery store at Myersville ever since the 1st of April, 1889, and that during all that time he had been familiar with the situation and use of the track and right of way. And then he had been asked this question, “About how many different people — state whom if anybody, you have seen coming or going up the track. ” This he answered, giving the names of fourteen people and then adding, “And you might almost include all the Milheim people; they would come down the track when coming to the store or' to the post-office.” In answer to another question he gave the names of other people whom he had seen going up and down the track. His attention had been called to the fact that what was wanted was the use of the track by people from 1889, the time when he began his residence at Myers-ville, to the time when the plaintiff was injured, and though the questions objected to may have indued a later time,- we think that neither the witness nor the jury could have been misled by supposing that it was the use made of the right of way after the accident, that was being inquired about.

Questions of evidence are made in the record, the correctness of the rulings upon which is involved in a discussion of still another question raised in various ways upon the record, and this is a question of whether the plaintiff, being at the time of his injury in the employment of Swinehart, an agent of the company who was entirely without authority on the part of the company to so employ him to do a part of his work, can have any right to a judgment in the action, even though his injury was without fault on his part and resulted from the negligence of a servant or servants of the company. It is said that one thus employed, is to be treated as a volunteer, that in no event can his rigths be greater than those of one who voluntarily undertakes to assist the servants of the railroad company. This question is raised in the motion which as made to take the case from the jury at the close of the plaintiff’s evidence. It is raised in the motion for a new trial, in the exceptions taken to the charge of the court, the exceptions to a refusal of the court to charge the requests ¡"of the defendant, and, as already said, in rulings upon questions of evidence.

In Harriman v. Railroad Company, 45 Ohio St., 11, our supreme court hold that where a railroad company has for a long time permitted the public,including children, to travel and to pass habitually over its railroad at a given point without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such public use and proportioned to the public danger to persons so using its road.

So that,if the plaintiff was entitled to the same protection from the railroad company as children generally, and if the jury found the other necessary facts, the railroad company might be liable.

The question, therefore, arises, whether by reason of the plaintiff’s being engaged in work under employment of Swinehart, which it was the duty of the latter to perform for the railroad company, he lost the rights to which he would have been entitlod as one of the general public.

It is said that as Swinehart employed this boy without authority, to allow a recovery here would be in violation of well-settled principle of law.

Numerous cases support the proposition that a servant can not by any act of his in the employment of another impose upon the master a higher liability for negligence than the master is under to the servant himself.

Barstow v. Old Colony R. R. Co. 143 Mass., 535; Johnson v. Ashland Water Co., 71 Wis., 553; Wischan v. Richards, 136 Penn. St., 109; Plower v. Penn. Co., 6 Am. Rep., 251; Osborne v. Knox & Lincoln R. R. Co., 68 Maine, 49.

The same propositi in is sustained in Bailey’s Personal Injuries, sec. 5255.

The same authorities and many others support the general proposition that one who assists in performing the work of a master,either voluntarily without request from anybody, or at the request and by employment of a servant of the master, assumes all the liability of a servant of the master, and is entitled to no protection against the negligence of the servants of the master to which he would not be entitled as a fellow servant with them. See Wood’s Law of Master and Servant, sec. 455 and authorities there cited.

These authorities, however, are dealing with cases where the party seeking to recover is old enough to understand and appreciate the danger to which he subjects himself when he undertakes the work.

It would seem that the-age and capacity of the plaintiff below in this action should not be overlooked in determining his rights here.

In Gulf, Colorado & Santa Fe R. R. Co. v. Jordan Jones, 76 Texas 350, a recovery was allowed to a negro boy sixteen years old, who was injured by the railroad company while serving it as a temporary brakeman. The first clause of the syllabus in that case read:

“If the minor had not the mental capacity and experience to appreciate the danger and if he be employed in a dangerous business, not by the contract of the parent, and if he be injured as the result of his inexperience, the master ought to be held liable.”

In Rhodes v. Georgia R. R. and Banking Co., 84 Ga., 32020 Am. St. Rep., 362—The supreme court of Georgia reversed a judgment of the trial court which sustained a demurrer to a declaration which alleged that an infant son of the plaintiff was killed by the negligence of the defendant while aiding in moving by hand a certain car. The decedent was not in the employ of the company, but was helping to move the car at the request of a servant of the company. The decedent was thirteen years old. The opinion in this case fully recognizes the proposition that a person who assumes to assist the servant of another, such servant having no authority to employ assistance,'if,while thus acting, is injured, has no right of action against the master for bis injury, and this upon the ground that he is a mere volunteer. The court uses this language: “If the person were an adult, there would clearly be no liability on the part of the company; but, as the declaration alleges that the person thus injured was of the tender age of thirteen years, whether the company would be liable or not would depend upon the amount of discretion and knowledge which such infant had at the time.”

It must be borne in mind, too, that the plaintiff below claimed and introduced evidence tending to show that the portion of the railroad grounds where this boy was injured, was and long had been in common use by the public,including children, as a pathway for pedestrians, with the full assent and acquiescence of the railorad company. If this claim was established, then the plaintiff, as one of the public, might have been at the place where he was injured, and be entitled to a higher degree of care on the part of the company than one of its servants would have been; and it may well be doubted whether the simple fact that he was sent out by an employe of the company deprived him of the rights which another boy, not so employed, of the. same agé and capacity, would have had if he had been injured in the same way as the plaintiff

To hold that the mere fact that the plaintiff was at the place where he was injured, at the request of Swinehart for the purpose of performing a duty which Swinehart was under contract with the railroad company to perform would prevent a recovery in this action, would seem to be to make the act of Swinehart in employing the plaintiff, have the effect of relieving the company from a duty which it otherwise owed to the plaintiff.

If the use of the grounds of the company by the public at the place where the injury occurred, was such as is claimed by Marsh, then the company owed a duty to him, as one of the general public, from the performance of which, we hold, it was not released by the mere fact he was at the time, in the performance of work at the request of Swine-hart which the latter should have performed himself

We are not prepared to say that the mere fact that this boy was engaged in aiding the station agent in the discharge of his duties and at his request, deprived him of the protection to which he was entitled had he been at the place where he was, without being thus employed.

That he was there for the sole purpose of performing this work which it was the duty of Swinehart to perform, is substantially found by the jury in answer to tbe first two questions propounded to them for special findings, and we treat the case as though the first question had been distinctly answered to that effect.

Entertaining the views which we do, the answers made to the third and fourth interrogatories propounded to the jury, are not important.

As to the fifth interrogatory, the answer to which is complained of, it is for the same reason not important; but we' think that the defendant was not entitled to have this question answered.

Question 3, which reads: “Does the evidence establish to your satisfaction that any agent or representative of the company other than Swinehart, the station agent, had knowledge that prior to the accident the plaintiff was accustomed to pass up and down the track to attend to the switch lights?’’ calls for the finding of an ultimate fact; and Question 5, which reads: “If you answer Question 3 in the affirmative, please state the facts which you find established by the evidence and which leads you to. your affirmative conclusion’’,calls upon the jury to state probative facts from which they find the ultimate fact called for in Question 3. This we do not think is contemplated by the statute.

If we are right in what we have already said, then the questions raised in the record as to the admission of evidence upon the use by the public of the right of way of the railroad, company as a thoroughfare for pedestrians, were properly disposed of by the court. And the first five requests to charge, made by the defendant below, were properly refused. The first of these requests reads:

“If you find that at the time the plaintiff, Raymond Gilbert Marsh,received his injury, he was on the property of the railroad company for no purpose except to place the north switch light in position pursuant to the request of the station agent Swinehart, then I say to you that the fact that the railroad company hadjpermitted the public to travel over this part of its property without objection, would not entitle the plaintiff to receive at the time of his injury that degree of protection from injury which such public would have been entitled to receive, nor that degree of protection he would have been entitled to receive had he been upon the property as one of the public.”

The second, third and fourth requests are based upon the same view of the law, and, for the same reason that the first request was properly refused, each of the others was properly refused.

The fifth request which reads:

“The petition in this case does not aver that the defendant had knowledge of the fact that the plaintiff was lighting and carrying the switch lamps back and forth or that the plaintiff was going back and forth along the railroad for any purpose, and,unless you can find from the evidence that the injury to the plaintiff was wilfully and intentionally caused by the defendant, then your verdict should be for the defendant.”

This request was jroperly refused if, as we hold the law to be,this plaintiff was entitled to the protection to which he would have been entitled as one of the general public.

The request was framed upon the theory that the plaintiff being at the place where the injury occurred, for the sole purpose of doing the work of Swinehart, could not recover unless he brought horde to the railroad company knowledge that he was thus employed. It has already been said that we hold such knowledge on the part of the company was not essential to a recovery by Marsh.

Allen & Cobbs, for Plaintiff in Error.

Tibbals & Franlc, for Defendant in Error.

Exception is taken by the plaintiff in error to several propositions given in the charge to the jury. These propositions thus excepted to, are, some of them, direct quotations from the syllabus and the opinion in the ease of Harriman v. R. R. Co., supra, and if the law of that case is properly applicable to this ease, no error was committed in the giving of these propositions.

It is said that the charge as a whole is misleading. And this would be true if the law is, as claimed by the plaintiff in error, as to the rights of this boy while engaged in the performance of the duties which Swinehart was under obligation to perform for the company; but, as we hold Marsh is not precluded from recovery solely because he was in the discharge of duties which Swinehart had undertaken to perform for the company, we hold that there was no error in the charge of the court as given. We find no error in the record prejudicial to the plaintiffs in error.

And the judgment of the court of common pleas is affirmed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Smith, Cox and Swing, JJ.
    SUSAN W. LONGWORTH v. THE CITY OF CINCINNATI et al.

      The Cincinnati “Alley Law” (90 O. Loc. L., 238) unconstitutional as to alleys previously improved.

    The act of March 30, 1893, 190 Ohio Local Laws, 238) provides “that in cities of the first grade of the first class, the board of administration shall have authority to cause any alley of said city that is twenty feet or less in. width, to be improved with such material as said board shall deem best,” and further that “the entire costs oí such improvement except the costs oí intersections and two per cent, of the entire cost which shall be paid by the city, shall be assessed upon the pa els of lots and lands bounding or abutting upon the improvement in the manner provided by law;” while the general statute, see.2293, R. S , provides that “If the costs of improving a street, alley or other public highway have been paid by the abutting property owners and the grade remaining unchanged it becomes necessary to re-pave such street, alley or highway, one-half of the costs and expenses of such re-paving shall, if the council deem it just, be placed on the general tax list of all taxable property in the corporation,' and collected as other taxes are collected, and applied to such cost and expense of repaving.” — It therefore deprives owners of lots abutting on alleys of 20 feet or less in width in cities of the first grade of the first class, of rights which owners of lots abutting on alleys generally enjoy, and so far as alleys that were once improved and that are repaved without changing the grade thereof, located in such cities, are concerned, is in conflict with sec.. 6, art. 13, cf the constitution of Ohio.
   Swing, J.

This ia an action against the defendants to enjoin the collection of certain assessments made by said city, on the property of the plaintiff abutting on Fugate alley in said city, for the improvement of said alley. Said improvement was made under and in accordance with the act of the legislature of the state of Ohio, passed March BO, 1893, found on page-238, 90 Ohio Laws.

The first section of the act provides:

“That in cities of the first grade of the first clasb, the board of administration of any such city, shall have authority to cause ■ any alley of said city that is twenty (20) feet or less in width, to be improved with such material as said board shall deem best, and the method of procedure in such case shall be as follows:’.’ etc.

The seventh section of said act provides:

“Theentire cost of such improvement, except the costs of intersections and two per cent, of the entire cost which shall be paid by the city, shall be assessed upon the parcels of lots and lands bounding or abutting upon the improvement in the manner provided by law.”

The other provisions of the act prelate to the details of fixing the assessment and need not be here set forth.

It is claimed by the plaintiff that this law is unconstitutional in that it conflicts with sec. 26, art, 2, of the constitution. Probably no provision of our constitution has been so difficult to construe or has been so prolific of litigation as this one. That there should be such a provision in the constitution seems reasonable and proper, and yet when the classification of cities is granted by the constitution, it has been found very difficult to ascertain just what laws do and what laws do not contravene this section. This difficulty has been so great that our supreme court has repeatedly said that it will not attempt to give any general rule defining its scope, but will reserve to itself the right to decide every case as it comes before it. This court, however,in the case of Ampt v. The City, 12 C. C. 119, thought there was a general principle running through the decisions of the supreme court, and in deciding that case, used the following language, at p. 122:

“Other cases of the supreme court might well be cited upon this question, but they do not conflict with these. These cases clearly show the view taken by that court of this provision of the constitution, and while in each of these cases they say they will not lay down any general rule as to its meaning, but will reserve to themselves the right to pass every law as it comes before them, it seems to me that there is a rule deducible from these decisions, and that is this, that whenever any law directly operates on and affects the rights, privileges and interests of the citizens,and there is no reason why it should not operate on all the citizens of the state alike, it is a law of a general nature within the meaning of this section of the constitution, and should have a uniform 'operation throughout the state. But where a law relates to the government of cities and to the doing of corporate acts, and only indirectly affects the citizen, it is not a general law within the meaning of this section although the subject matter, if applied to any portion of the state other than classified cities and incorporated villages, would be a law of a general nature. Such construction seems necessary in order to give effect to sec. 6, art. 13, of the constitution.”

This decision was afterwards approved by the supreme court,56 Ohio St. ,47. But it is probable that said court did not intend to approve of the particular portion of the decision above quoted, for in the same volume, in the case of Gaylord v. Hubbard, 56 Ohio St., 25, the court in an able and comprehensive opinion discusses this provision of our constitution, but does not announce such a rule. However, in ■our opinion, the principle of the rule is fully recognized and is the very foundation of thb judgment of the court in that case. The court say, at page 37:

“It directly concerns every owner of a parcel of land within the state, and indirectly the owner of any other species of property liable to taxation under our system of raising public revenue, and also affects the public revenue itself.”

And again, at page 88, the court say:

“That act granted relief to tax-payers who in a county having a city of the first grade of the first class, had erroneously paid taxes under a certain section of the Revised Statutes, while no relief was provided for a tax-payer for taxes paid under similar conditions in the other counties of the state. The act in that case granted relief to persons who had paid taxes in one county which was denied to persons who, under identical circumstances, may have paid them in the other counties of the state, In the case under consideration the statute imposes a burden upon owners of real property situated in cities of the second grade of the first class (Cleveland), not imposed upon the owners of real property situated in other parts of the state. We think section 26 of article 2 of the constitution prohibits this being done.”

The above is the real ground of the opinion, and is based on the fact that it directly affects the individual property owner.

Wejare of the opinion that the subject matter here under consideration, viz: Alleys, is undoubtedly general,and not. local. We think the common understanding of mankind is that alleys are like streets, highways and bridges. They . are common to every city, village or hamlet within the state, and have the same general characteristics wherever located, and in this respect are easily distinguished from waterworks, sewers and crematories which differ in every locality, and are therefore proper subjects for local legislation; but the fact that the subject matter is of a general nature does not require that the law shall have a uniform operation throughout the state as to the manner in which the powers of the state shall be exercised in the different port,ions'of the state. One board or agency may perform the duties incident to sovereignty in one city, and another board in another city, and still another board in another city or village perform the same act. The manner in which the corporate powers and duties are performed does not affect directly the rights of the individual property owners. If the subject matter is of a general nature, his right is that his person and his property shall be affected in all material matters in the same way and manner throughout the whole state. This we think is the correct rule.

Therefore we see no reason to hold this law unconstitutional for the reason that alleys of twenty feet or less in width are to be built by a particular board in said city, and alleys of a different width are to be built by another board. This relates to the acts to be performed by the corporation in the exercise of its sovereignty, and if in doing it the citizen is not directly injured,he can not complain,

But does this act directly affect the individual property owner abutting on an alley of twenty foot or less in the city of Cincinnati differently from what it does in other portions of the state,or differently from the owner of lands abutting an alley more than twenty feet wide in said city ? If so, the subject matter being general, it must be contrary to this provision of the constitution. It will be observed that section seven of this act requires that the entire cost of the improvement excepting two per cent and the intersections shall be assessed on the lets and lands bounding and abutting on the improvement, whereas in the general law, section 2298, Revised Statutes, it is provided:

“If the cost and expenses of improving a street, alley or other public highway have been paid by the abutting property owners and the grade remaining unchanged it becomes necessary to re-pave such street, alley or highway,one half of the costs and expenses of such re-paving shall, if the council deem it just, be placed on the general tax list of all taxable property in the corporation, .and collected as other taxes are collected, and applied to such cost and expense of repaving.”

The petition in this case alleges that the alley in question had previous to this improvement been graded, curbed and paved by the authorities of said city at the expense of the abutting property, and that no change of grade had been made.

It seems clear to us, therefore, that the property owner who has once paved his alley, and when there is no, change of grade on a twenty foot alley or less, in the city of Cincinnati, has had taken away from him certain rights which are accorded to every other property owner in the state. In said city his property is liable for the whole improvement, whereas in any other portion of the state, the property owner may have to pay only half the cost of the improvement. In the Gaylord-Hubbard case, supra, quoting again from said case, the supreme court say:

“In the case under consideration the statute imposes a burden on owners of real property situated in. cities of the second grade of the first class (Cleveland) not imposed on owner of real property situated in other parts of the state.”

Thomas McDougall, and Pogue & Pogue, for Plaintiff and Others.

Kinkeacl & Kattenhorn, City Solicitors, for City.

This statement in every particular is exact and applicable here, if we insert cities of the first grade for cities of the second grade of the first class. For this reason, and this reason only, we feel, in duty bound to hold this act unconstitutional in so far as it applies to twenty, .foot alleys which have previously been improved and where no change of grade is made. We have been forced to this conclusion after a careful consideration of the question, and with a desire to hold the law constitutional if we could, well knowing the great harm that may result to the city if the law should be so held. Without regard to our own opinions on this subject we would feel ourselves in duty bound to hold the law valid by reason of the decision of the general term of the superior court of this city, announced in 4 Nisi Prius Reports, p. 220, wherein said law was held valid, were it not for the fact that the exact question here raised, and considered by us of vital importance, was not then passed upon by that court, and we are informed by the learned and able judge who pronounced the opinion in that case, that it was not argued or presented to that court for consideration, and therefore the decision should not be considered as a binding authority on the question here presented and decided.

The injunction must be granted as prayed for.


author: KING, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    THE TOLEDO & MAUMEE VALLEY RAILROAD COMPANY v. THE TOLEDO TRACTION COMPANY.
    Where a Street R. R. Co. contracts with another Street R. R. Co. whereby it permits the cars of such other company to run over its track, such other company cannot under such contract run the cars of the third company over the tracks of such first company.
   KING, J.

This action is brought to enjoin the defendant from interfering with or obstructing the plaintiff from running certain cars over the tracks of the defendant, the Traction Company, in the city of Toledo. It was commenced in the court of common pleas on July 2, 1898. A trial was had, and from the judgment rendered appeal was taken to this court. The case is submitted here upon exhibits, the evidence offered in the court of common pleas, and some oral testimony taken here.

In November, 1896, the same plaintiff began an action for an injunction against the defendant, alleging substantially the same acts. That case was appealed to this court, and tried and decided here, in October, 1897.. The opinion in that case is reported in 15 O. 0. R. 190.

The case arises over some disagreement between the parties as to terms, and the construction to be given to the terms, of a contract that had been made between the Traction Company and the plaintiff, allowing it to run its cars and traffic over certain lines belonging to the defendant. The defendant, the Traction Company,owns street railway privileges and tracks and cars in the city of Toledo, and ■the plaintiff owns similar privileges, tracks and ears on a line running on either side of the Maumee river from the city of Toledo southwesterly to the villages of Maumee and Perrysburg respectively, crossing the river at that point. They made a contract in June, 1894, the object of which is set forth in the-third paragraph of it in these words:

“The parties hereto desire to make a mutual arrangement and agreement whereby said roads may be connected so that the traffic over the road of second party (the plaintiff in this case) may pass over the roads of first parties, so as to make a continuous circuit or belt line connecting the city of Toledo and the villages of Maumee and Perrysburg, without change of cars or delays of any kind.”

Some time after that a street railroad company, which for short is denominated the Bowling Green Railroad Company, constructed a railroad from the village of Perrysburg to the village of Bowling Green, some few miles further south, which company entered into a contract with the plaintiff, by which it was to have certain rights and the plaintiff was to assume certain obligations, in the way of transporting passengers and traffic and cars of the Bowling Green railroad over its line; but the Bowling Green railroad made no contract with the defendant in this case by which its cars or traffic were to be transported over the defendant’s lines of railway in the city of Toledo.

The case tried and decided before this court at the September term, 1897, presented certain facts for the consideration of the court from which it undertook to construe the rights of these parties as related to those facts. I might say here, it was not then, and is not now, a matter that is beyond controversy or free from doubt as to the construction that should be placed upon these contracts or the rights of the respective parties thereunder as affecting this controversy. The facts in that case, as stated in the opinion of this court, were that the plaintiff company through and under this arrangement with the Bowling Green company, at the time of the placing of the obstructions which the suit was brought to enjoin, was running a certain number of its own cara over its own tracks, and instead of confining them to its tracks, was running those cars over the tracks of the Bowling Green company, in a continuous line from the city of Toledo through the villages of Maumee pnd Perrysburgh to Bowling Green and return; and likewise running them over the lines described in their contract upon which it had the right to run within the city of Toledo. We held in that case upon the facts there presented that the plaintiff was entitled, to an injunction. Considering the doubtful character, however, of the questions involved, and the fact that we might not be clear how far the parties or the' court might go in construing their rights, the court said at that time that the opinion and decision should be confined to the facts that were there presented; that the facts in the case concurred in making the cars and traffic which had been stopped the cars and traffic of the plaintiff railroad, coming fairly within the provisions of the contract, and which the defendants was bound to receive in the manner in which they had been tendered to it. After that decision the parties did not see fit to prosecute that case further.

Following the decision in October, in December or January next, the plaintiff company took off two of its cars that had been running for a year or more, and by agreement with the Bowling Green company arranged that the Bowling Green company should furnish two cars in their place. The Bowling Green company purchased two new cars for that purpose and put them upon the track, perhaps in January, 1898, and commenced running them, and did run them from that time until this suit was commenced in July. About April of that year the plaintiff company took off two more of its cars, and the Bowling Green company, having two cars which it was not using, and which had been stored during this preceding controversy, put those two cars on. So that at the time of the grievances which are complained of in this case the Bowling Green company was running four of its cars over its own tracks and road and over the tracks and road of plaintiff, and over the tracks and road of the^defendant, and carrying such traffic and passengers as it could pick up along these lines. Thereupon the defendant obstructed those cars, refused to carry them. The defendant claims no right to obstruct any others in this case. This proceeding is to enjoin them from obstructing these care.

It is unnecessary to review this case or to go over these contracts. We think, upon a consideration of the case as made, that it is essentially different from the other case. It may be that the facts show but little difference, and it is argued here, and urged upon us for consideration, that no more cars are being run over the defendant’s road than were being run at the^time of the trial of the other case. That of course cannot be a distinctive element; for this contract is. to receive a fair construction, The Traction Company agreed that it would carry the cars and traffic of the Mau-mee Valley Railway Company over the lines described in this contract, and whether it takes three or six cars to carry that traffic, defendant will be bound to do it; and it will hardly do to say that because no more cars are run this year than last, therefore the defendant cannot complain, even if compelled to carry the cars and the traffic'of other railroad companies. If we were to make that the rule to determine the defendant’s liability here, then it would be true that if the Maumee Valley Railroad Company, by reason of the building up of the cquntry above the city, should require instead of three or four cars, or whatever number it has been heretofore running, eight cars, it could not run those cars under this contract. That construction the plaintiff would not agree to, for it is clear, under that contract, it would not be proper. It is clear that the defendant is bound to carry the cars and traffic of plaintiff.

That case was decided upon the ground solely that the traffic and cars which it was running were properly and fairly, under the terms of the contract, the traffic and cars ■which the Traction Company was bound to receive and ■carry; but we do think it makes a vast difference when the ■claim is made that the .Maumee Valley Company may take the cars of any other railroad company that it comes in ■connection with, and run those cars over its track and over the track of the defendant companies, under this contract. Somewhere it seems evident that the line must be drawn, •and we may as well draw it at this point as at any other. 'This may not seem a very large matter in and of itself, but the parties Have invoked the jurisdiction of the court to determine this question, and we hold and decide that in this ■case, where it is shown that the cars which it is proposed to run are not the cars of the plaintiff company at all, but are the cars of another railroad company, running from off another railroad company’s tracks upon its tracks before reaching defendants’ lines, that the defendants, are not bound to receive them, and that therefore they would be justified in stopping them before they come upon their tracks, or at the point where their tracks connected.

It is evident that questions of' this kind are about to become very important, as other lines of railway in the ■near future will undoubtedly be constructed, either connecting with some of the roads involved in this controversy, •or coming to the city of Toledo independently of them; ■and if those companies desire to run their traffic into the ■city of Toledo, it would seem that they will have to make arrangements with the defendant if they desire to use its ■tracks, or else secure a right over them in some other legal way. or an entrance along other streets of the city. We ieel fully justified in saying that the plaintiff has not proved here an equitable case for injunction, and therefore the petition will be dismissed.

King & Tracy, for Plaintiff.

Barton Smith, for defendants.