text:
    MANAGEMENT OF SOCIETIES.
    [Circuit Court of Richland County.]
    John H. Coss v. Mansfield Lodge No. 56, B. P. O. E. et al.
    Decided, 1902.

      Secret Societies and Corporations — Management of Can Not be Interfered With by a Court of Equity — Except for Fraud of Collusion —Or Action in Excess of Corporate Power — Injunction Against an Expenditure Will Not Lie, Unless.

    1. The management of a society or corporation -will not be .interfered with by a court of equity upon complaint of a member, unless it appear that there has been fraud or collusion, or action in excess of corporate power.
    2. An injunction against a proposed expenditure will not lie unless the petition alleges affirmatively that the plaintiff has exhausted all the remedies provided by the constitution and by-laws of the organization.
    John H. Coss brought suit against Mansfield. Lodge No. 56, Benevolent Protective Order of.Elks, a corporation, and George W. Herring, its treasurer, to enjoin payment by the lodge of the expenses of one George N. Clugston as a delegate to the meeting of the grand lodge. The ground of the suit was that the said Clugston was illegally elected. We quote from the petition:
    “That said lodge is a subordinate lodge, and as such is a constituent part of the grand lodge, of the Benevolent and Protective Order of Elks of America, which grand lodge is the source of said subordinate lodge’s authority, and the highest and most authoritative body of the organization, which grand body is composed principally of representative delegates elected by subordinate lodges authorized to be elected by virtue of the laws of the said grand lodge, which elections take place in each subordinate lodge at its last regular session in March of each year; that at the election of said Mansfield lodge on March 25, 1902, said George A. Clugston was declared elected wrongfully by a majority of said lodge, and thereupon objections and exceptions were taken to such wrongful proceedings touching his eligibility on the floor of said lodge in open lodge in due parliamentary form.

      “The cause was duly appealed to the district deputy grand exalted ruler having jurisdiction in the premises, for his review and opinion on the case, by which said Clugston was declared ineligible to be elected to said office of representative at the time of said election, and the same declared null and void. Said case was then appealed to the grand exalted ruler, and referred to the proper grand lodge committee of the grand lodge for review, and to report findings to that body. Said grand exalted ruler nor said committee have not as yet made their respected reports either reversing or confirming said decisions so handed down by the district deputy grand exalted ruler, and the cause is still pending undisposed of, and can not be finally disposed of until the meeting of the grand lodge in July 24, 1903.
    “The by-laws of said Mansfield lodge No. 56 provide for the payment of the ‘actual expenses’ to be paid to its representative delegate grand lodge, and said Clugston, as pretended representative delegate, has presented his bill for alleged ‘actual expenses,’ as alleged representative, in the sum of $130.65, and said lodge is about to allow and pay same as such to him, before said cause has been finally adjudicated, and before it is determined wdiether or not he is the representative, and while said cause is still pending undecided, of all of which said lodge and defendants have had notice.
    “Plaintiff has done all he could do on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said order and the payment of said bill.
    “Unless the said lodge and said treasurer, defendants, are restrained from so doing, said alleged expenses in said sum will be paid to said Clugston wrongfully and illegally, and said lodge will suffer great and irreparable injury, damage and loss thereby, he being insolvent as to having sufficient tangible property not exempt from execution unincumbered, subject to reimbursing said lodge were he declared in said final decision of said pending case to be not the representative aforesaid.
    “Wherefore, plaintiff prays that said defendants and each of them be restrained and enjoined from paying over said money until after the decision aforesaid, and if he be declared to be not the representative, that the order be made perpetual, and for such other relief as may be proper and just.”
    Voorhees, J., and Donahue, J.
   The motion for temporary injunction is overruled. The petition does not affirmatively state that plaintiff had exhausted all remedy open to him in the order, and the averment that “plaintiff has done all he could do on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said bill,” is not sufficient for this purpose. If a court of equity has a right to interfere at all, clearly it can not do so until the plaintiff has exhausted all the remedy provided by the by-laws and constitution of such society, and in the absence of such averment the petition does not show any necessity for the interference of the court; neither will a court of equity interfere with the management of a corporation or of a society, unless the managing officers or stockholders are acting in excess of their corporate power, unless the petition avers collusion or fraud on the part of the managing agent or of a majority of the stockholders. This petition contains no such averment, and in the absence of such averment the court will not interfere to restrain the discretion of the managing agent or stockholders, in the absence of fraud or collusion, no matter how clearly it may appear that they are mistaken as to the best course to pursue.

Kerr & LaDow, for plaintiff.

W. F. Voegele and Cummings, McBride & Wolfe, for defendant.

In this case the act of payment is clearly not ultra vires, as the petition says that the by-laws provide for the payment of such expenses. The question as to who is entitled to receive such expenses is merely one of judgment and discretion, and so long as such judgment and discretion is exercised in good faith, and, so far as this petition is concerned, such is the case, a court will not interfere by injunction to direct what such society shall or shall not do.

These considerations dispose of the matter. We have not gone further into the consideration of the right of plaintiff to bring this action, or whether or not he should have brought it in his own name on behalf of the lodge, or on behalf of all others similarly situated.


source: Caselaw Access Project

license: Public Domain

text:
    SUFFICIENCY OF THE AFFIDAVIT UNDER THE BEAL LAW.
    [Circuit Court of Franklin County.]
    Andy Kappes v. The State of Ohio.
    Decided, March, 1904.

      Beal Law — Affidavit Charging Keeping Open on Sunday — Surplusage— Duplicity■ — Jurisdiction of Mayor — Prejudice—First and Second Offense — Demand for Jury.

    1. An affidavit in the form used in this case is sufficient to support a conviction of keeping open on Sunday a room where intoxicating liquor is sold.
    2. Under an affidavit in that form there is but one offense charged; all reference to the sale of liquor is mere surplusage.
    S. The presumption is that the offense charged was a first offense, and if it does not affirmatively appear from the record that it was a second offense, the action of a mayor in overruling a demand for a jury will not be disturbed.
    On August 4, 1903, an affidavit was filed before J. S. Ricketts, mayor of the village of Marble Cliff:, in Franklin county, Ohio, the body of which contained the following language:

      “J. W. Morgan, being duly sworn, saith that on the 2d day of August, A. D. 1903, the said day being the first day of the week, and commonly called Sunday, at the county aforesaid, one Andy Kappes, in the township of Clinton, did, unlawfully and knowingly, keep open a saloon on said day, and did then and there, unlawfully and knowingly, expose, sell and furnish, intoxicating liquors to be used as a beverage, said saloon being a place where intoxicating liquors are, on other days of the week, exposed for sale and sold for beverage purposes, and not being a drug store, and said Andy Kappes not being, then and there, a regular druggist; and not - selling and furnishing said intoxicating liquors upon a written prescription of a regular practicing physician for medicinal purposes only, or for pharmaceutical, scientific, mechanical, or sacramental purposes, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    The cause came on for hearing and the defendant successively moved for a change of venue (1) because the mayor was prejudiced; (3) offered to waive examination and be bound over to the police court of Columbus, Ohio; (4) demurred to the jurisdiction of the court; (5) demurred to the sufficiency of the affidavit; and (6) moved to quash the affidavit because it did not sufficiently charge the sale of intoxicating liquors on Sunday. These motions and demurrers were each, in succession, overruled, and then the defendant demanded a trial by jury, which was refused.
    On trial before the mayor the defendant was found guilty of keeping open a saloon on Sunday, and was fined $100 and costs. On error proceedings the court of common pleas affirmed the judgment of the mayor, and that judgment has been affirmed by the circuit court, Judge Wilson rendering the opinion as follows:
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
   The plaintiff in error was convicted in the mayor’s court of the village of Marble Cliff, in Franklin county, Ohio, of the offense of keeping open on Sunday a room where intoxicating liquors were sold.

He interposed a motion for a new trial, which was overruled.

A bill of exceptions was allowed and error prosecuted to the court of common pleas to reverse the judgment. The court affirmed the judgment, and error is prosecuted here to reverse the judgment of affirmance, as well as the judgment of the mayor’s court. It is claimed that the trial court erred in overruling the motion of the plaintiff in error for a change of venue upon the ground that the mayor was a material witness for the defendant, without whose testimony he could not safely proceed to trial.

Without determining the question whether the statute providing for change of venue applies to the mayor’s court, the hearing on this motion does not satisfy this court that the mayor was a material witness, or that the motion was made in good faith. The evidence tended to show prejudice, but that is not a ground for change of venue, unless it be in the citizenship, and the defendant be entitled to a trial by jury. The motion was properly overruled.

The defendant demurred to the affidavit for duplicity, and that it did not charge the offense of keeping open on Sunday. The court overruled- the demurrer. This was not error. The affidavit does not charge the offense of selling intoxicating liquors on Sunday. What is said in that regard could properly be treated as surplusage, or as descriptive of the kind of room that was kept open. The language negativing the fact that it was a regular drug store is sufficient under the statute.

G. E. Trump, for plaintiff in error.

W. B. Wheeler and M. E. Thrailkill, for defendant in error.

The defendant demanded a jury trial, which was refused. The mayor’s court had jurisdiction to try the case, whether it was a first or second offense — the only difference being that he could try it without a jury if it was a first offense. In either case he had final jurisdiction. The question of the right of the defendant to a jury trial, was not, therefore, jurisdictional, and it is not necessary that the record should disclose that it was a first offense in order to give the court jurisdiction. But in order to find that there was error in overruling the demand for a jury, it must affirmatively appear of record that it was a second offense. That does not appear. The presumption is the charge was for a first offense. There was no error in the refusal of a jury trial.

We find no prejudicial error in the admission and rejection of evidence, and no error on the record.

The judgment is affirmed with costs, and remanded to the mayor’s court for execution.


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    CONTRACT OF PURCHASE AND SALE EMBODIED IN CORRESPONDENCE.
    [Circuit Court of Lucas County.]
    The Toledo Paper Box Company v. The American Roll Wrapping Paper Co.
    Decided, January 25, 1904.

      Contract — In the Form of a Written Order for Goods — Accepted in Writing — Can Not he Modified hy Parol Evidence — Of an Oral Agreement with Agent or Seller as to Time of Delivery.

    Where a written order for goods, stating the time when the goods shall be shipped, is accepted in writing, but with a modification as to the time of shipment, with respect to which modification the party giving the order makes no objection, and such written communications contain all the essential terms and elements of a contract of sale, and no mention is made therein of prior oral negotiations or agreement between the purchaser and the agent respecting the time of shipment, parol evidence is not competent to support a claim by the purchaser that a different time for the shipment of the goods was agreed upon orally between him and the agent of the seller, and that his subsequent order was given in pursuance of and was based upon such prior oral agreement.
    Parker, J; Haynes, J., and Hull, J., concur.
   The American Roll Wrapping Paper Company recovered a judgment in the court of common pleas against The Toledo Box Company, on account of some paper of a special sort which was ordered by the plaintiff in error from the defendant in error and received by it. By way of cross-petition, or counter-claim rather, the plaintiff in error claimed damages on account of delay in furnishing this paper; it claims that it was to have been furnished within a certain number of days after the order was given and that it was not then furnished; that it was not furnished until some months after, whereby it lost the use of it and so it became dead and useless material upon its hands and it was subjected to a financial loss.

It appears that the order given by plaintiff in error was in writing, sent by mail. It described the paper that it desired, set forth the price that it expected, to pay and set a time for the delivery of the paper. The order was accepted by a written communication, but with a qualification as to the time of delivery. The paper was not forthcoming at the time promised by this written acceptance — though that time was not made very definite— and the parties had a great deal of correspondence, the box company urging the paper company to forward the paper and the latter company promising from time to time that it would have the paper sent forward in a short time, in a few days, setting different dates and times; but it seems according to these letters and the evidence in the ease, to have been delayed by the breaking down of machinery in the factory, and in other ways; and after a while the box company canceled the order and the paper company recognized the cancellation. Then the paper box company wrote forward again to the paper company saying that if it could ship a part of the paper by a certain date, it might rebook the order, and the order was then re-booked, and there were more delays and further correspondence on the subject, and finally the paper was received, but after the resulting loss and damage as claimed by the plaintiff in error. The paper box company claims that this paper was to have been delivered to it or shipped to it within six days time after the order was given. In support of this contention it offered to prove that in conversations and oral negotiations between an officer of the box company and the agent of the paper company, at the place of business of the former, in Toledo, some time before this written order ivas sent forward, the agent of the paper company had agreed that if the order should be placed with the paper company the goods would be furnished within six days. This offer to prove was rejected by the court, the court holding that the evidence as to the oral negotiations and oral agreement was inadmissible under the circumstances, because the order and the acceptance, taken together, amounted to a complete contract in writing; and because of the exclusion of this evidence the box company was not able to make the case that it undertook to make upon its counter-claim. The result was that the jury was directed to return a verdict in favor of the paper company; and it is on account of this ruling that the plaintiff in error prosecutes error in this court.

Lewis W. Morgan, for plaintiff in error.

William H. A. Read, for defendant in error.

I shall not take time to read this correspondence. I have stated, in a general way the tenor and effect of it, and we simply announce our conclusions upon it as follows:

Where a written order for goods, stating a time when the goods shall be shipped, is accepted in writing, but with a modification as to the time of shipment, with respect to which modification the person giving the order makes no objection, and where such written communications contain all the essential terms and elements of a contract of sale, and no mention is made therein of prior oral negotiations or agreements between the purchaser and the agent of the seller respecting the time of shipment, parol evidence is not competent to support a claim by the purchaser that a different time for the shipment of- the goods was agreed upon orally between him and such agent of the seller, and that his subsequent written order was given in pursuance of and was based upon such prior oral agreement. The adimssion of such evidence would be a violation of the well settled rules respecting the admission of oral evidence to modify the terms of a written contract subsequently executed and by its terms covering the whole subject-matter. We hold that the ruling of the court of common pleas upon this matter was correct, and the judgment of that court will be affirmed.


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    DAMAGES TO PROPERTY LYING BELOW GRADE.
    [Circuit Court of Hamilton County.]
    Matilda Sharp v. City of Cincinnati.
    Decided, April 11, 1904.

      Incomplete Record — Necessary Findings Will Be Presumed — Only Affirmative Errors in Charge Can Be Considered — Damages from Surface Water to Property Below Street Grade — Property Owner Can Not Complain of Burden Incident to Low Location, When— Doctrine of Civil and of the Common Law — Negligence of a Vis Major as a Proximate Cause.

    1. Where a record does not contain all the evidence, a reviewing court must presume every finding of fact necessary to support the verdict and judgment, and where a portion of the charge of the court is omitted only affirmative errors can be considered.
    2. There can be no recovery from a municipality for property damaged by surface water, simply because it lies lower than the grade of the street.
    3 It is immaterial in such a case whether the doctrine of the civil or of the common law is applied, where a charge puts the question squarely to the jury whether the damages were due solely to the low situation of the property.
    4. Where one has negligently failed to perform a duty which he had contracted to do, he will not be allowed to take refuge in an inquiry whether his own negligence or a vis major was the proximate cause of the resulting injury; but where the injury was proximately caused by the act of God, the law does not concern itself with duties the observance or breach of which had nothing to do with the damage.
    Jelke, J.; Giffen, J., and Swing, J., concur.
   As the record does not purport to contain all the evidence we must presume every finding of fact necessary to support the verdict and judgment. Neither does the record contain the whole charge, so we can not consider any errors of omission complained of, but must confine ourselves to affirmative errors, if any, committed in the general charge or in the giving or refusing special charges asked for.

The two errors relied on are presented by special charges given at the request of defendant and excepted to by plaintiff, and it is complained that these errors are further carried into the general charge.

The trial court gave the following special charge:

“If you find that the property of the plaintiff was located below the grade of East Third street, and that the same would not have been damaged had it been on the level with Third street, then I charge you, gentlemen of the jury, that the plaintiff can not recover. ’ ’

We find no error in this charge.

Of course if the issue is complicated with other elements, such as negligence on the part of the city in constructing the street, and street drainage, or the city is charged with collecting the surface water from a large area and by building the street diverting it upon plaintiff’s land, other and different principles of law apply.

But, taking the case simply, if the plaintiff’s property is damaged because it lies low, that is not the city’s fault; plaintiff’s property must bear the burden of its unfortunate situation.

When the city built and improved East Third street, if it changed and raised the grade, thereby making plaintiff’s property low, plaintiff was entitled to compensation, and either recovered compensation from the city or waived the same.

When that matter was closed, either by payment or waiver and the street was built, the reciprocal relations again became as though the topography was natural, and plaintiff thereafter could not complain of the burdens incident to the low location of her property. Elliott on Roads and Streets, Section 470, says:

“A city is not however liable merely because water collects on land in consequence of its being lower than the grade of a street which the city had a right to establish, ’ ’ citing eases.

Tiedeman on Municipal Corporations, Section 354a:

“"Where the authority is vested in the municipal corporation, by charter or statute, to improve streets and establish street grades, and, in the exercise of that power, changes are made in the surface of the city’s highways by which surface water is caused to collect on, or flow over, the adjacent land of private owners, there is no implied liability on the part of the municipal corporation for such indirect and consequential injuries, provided the city does not exceed its lawful power.
“So, also, it has been held that, ordinarily, there is no obligation on the city to provide drainage for the surface water upon its unimproved or unguarded streets; and when a city has begun the process of grading, it is under no implied liability to keep open former existing drains, or to construct new drains in their place, in order to prevent the surface water from overflowing land which may be situated below the level of the highway. Upon this point the decisions are far from harmonious, many eases holding that the city, when practicable, should provide drains and culverts. Many eases go further, and deny any implied liability, where, in making local improvements, which are legally authorized, surface water is made or permitted to flow from the street directly upon the adjoining property,” citing cases.

Dillon on Municipal Corporations, Section 1051, says:

“But since surface water is a common enemy, which the lot owner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, impliedly liable for simply failing to provide culverts or gutters adequate to keep surface water off the adjoining lots, below grade, particularly if the injury is one which would not have occurred had the lots been filled so as to be on a level with the street. The cases are not in harmony on the point last presented, but the above is believed by the author to be the correct doctrine.”

Counsel for plaintiff object to this statement from Dillon because it is based on the common law and say that the rules of the civil law as to the surface water obtain in Ohio, citing Crawford v. Rambo, 44 O. S., 283:

“The difference arises as to surface water. In some of the states the rule of the civil, and in others that of the common law, prevails. The former requires each tenement to submit to the conditions imposed on it by nature, so that the owner of a lower tract can not divert the water that flows to and upon his own from a higher one to the injury of the latter. This rule was recognized by this court in Butler v. Peck, 16 Ohio St., 334, and was adopted as the rule of its decision in Tootle v. Clifton, 22 Ohio St., 247.
“The civil law acts upon the maxim that water is descendible by nature, and that its usual flow should not be interfered with, so that its burden, if it be one, should be borne by the land where it naturally flows, rather than by land where it can only be made to flow by artificial means. The common law does not recognize this principle as to surface water, but permits any one to protect his own premises from it as he may choose to do, without becoming liable to others injured thereby; or, more properly, it does not regard it as an injury to do so, whatever inconvenience or loss may result to others therefrom. It is not necessary, as we have said, to discuss the merits of either system in this case, as the injury complained of does not arise from an interference with the flow of surface water.”

However, the Supreme Court said in Springfield v. Spence, 39 O. S., 671:

“The owner of private lots can raise the same to grade if he so desires, and can thus keep out all surface water; but the municipal government has neither the interest nor the right thus to improve and protect private property. If the city could thus improve private lots, its power might become oppressive; and if the private person could thus compel the city to care for his private interests, its weakness might become ruinous. The law protects each in the proper exercise of rights, and excuses many omissions.”

The charge puts the issue fairly before the jury: Was the damage caused solely by the low situation of the property ? And the best test of this is by asking, Would the damage have occurred if the property had been on the level with Third street?

On this issue it makes no difference whether the doctrine of the civil or the common law is applied.

The next error charged is against the following special charge:

“If you find from the evidence that the damage to the property of plaintiff was caused by an extraordinary and unprecedented rainfall, then I charge you, gentlemen of the jury, that the city of Cincinnati, in the absence of negligence, is not liable, and that the plaintiff can not recover any damages. ’ ’

It is not said that this proposition is erroneous, but it is contended that the converse of the proposition should have been given and it is complained that the general charge fails in this regard, and that it should have been charged that if the city was guilty of negligence it would be liable and in that case the act of God would be no defense irrespective of any question of proximate cause.

Counsel for plaintiff in error urge that—

“The intervention of the act of God will not be a defense when the negligence of the defendant combined therewith to cause the damage.”

The cases cited are obscuring and misleading because they are common carrier cases or cases based on contract.

There is a fundamental difference in setting up the act of God as a defense in cases involving negligence of a duty imposed by law and- cases involving negligence of a duty based on contract.

Charles E. Tenney and Norwood J. Utter, for plaintiff in error.

Frank H. Kunkel, contra.

In the former the question of proximate cause is an essential element of liability or defense and in the latter it makes no difference.

Where on contracts to do a thing, without reservation, he should be held to its performance no matter what intervenes. But the law in some cases as in that of common carriers, has been more gracious and has said that where one has been prevented from doing what he contracted to do by a vis major, he may set this up as a defense, relieving him from liability. But this grace will not be extended to one who has been negligent. Where one has negligently failed to perform a duty which he has contracted to do, he will not be allowed to take refuge in an inquiry whether his own negligence or a vis major has been the proximate cause of a resultant injury.

As to a duty imposed by law it is quite otherwise. Duties imposed by law are duties implied from the facts, circumstances and relation of the parties.

Now, where damage has proximately been caused by an act of God, the law does not concern itself in implying duties the observance or breach of which had nothing to do with the damage. The law makes no immaterial implications. See Am. & Eng. Encyl. Law, 2d Ed., Vol. 1, p. 592.

The charge given gave to plaintiff the full benefit of all she was entitled to under this aspect of the law, and the proposition asked for by counsel for plaintiff would have been misleading and erroneous.

On account of the condition of the record the judgment in this case could only be reversed for such affirmative prejudicial error appearing as could not be cured by subsequent addition, correction or explanation, as we are bound to presume that any necessary curing addition, correction or explanation was there, and as we find no such error, the judgment will be affirmed.


text:
    NOTICE AS TO A DANGEROUS CONDITION.
    [Circuit Court of Cuyahoga County.]
    Greeley Bros. Co. v. Stanislas Zeithaml.
    Decided, December 24, 1903.

      Negligence — In Creating a Dangerous Condition — Smouldering Fire in a Heap of Refuse — Child Burned While Playing on the Heap— Smoke from the Heap Seen hy a Teamster — Not Knowledge of His Employer of a Dangerous Condition.

    Debris and filth from city streets was collected by wagons belonging to G and deposited on an uninclosed lot. Fire had smouldered in this heap for some days, and had partially undermined it. A child climbed upon it and fell through into the fire.

      Held: That the fact that teamsters employed by G may have seen the smoke issuing from the heap did not amount to notice to G of a dangerous condition, and such condition not being one which could have been reasonably anticipated, and there being no proof that G was aware of fire in the rubbish, no liability atached for the injury to the child.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Error to the court of common pleas.
   Suit was brought in the court of common pleas by the defendant in error through a nest friend. The plaintiff below, Stanislas Zeithaml, was about seven years old when the injuries complained of in his petition were received. The parties will be spoken of in this opinion as they were in the original action.

In the summer of 1900 the defendant, a corporation, was engaged with teams and proper appliances in removing filth and debris from certain streets of the city of Cleveland, and, by some arrangement with the owner, was depositing the material collected from the streets upon a vacant lot at the southeast corner of Cedar and East Madison avenues. This field contained several acres, was unenclosed, and was bounded on two sides by the public streets already named. Across this field from the northeast to the southwest corner was a well-beaten footpath over which, for several years, pedestrians had been accustomed to pass without any let or hindrance, in very considerable numbers, and the field was a common playground for the children in the -vicinity, and had been so for a series of years. This fact was so universal that it must have been known to the owner and to the officers of the defendant.

Prior to the time of the injuries complained of the defendant had deposited of this refuse material taken from the streets a large amount, making a heap of considerable height and dimension. This was immediately adjoining the pathway already referred to. For several days, probably not less than five and perhaps as much as a week before the accident complained of, this pile had been on fire. It was a smouldering fire, and seems to have been altogether covered up by the stuff of which the pile was constituted, deposits being made to the amount of at least two wagon loads daily. This smouldering fire sometimes sent forth smoke in considerable quantities so that it was noticed in the neighborhood, but, as already said, the fire itself was not visible, and smoke was emitted so as to be noticeable only a part of the time. Some of the time there was no appearance whatever of smoke.

On July 6, 1900, the plaintiff and other children, his companions, were playing on this lot, and while engaged in play went upon the top of this heap, the surface of which had been so undermined by the fire that it broke through and let the plaintiff into the smouldering fire, whereby he was burned and injured. The suit was brought to recover damages for such injuries, and resulted in a verdict for the plaintiff. A motion was made to set aside the verdict and grant a new trial, which was overruled, and judgment was entered upon the verdict.

Complaint is made.by the defendant that there was error in the charge of the court, to its prejudice. The charge has been examined with care, and we think was as favorable as the defendant was entitled to.

Complaint is further made that the court erred in overruling the motion for a new trial, upon the ground that the verdict was not sustained by sufficient evidence. It is urged that there is no evidence to show that the defendant set the rubbish on fire, or that it had any knowledge that there was any fire in that heap; that it had no reason to anticipate a fire, and, therefore, can not be held responsible for the injuries received from such fire.

On the other hand it is urged that whether nthe defendant set the fire or not, the fact that smoke was emitted from the heap during a part of the time, and that the teamsters in charge of the wagons of the defendant deposited rubbish at least twice a day upon the heap was sufficient to charge the defendant with constructive notice of the condition of this pile of rubbish. Attention is called to authorities to the effect that one being responsible for a dangerous condition is chargeable with the consequences of such condition, and it is urged that the cases apply to the case now under consideration.

One of the cases noted is that of Penso v. McCormick, 125 Ind., 116 (25 N. E. Rep., 156, 157). The syllabus of that case reads:

“Where the proprietors of a sawmill situated in the public part of a town, near to a public highway, had by their knowledge and acquiescence given license to children of tender years to use their uninclosed lot surrounding the mill as a playground, and without any warning to them or others, constructed a pitfall in the ground where such children were accustomed to play, which they filled with burning embers and which gave forth no signs of its condition, or the danger in stepping upon its covering, and while in this condition a child of tender years entered upon it, as he was accustomed to do, without any knowledge of its changed condition, and was severely burned and injured, they were liable under such circumstances to respond in damages. Greater care must be exercised in dealing with children of tender years than with older persons who have reached the age of discretion.”

The fact in this case, as stated by the court in the opinion, is, that the mill yard was a place where children were accustomed to play. That fact was well known to the mill owners and acquiesced in by them for a long period, and that ‘.‘without any notice or warning, the appellees (mill owners), on the day of the injury, had excavated a hole or pit in one side of the heap or mound, and refilled it with hot and burning coals, embers and cinders, the top of which immediately cooled, and gave no signs of any change in the condition of the mound, or any warning of danger to those who had been accustomed to pass over or play upon the mound.” The court in this ease quoted with approval from the case of Young v. Harvey, 16 Ind., 314, 315, this language, speaking of the right of one to recover for injuries sustained by a pitfall left unguarded in an open hole which the public were, by acquiescence on the part of the owner, permitted to use it as a common:

“Whether it can be, or not, depends upon the degree of probability there was that such accident might happen from thus leaving exposed the partially dug well, considered, perhaps, in connection with the usefulness of the act or thing causing the danger. If the probability was so strong as to make it the duty of the owner of the lot, as a member of the community, to guard that community from the danger to which the pit exposed its members, in person and property, he is liable to an action for loss occurring through his neglect to perform that duty. ’ ’

In Harriman v. Railway Co., 45 Ohio St., 11, this language is used in the syllabus:

“Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road 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 probable use, and proportioned to the probable danger to persons so using its road.”

In this case suit was brought for injuries to a boy about ten years of age who was upon the right of way of the defendant at a place where the public had been so long accustomed, with the knowledge and acquiescence of the railway company, to cross said right of way that the same amounted to a license to the public. A torpedo was left upon the track carelessly and negligently, and where there was no occasion for it to be. It was, to all appearance, entirely harmless, whereas in fact it was a very dangerous thing to handle. This was picked up by a boy about the age of plaintiff and exhibited by him to the plaintiff, and they undertook to open it, which caused its explosion and the injury to the plaintiff, and it was held that such facts entitled the plaintiff to a recovery.

The ease of Findlay Brewing Co. v. Bellman, 9 C. C., 277, shows this state of facts: The brewing company placed in the street at the side of the brewery building a tank sixteen feet in length, three feet ten inches high and some four feet wide, into which it was accustomed to convey by a spout the hot “mash” from its brewing tubs, from whence it was taken, when cool, by a party to whom the company had sold the same. A boy six years of age went with another boy to this tank, and they got upon the edge of the box or tank to see the “mash” run into it. This boy, six years old, slipped into the hot “mash” and was injured. It was there held that the company was liable.

None of these cases seem to us to go to the extent of sustaining the verdict in the case under consideration. In each one of the cases the dangerous condition which brought about the injuries complained of was known, or by any kind of care would have been known to the defendant.

In Findlay Brewing Co. v. Bellman, supra, the brewing company knew of the fact of hot mash being stored in this tank, and that it was at the side of the public highway; that it would be natural for children to be climbing up its sides and that they would be likely to fall into the scalding matter and be injured.

In Harriman v. Railway Co., supra, the railroad company, by its servants, placed the dangerous instrument at a point where children were accustomed to be with its acquiescence. They knew that the torpedo was highly dangerous and that there was nothing to indicate its dangerous character to an inexperienced child.

In Penso v. McCormick, supra, the defendants themselves placed the burning material in a place dangerous to children whom they knew were accustomed to play there.

In the case of Ann Arbor Ry. Co. v. Kinz, 68 Ohio St., 210, this language is used in the syllabus:

“The owner of an uninelosed tract of land within a city, which has been graded to a level, leaving a bank on one side of the premises, to which premises adults are not invited, but suffered to resort for the purpose of playing base ball, which amusement attracts to the ground and along the bank young boys to witness the games, is not liable for injury to one of such boys, caused by the caving or falling of the top of the embankment, where its condition does not, to the knowledge of such owner, indicate a reasonable probability of such result.”

In the opinion in this case Judge Price makes use of this language, page 223:

“We think the better and more reasonable proposition is, that the owner of the property owes no general duty to keep it in condition which will insure the safety of persons who go upon it without invitation or license; yet if he keeps upon his premises, dangerous machinery, or other things likely to attract children, and does not guard them to prevent injuries to them, he is liable for injuries resulting from his neglect to provide such guards. One of the reasons assigned for this rule by some authorities is that the keeping on the premises a machine or other thing which naturally entices the very young and curious, and thus attracts their presence, may be construed as an implied invitation to enter the premises so occupied by the dangerous machine or other device, in which case it becomes the duty of the owner to see that the person thus invited is not placed in peril.
“But it is not our duty to pursue these various eases and authorities as they meet or diverge, for we have no ease here calling for such labor. The facts before us show no secret dangers, traps, or pitfalls, and the premises were not in a dangerous condition; nor did the owner place or maintain thereon any object or thing to attract the young and unwary.” See, also, Erickson v. Railway Co., 82 Minn., 60.

In Shearman & Redfield on Negligence, Section 705, this language is used, and seems to us to state clearly the law as it ought to be:

“The owner of land, where children are allowed or accustomed to play, particularly if it is unfeneed, must use ordinary care to keep it in a safe condition, for they, being without judgment, and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers and mere licensees. And yet merely allowing children to play upon a vacant lot is held not to amount to an invitation which creates liability for its condition.”

In this ease it can not be supposed that the defendant would anticipate the fire which brought about the injuries to the plaintiff, and that being true, it can not be held liable unless it had either actual or constructive notice that such fire was in progress. We find nothing in the evidence which can fairly be held to be such notice. No officer of the company saw, so far as it appears, any smoke arising from this heap, or was where he would be likely to see it. The teamsters working for the defendant may, be said to have probably seen at some time the smoke arising from this heap, but we know of no rule of law which would make the knowledge of such employe either actual or constructive notice to his employer. We hold, therefore, that there was error on the part of the court in overruling the motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence. The judgment of the court below is reversed and the ease remanded to that court.

White, Johnson, McCaslin & Cannon, for plaintiff in error.

Toland & Howell, for defendant in error.


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    WAIVER OF LIMITATION AS TO STREET ASSESSMENT.
    [Circuit Court of Hamilton County.]
    R. H. Thornton et al v. City of Cincinnati.
    Decided, April 5, 1904.

      Street — Constitutional Limitation on Assessment for Improvement of —Effect of Petition for Improvement — Estoppel.
    1. The constitutional limitation as to the amount of as assessment for a street improvement may he waived by,contract or by the conduct of the parties in pais.

    2. A petition for a street improvement is without significance, if it does not give to the city the right to do more than could be done without it, and where a petition is not needed to confer jurisdiction, but its sole office is to avoid and surrender the constitutional limitation with reference to the amount of the assessment, the signers are estopped from setting up the limitation.
    3. A trial court may hear evidence and find the amount of special benefits, and then say that up to this point we will not enjoin, but beyond it we will; but where the assessing board has made a finding of benefits and has fixed the assessment on that basis, such finding should not be lightly disturbed.

      Jelke, J.; Giffen, J., and Swing, J., concur.
   The petition to the Board of Administration under which this improvement was made reads as follows:

“We, the undersigned, owners of property represented by the feet front abutting upon Fairview avenue from the south end thereof to Straight street, hereby petition your honorable body for the improvement of said Fairview avenue between the points aforesaid, by asphalt pavement and granite curbs, the roadway to be forty feet in width, to such changed grade as your board may establish. And we respectively agree not to make any claim for the damages on account of such changed grade, and for the assessment for the whole cost of such improvement except fifty per cent, of the entire cost of the improvement and the cost of intersections, to be made and collected in ten (10) equal annual installments; and in case the bonds of the city are issued in anticipation of the assessment thus petitioned for, then that the interest on said bonds be collected in ten (10) installments, the same and in like manner as the assessment installments aforesaid, or that the interest installments be numbered and assessed according to the number of years the bonds may have to run.
“And in consideration of the city’s making said improvement, we and each of us further agree with each other and with said city, and we jointly and severally bind ourselves, to pay such assessment irrespective of the number of owners of property signing this petition.”

Counsel for the city claim that by reason of signing this petition the signers thereof are estopped from setting up any statutory or constitutional limitation on the amount of the assessment and from claiming that such assessment should be anything less than actual cost, or that the same exceeds the special benefits to their respective properties. Counsel for plaintiff’s herein, signers of said petition, claim that they are not so estopped and rely upon the case of Birdseye et al v. The Village of Clyde et al, 61 O. S., 27. Special emphasis is laid upon the language of the Supreme Court on page 38:

“And it .can hardly be supposed that the plaintiffs who signed the petition for the improvement intended thereby to donate their entire property to the public, or, what is practically the same thing, consent to an assessment that would amount to its confiscation. They evidently contemplated that some special benefit would accrue to them from the construction of the improvement, which could not possibly be the ease if the substantial value of their property were taken to pay the assessment laid down upon it. The petition must be construed in the light of this situation, and so as to effectuate the manifest intention of the parties. ’ ’

The improvement in the village of Clyde was made under a special act (90 O. L., Local, page 434), which among other things provides:

“Provided, however, that two-thirds of the cost for improvement and paving any street, and of constructing a sewer under such paved part, for which said street improvement fund shall be used, shall be assessed on the real estate bounding and abutting thereon, and according to the foot frontage of the real estate so bounding and abutting as provided by the laws of the state of Ohio.”

The Supreme Court expressly holds that the reference to “the laws of the state of Ohio” brings Revised Statutes, 2270, into contemplation and makes it part of the body of law applicable to the improvement in the village of Clyde. Revised Statutes, 2270, provides a limitation of twenty-five per centum of the tax value of the property on assessments.

The Supreme Court does not deny the application of the doctrine of estoppel in the Birdseye case, but says that the estoppel shall not extend beyond .the intention which the court finds in the paper which the property owners signed. The court finds that said petition was signed with the limitation of Revised Statutes, 2270, in view.

The case of Birdseye v. The Village of Clyde went to the Supreme Court from the sixth circuit. That case came on for application before the judges of that circuit in the case of Harriet A. Blair v. C. K. Cary, 2 C. C.—N. S., 25, and in the course of their opinion the court, per Parker, J., say on page 37:

“It is urged by counsel for plaintiff in error that the case of Birdseye v. Village of Clyde, 61 O. S., 27, is in point here and has some influence upon the construction of this provision of Section 2272, Revised Statutes, but we can not so understand it, and we do not think that is true. In that ease the act under consideration was a special act for the city of Clyde, and it contained no limitation whatever; it did not contain a provision, as this section does, that the assessment should be a valid lien against the property, although it might exceed twenty-five per centum of the value; it contained no provision upon the subject.
“Our construction of the law was that that being the only act invoked (the petition being under the act), and it containing no limitation, there was no limitation, and that, therefore, they might disregard the twenty-five per cent, limitation fixed in Section 2270, Revised Statutes. The Supreme Court, however, took a different view; it held that in the absence of any express provision, the limitation fixed by Section 2270, Revised Statutes, should be read into it and be considered as a part of the act, and that for the protection of persons proceeding under that special act as well as others. But here we have a ease of an express provision applicable to the city of Toledo to the effect that notwithstanding an assessment may exceed twenty-five per cent, of the value, it shall be valid as against persons signing the petition; and we think, therefore, that the plaintiff has no ground of complaint upon that score.”

The improvement in the case at bar was either made under Revised Statutes, 2272, or under the general powers of a municipality to make improvements and assess the cost thereof not exceeding special benefits on the abutting property irrespective of special statutory provision.

Revised Statutes, 2272, provides:

“When a petition subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description between designated points, is regularly presented to the council for the purpose, the cost of any improvement of such street or highway may be assessed and collected in equal annual installments, proportioned to the whole assessment in a manner to be indicated in the petition, or if not so indicated, then in the manner which may be fixed bv council.”

It is said that three-fourths of the abutting front feet have not joined and hence this improvement and assessment can not have been under Revised Statutes, 2272.

But the signers of the above petition have expressly estopped themselves from making this objection having agreed with the city and each, other “to pay such assessment irrespective of the number of owners of property signing the petition.” Whether this improvement was made under Revised Statutes, 2272, or the city’s general powers is all the same, because the objection here is that assessment beyond the special benefits is unconstitutional.

Albert T. Brown, for plaintiff in error.

John V. Campbell and Charles J. Hunt, contra.

There is no doubt of this constitutional limitation, but this may be waived by contract, or parties by conduct in pais may estop themselves from setting it up. State v. Mitchell. 31 O. S., 592; Tone v. Columbus, 39 O. S., 281.

Now let us do here what the Supreme Court did in the Birdseye case, find out what the signers intended by what they said in the paper which they signed and then hold them bound by estoppel to that extent and no further. There is no ambiguity in what they said, they asked the city to make the improvement and said they would pay the whole cost thereof, less fifty per cent, and the cost of intersections. They said to the city we will be the arbiters of our own economy; we want this and we will pay for it, and we will take the chances and responsibility of our property being sufficiently specially benefited.

Else the petition would be a nullity and have no force and significance. The city could have done what the property owners say it could have done, without the petition as well as with it.

The petition in the Birdeye case had to be read with and have read into it the special law and all the other law which the special law drew into itself.

The petition in the case at bar was not needed to confer jurisdiction or power, its sole office was to avoid and surrender the constitutional limitation.

We find nothing in the ease of McGlynn v. Toledo, 22 O. C. C., page 39, out of harmony with this conclusion. Hence we are of opinion that the signers of the petition in the case at bar are estopped from setting up the constitutional limitation of special benefits.

The assessment should be reduced by so much of the cost of intersections as was included therein.


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    Mary H. Benham v. City of Cincinnati.

      Coppock & Hertenstein, for plaintiff in error.

      John V. Campbell and Charles J. Hunt, contra.
    Jelke, J.; Giffen, J., and Swing, J., concur.
   The conclusion reached in the Thornton case is applicable to this case also.

As to the power of the lower court to hear evidence as to the amount of special benefits, we said in the ease of Cincinnati v. Shoemaker: “If the benefits conferred are equal to the assessment there is nothing to move a court of equity to intervene by injunction;” this was approved by the Supreme Court.

Of course a court can not make the finding and deny an injunction on that ground without hearing evidence as to the special benefits.

A corollary of the above is that a trial court may hear evidence of special benefits, find the same, and then say that up to this point we will not enjoin, beyond it we will, which is practically fixing the assessment. See Schroder v. Overman, 61 O. S., 1; Walsh et al v. Sims, Treas., 65 O. S., 211; Shoemaker v. City, 68 O. S., 603.

Where, however, the assessing board has made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention.


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    NOTICE TO MUNICIPALITY OF DEFECTIVE SIDEWALK.
    [Circuit Court of Cuyahoga County.]
    Julia Payne v. City of Cleveland.
    Decided, December 24, 1903.

      Evidence — As to Notice to City of Defect in Sidewalk — Knowledge of a Policeman the Knowledge of the City, "When — Rule of the Police Department as to Observing Defects, Competent.

    1. A recognized rule of the police department, which requires policemen to note and make report, among other things, of “all coal holes left open,” is competent as evidence in a suit against the municipality hy one who has suffered injury hy falling through an open coal hole in the sidewalk.
    2. Where it is thus made the duty of a policeman to report a defect, and his attention has been called to a coal hole in the sidewalk with an insecure lid, which had tilted up from the weight of a pedestrian, causing him to fall into the hole, and the owner of the property or some one for him informs the policeman that he is unable to remedy the defect, the knowledge of the policeman becomes the knowledge of the' city, and evidence of such knowledge is competent in a suit for damages hy one who subsequently fell into the same hole.
    Marvin, J.; Hale, J., and Winch, J., concur.
   Julia Payne brought her action against the city of Cleveland to recover damages for injuries sustained by her from falling into a coal hole in the sidewalk on Pearl street near the corner of Bridge and Pearl streets in said city, by stepping onto the cover of said hole, which thereupon slipped in such wise as to leave said coal hole open. This was on June 25, 1895. The hole was in front of a brick block owned by one Henry Heil. The excavation under the sidewalk was made by said Heil under permission granted for that purpose by the city. The covering over said coal hole was an iron plate, and it is charged in the petition that said hole so covered was at the time of the injury to the plaintiff a public nuisance in that the cover thereto had become and was worn and loose in the rim surrounding it, whereby said cover had become ill-fitting and insecure, and that by reason of the shallowness of the rim around said hole into which said worn and loose cover was allowed to rest it had become easily liable to displacement when trodden upon, and was therefore highly dangerous and unsafe for persons along said sidewalk unless securely fastened from beneath, and that said cover was and for more than a month prior to the injury to the plaintiff had been wholly unfastened, unguarded and insecure, and that such condition of insecurity was at the time of the accident and for a long time prior thereto well known to said city and its officers, and wholly unknown to said plaintiff.

The defendant answered by a general denial, and further by an allegation that if the plaintiff was injured at the time and place charged in the petition said injury was contributed to by her own negligence.

Upon the trial of the ease, at the close of the plaintiff’s evidence, the defendant moved for an order directing the jury to return a verdict for the defendant, which was granted. This action of the court is complained of by the plaintiff in error, as well as certain rulings upon the introduction of evidence.

A bill of exceptions is filed here containing all the evidence introduced on the trial. From this it appears that the injury to the plaintiff occurred between three and four o’clock on the afternoon of June 25, 1895; that the sidewalk in front of the Heil building, where this injury occurred, was a broad flagstone walk; that there were five manholes in front of said building opening into coal vaults beneath; that Pearl Street is a principal street of the city, and used very extensively by pedestrians and vehicles; that as the plaintiff was walking along the sidewalk she stepped on the cover of this manhole, which immediately tilted and slipped out of place, whereby she dropped into the coal hole, catching upon her arms 'on the cover and sidewalk, but was unable to extricate herself and was helped out of this perilous position by two men. Her injuries were very considerable. There is nothing in the evidence tending to show any negligence on the part of Mrs. Payne. The evidence tended to show that, though there was a chain suspended from the under side of this cover, there was no weight attached to such chain. .The fact that the cover tilted and slipped by her stepping upon it certainly tended to show that it was insecure and in an unsafe condition at the time of the accident, and the fact, which was testified to by witnesses, that another woman fell into this hole under similar circumstances. on June 15, 1895, and still another on May 20 of the same year tended to show that this unsafe condition had existed for a considerable time. It is true that the fact of the covering being removed temporarily on each of these days for the purpose of putting in coal or for some other purpose and not immediately secured after being again placed over the hole might not be such negligence in the manner of protecting this sidewalk as would make the city liable, because the city might presume that- the weight to be attached to the chain would be immediately so attached; but if the fact was known to the city that these two previous accidents had occurred within so short a time, and if the city was further notified that the owner had not or could not or did not intend to remedy the defect, then we think the city would clearly be liable for any accident resulting from this dangerous condition of the coal hole. But where the injured party was without fault, it is claimed that no notice of such previous accidents or of the fact that the owner did not immediately after each accident properly fasten the cover is shown by the evidence.

It appears by the fifth page of the bill of exceptions that while Mrs. Pauli, a witness for the plaintiff, was being examined, she testified to having fallen into this same hole on or about June 15 of the same year, about ten days before the plaintiff’s accident occurred. She stepped onto this same cover, when it slipped and left the hole open so that her foot went into the hole, and she was prevented from falling by catching upon the sidewalk and being helped up by her daughter and another friend; that at the time of her accident a policeman of the city saw her and immediately talked with her about it. She was then asked to state the conversation she had with that policeman. This was objected to by the city and the objection sustained and a proper exception taken. Counsel for the plaintiff then stated that if the witness was permitted to answer he expected her to say that she told the policeman that she had just stepped upon the cover of that coal hole; that the cover was not fastened or secured in any manner; that it tipped up and slipped out of place, and she fell into the coal hole; that thereupon the policeman went into the store in front of which was this coal hole, and a man came out and was shown the coal hole with the cover off, by the policeman, and was told by the policeman that he must fasten or secure it, and the man then told the policeman that he could not fasten or secure it because the fastening was broken. The court then said to the jury, upon request of counsel for the city, that all that this witness had testified to in connection with a policeman should be disregarded by the jury, so that the ruling of the court was that the notice given to the policeman on or about June 15 of the condition of this opening in the sidewalk and the fact that the policeman immediately communicated that condition to some one there connected with the property and that the policeman was then informed that it was claimed by this man that the covering could not be safely fastened because the chain was broken, was wholly incompetent.

Before the evidence to which attention has just been called was offered, there had been offered in evidence on the part of the plaintiff a rule of the police force of the city of Cleveland, and it was conceded by counsel for the defendant at the time that said rule was one of the rules and regulations of the police force of the city of Cleveland, and that it was in force on June 25, 1895. Said rule, speaking of policemen, reads:

"He shall note all street and sidewalk obstructions, all defects therein from which accidents may occur, removing them when practicable and when necessary, and when no light is furnished place a good and sufficient light so that obstructions can. be plainly seen; all premises for which temporary permits are granted for building or when openings or excavations are being made and not suffer them to be continued without the proper permits being granted authorizing the same, and shall cause suitable accommodations to be provided for the public travel; all coal holes being left exposed or unsecured, all street lamps not lighted at proper times or too early extinguished, when not clean or not giving sufficient light, all wooden buildings erected contrary to law or any building defectively built or becoming unsafe, or where any noisome, dangerous or unwholesome trade is carried on, and all nuisances or violation of the laws, ordinances and all other matters relating to the safety, health and convenience of the public or to the interests of the city, and in all cases of complaint by citizens with residence * * * shall make report thereof.”

To the introduction of this rule the defendant objected and the objection was sustained, to which a proper exception was taken.

As to the introduction of this rule, it is urged, among other things, that no evidene was offered tending to show that this rule was adopted or approved by the city council of the city of Cleveland, and that the council alone has the power to constitute a police officer an agent of the city for the purpose specified in said rule. It is admitted, however, that the department itself has the authority to prescribe rules for the government of the department and to lay down duties for the different members of the force to perform. It having been admitted that this rule was one of the rules and regulations of the police force of the city of Cleveland in force on the day when the accident to the plaintiff occurred, we think there was no occasion to inquire by whom that rule was adopted. It is a sufficient showing that it was adopted by the proper authority when the admission above referred to was made by the city. , We think, therefore, that the court erred in excluding this rule. Its admission would have tended to show that whatever fact came to the knowledge of the policeman was by him reported to some authority that had the power to remedy the difficulty, for surely the presumption is, in the absence of any evidence to the contrary, that the policeman did his duty, and the requirement of the rule that he should make report must mean that he should make report to somebody who had some authority in the matter, otherwise such requirement would be absolutely a vain thing.

As against the argument that the city, if it had notice of what occurred to Mrs. Pauli on June 15, might rely upon the performance by the property owner of the duty imposed upon him of immediately making said covering secure, it seems clear that the fact which the plaintiff offered to show, that either the owner of the building or some person connected with such building notified the policeman that he could not rephir it, would be sufficient to require some action on the part of the city to make this place safe.

Attention is called by the defendant in error to the case of Chase v. Cleveland, 44 Ohio St., 505. That was a ease brought against the city to recover for an injury received by falling upon a slippery sidewalk. The syllabus reads:

“In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred is a public highway within the corporate limits; that upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident, are not sufficient to show negligence. ’ ’

In the opinion, announced by Judge Spear, page 513, attention is called to the fact that the petition is very indefinite in charging that the dangerous condition of the walk had continued for a number of days. “The term, ‘a number of days/ and ‘some days’ may mean two days, or more. Neither necessarily indicates a greater number than two.”

He says, speaking of this allegation as to the length of time, that they are “clearly insufficient to show notice to the city. So that the plaintiff is remitted, as to this essential element, to the allegation that it was possible for the city to have obtained the information. We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their public ways, or of the lives and limbs of pedestrians. The law provides that such corporations shall have the care, supervision, and control of the streets, and shall cause them to be kept open and in repair, and free from nuisance. This requires a reasonable vigilance, in view of all the surroundings, and does not exact that which is impracticable. * * * They are not bound to use all possible vigilance in inspection or in obtaining information.” It does not appear that this language in any wise tends to aid the defendant in error here.

The probability of the situation of the street rendered unsafe by snow and ice becoming known to the authorities immediately is, as Judge Spear seems to think, not probable, and he says that to give the city notice of all such unsafe places “would require a large special force involving enormous expense; * * * Such duties do not naturally fall within the province of the police force.”

This doctrine does not seem inconsistent with the proposition that knowledge of such condition of the sidewalk as was shown in that case would not be knowledge of the city, but only that the police force would not be likely to know of all such conditions of the walk because it is not their province to look for such-conditions.

In the case of Western College v. Cleveland, 12 Ohio St., 375, which was a suit brought by the college against the city to recover for loss sustained to the plaintiff’s property by the violence of a mob which was not suppressed by the police, the opinion, by Judge Gholson, is to the effect that the city is not responsible because of the failure on the part of the police force to perform its duty in suppressing a riot. We are unable to see that there is anything in the case which implies that knowledge brought to the police is not knowledge brought to the city.

The case of Wheeler v. Cincinnati, 19 Ohio St., 19, simply holds that the failure on the part of the city to provide necessary agencies for extinguishing fires does not render the city liable for damages caused by such fires, nor does the negligence of those connected with the fire department render the city so liable.

We are unable to see that this in any wise tends to show that the city is not bound by the knowledge of its police officers. It is not sought here to charge the city for the failure on the part of the police officer to repair this sidewalk, but only to hold the city for its failure to repair the walk when knowledge of its dangerous condition was brought home to the officer whose duty it was, by a rule of the department, to communicate such knowledge to the proper officers; but with this rule, we are inclined to think that the city was bound by the knowledge of the policeman.

In support of this attention is called to the case of Denver v. Dean, 10 Colo., 375. This was a suit brought by Dean for injuries sustained by stepping upon the covering of a coal hole in the sidewalk in the city of Denver. The chief of police of the city knew of the defect several months before the accident happened and had notified and instructed the tenants to have the defect cured. Pie had also mentioned it to the policeman stationed on that beat. Upon the trial the court instructed the jury:

‘ ‘ That the knowledge, concerning defects like the one in question, of the police of the city is not actual notice to the corporation; that such knowledge, if gained in pursuance of the officer’s duties and appointment, may be the means of knowledge, so as to charge the municipality with constructive notice.”

The Supreme Court of Colorado, in passing upon this, says:

“In our judgment both propositions are wrong. Whether a certain matter is in the line of a particular officer’s employment, is to be determined by construction of the statute or ordinance prescribing his duties; hence such determination is a question of law. Without discussion, but not without careful examination, we are prepared to hold that the ordinance before us sufficiently charges the chief of police with the care of coal holes and caps, as well as other obstructions, in or upon the sidewalks. Hence the court below should have instructed the jury that, if the officer had personal knowledge of the defective cap, the city should be charged with actual notice. ’ ’

From this it is evident that the ordinance of the city prescribing the duties of policemen was admitted in evidence, and that the Supreme Court considered that as proper evidence in the case. This, as we think; bears directly upon the question of the admissibility of the rules of the police department in evidence.

In the case of Rehberg v. New York (Mayor), 91 N. Y., 137, it was held that notice to a policeman of an unlawful obstruction in the street was notice to the city.

In the case of Goodfellow v. New York (Mayor), 100 N. Y., 15, where there was an obstruction upon a cross-walk and where there was an ordinance of the city requiring policemen on duty to inspect cross-walks, and the policemen had inspected, but testified that he observed nothing dangerous, and made no report, it was held that these facts were sufficient to charge the city with notice of the defect.

F. A. Beecher, Kerruish, Chapman & Kerruish, for plaintiff in error.

Newton D. Baker et al, for defendant in error.

We, therefore, reach the conclusion that the court erred in excluding the rule of the police force offered in evidence; that it erred in excluding testimony as to what was said to and by the policeman who knew of the injury to Mrs. Pauli, and in directing the jury to return a verdict for the defendant, and for these errors the judgment of the court of common pleas is reversed and the ease is remanded to that court for a new trial.


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    CONVEYANCE OF LAND FOR BURIAL PURPOSES.
    [Circuit Court of Hamilton County.]
    The Methodist Episcopal Church of Cincinnati et al v. James N. Gamble.
    Decided, February, 1904.

      Deed — For a Valuable Consideration — Conveying Land in Trust for Burial Purposes — Is a Conveyance Absolute — Subsequent Diversion of the Property to Other Uses.

    1. A deed to church trustees, conveying for a valuable consideration certain land “in trust for a place of burial, and for the use of the aforesaid church, and for any other purpose for the church aforesaid, and for none other,” is not based on any condition precedent, and vests in the church a fee simple estate, with no right of revision of forfeiture to the grantor in any event.
    2 The abandonment of the ground for burial purposes at a date long subsequent, and its conveyance to certain college trustees for college purposes, carried the right on the part of the college, to sell, mortgage or convey the premises in any manner for the best interests of the college, subject only to the duties imposed by the rights of owners of lots in that portion of the land devoted to the burial of the dead.

      James N. Gamble brought his action in the Court of Common Pleas of Hamilton County against the plaintiffs in error to quiet his. title to real estate in the city of Cincinnati. The plaintiff in error by answer and cross-petition, set forth matters of title claiming that the property had reverted to it, and praying that the defendant in error be decreed to hold said title as trustee for its benefit, to which answer and cross-petition James N. Gamble’s demurrer was sustained and his title quieted.
    The answer and cross-petition averred the following facts: A conveyance of said lands from Bernard and wife by warranty deed dated January 11, 1826, to certain trustees of the Methodist Episcopal Church of Cincinnati, in consideration of $550 “in trust for a place of burial and for the use of the aforesaid * * * church and for any other purpose for the church aforesaid, and for none other”; the habendum clause provided, “To have and to hold * # * to the only proper use and behoof of the aforesaid * # * trustees in trust for the Methodist Episcopal Church of Cincinnati, and their successors in office, for a burial place for the use of the aforesaid church and for other purposes for the benefit of said church.”
    The act of the Legislature passed March 27, 1861 (O. L., Vol. 58, p. 159), reciting that by ordinance of the city of Cincinnati, burial upon said lands was prohibited and empowering the trustees of said church to sell said real estate, and in their discretion to apply the proceeds for the use of the Wesleyan Female College of Cincinnati; on condition that should said college ever cease to exist as an institution, of said church, the whole invested property should revert to the said church trustees to be by them held according to the terms of the original trust. And by the second section of said act it imposed the duty upon the trustees of the church to properly remove the bodies buried therein and the tombstones to another suitable burial place.
    The deed dated June 10, 1862, to said college conveyed in the words: “Do hereby grant, bargain and sell and convey to the said The Cincinnati Wesleyan Female College, its successors and assigns forever”; and specifying “This conveyance, however, is made subject to all encumbrances, if any, and to the duties imposed, upon the grantors herein by the second section of said act of the Legislature of Ohio passed March 27, 1861,” and in the habendum clause, “To have and to hold the same to the only proper behoof of the said The Cincinnati Wesleyan Female College, its successors and assigns forever, subject to the duties and encumbrances aforesaid.”
    The answer and cross-petition further averred proceedings in the said court for the sale of portions of said lands, and investment of the proceeds in the erection and equipment of a building for said college; the giving of a- mortgage by it upon the lands in controversy; the foreclosure and sale under said mortgage by decree in court; the reorganization of said college; the purchase of said property; its encumbrance by mortgage to raise funds to carry out said educational enterprise; the foreclosure of said second mortgage, and the purchase of the property by Mr. Gamble, in which foreclosure proceedings, however, the said Methodist Episcopal Church of Cincinnati was not a party.
    Swing, J.; Jelke, J., and Giffen, J., concur.
   James N. Gamble brought his action in the Court of Common Pleas of Hamilton County against the plaintiffs in error to quiet his title to certain real estate situate in the city of Cincinnati. The case was heard in said court and a decree was granted the plaintiff as prayed for. This action is prosecuted in this court to reverse this judgment.

We are of the opinion that the deed of January 11th, 1826, by Bernard and wife to Benjamin Mason and others, trustees of the Methodist Episcopal Church of Cincinnati, vested in said trustees a fee simple estate with no right of reversion or forfeiture to Bernard in any event. It was for a valuable consideration and not on any condition precedent, and while it says it is in trust for burial purposes, it also says “for any other purposes for the benefit of said church.” The purposes for which it was to be used and sold was for the determination of said church by its proper authorities.

We do not see that the act of the Legislature passed March 27, 1861, added anything to or took away any right which had been granted in this deed, and it certainly did not attempt to take away from the church the interest that had been granted to it by the deed of Bernard. This would have been beyond the power of the Legislature. "What effect section two of said act may have had as to lot owners in that portion of the land devoted to the burial of the dead, does not arise in this case and need not be considered, as said lot owners are not asserting any rights here.

Wm. G. Roberts and David Davis, for plaintiff in error.

Walter L. Granger and M. L. Buchwalter, for defendant in error.

Whatever right the Methodist Episcopal Church of Cincinnati had in this real estate was conveyed by deed dated June 20th, 1862, to the Cincinnati Wesleyan Female College and its successors and assigns forever, subject to the incumbrances and the duties imposed by the second section of the act of 1862 in regard to lot owners, none of which are involved here. This right carried with it the power to sell, mortgage and convey these premises in any manner deemed best for its interests, and subject to the right of said church to see that the college was controlled by the church and in its interests. Said college borrowed money and having given a mortgage on the premises, such action was had in foreclosure proceedings that the interest of said college was sold to the Cincinnati Wesleyan College. This college also gave a mortgage and this mortgage was foreclosed and James N. Gamble became the purchaser.

We are unable to see any defect in his title; certainly whatever right defendants had passed from them long ago, and the judgment should be affirmed.


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    THE CIVIL RIGHTS STATUTE APPLIED.
    [Circuit Court of Cuyahoga County.]
    Lewis E. Johnson v. Humphrey Pop Corn Co.
    Decided, November 17, 1902.

      Colored Man Denied Privilege Because He "Was Colored — Of Bowling in a Pleasure Resort — Held to Have Been in Violation of the Statute — “Person” Includes Corporation.

    1. A pleasure resort is a place of “public accommodation and amusement” within the meaning of Section 4426-1, and to deny one the privilege of bowling in such a resort for the reason that he is a colored man of African descent is in violation of the statute.
    2. The word “person” as used in this statute includes corporation.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
   The parties here are as they were in the court of common pleas.

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

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

Our attention is called by the plaintiff to Sections 4426-1 and 4426-2, Revised Statutes, with the preamble to these sections. The preamble reads:

“Whereas, it is essential to just government that we recognize and protect all men as equal before the law, and that a democratic form of government should mete out equal and exact justice to all, of whatever nativity, race, color, persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law, therefore:
“Section 4426-1. That all persons within the jurisdiction of said state shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land or water, theaters and all other places of public accommodation and amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens.
“Section 4426-2. That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, -or by aiding or inciting such denial shall, for every such offense, forfeit and pay a sum not less than fifty ($50) dollars nor more than five hundred ($500) dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed; and shall also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty ($50) dollars nor more than five hundred ($500) dollars, or shall be imprisoned not less than thirty (30) days nor more than ninety (90) days, or both; and provided further that a judgment in favor of the party aggrieved, or punishment upon an indictment, shall be a bar to either prosecution respectively.”

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

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

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

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

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

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

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

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

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

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

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

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

A. H. Martin, for plaintiff in error.

Smith & Taft, for defendant in error.

The case of Ferguson v. Gies, 46 N. W. Rep., 718 (82 Mich., 358), was decided by the Supreme Court of Michigan in 1890. The case arose under a statute similar to ours, except that no provision is made in the Michigan statute for the recovery of damages in a civil action by one who has been deprived of the privileges provided by the statute. A punishment is provided for a violation of the statute, and it is declared that one so violating is guilty of a misdemeanor.

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

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


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    APPEAL BY A GUARDIAN AD LITEM.
    [Circuit Court of Hamilton County.]
    J. C. Harper, Trustee, v. R. L. Cilley et al.
    Decided, March 5, 1904.

      Guardian Ad Litem, — May Take an Appeal as the Representative of His Ward — Liable Individually on the Appeal Bond.

    1. A guardian ad litem,, though having no personal interest in the suit, is entitled to take an appeal as the representative of the infant, who is a party to the suit, but without legal capacity to make a defense.
    2. While the guardian ad litem may be without authority to bind the estate of his ward by the giving of an undertaking in appeal, he is nevertheless liable individually on the bond.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   This case was appealed to this court by the guardian ad litem of an infant, and the motion is made to dismiss the appeal for the reason that the guardian was not such a party to the suit as entitled him to take an appeal. Section 5003 of the Ohio Statutes provides that:

“The defense of an inf ant. must be by a guardian for the suit, and may be appointed by the court in which the action is prosecuted or by a judge thereof, or by a probate judge.”

In the case of Long et al v. Mulford et al, 17 O. S., 485, the first proposition of the syllabus is as follows:

“It is the duty of a guardian ad litem to make for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration of the court for decision. ’ ’

And at page 503, it is said that:

‘ ‘ The appointment of a guardian ad litem is not a mere matter of form. A suit against an infant can not be prosecuted without such guardian; and the object of the requirement is to secure to the infant a proper defense.”

The ease in this court is the same as that in which the guardian was appointed, and the question whether the. defense should be made for the infant can not be determined by her, but must be determined by the guardian, and if, upon full consideration he deems it advisable to appeal the case to this court, it his duty to do so.

Harper & Allen, for plaintiff.

Bromwell & Bruce, contra.

The question has never been decided by our Supreme Court, but in other states under similar statutes it has been held that the guardian ad litem has the right to take an appeal from the judgment adverse to his ward. The case of Thomas v. Levering, 73 Md., page 451, the fourth proposition of the syllabus is as follows:

“In contemplation of Section 24 of Article V of the Code, regulating appeals from courts of equity, a guardian ad litem may be a party td the suit, and as such has the right of appeal on behalf of the infants, for the purpose of protecting or advancing their interests.”

In the case of Tyson v. Tyson et al, 68 Northwestern, 1015, the Supreme Court of Wisconsin held that:

“A guardian ad litem, appointed for an infant defendant by the court in which the action is prosecuted, pursuant to Revised Statutes, Section 2613, may appeal from a judgment against the minor, without permission of court.”

It is claimed by counsel for the defendants that the guardian ad litem is not a party to the suit, and none but the party is entitled to take an appeal under Section 5226, Revised Statutes. While it is true that the guardian has no personal interest in the suit, yet he takes the place of and represents the infant, who, though a party to the suit, has not the legal capacity to make a defense.

The further claim is that the guardian ad litem who gave an undertaking for the appeal, is without authority to bind the estate of the infant, but assuming this to be true, he would nevertheless be liable individually upon the bond.

The motion will therefore, be overruled.