text:
    Brinkman v. Drolesbaugh.

      False imprisonment — Definition—Motive and want of probable cause — Prosecuting witness or officer — Truth or falsity of complaint — Void and voidable affidavits, processes, etc. — Exemption from liability • — Judicial, administrative and executive officers — Criminal adjudication not conclusive, when — Sufh- - ciency of aMdavit — Negative averments.

    1. False imprisonment is a legal term defining a legal status known in law as an unlawful detention or illegal deprivation of one’s liberty.
    2. False imprisonment per se is not concerned with good or bad faith, malicious motive or want of probable cause on the part of the prosecuting witness, or the officer causing the imprisonment. If the imprisonment was lawful, it is not the less lawful that any or all of the foregoing elements existed. These elements relate to an action of malicious prosecution, but are not essential to an action in false imprisonment.
    3. Whether or not the complaint is true or false is of no concern in an action for false imprisonment. Such inquiry may be essential to an action in malicious prosecution. Whether or not the complaint in the form of affidavit, information or indictment is or is not sufficient in law to charge an offense is likewise per se insufficient to furnish the basis of an action in false imprisonment.
    4. The law relating to false imprisonment classifies affidavits, in-formations and indictments into “void” and “voidable.” The “void” class includes' those setting forth facts which in no conceivable form can constitute a criminal offense; or if they might constitute an offense, the court issuing the process had no jurisdiction over such offense or the person charged with the offense. The “voidable” class includes those where a bona fide attempt has been made to charge a. possible offense under the statute, but by reason of some defect or irregularity such charge is per se insufficient in law. As to such “voidable” complaint, or “voidable” processes issued thereon, there can be no false imprisonment per se.

    5. Judges and magistrates whose courts have jurisdiction of an offense, sought to be charged in a complaint by affidavit, information or indictment, but which complaint is insufficient in law, are, on grounds of public policy, exempt from liability for false imprisonment by virtue of any criminal process issued on such complaint.
    6. By the same public policy, the administrative or executive- officer, whether he be constable, policeman, game warden, sheriff, or any other authorized officer of the state, whose duty it is under the law to serve the process of such court, is likewise exempt from any liability arising from an imprisonment by virtue of such process, which is prima facie regular.
    7. An adjudication in a criminal cause to the effect that the complaint was insufficient in law to charge an offense is not conclusive upon the officer serving the process in an action of false imprisonment against such officer. The question of the sufficiency or insufficiency of the complaint may be inquired of anew and if such complaint be found sufficient in law that is an end to the controversy in the officer’s favor, providing the process upon which the false imprisonment was based was prima facie regular.
    8. In this case the court finds that the affidavit which led to the imprisonment of defendant in error was sufficient in law. The absence of the negative matter complained of by the defendant in error was not essential to the legal sufficiency of the charge, nor to advise him of the “nature of the accusation against him.” (Hale v. State, 58 Ohio St., 676, approved and followed.)
    (No. 15610
    Decided January 22, 1918.)
    Error to the Court of Appeals of Crawford county.
    Brinkman was deputy state fish and game warden. He presented an affidavit to Frank E. Lamb, a justice of the peace, charging as follows:
    “That on or about the 21st day of January, A. D. 1913, one Thomas Drolesbaugh did unlawfully, purposely and wilfully have in his possession a device for catching fish other than a hook and line with bait or lure, to-wit, a seine, in the inland fishing district of the state of Ohio, and that such offense was not committed in the presence of the undersigned deponent and further deponent sayeth not, contrary to the statutes in such case made and provided and against the peace and dignity of the state of Ohio.
    “'William F. Brinkman,

      "Game Warden."

    Upon this affidavit said justice of the peace issued a warrant and delivered the same to said Brinkman, who made his return thereon as follows:
    “I have arrested the within named Thomas Drolesbaugh and have his body now before the justice of the peace this 7th day of July, 1913.”
    After some continuances the case was transferred to another justice of the peace, who heard the cause and found the defendant guilty as charged. Thereupon error was prosecuted to the court of common pleas, which affirmed the judgement below. Error was prosecuted to the court of appeals, which reversed the judgment of the court of common pleas upon the ground that the affidavit did not state an offense against the laws of the state of Ohio.
    Thereupon Drolesbaugh filed his petition in the court of common pleas of Crawford county against said William F. Brinkman and Frank E. Lamb, as justice of the peace, praying for damages against them for false imprisonment. Upon trial had in the court of common pleas, verdict and judgment was rendered against the defendant Brinkman, the defendant Frank E. Lamb on motion being discharged.
    Upon error to the court of appeals the judgment of the court of common pleas was affirmed, and by leave of the court error is now prosecuted here to reverse the judgments below.

      Mr. Joseph McGhee, attorney general; Mr. L. D. Johnson; Mr. O. W. Kennedy, prosecuting attorney, and Mr. W. J. McLaughlin, for plaintiff in error.

      Mr. Edzvard J. Myers, for defendant in error.
   Wanamaker, J.

This is not an action for false arrest or malicious prosecution. It is an action for false imprisonment. What is false imprisonment?

False imprisonment is a legal term and means just what the words themselves imply, a wrongful or unlawful detention or restraint of one’s liberty. The question always is, Was he deprived of his liberty unlawfully?

Under the facts of the case he may have been entitled to his liberty. One may be acquitted upon the merits of the case or discharged upon some question of law, but that does not, in and of itself, constitute false imprisonment.

Under the law, Was he entitled to his liberty as against the act of the person charged with false imprisonment? This is the question to be determined by a court under due process of law.

No system of jurisprudence has yet been invented that will be infallible when administered by fallible man. Mistake and injustice will occur to the individual under any judicial system, in the application of either civil or criminal jurisprudence.

The sole question here is, Was Drolesbaugh legally deprived of his liberty by Brinkman? The points in dispute are, therefore, purely legal, and do not involve probable cause or malice. The mental attitude of Brinkman, the game warden, is wholly irrelevant.

It is admitted that the justice of the peace had jurisdiction of the class of offenses sought to be charged against Drolesbaugh. That there was a bona fide attempt to charge an offense under the laws of Ohio against Drolesbaugh is not denied. Neither is it claimed that there was any unnecessary force used in the execution of the process.

The whole contention in this case is based upon the claim that the affidavit filed before the justice of the peace, upon which he issued his process, did not charge an offense against Drolesbaugh, by reason of the fact that it did not expressly negative certain matters found in the statute.

The original charge in this case was brought under favor of Section 1426, General Code, which reads as follows:

“No person shall draw, set, place, locate, maintain or have in possession a pound net, trammel net, fyke net, set net, seine, fish trap, throw or hand line, * * * or any other device for catching fish, except a hook and line with bait or lure, in the inland fishing districts of this state, * * * but nothing herein shall prohibit an owner or person having the owner’s consent from taking or catching a fish by a trot line, bob line, or by spearing, in that part of the stream bordering on or running through his own lands.” '

No claim seems to be made that there was anything in this statute ipso facto that needed to be negatived in order to state an offense. Reliance, however, is put upon Section 1433, General Code, which reads:

“No person shall take, catch, buy or sell minnows, except for bait, or ship ‘white bait,’ except alive, out of the state. In the inland waters of the state no minnows shall be taken or caught with a minnow seine exceeding four feet in depth and eight feet in length, and in Lake Erie fishing district no minnows shall be taken or caught with a minnow seine exceeding thirty feet in length.”

In the criminal case against Drolesbaugh the court of common pleas and the court of appeals both held that the affidavit was insufficient, and in the trial of the civil case that adjudication was adhered to. But in the case at bar this is not conclusive as against Brinkman.' He was not a party in the criminal cause, and, therefore, said action does not stand as res adjudicata against him, but is open here for full review.

If the affidavit did state an offense under the laws of Ohio, then there is an end to the entire controversy, in favor of Brinkman.

Numerous cases have been decided by this court as to the sufficiency of affidavits and indictments in cases involving statutes containing negative matter.

One of the best considered cases of this character is that of Hale v. State, 58 Ohio St., 676, which was an indictment under the so-called medical act, which failed to aver that the defendant “was not a graduate of a medical college, or that he was not .a legal practitioner of medicine when the statute was enacted.” These two classes were made exceptions to the provisions of the act, and it was contended most strenuously in the lower courts that the indictment should have negatived these two classes.

This court very wisely held to the contrary. The language of the fourth paragraph of the syllabus is especially apropos here:

“Where an exception or proviso in a criminal, statute is a part of the description of the offence, it must be negatived by averment in the indictment in order to fully state the offence; but when its effect is merely to except specified acts or persons from the operation of the general prohibitory words of' the statute, the negative averment is unnecessary.”

In later years courts are not making a mockery of the ancient technical rules of pleading with regard to strictness and particularity. They follow and safeguard the constitutional rights of an accused to know “the nature of the accusation against him,” and that is sufficient.

If the acts complained of in this case were within the exception, the defendant’s rights were fully protected by permitting him to set them up in defense. These were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within such exceptions. Had the legislature intended the exceptions mentioned to be made a part of the description of the offense, the presumption certainly is that it would have included them in the statute that created the offense.

The affidavit filed before the justice of the peace did state an offense, and, therefore, the process issued and served, by virtue -of which Drolesbaugh was imprisoned, does not furnish any ground whatsoever for complaint by him in the nature of false imprisonment.

But we are not disposed to determine this case solely upon the affidavit, though that is decisive.

Suppose the affidavit did not state an offense, and, therefore, was actually demurrable, or subject to motion, would the game warden then have been liable for false imprisonment?

This is a matter so vital to the state at large and all its political subdivisions, so vital to all of the police officers of township, city, county and state, that it deserves special consideration in this case.

Must the officer, when he receives a process from a court of competent jurisdiction, said process to be served and returned agreeable to the orders thereof, go back of the process and inquire, at his own peril, as to whether or not there was sufficient affidavit, or sufficient legal steps taken, preliminary to the issuing of the process; and if he judges wrong in that respect, or fails to make the inquiry, shall he be penalized by an action at law for damages for false imprisonment? If that be sound law, then it is time that the people of Ohio, and every police officer of the state, should know the fact; and yet that is the holding of the courts below. That such a holding would absolutely paralyze the police administration of the state in the enforcement of its law is so obvious as to leave no argument.

Primarily, government is instituted to preserve law and order. A government without law and order is already upon the shoals of anarchy. Law and order are impossible without the hearty, vigilant and efficient cooperation of the administrative and executive officers of the state — its police authorities. It is expressly made the duty of these police officers to serve and enforce the processes of the various courts.

In discharging this public duty can it be consistently claimed that the officer of the law, in this case a game warden, shall be held to have violated some other duty that he owed to the, defendant, Drolesbaugh, in this case? Shall, in short, this private duty, which may be conveniently so called, be held of a higher order or paramount to the public duty that he owes to the community, to the state, or any of its political subdivisions, in the enforcement of the processes of its courts ?

Public policy forbids such a holding.

If the acts complained of be made an offense under the law, and the court have jurisdiction of such offense, and the process be regular upon its face, it becomes the officer's sworn duty to serve the same and make a return thereon; and, though some one may be wronged thereby, the law has uniformly protected the magistrate in the issuing of the process against an action for false imprisonment. If the magistrate shall be protected, who is responsible for the issuing of the process, how can it be consistently claimed that his subordinate, the process-server of his court, shall be held liable for false imprisonment when he has done nothing more nor less than discharge his simple duty under the law ?

There is no “unlawful detention” where the law specially warrants the proceedings taken, though they may be irregular.

Of course if a magistrate issued a criminal warrant on an ordinary charge of slander against some man, which is not made an offense under the laws of the state of Ohio, and the officer served it and imprisoned some one, that would doubtless serve as a basis of action for false imprisonment, because there is no such offense; or if a magistrate issued a criminal warrant in a simple action for debt, and caused the police officer to serve the same. In both such cases it would be most obvious that the magistrate acted entirely beyond his jurisdiction. The magistrate is not protected in such case. Neither is the officer serving his process.

One of the earliest cases in Ohio dealing with the subject of false imprisonment is Taylor v. Alexander et al., 6 Ohio, 144. The syllabus reads as follows:

“2. In trespass against a constable and one of his posse, irregular process from a court having jurisdiction of the person and the subject, is a justification, notwithstanding the preliminary steps to the process are irregular.”

Judge Wright, in delivering the opinion of the court, observes at page 147:

“The principle is well established, that executive officers, being obliged to execute process, are protected in the rightful discharge of their duty, provided the process issued from a court or magistrate having jurisdiction of the subject-matter. • And if the magistrate proceed unlawfully in issuing the process, he, and not the executive officer; will be liable for the injury. * * * The executive officer is justified, even when the process under which he acts is voidable for irregularity or mistake in issuing it.”

A later and well-considered case is Diehl v. Friester, 37 Ohio St., 473, 475, where an action of false imprisonment is discussed in these words:

“In trespass for false imprisonment, the gravamen is the unlawful act of the defendant. Case for malicious prosecution may be maintained where a proceeding is carried on maliciously and without probable cause. While an action for malicious prosecution may be maintained, notwithstanding the plaintiff was imprisoned upon a perfectly valid judgment or order, an action for false imprisonment cannot be maintained where the wrong complained of is imprisonment in accordance with the judgment or order of a court, unless it appear that such judgment or order is void. And this distinction is as important now as under the former practice. Spice v. Steinruck, 14 Ohio St. 213.”

Throughout, the courts make the distinction between a void and voidable process. If the proceedings upon which the process is issued are merely irregular or defective for want of some allegation, but do constitute a bona fide attempt at regularity and validity, the mere fact of some defect does not make the affidavit and process void.

An examination of the cases of the various states discloses some confusion between the words “void” and “voidable,” as applied to the processes of a court. Of course a process issued beyond the jurisdiction of the court is clearly void. It is incurable, and any process not curable, that is, amendable, is not merely irregular, but absolutely void, and as against such processes, and the imprisonment resulting therefrom, the officer of course is not protected.

It may be urged that courts must not concern themselves with the consequences resulting from the application of the law. This doctrine is doubtless true as to a clear and complete legislative act. The question of the wisdom of the act resides solely in the judgment of the legislature, providing always that it is within their constitutional right to enact. But the doctrine of this case does not depend upon a legislative act, but upon a judicial act, or holding, and courts in declaring the law applicable to any given state of facts, must, of necessity, consider the consequences to the public at large as well as to the private individual involved in such holding.

Sir Edward Coke has well said:

“Reason is the life of the law; nay the common law itself is nothing else but' reason. * * * the law which is perfection of reason.”

Results from the operation of the law are, therefore, of the highest consequence in determining whether or not the rule of law is’ supported by reason. The presumption is that a reasonable law will produce reasonable results, and that if the results are unreasonable the rule of law must be unreasonable, and, therefore, that the so-called law should be abrogated or amended so as to m'ake it accord with reason. If the law complained of be legislative, it is the duty of the legislature to make the needed change. If, however, the law complained of be judicial, then it is up to the judiciary to make the needed change.

It is impossible to refute or reconcile all the holdings of the different courts upon these questions. Suffice it to say that what is here set forth is thoroughly in accord with the wholesome and sound public policy in favor of law and law enforcement, and is absolutely essential to a proper encouragement and protection of all officers of the law, and the general public, who are the beneficiaries of its enforcement.

The judgments of the courts below are reversed.

Judgments reversed. ■

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    Fabian v. The State of Ohio.

      Criminal law — Reversal of judgment — Limitation of cross-examination— Homicide — Absence of motive — Charge to jury — Bias and prejudice — Juror member of grand jury.

    1. Reviewing courts will no't reverse a judgment of a trial court because of a limitation of cross-examination of a witness, unless it clearly appears that there has been an abuse of discretion therein, resulting in manifest prejudice to the complaining party.
    2. The proof of motive is not essential to a conviction of the crime f homicide, and where the commission of the crime by the accused is clearly established by direct evidence a judgment of conviction will not be reversed because of the following instruction: “The law does not require the state to prove motive in this case. The presence or absence of motive shown by the evidence may be considered by you in determining intent, or its presence or absence in the mind of the accused, so that if you find beyond a reasonable doubt that the defendant is guilty under the instructions which the court gives you, then you should find him guilty whether or not a motive has been established.”
    3. Prejudice will not be presumed to have resulted to the rights of á defendant from the fact that a juror in the case was a member of a grand jury which in the investigation of a charge against a person other than the defendant had received evidence of a witness who later testified similarly upon the trial of the defendant, where it appears that such evidence did not relate to the merits of the charge in the latter case and it does not appear that the juror untruthfully' answered questions asked upon his voir dire examination.
    (No. 15659
    Decided January 22, 1918.)
    Error to the Court of Appeals of Summit county.
    The facts are stated in the opinion.

      Mr. Arthur■ S. Mottinge'r and Mr. Thomas F. Turner, for plaintiff in error.

      Mr. C. G. Roetzel; Mr. W. A. Spencer and Mr. Robert Guinther, for defendant in error.
   Matthias, J.

The defendant, Peter Fabian, was indicted for the murder of Joseph Ferguson, and upon trial the jury rendered a verdict of guilty of murder in the first degree, with a recommendation of mercy. A motion for a new trial was overruled and sentence imposed. ■ Upon proceedings in error the court of appeals rendered a judgment of affirmance. There are several assignments of error upon the part of the trial court.

It is complained that the court unduly and improperly limited the. cross-examination of the state’s witnesses.

The rule is quite well established that the limitation upon cross-examination rests largely in the discretion of the trial judge, and that only in cases of clear abuse of discretion, resulting in manifest prejudice to the complaining party, will reviewing courts reverse the judgment of the trial court. Upon review, therefore, the question to be determined is whether the discretion committed to the trial court in such matters has been abused, resulting in manifest prejudice to the complaining party.

The action of the trial court in limitation of cross-examination particularly complained of in this case occurred with reference to certain questions asked of witnesses who were present when the defendant was arrested at his room shortly after the commission of the crime. The officers upon going to the room of the defendant demanded that he get up and dress, which he did. After the state had closed its case the defense requested that certain witnesses for the state be recalled and further opportunity afforded the defense for cross-examination. One of those witnesses was officer McClister who made the arrest. He was asked upon cross-examination what conversation he had with the defendant with reference to a hat. An objection to that question was sustained. Counsel for the defendant at the time stated that if opportunity were afforded it would be shown that the officer directed the defendant to wear a hat, a brown or green hat which he had in the room, but that the defendant told him he wanted to wear a cap. The question at once arises as to the materiality of this evidence, and whether- prejudice resulted to the defendant from its exclusion. It is contended that it was important because of its effect upon the question of identification of the defendant as the man who stabbed Ferguson.

The only theory upon which we are able to see that this item of evidence could possibly have aided the defendant is that the officer in making such request, if he did make it, acted upon the suggestion of some one who claimed to have witnessed the commission of the crime that the person who slew Ferguson wore a hat, and that the officer’s request that the defendant put on a hat was for the purpose of having his appearance conform as nearly as possible to the description of Ferguson’s murderer, as theretofore given him. The record discloses no evidence tending to support any such theory. The contention made by counsel for defendant that such evidence was material and its exclusion prejudicial loses much of its force by reason of the fact that counsel both upon argument and in brief stated that the accused desired to wear a certain green-colored hat and that “the officer making the arrest remonstrated with him and made him wear a cap which is attached to this record as ‘Exhibit A’,” which is just the opposite of the claim made in the offer of proof, as shown by the record.

Ferguson was stabbed while standing at the curb near the Moscovitz saloon in Akron. The crime was committed near midnight, November 24, 1915. Three of the state’s witnesses saw the blow struck. There was no confusion; no quarrel; no words were spoken. Ferguson had his hands in his pockets, a package under one arm. The man who committed the crime, after passing two of the state’s witnesses, walked in front of Ferguson, struck a back-handed blow, and moved at a rapid walk across the street, where he joined some companions awaiting him and passed on down the street. Ferguson was stabbed in the heart. He sank to the walk and expired without uttering a word. These witnesses had but a few minutes before come from the Moscovitz saloon, as had also Ferguson and the defendant. They were standing near Ferguson when he was stabbed. Their identification of the defendant as the man who committed the crime was clear, convincing and complete.

It is difficult to see upon what theory the defendant was prejudiced by the exclusion of evidence that the officer directed him to wear a hat, in view of the conclusive nature of the testimony that on the night of the murder he was wearing a cap — the cap attached to the record as an exhibit.

The defendant was arrested in his room about an hour after the murder occurred. A knife was taken from the pocket of his trousers, upon the blade of which was a discoloration which witnesses who then saw it testified was blood. After the first trial of the case the blade was scraped for the purpose of obtaining a chemical analysis of the substance on it, which upon the second trial experts pronounced to be blood.

Objection was made to the admission of the knife in evidence, because of its changed condition. Such changes and the cause thereof were fully described and explained, and there was no error in. the admission of the knife as evidence in the case.

In the course of the general charge the trial court said: “The law does not require the state to prove motive in this case. The presence or absence of motive shown by the evidence may be considered by you in determining intent, or its presence or absence in the mind of the accused, so that if you find beyond a reasonable doubt that the defendant is guilty under the instructions which the court gives you, then you should find him guilty whether or not a motive has been established.”

It is urged that this charge is erroneous in that it did not inform the jury that the presence or absence of a motive for the killing of Ferguson by the defendánt might be considered by them in determining whether the defendant committed the crime. There is little evidence of motive. The defendant had been drinking during the evening and it seems likely his mind was in condition to form an indiscriminate purpose to kill some one. That the killing of Ferguson resulted from mistaken identity is suggested by the evidence of two witnesses that the defendant stated upon his return to his room that he had “killed a Serbian.” The defendant is a Roumanian by birth, but is a subject of Austria-Hungary.

The language used by the trial court is inapt and the instruction incomplete, but in view of the record we do not regard the charge as prejudicially erroneous, nor does it seem that counsel for defendant so considered it, for no exception was noted to the charge; nor was there any request for further instruction upon the question of^ want of motive, or otherwise. Ten separate instructions, some at considerable length, were requested by counsel for the defendant, and the court gave all of them. None touched the subject of motive.

Motive is not an element of the crime of homicide required to be established to warrant a conviction. Proof of motive does not establish guilt, nor want of proof of motive establish innocence. If the guilt of the accused be shown beyond a reasonable doubt, it is immaterial what the motive for the crime, or whether any motive be shown. In doubtful cases the element of motive may be quite material in the determination of the guilt or innocence of the accused. But where the evidence, is direct, and is so clear and convincing, and so thoroughly and completely establishes the guilt of the accused as does the evidence in this case, a verdiet of not guilty on the ground that the jury could find no motive for the commission of the crime would be an absurdity. A reversal by this court and a new trial on the ground urged would be no less a miscarriage of justice.

It is further urged that the defendant did not have a fair trial by an impartial jury because of the fact that one of the jurors had served on the grand jury before which one of the witnesses in this case testified during the investigation of a charge of perjury against Vaslo Fabian, a brother of the defendant in this case. The juror was not a member of the grand jury which returned the indictment against the defendant. It appears that one witness testified before the grand jury of which such juror was a member and gave similar testimony upon the trial of the defendant. That evidence, however, did not relate to the merits of the charge in this case, and it does not appear that the juror untruthfully answered the questions put to him on his voir dire examination, or that he knew anything about the merits of this case.

We deem it unnecessary to discuss other assignments of error. In the opinion of the court the record discloses no error prejudicial to the rights of the plaintiff in error.

Judgment affirmed.

Wanamaker, Newman, Jones and Johnson, JJ., concur.


author: Johnson, J.

text:
    Pollitz et al. v. The Public Utilities Commission.

      Railroads — Stock and bond issue — Capitalization of replacement of equipment — Jurisdiction of public utilities commission — Review by court.

    1. By the provisions of Section 614-53, General ’Code, the public utilities commission is empowered to grant authority to any public utility or railroad to issue stocks, bonds, notes and other evidences of indebtedness, payable at periods of more than twelve months after date, when necessary for the acquisition of property, the construction, completion, extension or improvement of its facilities, and for other purposes specifically set-forth. But that section does not permit the capitalization of replacements -of equipment or any physical property. These .must be kept up from income.
    2. The question as to what expenditures shall form the basis of permanent capitalization of a public utility or railroad is one to be considered not only by the corporation, but by the public utilities commission, when applied to for authority to issue stocks, bonds, notes or other evidences of indebtedness which' are to become a part of the corporation’s- permanent capitalization.
    3. Where such an application is made -to the public utilities commission the question of fact as to whether such expenditures are for replacements of equipment, or of any physical property, is for the determination of the commission, and its order will not be set aside by this court unless it appears from the consideration of the record that it was unreasonable or unlawful.
    (No. 15685
    Decided January 22, 1918.)
    Error to the Public Utilities Commission.
    The New York Central Railroad in November, 1916, filed its application with the public utilities commission of Ohio, in which it set forth that it was in need of additional equipment and had determined to secure the use thereof through a trust agreement to be dated January 1, 1917, which was to be known as the “New York Central Railroad Equipment Trust of 1917.” The application prayed for the approval of the commission to the agreement between the railroad' company, John Carstensen and others, as vendors, and the Guaranty Trust Company of New York, as trustee. A draft of the trust agreement was attached to the application.
    This instrument discloses that the vendors were to procure from equipment manufacturers rolling stock to cost about $15,000,000, and similar equipment thereafter, all of which was to be placed in the trust. It was to be delivered to the trustee, which was to lease it to the railroad company for the term ending January 1, 1932, by leases specifically provided for in the agreement. The company was to pay 20 per cent, of the cost in cash and the remaining 80 per cent, was to be paid from the proceeds of the sale of equipment trust certificates to bear dividends at 4\ per cent, per annum, falling due in 15 annual installments, beginning January 1, 1918. The total amount of the trust certificates should not exceed $19,995,000, and the railroad company should guarantee payment of the principal of the trust certificates, and the dividends thereon. The title to the equipment was to remain in the trustee until full compliance by the company with the terms of the agreement, at which time it was to be conveyed to the lessee.
    It was provided that in case of default by the company, the trustee, on the request of the holders of a majority of the trust certificates, might declare the principal of such outstanding certificates to be immediately due and terminate the lease and take possession of and sell the equipment or such of it as might be necessary. A schedule of the equipment was attached to the application, which prayed for authority to issue certificates to an amount representing 80 per cent, of the above-named cost of $15,000,000, to-wit, $12,000,000, and for authority to sell them at a price that would net not less than 75 per cent, of their par value.
    After hearing, the commission, on November 25, 1916, granted the application, and pursuant to this authority certificates were issued and are now outstanding to the amount of $8,205,000, the proceeds of which were used to pay 80 per cent, of the purchase price of a portion of the equipment in the schedule.
    In May, 1917, the company filed a supplemental petition, in which it set out that it had partially executed the order of November 25, 1916, and that it was in need of further additional equipment, which was described, which it desired to obtain through the equipment trust. A schedule of such equipment was attached to the second petition, in which it was stated that all of the equipment now desired to be included in the trust would cost approximately $10,689,700. The prayer of the supplemental petition was for authority to issue the balance of the $12,000,000 theretofore authorized, such balance being $3,795,000, and an additional amount of $4,755,000, or a total of $8,550,000 of trust certificates, to be sold at a price that would net not less than 93 per cent, of par, and to pledge such certificates in advance of their sale as security for moneys borrowed, to meet such 80 per cent, of the cost of the additional requirement. The prayer of this petition was granted on June 25, 1917. As a result of both orders the commission has given its approval to the issuance of certificates amounting to $16,755,000, the proceeds of which are to be devoted exclusively to the payment of 80 per cent, of the cost of the additional equipment set out in the schedules.
    The plaintiffs in error at the hearings of these applications objected to the granting of the prayers. They filed an application for a rehearing of the supplemental petition on the following grounds:
    “First: That the applicant is not lawfully organized, being an illegal consolidation and without a lawful board of directors.
    “Secondly: That the proposed issue of equipment trust certificates is not. necessary under General Code Section 614-53 in view of the diversion of the capital of the applicant company from the legitimate objects of its creation; impairment of its capital from depreciation of equipment already accrued; and in view of thé great amount of available resources which the applicant may readily realize in cash wherewith to provide the equipment desired.
    “Thirdly: That the supplemental order unlawfully allows the applicant to pledge the proposed equipment trust certificates for money borrowed, thus creating a double liability in the issuing q£ two sets of obligations for one purpose. •

      “Fourthly: That the application herein is founded upon a resolution of the board of directors of the applicant company which is void in view of the holdings of said directors contrary to General Code Section 6789 [8789].
    “Fifthly: That the application is insufficient upon its face.
    “Sixthly: That upon the evidence herein the application cannot lawfully be granted.
    “Seventhly: That the Commission erred in ' granting the application.”
    This application was overruled and petition in error was filed in this court to reverse the orders of the commission.

      Messrs. Henry, Pauver, McGraw & Thomsen, for plaintiffs in error.

      Mr. Joseph McGhee, attorney general; Mr. C. 'A. Radcliffe and Mr. S. H. West, for defendant in error.
   Johnson, J.

Jurisdiction to entertain applications of the nature of the one here involved is conferred upon the public utilities commission by Section 614-53, General Code, and the procedure to be followed is definitely laid down in the succeeding section.

Section 614-53 permits the granting of authority to issue stocks, bonds, notes and other evidences of indebtedness, when necessary for the acquisition of property, the construction, completion, extension or improvement of facilities, etc., under circumstances specifically set forth. But the section does not permit the capitalization of replacements of equipment or any physical property. These must be kept up from income.

Attached to the supplemental application is the company’s general balance sheet of March 31, 1917. This discloses among the items of liability one of “accrued depreciation of equipment” amounting to $28,959,720.95.

The testimony showed that there had been recently a substantial increase in that item. From this it is argued that the company was then and had been engaged in capitalizing the cost of replacements; that, therefore, the authority granted by the commission to issue the proposed equipment-trust certificates violates the provisions of the sections of the General Code above referred to. Depreciation of course begins when equipment is put into service, and continues until it is retired. It does not all wear out at once, and except in cases of destructive accidents or unusual circumstances its wearing out is gradual, differing in different parts of the equipment. Under normal conditions, the necessity for replacements arises with comparative uniformity 'both as to extent and charge, and such should be met out of current income. But for unusual situations, and for retirements, it is necessary to create á fund to maintain existing conditions, and this is stated in the depreciation account. It is manifest that it would be wholly improper to allow the cost of necessary .replacements to be added to the capital liability of the corporation, while its entire income was being consumed otherwise. It was evidently with this condition of things in mind that the legislature imposed upon the commission the duty of inquiring into the nature of the expenditures of the corpor ration and of determining what part thereof might be charged to capital account, for betterments, and what part had been expended for maintenance and replacements, and therefore required to be paid out of income.

In the case of People, ex rel. Binghamton L., H. & P. Co., v. Stevens, 203 N. Y., 7, the court of appeals of New York had before it a statute almost identical with ours. It is said, at page 21: “The question as to what- expenditures are a proper basis for permanent capitalization is an important one, always a proper and necessary subject for consideration, not alone by the directors of a corporation, but -by any commission that has authority to grant or withhold its consent to the issue of new stock or bonds which are to become a part of the corporation’s permanent capitalization.”

It was there shown that' the commission had authorized replacements to be capitalized, and that the applicant had not carried any account to provide that the retirements should be borne by income, and the court found that it was the duty of the commission to determine whether the stocks and bonds proposed by the relator were to secure money to pay floating indebtedness incurred in the ordinary running expenses of the corporation. In that case it was held that property paid for and charged to capital account, but which necessarily becomes obsolete or wholly worn out within a period of years, should be renewed or replaced by setting aside from time to time an adequate amount in the nature of a sinking fund or that by some other system of financing the corporation should put upon, the purchaser from the corporation the expense not aloné of the daily maintenance of the plant but a just proportion of the expense of renewing and replacing that part of the plant which although not daily consumed must necessarily be practically consumed within a given time.

In the well-known case of City of Knoxville v. Knoxville Water Co., 212 U. S., 1, the court, referring to the company, said at page 13: “It is entitled to see that from earnings the value of the property invested is kept unimpaired, so that at the end of any given term of years the original investment remains as it was at the beginning. It is not only the right of the company to make such a provision, but it is" its duty to its bond and stockholders, and, in the case of a public service corporation at least, its plain duty to the public.”

In recognition of the wisdom of this general principle, with regard to public utilities, the general assembly of Ohio has provided by Sections 614-49 and 614-50, General Code, that every public utility shall carry a proper and adequate depreciation or deferred maintenance account, whenever the commission after investigation shall determine that a depreciation account can be reasonably required; also for the creation of a depreciation fund, which may be used for the purpose of renewing, restoring or substituting depreciated property in order to keep the plant in a state of efficiency. And it is provided that the fund shall be disposed of upon the approval of the commission.

It would seem that the reasons for these statutory provisions would apply equally to railroads, and that the wisdom of the maintenance by the applicant company in this case of the accrued depreciation account referred to would be sufficiently justified, and is really required. The inference drawn by the plaintiffs in error from the presence of this item in the statement of the company is not warranted, although its growth and amount are so large and impressive as to challenge the attention and insistent inquiry of the commission. Such an account properly constituted does not represent an impairment of capital — it is a charge against income.

If this account, and all others, is carefully inquired into by the commission when applications and statements are filed with it, a service of great importance to the public and to stockholders will be rendered.

Now, in this case, the contention of the plaintiffs in error is that the record shows that the issue of the - certificates which is sought to be authorized will amount to a capitalization of the cost of replacements. There was considerable evidence introduced, including the statements of the company and the testimony of witnesses, touching the purposes for which the certificates are to be issued.

The commission has found and has included in its order that the issuance of these certificates was necessary and their proceeds reasonably required “for the acquisition of additional rolling stock equipment and the extension and improvement of applicant’s facilities.” It has not found, and we are not cited to any evidence to such effect, that the equipment in the 1917 trust is for the replacement of retired equipment. There was considerable equipment retired, which must be provided against out of income.

If the expenditure so to be capitalized is for additional equipment, then of course the fund referred to in the item of accrued depreciation would not be used for such acquisition. It is the duty of the commission to carefully inquire into the entire situation and to determine the truth in such a matter, and when this has been done, and no abuse of discretion or similar fault is alleged, this court will not substitute its judgment for that of the commission, upon which the legislature has imposed the duty of rendering the valuable public service referred to. This principle has been established in Hocking Valley Ry. Co. v. Public Utilities Commission, 92 Ohio St., 362. There was in reality merely presented a question of fact to be determined from the evidence: Was the property which was put into the Equipment Trust of 1917 really to take the place of equipment worn out or retired, or was it intended to and did it actually extend and improve the company’s facilities ? Was it an addition to its substantial inventory of rolling stock? We are not able to find that the commission’s answer to that question is not sustained by the record.

The statutory provisions are clear and explicit, and when these are not shown to have been disregarded the proceeding must be approved. Nor do we find that the provision in the order of the commission which permits the applicant to pledge the trust certificates at the státed ratio, pending their sale under the order, amounts to the creating of a double liability. The trust certificates are not the obligations of the trust company. The trust agreement expressly provides that the trust company shall not incur any obligation on the certificates or dividend warrants pertaining thereto. The certificates are the obligations of the railroad company. When sold the purchaser holds the obligation. When pledged as security for a loan the pledgee holds the certificates as • security for his loan. The terms of the arrangement, their wisdom, practicability and safety, are matters for the company, subject to the order and approval of the commission.

We have carefully considered the other assignments of error, but we do not find any error in the record, and the order of the commission will be affirmed.

Order affirmed.

. Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.


author: Newman, J.

text:
    The Sylvania Home Telephone Co. v. The Public Utilities Commission of Ohio et al.

      Public utilities commission — Jurisdiction — Competing telephone companies — Certificate of public convenience — Authority to require same — Or order operation discontinued.
    The public utilities commission is not authorized to issue an order requiring a company to cease the operation of its plant for the , furnishing of telephone service or to compel such company to apply for the certificate contemplated by the provisions of Section 614-52, General Code.
    (No. 15594
    Decided January 22, 1918.)
    Error to the Public Utilities Commission.
    The Sylvania Home Telephone Company for a number of years has been engaged in the business of operating a telephone system in the village of Sylvania and the townships of Richfield, Sylvania and Spencer, Lucas county, Ohio. This company filed a complaint with the public utilities commission in which it was alleged that the service furnished by its telephone plant was adequate and-sufficient and all that was necessary for the public convenience in the localities in which it operated. It complained that The Berkey Farmers’ Mutual Telephone Company had constructed and was operating a telephone system in Richfield township and had constructed telephone lines paralleling those of complainant and that The Berkey Farmers’ Mutual Telephone Company was attempting to operate its telephone system as a public convenience and was endeavoring to compete with the complainant and that in so doing the property and rights of the complainant were being injured, by reason whereof the public would suffer and be inconvenienced. It was further alleged that The Berkey Farmers’ Mutual Telephone Company had begun the operation of its plant and exercised the right of franchise in competition with the complainant within the territory occupied by it without first securing from the Public Utilities Commission of Ohio, as provided by law, a certificate that the exercise of such license, permit, right or franchise was proper and necessary for the public convenience. The prayer of the complaint was that the commission issue an order requiring The Berkey Farmers’ Mutual Telephone Company to cease the operation of its telephone system in the territory mentioned and that it take such steps as are provided by law to require compliance with said order and that it proceed to collect such fines that might be now due by reason of The Berkey Farmers’ Mutual Telephone Company operating its telephone plant contrary to law, and that it protect the rights and interests of the complainant, the public convenience, and do any and all other things that may be necessary to require a compliance with the law.
    In its answer The Berkey Farmers’ Mutual Telephone Company alleged that it was a mutual telephone company organized not for profit, and admitted that it had not procured from the commission a certificate or license authorizing the construction of its line or the operation of its plant. It alleged further that the rights between the two telephone companies had been determined and settled by the court o£ Lucas county in an injunction proceeding brought by The Sylvania Home Telephone Company to enjoin The Berkey Farmers’ Mutual Telephone Company from operating its plant for the alleged reason that it had not complied with the provisions of Section 614-52, General Code; that its right to construct, maintain and operate its telephone line and plant was determined and adjudicated in its favor by the court of appeals; and that the commission was without jurisdiction to hear and determine the things attempted to be set forth in the complaint.
    In the reply of complainant it was admitted that the court of appeals of Lucas county had dismissed the petition for an injunction, that court being of the opinion that a corporation organized not for profit did not come within the provisions of Section 614-52, General Code; but it was alleged that subsequently the supreme court in a case between other parties had decided that the law was different from that announced by the court of appeals of Lucas county.
    The case was heard upon the pleadings and the evidence and the proceeding was dismissed by the commission upon the ground that it had no authority under the code to act upon the complaint. An application for a rehearing was denied and a petition in error was thereupon filed in this court.

      Mr. Edward H. Ray, for plaintiff in error.

      Mr. Joseph McGhee, attorney general, and Mr.

      C. A. Radcliffe, for defendant in error the Public Utilities Commission.

      Mr. Thad. S. Powell and Messrs. Marshall & Fraser, for defendant in error The Berkey Farmers’ Mutual Telephone Company.
   Newman, J.

It was admitted by The Berkey Farmers’ Mutual Telephone Company that it had not procured from the public utilities commission a certificate under the provisions of Section 614-52, General Code. It claimed, however, that its right to do business without procuring such a certificate had been fully and finally established by the court of appeals in a proceeding had in 1914, and that therefore the commission had no power to act in the proceeding before it. Plaintiff in error, while admitting that its petition for an injunction had been dismissed, insisted that it was dismissed upon the sole ground that a mutual telephone company, according to the decision of the court of appeals, did not come within the provisions of Section 614-52, General Code; but that subsequently the supreme court, in The Ashley Tri-County Mutl. Telephone Co. v. The New Ashley Telephone Co., 92 Ohio St., 336, decided that the section in question applied to all telephone companies^ whether such telephone companies were organized for profit or not. Counsel for The Berkey Farmers’ Mutual Telephone Company claimed that under the ruling of this court in the Ashley case, supra, it must appear that the complaining company is furnishing adequate service in the locality before the second company can be required to procure a certificate, and that the ruling could not apply in the controversy between the parties here, for it was found by the court of appeals that the service rendered by The Sylvania Home Telephone Company was and had been grossly inadequate and inefficient in the territory covered and proposed to be covered by its lines.

The commission in dismissing the proceeding took the position that before it could make the order sought by the complainant it would be required, as a prerequisite thereto, to construe the decision of the court of appeals to which we have referred and the decision of this court in the Ashley case, supra. and then'determine the present legal status of the parties to this proceeding, and it was of the opinion that these were matters to be determined by the courts and not by the commission.

But would the commission have had the right to entertain the complaint filed with it even though there had been no prior litigation between these two telephone companies?

It is to be observed that The Berkey Farmers’ Mutual Telephone Company itself was not asking for a certificate of convenience, but that plaintiff in error, whose territory it was claimed had been unlawfully invaded, was applying to the commission for an order requiring The Berkey Farmers’ Mutual Telephone Company to cease operation and compelling it to apply for a certificate showing that its operation was proper and necessary for the public convenience.

A telephone company is the only utility coming Ujidqr .the jurisdiction of the commission which is required under any condition to obtain a certificate that the operation of its system is necessary for the public convenience, and this requirement is found in Section 614-52, General Code, which is as follows: “No telephone company shall exercise any permit, right, license .or franchise that may have been heretofore granted but not actually exercised or that may hereafter be granted to own or operate a plant for the furnishing of any telephone service, thereunder in any municipality or locality, where there is in operation a telephone company furnishing adequate service, unless such telephone company first secures from the commission a certificate after public hearing of all parties interested that the exercising of such license, permit, right or franchise is proper and necessary for the public convenience.”

By this section it is made unlawful for a telephone company to operate in a municipality or locality where there is in operation a telephone company furnishing adequate service, unless such company first secure from the commission a certificate that such operation is proper and necessary for the public convenience. It is- the only section of the code, to which our attention has been called, which touches this subject. The powers of the public utilities commission are conferred by statute and it possesses no authority other than that thus vested in it. (Cincinnati v. Public Utilities Commission, 96 Ohio St., 270.) The statute we have quoted does not contemplate the filing of an application by the telephone company whose territory is unlawfully invaded; and, besides, the order which plaintiff in error sought was in the nature of an injunction the granting of which would be the exercise of judicial power, peculiarly the function of a court of equity. If such a power were expressly or impliedly conferred upon the commission it would be in contravention of the provisions of Section 1, Article IV of the Constitution, which vests judicial power in the courts.

Section 614-67, General Code, reads as follows: “Whenever the commission shall be of the opinion that /any public utility or railroad has failed, • omitted or neglected to obey any order made with respect thereto, or is about to fail or neglect so to do, or is permitting anything, or about to permit anything contrary to, or in violation of law, or an order of the commission, duly authorized under the provisions of this act, the attorney general, upon the request of the commission, shall commence and prosecute such action, actions, or proceedings in mandamus or by injunction in the name of the state as may be directed by the commission, against such public utility or railroad, alleging the violation complained of and praying for proper relief, and in such case the court may make such order as may be proper in the premises.”

Under favor of the provisions of this section the commission may, when a public utility has committed an act in violation of law, apply to the attorney general, who shall commence and prosecute a proceeding by injunction against such utility. And again, we know of no reason why a telephone company itself whose territory has been unlawfully invaded cannot apply to a court for an injunction and ask that the invading company be enjoined from operating in that locality. An injunction in such case would be effective until the company which is enjoined secures a certificate from the public utilities commission, upon whom is imposed the duty of determining whether the operation by such company is proper and necessary for .the public convenience.

Our attention has been called to The State Public Utilities Commission, ex rel. The Noble Telephone Co., v. The Noble Mutual Telephone Co. et al., 268 Ill., 411; The State Public Utilities Commission, ex rel. Macon County Telephone Co., v. Bethany Mutual Telephone Assn., 270 Ill., 183, and Mountain States Telephone & Telegraph Co. v. Project Mutual Telephone & Electric Co., P. U. R., 1916F, 370, the latter being an Idaho case. The statutes dealt with in those cases are quite different from the statute we are called upon to consider here and these decisions are not at all helpful.

Our holding is that the commission was not authorized to issue an order requiring The Berkey Farmers’ Mutual Telephone Company to cease the operation of its plant for the furnishing of telephone service or to compel it to apply for the certificate contemplated by the provisions of Section 614-52, General Code. It follows then that the order dismissing the proceeding was not unlawful or unreasonable.

Order sustained.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    The Foss-Schneider Brewing Co. v. Ulland.

      Negligence — Directed verdict — Failure of proof — Excavations — Lateral support — Liability — Flood waters — Right to repel — Exercise of care.

    1. In an action for damages claimed to have been caused through the negligence of the defendant, it is not error for the trial court to direct a verdict for the defendant where the plaintiff offers no evidence tending to prove either that the defendant was negligent in the particulars averred in the petition, or that the negligent acts complained of were the proximate cause of the injury.
    2. Where the owner of a lot in a municipality excavates to a depth greater than nine feet below the curb of the street on which his lot abuts, and such excavation causes damage to any wall, house or other building upon the lot adjoining thereto, he is liable in a civil action to the parties injured, to the full amount of such damage, regardless of whether he is or is not guilty of any negligence in making such excavation or in the construction and maintenance of any wall placed therein.
    3. Where such excavation to a depth greater than nine feet below the curb grade has not caused the damages complained of, the fact that the owner of the lot has caused such excavation to be made upon his premises does not deprive him of any right that he would otherwise have to protect his property from the flood waters of an extraordinary and unprecedented flood.
    4. The owner of property has the right to repel the invasion of his .premises by flood waters of an extraordinary and unprecedented flood, if in doing so he exercises reasonable care and caution and does not direct or increase the force of these flood waters against the adjoining property, other than the increase incident to their failure to find access to his premises.
    5. Such reasonable care does not require him to permit flood waters to accumulate in -his cellar, to the destruction of property stored therein, in order to equal or neutralize the hydrostatic pressure and thereby prevent the flow of the waters, permitted to accumulate upon the adjoining premises.
    (No. 15412
    Decided February 5, 1918.)

      Error to the Court of Appeals of Hamilton county.
    On the 20th day of May, 1913, Sophia Ulland filed a petition in the common pleas court of Hamilton county, Ohio, against The Foss-Schneider Brewing Company, a corporation, averring in substance that she was the owner of a certain lot or parcel of land on the west side of Freeman avenue, in the city of Cincinnati, Ohio, adjoining the property owned by the defendant corporation.
    That there had been erected upon the lot owned by the plaintiff a 2-J-story brick building, and that the foundation under this building extended downward to a depth of 9 feet, to which depth the cellar was excavated.
    That prior to the 31st day of March, 1913, the walls of the 'building, foundation and cellar, were solid and in safe condition to support said building; that the defendant company’s property adjoined her lot immediately to the south, and. many years prior to the 31st day of March, 1913, defendant had caused the ground to be excavated to a depth of 18 or 20 feet below the curb line of Freeman avenue, and for many years maintained a cellar to that depth in said excavation, and entirely along the line of plaintiff’s property; and that the defendant had constructed a stone foundation or cellar wall along the north line of its property immediately adjoining the property of the plaintiff, which cellar and foundation wall, through the negligence of the defendant, were permitted to break and crack in many places, in such manner as to allow the earth, sand and gravel from plaintiff’s lot to slip and slide through said walls into the defendant’s cellar, thereby undermining the building upon plaintiff’s lot, so that, by reason thereof, on or about the 31st day of March, 1913, the support under plaintiff’s building was undermined and removed and the entire foundation wall and south wall gave way, destroying the plaintiff’s premises.
    That on the 28th day of March, 1913, the city of Cincinnati, Ohio, was visited by a flood, the high-water level of which reached above the level of the cellar floor of the plaintiff’s premises, and far above the cellar level and far above the excavation of the defendant’s cellar.
    That on the 29th day of March, 1913, the defendant installed in its cellar immediately adjoining the plaintiff’s premises, large siphon or other force pumps and operated them for the purpose of preventing the. water from filling its cellar; and that the defendant operated these pumps in such a careless, negligent manner, and with such force and power, as to cause the earth, sand and gravel on plaintiff’s lot to be thrown into the defendant’s cellar through and under the walls maintained by it, thereby undermining the building upon plaintiff’s lot, and removing the support of the foundation of plaintiff’s building, causing the foundation walls and the walls of her building to collapse and fall into the excavation, to her damage in the sum and amount of $6,000.
    That on the 30th day of March, 1913, the tenants of the plaintiff notified the defendant that its acts were causing the earth, sand and gravel to be forced into its cellar, endangering the ■ plaintiff’s premises, and requested it to cease operating the pumps; but that' defendant paid no attention to said notice and warning, and did not discontinue the operation of its pumps.
    To this petition the defendant filed an answer, in which it admitted plaintiff was the owner of the premises described in the petition, with the improvements thereon situated, and that it was the owner and in possession of the real estate adjoining and immediately south thereof; that it caused these premises to be excavated to a depth of 18 to 20 feet below the curb line on Freeman avenue, and has for many years maintained a cellar in this excavation the entire depth of plaintiff’s lot; and that a number of years ago it constructed a stone wall along its north line, immediately adjoining the plaintiff’s property. And it denied each and every other allegation contained in the petition.
    Upon the trial of the cause to.a jury, and at the close of the evidence introduced by the plaintiff, counsel for the defendant moved the court to instruct the jury to return a verdict for the defendant ; which motion was sustained.
    Exceptions were noted, motion for new trial filed and overruled, and judgment entered upon the verdict, dismissing the .plaintiff’s petition at her cost.
    To this judgment, error was prosecuted in the court of appeals of Hamilton county, which court reversed the judgment of the common pleas court and remanded the cause for a new trial.
    This proceeding in error is brought in this court to reverse the judgment of the court of appeals.

      Messrs. Bettinger, Schmitt & Kreis, for plaintiff in error.'

      Messrs. Powell & Smiley, for defendant in error.
   Donahue, J.

Counsel, both in their briefs and oral arguments, have not confined themselves to the issues joined in the pleadings.

While there is an averment in the plaintiff’s petition that the defendant caused its premises immediately adjoining those of the plaintiff to be excavated to a depth of 18 or 20 feet below the curb grade of Freeman avenue, and for many years has maintained a cellar in this excavation the entire depth of plaintiff’s lot, and that the defendant operated pumps for the purpose of preventing the water from filling its cellar; yet there is no averment either that the excavation to a depth greater than 9 feet below the curb grade, or the refusal on the part of the defendant to permit its cellar to fill with water, caused the damages to plaintiff’s property. On the contrary, she specifically avers in her petition that the damage was caused to her property by reason of the negligence of the defendant in two particulars:

First: That the defendant negligently permitted its adjoining wall to break and crack in many places; that the gravel and earth from plaintiff’s lot was thereby caused to slip and slide through these cracks and breaks, to such an extent as to undermine the foundation of her building.

Second: That on the day preceding the injury to plaintiff’s property, the defendant installed in its cellar, immediately adjoining plaintiff’s premises on the south, large siphon or other force pumps, and operated these pumps in such a careless, negligent manner, and with such force and power, as to cause the earth, sand and gravel on plaintiff’s lot to be thrown into the cellar of the defendant through and under the walls maintained by it, thereby undermining the building on plaintiff’s lot and removing the support of its foundation.

The defendant in its answer denies these averments of negligence.

It clearly appears from the evidence offered on behalf of the plaintiff that the waters that washed the sand, earth and gravel from under the foundation of her building, were part of the waters of a general flood in this and adjoining states in the latter part of March, 1913. This flood was so unprecedented in its extent and character, so disastrous and devastating in its nature, that it is an epoch in the history of the state. It is beyond dispute that it was “an act of God,” which human foresight could not have foreseen or reasonably anticipated, and against which human power could not defend. In this respect there is no controversy in this case either in the record or arguments and briefs of counsel.

In ’support of this first averment of negligence, the plaintiff offered the evidence of John George Broxterman, who was the only witness perhaps who had any knowledge of the facts. He testified that this wall adjoining plaintiff’s premises was constructed of solid stone masonry, 3 or 3£ feet in thickness, extending the entire depth of the excavation and below the cement floor in the driveway céllar; that on Sunday, the day before the collapse of plaintiff’s building, water was coming through the crevices of this wall about 18 inches from the cellar floor, up to about 3 or 3¿ feet high, for a distance of 20 feet back from the curb line, and that “there was some little sand coming through on Sunday, very little, very slight, because the crevice was not large enough to let any sand through scarcely.”

While the interest of this witness was adverse to the interest of the plaintiff, he was the only witness having knowledge of these facts or that testified upon this subject. Plaintiff under the statute was permitted to cross-examine him to the same extent as if he had been called by the defendant.

This is the only evidence offered by the plaintiff tending to prove any defect in this wall. There is no evidence whatever in this record that this wall at all other times and under all ordinary conditions was not amply sufficient for the protection of plaintiff’s property. This defendant in the construction and maintenance of its wall was not required to anticipate such an extraordinary and unprecedented flood, and even had it done so, it could hardly have built a wall that would have withstood such a devastating force. If, however, it could be said that this evidence that the flood waters-of this extraordinary flood forced their way through the crevices in this wall, carrying “some little sand coming through on Sunday, very little, very slight, because the crevice was not large enough to let any sand through scarcely,” tended to prove that this wall was in such a defective condition that it would not resist the waters of an ordinary flood, notwithstanding the fact that for many years it had met every requirement, not only of ordinary floods, but of the peculiar formation of the earth and soil in that locality; yet the further evidence of Broxterman clearly demonstrates that the condition of the wall was not even a contributing, much less a proximate, cause of the injury.

This witness further testified that early the following morning (Monday morning), about two or two and one-half hours before the collapse of. plaintiff’s building, he discovered that some time in the night season the cement floor in the driveway cellar had been forced upward, causing a break or crevice 4 or 5 inches wide, the entire width of the cellar, through which the water was coming in large volumes, carrying with it quantities of sand, gravel and earth, to such an extent that it had filled a 6-inch iron drainpipe leading from the driveway cellar to the tank in the subcellar, and it became necessary to break this drainpipe to permit' the water to flow through into the subcellar. From this uncontradicted evidence it appears that this flood water would necessarily, and perhaps much earlier, if this wall had been wholly impervious to water throughout all its parts, have found its way under the wall and upward through the cement floor in the driveway cellar. This was the real cause of the damage to plaintiff’s property regardless of the condition of the wall.

' It is not averred in the petition, or contended upon the part of the defendant in error, that the defendant was guilty of negligence in not placing a floor in its cellar strong enough to withstand the force of this flood; nor would such contention be tenable, for, even if it were the duty of the defendant to place such a floor in its cellar as would resist ordinary flood conditions, it could not be . expected or required to anticipate a flood of this extraordinary character.

In the case of Miller v. The Baltimore & Ohio Southwestern Rd. Co., 78 Ohio St., 309, this court held: “In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence, is not actionable.” In the opinion in that case it is said, at page 325: “The rule is elementary, that the defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in determining what is direct or proximate cause, the rule requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer as likely to follow his negligent act.”

To the same effect is the doctrine announced in' the case of Daniels et al. v. Ballantine, 23 Ohio St., 532.

The plaintiff wholly failed to offer any evidence in support of the averments in her petition that the defendant operated large siphon or other force pumps in its cellar adjoining plaintiff’s property, in a negligent manner, and with such force and power as to cause the earth, sand and gravel in the plaintiff’s lot to be drawn into the defendant’s cellar, thereby undermining the building on plaintiff’s lot and removing the support of the foundation of her building.

On the contrary, the evidence introduced by the plaintiff clearly establishes the facts that these pumps were not installed in the cellar adjoining her premises, but were installed in a pit or iron tank 6 feet deep and 7 or 8 feet in diameter, sunk in the floor of a subcellar 30 feet below the curb grade and directly south of the driveway cellar that adjoins her premises; that the water from the driveway cellar ran by force of gravitation into this tank in the subcellar; that the operation of the pumps exerted no force or power whatever by way of suction, or otherwise, that would in any way' increase or hasten the flow of water, earth, sand or gravel from plaintiff’s lot; and that the only effect of the operation of these pumps was to keep the water from flooding the defendant’s cellar to the level of the water on plaintiff’s premises. Therefore upon this averment of negligence the plaintiff must also fail. This disposes of the only issues joined in the pleadings.

Although it is not averred in the petition, it is now contended that this excavation to a depth greater than 9 feet below the curb grade of the street on which the defendant’s lot abuts caused the damage to plaintiff’s property, notwithstanding it is- positively averred in the petition that this damage was caused by . the negligence of the defendant in two particulars hereinbefore stated. If this excavation were in fact the proximate cause of the damage to plaintiff’s property, then she is entitled to recover under the provisions of Section 3782, General Code, regardless of the question of negligence. The plaintiff offered no direct evidence tending to prove that this cellar of the defendant’s caused the damages. That would be of no importance, however, if, from all the facts and circumstances that the evidence offered by her tended to establish, the.natural inference might be drawn that the damages complained of were caused by the excavation on defendant’s property to a depth greater than 9 feet below the curb grade. (L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 Ohio St., 426.) The evidence, however, conclusively establishes that the depth of this cellar did not cause this damage. The defendant was entitled to excavate to a depth of 9 feet below the curb grade of the street upon which its lot abuts. Certainly these flood waters would have found their way under an ordinary cellar wall to a depth of 9 feet much more readily than under a solid wall of stone masonry 3 or 3 feet thick, extending 18 or 20 feet into the earth, and the result would have been equally as disastrous to plaintiff’s property.

It is not contended that if this cellar under defendant’s property were but 9 feet below the curb grade, it would be required to place such a floor in that cellar as would resist the upward force of the waters of this extraordinary flood, yet certainly there would be far more danger of the water finding access through the floor of a cellar 9 feet deep than through the floor of a cellar 18 or 20 feet deep. So that the fact that the water found access through the floor of defendant’s cellar, is no evidence that the damage was caused by reason of the excavation to a depth greater than 9 feet below the curb grade.

Evidence was introduced upon the trial of this case, without objection upon the part of the defendant, tending to prove that if the defendant’s cellar had been permitted to fill with water, it would have equaled or neutralized the hydrostatic pressure of the water on plaintiff’s premises and prevented the undermining of the foundation of plaintiff’s building.

The evidence clearly establishes the fact that this damage was caused by these flood waters forcing their way upward through the floor of defendant’s cellar. Beyond all question, this would not have occurred if the defendant had permitted its cellar to fill with water to the level of the water on plaintiff’s premises. If, in order to protect the plaintiff’s property, it was the duty of the defendant to permit its cellar to fill with water, regardless of the damage it might cause to property stored therein, then the plaintiff ought to have been permitted to amend her petition to conform to the proofs offered, and the cause should have been submitted to a jury under proper instructions.

The waters of this unprecedented flood were a common enemy. Each proprietor had a right to repel its invasion upon his own property as best he could, if in doing so he did not increase the volume or direct its force against his neighbor’s property, further' than its mere failure to find access to his property. The plaintiff made no effort whatever to prevent the invasion of these waters upon her premises. Had she even taken the precaution to plug the sewer drain, as the defendant did, the water might not have found access to her cellar; but the fact that she did nothing to protect her property from the ravages of this flood in no wise deprived the defendant of its right to do so.

If this driveway cellar had not exceeded 9 feet in depth, it would hardly be seriously contended that the defendant must suffer destruction of its property stored in its cellar in order to equalize or neutralize the hydrostatic pressure of the waters permitted to accumulate in the plaintiff’s cellar, without any vigilance on her part to prevent its access thereto.

The fact that the defendant had excavated to a greater depth than 9 feet below the curb grade did not deprive it of any right that it otherwise would have to protect its property from these flood waters. If such excavation caused the damage, defendant was liable unconditionally, regardless of what it did or did not do in its efforts to defend against these flood waters. If the excavation did not cause the damage, then it is not a factor in this case, unless the acts of the defendant were negligent in view ■ of and because of the depth of its cellar. There is no evidence in this record, however, tending to prove that anything done by the defendant that it would have had a right to do had its cellar been only 9 feet deep became negligence on its part because its cellar was 18 or 20 feet deep. On the contrary, the evidence offered by plaintiff clearly establishes the facts that the proximate cause of the damage to her property was the flood waters of this extraordinary and unprecedented flood; that the condition of the defendant’s wall adjoining her property, and the depth of its cellar, were not even contributing causes to the injury; and that the defendant was wholly within its legal rights in its efforts to repel the invasion of its premises by these flood waters.

There is no conflict in the evidence, and the proper judgment to be entered involves only a construction of the law applicable to such facts. (Cornell v. Morrison, 87 Ohio St., 215.) Upon the undisputed facts the trial court properly directed a verdict for the defendant.

Judgment of the court of appeals is reversed, and that of the common pleas court affirmed.

Judgment reversed.

Nichols, C. J., Newman, Jones, Matthias and Johnson, JJ., concur.


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    The Taylor-Williams Coal Company v. The Public Utilities Commission of Ohio.

      Public utilities commission — Railroad rates — Complaints and orders — Shippers affected — Order reducing rates — Affirmance by courts — Complaint by another shipper — Excess above suspended rate — Jurisdiction of commission — Remedy of shipper.

    1. The proceeding before the public utilities commission on a complaint filed with it, which alleges that rates charged by a railroad company are unreasonable or unjustly discriminatory, is a matter of public concern in which all shippers are interested. The orders made are general in their operation, not only in favor of the complainant in that proceeding, but of all persons interested.
    2. Where in an action brought pursuant to the statute in effect prior to the act of April 18, 1913 (103 O. L., 804), by a Tail-road company to set aside and vacate an order of the public ’ utilities commission, the order was suspended by the court and bond given -by the plaintiff company, and after such order of suspension the company collected the rate in effect prior to the order of the commission, the charge made, under such circumstances, does not furnish the basis of a complaint to the public utilities commission under Section 579, General Code. If the charge is unlawful the remedy of the shipper is by' action in a court of competent jurisdiction against the company on its liability to refund the excess charged above the amount finally determined that it was authorized to' collect.
    (No. 15446
    —Decided February 5, 1918.)
    Error to the Public Utilities Commission.
    Plaintiff in error in November, 1915, filed with the defendant in error its complaint against The Hocking Valley Railway Company, in which it alleged nonpayment of a claim for overcharge on certain shipments of coal in carloads between September 24; 1913, and July 17, 1915. The Railway Company collected for the shipments at the rate of sixty-five cents per ton instead of at the rate of sixty cents per ton, which was alleged to have been theretofore ordered by the Railroad Commission of Ohio. The complaint prayed for a finding by the Public Utilities Commission for the amount claimed and that said finding be certified to the common pleas court of Franklin county in accordance with the provisions of Sections 579 and 580, General Code. The complaint was dismissed by the Public Utilities Commission on September 28, 1916. A motion for a rehearing was denied, and the plaintiff in error filed his petition in error in this court.
    By the pleadings filed in the instant case it is shown that on January 15, 1910, The New York Coal Company filed with the Railroad Commission of Ohio a complaint against The Hocking Valley Railway Company charging that the rates on coal in carloads from Nelsonville to Toledo and intermediate points were unreasonable and discriminatory. Among the rates attacked was the then existing rate of sixty-five cents per ton from Nelsonville to Columbus. On June 27, 1911, the Railroad Commission issued an order directing the Railway Company to reduce certain of the rates complained of, among others the rate of sixty-five cents per ton from Nelsonville to Columbus, to sixty cent's per ton. On July 15, 1911, which was before the order became effective, the Railway Company commenced an action in the court of common pleas of Franklin county against the Public Service Commission, which was the successor of the Railroad Commission, for the purpose of vacating and setting aside the order of the Railroad Commission. The court of common pleas sustained the order of the Railroad Commission and dismissed the petition of the Railway Company. Thereupon the Railway Company appealed the case to the court of appeals of Franklin county. That court likewise sustained the order of the Railroad Commission and dismissed the petition of the Railway Company, whereupon the company prosecuted error to the supreme court. This court on July 2, 1915, affirmed the judgment of the court of appeals.
    In the several courts to which the action referred ' to was brought, bonds were filed in accordance with the statute, and orders were thereupon made by the several courts enjoining the execution and enforcement of the order of the Railroad Commission and suspending the operation thereof. The supreme court, having on July 2, 1915, affirmed the judgment of the court of appeals, the Railway Company on July 27, 1915, published a tariff setting forth the rates prescribed by the order of the Railroad Commission.
    On March 13, 1913, the Railway Company published and filed its tariff, designated R. C. O. No. 31, prescribing rates on coal from Nelsonville to Toledo and intermediate points, the rate from Nelsonville to Columbus being sixty-five cents. On February 11, 1915, the Railway Company published and filed another tariff on shipments, known as Ohio No. 33, therein prescribing the same rates between Nelsonville and intermediate points as were set out in tariff R. C. O. No. 31.
    In its answer, the Railway Company alleged that it duly posted the tariffs referred to and that the rates charged and collected were in accordance therewith.
    In its reply complainant admitted the allegations of- the answer with reference to the proceedings in the courts and the suspension of the operation of the order, and then said that by reason of the prosecution of said litigation the Railway Company was estopped from publishing and filing tariffs R. C. O. No. 31 and Ohio No. 33.

      Messrs. Morton, Irvine, Turner & Blanchard and Mr. O. P. Gothlin, for plaintiff in error.

      Messrs. Wilson & Rector, for defendant in error.
   Johnson, J.

The original order of the Railroad Commission, on the New York Coal Company complaint, was made June 27, 1911-, effective July 27, 1911. Action was thereupon brought 'in the common pleas of Franklin county to vacate and set aside the order of the commission. On decision by the common pleas court the proceeding was appealed to the court of appeals, and on the decision there it was brought on error to the supreme court, where the order of the commission was affirmed on July 2, 1915. That action was brought under favor of the provisions of General Code Section 543, and subsequent sections touching the subject.

After that action was begun the procedure prqvided for at that time by the General Code was changed by the act to create the Public Utilities Commission of Ohio (103 Ohio Laws, 804), in which act it is provided (in Section 33) that the procedure to reverse, vacate or modify a final order of the commission shall be by petition in error to this court.

Under the provisions of the General Code in force at that time the Railway Company was entitled to bring the action in the court of common pleas against the Railroad Commission to vacate and set aside its order reducing the rate from Nelsonville to Columbus from sixty-five cents to sixty cents. Pursuant to the statute, the court suspended the operation of the order of the commission pending the litigation, and this order was successively renewed in the several courts to which the case was taken until its final disposition, and bonds were given by the plaintiff in the action in accordance with the orders of the courts. Therefore, after the commencement of that action and the making of the order of suspension and the giving of the bond, the order of the Railroad Commission sought to be set aside was suspended until this court finally affirmed it in the proceedings in error here. Until that time the railroad continued to charge and collect the rate in effect immediately prior to the entering of the commission’s order.

On March 13, 1913, which was more than one year after the order of the Railroad Commission would have become effective, if the case to set it aside had not been brought and the order suspended on bonds being given, the Railway Company published a new Tariff R. C. O. No. 31, prescribing rates on coal from Nelsonville to Toledo, and, on February 11, 1915, the Railway Company filed another tariff on such shipments, known as Ohio No. 33, prescribing practically the same rates. It claims that it had the right to do this by reason of Section 541, General Code, as it existed July 27, 1911, which then provided that all rates, fares, charges, classifications and joint rates fixed by the commission shall be in force and be prima facie lawful for one year “from the day they take effect,” or until changed or modified by the commission, or by an order of a competent court in an action under the provisions of the chapter.'

The original proceeding before the Railroad Commission was one in which all shippers were interested. The inquiry was a general one. The order made by the commission reducing the rate from sixty-five cents to sixty cents from Nelson-ville to Columbus was a general order, and operated not only in favor of the complainant in that proceeding, but of every shipper. Otherwise the original complainant would secure an advantage over other shippers not permitted by the statute. Every “user” affected is entitled by action to secure the benefit of the order made. A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S., 662.

The Taylor-Williams Coal Company, plaintiff in error, asserts that by favor of Section 579, General Code, it is entitled to sustain the complaint now before us. That'section provides that claims for overcharges upon a shipment, if not paid in sixty days, may be submitted to the commission by formal complaint. It provides for notice to the railroad company, for answer, reply, affidavits, hearing and finding. It also provides that the findings shall be certified to the clerk of the court of common pleas of the county where the complainant resides or where any of the company’s offices are maintained. Section 580, General Code, provides for the docketing of the cause, and trial, if the company desires. It is contended that the complaint in the case before us rests on a claim for overcharge under Section' 579. The term “overcharge” is not defined in the statute, but prior to the passage of Section 579, General Code, it had come to have an accepted meaning when used in connection with the subject-matter of that section. The authorities cited in the briefs of counsel sufficiently show that the term means a charge collected above the lawful tariff rate — a charge of more than is permitted by law.

When the Railway Company secured from the court an order suspending the order of the Railroad Commission, and gave the several bonds in accordance therewith, such suspension entitled the company to charge the prior published rate until the disposition of the cause. The charge made under such circumstances is not an overcharge within the meaning of Section 579, General Code. In this connection it must be noted that where a complaint is properly brought under that section for an overcharge, the finding of the commission ' in favor of the complainant is not- a judgment, but merely provides the prima facie evidence in favor of the claim which the statute allows the railway company to contest in the court to which the finding is certified.

In this case, when the Railway Company elected to charge the rate in effect immediately prior to the order of the Railroad Commission, it incurred a liability to refund to each user the amount collected by it from him in excess of the amount which it was authorized to collect; and the bond was given for the purpose of securing that payment. The remedy of each shipper is by action in a court of competent jurisdiction to recover that amount. The question whether a shipper would be entitled to recover only the amount of excess paid by him between the date of the order of the Railroad Commission and March 13, 1913, at which time the Railway Company published a new tariff, or would be entitled to recover the amount of excess paid by him for the entire period between the date of the order of the commission and the final adjudication of the case in this court, would of course be determined in the action referred to.

The only question presented here is whether the complaint filed with the Public Utilities Commission presented a proper claim for overcharge to be ascertained and fixed by the order of that commission.

For reasons above set forth the order of the Public Utilities Commission dismissing the complaint will be affirmed.

Order affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.