author: Spear, J.

text:
    Moore v. Adm’r of Moore.

      Allowance to widow for year’s support — Application to probate court for review— Order overruling, is final — Appeal—Section 6043, Revised Statutes, construed.

    The order of a probate court overruling au application of a widow for a review of the allowance made her by the appraisers for a year’s support from the estate of her deceased husband, under section 6043, Revised Statutes, is an adjudication, of the rights of the widow and other persons interested as to the question of allowance, and, unless such order is vacated by appeal, or other proper proceeding, is a final determination between them.
    (Decided November 13, 1888.)
    Error to the Circuit Court of Belmont County.
    John Moore died March 22, 1884, leaving surviving him his widow, aged seventy-six years, the plaintiff in error. On June 5, 1884, the appraisers of said decedent’s estate set off to the widow for her year’s support, in addition to provisions on hand, the sum.of $162.50. The widow filed her petition in the probate court, October 20, 1884, for review and increase of allowance, which application was refused and no appeal taken, or other proceedings had to vacate the same. After-wards, on the 2d day of May, 1885, the .widow filed another application for increase of allowance, stating that the amount set off by the appraisers had proved to be insufficient, and that since her first application there had been a change in her condition; that she had been sick and comparatively helpless, and that she needed and received nursing and medical attention, and incurred increased expense therefor. To this petition defendant in error answered, alleging that the allowance made by the appraisers was sufficient, and that the application for increase, filed October 20, 1884, was passed upon by the probate court, and that she was estopped thereby. To this answer plaintiff replied, denying that the matter set out in her petition had been passed upon or adjudicated. Upon hearing had in the probate court, the proceeding was dismissed, and an appeal was taken. At the trial in the common pleas, there was a finding of facts to the effect that a reasonable and proper allowance by the appraisers would have been $150 more than the amount allowed by them, and that the allowance should have been increased by that much at the time of review by the probate court, and that at the time of the review the widow was in feeble health, and that in January, February and March next ensuing, she became worse, and required the attention of physicians and additional care, and that the additional expenses and services necessary by reason of such subsequent sickness, was of the value of $100. Upon these facts the court of common pleas held that the probate court had no authority to further review and increase the allowance made by the appraisers, and dismissed the petition.
    The judgment of the court of common pleas was, on error, affirmed by the circuit court.

      Rees & Hoff, for plaintiff in error.
    The liability of the estate of a decedent for the support of his widow for one year, as provided by sections 6040-6043, Rev. Stats., has been affirmed in all cases where the question has been presented.— Collier v. Collier, 3 Ohio St. 369; Dorah v. Dorah’s adm’r, 4 Ohio St. 292; Bane v. Wick, 14 Ohio St. 506; Allen v. Allen’s adm’r, 18 Ohio St. 234; Sherman, adm’r, v. Sherman, 21 Ohio St. 631.
    The plea of “former adjudication” is tenable only where it is shown that at the trial of the cause, in which such former judgment was rendered, the same evidence could have been presented, and to the same effect, as in the cause in which such plea is made, and that the condition of the parties is the same in every material respect as at the former trial. What may occur, and what did occur, are not within the scope of “ identities ” required by the plea of res adjudieata.

    Subsequent to the alleged judgment, on the'application of October 20, 1884, the widow was, ill. There was a serious change in her condition — one adding largely to the cost of her support, and so found by the trial court. Had the increase of allowance been made, as it is stated by the court of common pleas it should have been, to the amount of $150, the plaintiff in error would have been entitled to the additional $100 by reason of the change of condition. Sherman, adm’r, v. Sherman, supra.

      L. Danford, for defendant in error.
    The appraisers, by virtue of section 6040, Rev. Stats., made their allowance and returned the same into the proper ■court. The plaintiff in error being dissatisfied therewith, had a right, under section 6043, to file her petition in the court to which the allowance was returned, asking for a review of ■such allowance by the court, and for an increase of the same; this she did, and the court passed on her petition upon full hearing, and if still dissatisfied, she could appeal; this she -did not do, but filed another petition May 2d, 1885, asking -of the same court precisely the .same thing, to-wit: a review ■of the allowance of the appraisers and an increase of the .same.
    The authority conferred on the probate court, by section '■6043, was exhausted by the proceedings had under and by virtue of the petition of October 20th, 1884, and any one interested had a right to interpose the former action of the plaintiff as a bar to the present proceeding; the administrator ■certainly had such right.
    "We scarcely need cite authorities upon so elementary a proposition, but may refer to Bigelow on Estoppel, pages 44-45.
    A review of the allowance of the appraisers and an increase ■of the same is sought in both the former and present proceeding; nothing else could be sought. Under the statute, section 6043, the court has only the power conferred by that ■statute, and the proceeding must necessarily be the same.
   Spear, J.

Section 6040, of the Revised Statutes, makes it the duty of the appraisers to set off and allow to the widow, and children under the age of fifteen years, if any there be, sufficient provisions or other property to support them for twelve months from the death of the deceased, and the following section provides that where there is not sufficient personal property, or property of a suitable kind, the appraiser's shall certify what sum, or further sum, in money, is necessary for the-support of such widow or children. Following these requirements, the appraisers set off to the plaintiff in error, both provisions and money.

Section 6043 gives authority to the probate court, on petition of the widow, or other person interested, to review the-allowance, and increase or diminish the same, and make such order as it may deem right and proper.

Under the authority of this last mentioned section, the plaintiff in error sought the action of the probate court by her petition of October 20, 1884, and that court’s finding and order was an adjudication of her right to further allowance. If dissatisfied, she had the right to appeal, or prosecute a proceeding to vacate. Having omitted to avail herself of such right, she cannot, by a new petition, again invoke the action of the probate court upon the same question. The duty of. that court was to review the proceedings of the appraisers. That duty it performed in the case first brought, and made a. final order, and its power over the question was thereby exhausted.

This conclusion may seem to involve hardship, but a contrary one would involve the most perplexing uncertainties as to the. rights of -widows and the duties of administrators. If a widow may have such a question again reviewed by the same court,, an administrator or other person interested may. The appraisers, in making their allowance, are expected to take into account the age of the widow, her condition and prospect as to-health, and all surrounding circumstances. If the widow were-permitted to review as often as she might desire, the question involved, because of a changed condition of health, it would follow that, in a case where the widow was ill at the time the-appraisers acted, and recovered later, the administrator, or any interested person, might seek such continued reviews by the-same court for the purpose of reducing the allowance, and thus, the question of allowance be kept open, to the unreasonable, embarrassment and injury of those interested in the settlement, of the estate.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Dunn v. Agricultural Society.

      Negligence — Personal injury — Damages—Liability of county agricultural societies for.

    A county agricultural society, organized under the act of February 28, 1846 (44 O. L. 70), and amendments thereto, which has constructed seats on its fair grounds for the use.of its patrons, is liable, in its corporate capacity, to an action for damages, by a person who, while attending a fair held by it, and rightfully occupying the seats, sustains an injury in consequence of its negligence in their construction.
    (Decided November 13, 1888.)
    Error to the District Court of Brown County.
    The plaintiff, Rebecca J. Dunn, commenced her action in the Court of Common Pleas of Brown County, against the Brown County Agricultural Society, by filing the following ■ petition:

      “ The plaintiff says :

      “ That the defendant is a corporation duly incorporated under the laws of the state of Ohio, and in its corporate capacity held its regular annual fair on its fair grounds at Georgetown, Brown county, Ohio, on the 5th, 6th, 7th and 8th days of October, A. D. 1880, to which fair the public were generally invited to attend, and on the said 7th day of October, 1880, the plaintiff attended said fair, and paid the defendant a valuable consideration for permission to enter said fair grounds .and witness the exhibition of stock and products on exhibition for premiums at said fair.

      “ The said defendant had theretofore prepared a large number of seats, and erected the same upon its said fair grounds for the accommodation of its patrons and persons attending the said fair, and in erecting and constructing said seats was guilty of gross carelessness and negligence, and negligently constructed and erected said seats, and with like negligence, used and put into the. construction of said seats unsound and weak lumber, and which was not sufficiently strong to bear the weight of persons who might be seated thereon.

      “ The plaintiff after entering said fair grounds on the 7th day of October, A. D. 1880, was seated upon one of the seats, so prepared as aforesaid, and the same being unsound and weak as aforesaid, broke and caused the plaintiff to fall the distance of about five feet, without any fault or negligence-upon her part, whereby the plaintiff was greatly injured in her person in this, to-wit: Both bones of her right forearm were dislocated, and she was otherwise greatly bruised and injured upon her arm and shoulder, by reason of which fall and injury she has become permanently and for life crippled and disabled in the use of said right arm, and by reason of said fall and injury she became sick and suffered great pain and anguish of body and mind, and incurred a large expense in and about the employment of physicians to heal and cure the same, amounting to the sum of thirty-five dollars, and has been unable to perform ordinary work by reason of said injury, and has suffered $200 loss by reason of her being unable to work and loss of time as aforesaid.
    “ Plaintiff therefore says that, by reason of all the premises, she has been damaged in the sum of three thousand dollars,, for which she prays judgment.”
    The answer denies “ all negligence and want of care charged in the petition,” and for a separate and second defense, alleges that the defendant is “ a county agricultural society, organized under an act of the legislature of the state of Ohio, entitled an act 1 for the encouragement of agriculture,— passed February 28, 1846/ and has complied with the conditions of said act and performed all the duties made incumbent on it thereby, and by any other legislation of the state passed since said act. It has been such agricultural society of Brown county, Ohio, since the-day of-, A. D. 1849, until the present time, and has held fairs, paid premiums, received moneys from the treasurer of Brown county, and performed all other duties required of it by law as such agricultural society, during all that period.”
    To this second defense the plaintiff demurred, on the ground,, that the facts therein stated do not constitute a defense to the plaintiff’s action. The demurrer was overruled, “and the-plaintiff not desiring to reply, but electing to abide by ber demurrer,” tbe petition was dismissed, and judgment rendered against her for costs.
    The judgment was affirmed by the district court, and this proceeding in error is prosecuted to obtain the reversal of both judgments.

      W. W. McKnight, for plaintiff in error.
    The trial court held that the defendant was a “ quasi public corporation,” and as such not liable for the torts and negligence of its officers or agents, and this was affirmed by the district court, and the only question now for consideration is, did the common pleas and district courts err in holding that the defendant was not liable for the negligence of its officers and agents? This is the only question now in this case, and we maintain the lower courts erred in their holding.

      First — Because a corporation is for the public good and welfare, it does not follow that it is a public corporation, for all corporations are created for the public good; private corporations are as much for the public good as are public corporations. See Dillon on Municipal Corporations, vol. 1, sees. 53, 57.
    A public corporation is one that is called into existence without the consent of the people or locality to be effected, and are such as are exclusively for public purposes. The whole interest must be for civil or local government, such as counties, towns or school districts. Id., vol. 1, sec. 54.
    A private corporation is one that is called into existence by the consent of the incorporators, it is such a corporation as is not bound to accept a charter or incorporating act. Id., vol. 1, sec. 52; TenEyck v. Delaware & Raritan Canal Co., 3 Harrison (N. J.), 200.
    A private corporation.may be classified as a voluntary corporation. A public corporation is an involuntary one.
    An incorporated city or village as a general rule is a private or voluntary corporation, and as such is liable for the negligence of its agents and officers.

      It makes no difference whether the corporation is for profit, pleasure, mutual encouragement or for educational or religious improvement, it is at last but an individual pursuing a purpose, and like other individuals is liable for the torts and negligence of its officers and agents. Dayton v. Pease, 4 Ohio St. 80, and cases cited; A. & A. on Corp., 11th ed., secs. 310, 311, 382, 392; Brown v. South Kennebec Agricultural Society, 47 Maine, 275; Riddle v. Pro, Locks & Canals, 7 Mass. 169.
    The defendant accepted voluntarily the incorporation act, by the voluntary act of the thirty persons, for the mutual benefit of themselves and others and thereby became a private corporation.
    The acts under which the defendant organized, we cite .Swan’s Stat. of 1854, sec. 1, p. 35; Id., sec. 24 (1), p. 39.
    These sections are substantially the same as are now found in the Revised Statutes. See Revised Statutes, sections 3679 to 3700.
    The defendant having voluntarily accepted the incorporating act, became a private coporation as much as though it ■ had been a corporation for gain or pleasure.
    No brief for defendant in error.
   Williams, J.

The petition, it must be conceded, states a cause of action, to which the paragraph of the answer demurred to, is no defense, unless the defendant is protected against liability for its negligence, by the law under which it was incorporated, or can in some way derive such protection from it.

There is a class of public corporations, sometimes called •civil corporations, and sometimes quasi corporations, that, by the well settled and generally accepted adj udications of the courts, are not liable to a private action in damages, for negligence in the performance of their public duties, except when made so^ by legislative enactment.

Of this class, are counties, townships, school districts and .the like. The reason for such exemption from liability, is that organizations of the kind referred to, are mere territorial .and political divisions of the state, established exclusively for public purposes, connected with the administration of lo.cal government. They are involuntary corporations, because created by the state, without the solicitation, or even consent, of the people within their boundaries, and made depositaries of limited political and governmental functions, to be exercised for the public good, in behalf of the state, and not for themselves. They are no less than public agencies of the state, invested by it, of its own sovereign will/ with their particular powers, to assist in the conduct of local administration, and execute its general policy, with no power to decline the functions devolved upon them, or «withhold the performance of them in the mode prescribed, and hence, are clothed with the same immunity from liability as the state itself.

The Board of Commissioners v. Mighels, 7 Ohio St. 119; Finch v. Board of Education, 30 Ohio St. 37; The State v. Powers, 38 Ohio St. 54; Bigelow v. Randolph, 14 Gray, 541; Lloyd v. The Mayor, etc., 1 Selden, 369; Bailey v. The Mayor, etc., 3 Hill, 531; Riddle v. Locks and Canals, 7 Mass. 169 ; Brown v. South Kennebec Agricultural Society, 47 Maine, 275.

This rule of exemption, however, extends no further than its reason, and therefore has no application to corporations •called into being by the voluntary action of the individuals forming them, for their own advantage, convenience or pleasure. Corporations of this class, which are but aggregations of natural persons associated together by their free consent, for the better accomplishment of their purposes, are bound to the same care, in the use of their property, and conduct of their affairs, to avoid injury to others, as natural persons; and, a disregard or neglhct of that duty, involves a like liability.

When, therefore, it is determined, to which of these classes of corporations the defendant belongs, a decision of the case is reached; and, to do this, an examination of the statutes, under which the organization of the defendant was effected, becomes necessary.

The act of February 28,1846, and the amendments thereto, in so far as they aid this inquiry, in substance provide; that thirty or more persons, residents of the county, may, by organizing themselves into a society for the improvement of agriculture, adopting a constitution and by-laws for their government, and appointing the customary officers, become a body corporate, with capacity to sue and be sued, “ and perform all such acts as they deem best calculated to promote the agricultural and household manufacturing interests” of the county and state; and, when they shall pay to the treasurer of the-society, “by voluntary subscription, or fees imposed on its-members, any sum of money in each year not less than fifty dollars,” they are entitled, upon the certificate of the president,, verified by the oath of the treasurer, to the effect that such payment has been made, to draw from the county treasury an equal amount, but not to exceed two hundred dollars. The societies are also made capable “'of holding in foe-simple, such real estate as they have purchased or may hereafter purchase, for sites-whereon to hold their fairs,” and, to receive and make conveyances and agreements in relation thereto. The county commissioners are authorized, “if they think it for the best interests of the county and society,” to contribute out of the county treasury, for the purchase or lease of such site, a sum equal to, or greater than that paid by the society for the purchase or lease thereof, but no tax shall be levied for a sum greater than that paid by the society, unless a majority of the electors of the county, voting at some general election, shall vote in favor of such tax. The society is empowered to sell its fair grounds “in such manner and on such terms as it may deem proper,” and conveyances therefor may be executed by the president; but “ grounds owned partly by the society and partly by the county,” cannot be sold or incumbered, without the consent of the commissioners, and when sold, the conveyance must be executed by the commissioners, as well as the president of the society. The money arising from the sale, is required to be paid into the county treasury, and cannot be paid out, without the consent of the commissioners.

The duties enjoined on such societies are, to “offer premiums for the improvement of soils, tillage, crops, manures, implements, stock, articles of domestic industry, and such other articles, productions and improvements, as they may deem proper,”' and, to so “ regulate the amount of premiums, and the different grades of the same”, that “ small as well as large farmers ” may have an opportunity to compete therefor.” They are required to publish a list of the awards, and an abstract of the treasurer’s report, in the newspapers of the county, and report annually their proceedings, with a synopsis of the awards, a description of the improvements, and the condition of agriculture in the county, to the State Board of Agriculture.

From this summary oFthe statutes, it is apparent, that corporations formed under them, are not mere territorial or political divisions of the state; nor are they invested with any political or governmental functions, or made public agencies of the state, to assist in the conduct of its government. Nor can it be said, that they are created by the state, of its own sovereign will, without the consent of the persons who constitute them, nor that such persons are the mere passive recipients of their corporate powers and duties, with no power to decline them, or refuse their execution. On the contrary, it is evident that societies organized under the statutes, are the result of the voluntary association of the persons composing them, for purposes of their own. It is true, their purposes may be public, in the sense, that their establishment may conduce to the public welfare, by promoting the agricultural and household manufacturing interests of the county; but, in the sense, that they are designed for the accomplishment of some public good, all private corporations are for a public purpose, for the public benefit, is both the consideration and justification for the special privileges and franchises conferred on them. These agricultural societies are formed of the free choice of the constituent members, and by their active procurement; for, it is only when they organize themselves into a society, adopt the necessaiy constitution, and elect the proper officers, that they become a body corporate. The state neither compels their incorporation, nor controls their conduct afterward. They may act under the organization, or at any time dissolve, or abandon it.

While the authority is not in terms conferred on such societies, to hold fairs, and charge for admission to them, the power to “ perform all such acts as they deem best calculated to promote the agricultural and household manufacturing interests of the county, appears to be ample, for that purpose, and also to authorize the society to select the site whereon to hold the fair, adopt plans for buildings and superstructures, and erect them, at its pleasure. The society is absolutely free, to determine whether it will erect any buildings, or seats, for the accommodation of its patrons, and, if any, what kind, and of what material. It is subject to no control, either in the selection of the material, or in the employment of the architect, superintendent or workmen •, and the whole management and conduct of the fair, is committed to it, and its officers, with the power, to determine what shall be done, how it shall be done, and by whom it shall be done. In short, in the execution of the powers conferred on it, the society selects its own agents, is invested with the sole control over them, and may, for its own indemnity, exact such guarantees against the want of skill and care in their employment, as it may deem proper, and be able to obtain.

There are cases, where a party, under no legal obligation to perform an act or service, may, nevertheless, be liable for damages caused by his negligence, if he voluntarily enter upon its performance. And, though the defendant below, was not bound to provide seats for the convenience of persons attending its fairs, and the omission to do so, would subject it to no liability, yet, having voluntarily entered upon their construction, for the purpose of being occupied by the people present, and to afford them greater convenience and comfort in witnessing the exhibition, thus constituting, when completed, an invitation to occupy them, as well as an inducement for the patronage of the fair, every consideration of right and justice requires, that in their construction, the society should have a careful regard for the safety of those for whose use they were designed, and who should act upon the invitation. And, since the defendant selected, and controled its own agents and servants, and might, by the exercise of due care in their employment, bave secured the construction of seats, that were suitable, and therefore safe (for they can be suitable only when safe), that law of social duty, which exacts of all, that they shall so conduct themselves as not to injure others by their neglect, forbids that the defendant should interpose its own incorporation, self-sought, and voluntarily maintained, as a shield against liability to one who, being rightfully upon the seats, and free' from fault, is injured by reason of its negligence in their construction.

Besides, it is evident that the defendant has, or may have, a corporate fund; for, it is authorized to hold in fee-simple, such real estate as it has purchased, or may hereafter purchase, for sites whereon to hold fairs; ” and there appears to be no limit affixed, either to the quantity, or value, of the real estate it may so own. True, it is provided, that if the county commissioners, with the county funds, contribute towards its purchase, it cannot be sold or encumbered without their consent; but the answer contains no allegation, that such contribution was made in the purchase of the defendant’s grounds.

Then, again, the statute imposes no limitation upon the amount that may be charged for entry fees, or for admission to the fair ; nor is there anything in the statute which requires the society to expend the whole of its receipts, in the payment of premiums, awards or expenses, or for any other specific purpose. They shall offer premiums as they deem proper,” is the language of the statute. The income, may many times exceed the expenditure, and hence, not only may a corporate fund be acquired, but it may be distributed among the members, or held for other disposition, at the pleasure of the society, and the corporation may thus become one of pecuniary profit, with the control and management of property, real and personal; and we see no reason why, for private injuries, caused by the improper management of its corporate property, it should not be held to the same general liability, as natural persons who own and manage the same kind of property.

Our conclusion is, that the facts stated in the portion of the answer demurred to are insufficient to constitute a defense to the case made by the petition, and the demurrer should have been sustained.

Judgment of the district court, and of the court of common pleas reversed, and the cause remanded, ivith instructions to sustain the demurrer, and for further proceedings.


author: By the Court.

text:
    Senff v. Pyle.

      Finding of facts — Circuit court not required to make, wider sec. 6710 Rev. Stats.

    (Decided November 13, 1888.)
    Error to the Circuit Court of Eoss County.
   By the Court.

The circuit court is not, under section 6710 of the Eevised Statutes, as amended May 4, 1885 (82 Ohio L. 230), required, in a proceeding in error, to make a finding of facts, though the evidence is all set forth in a bill of exceptions.

Judgment affirmed.