author: Burket, C. J.

text:
    Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Co. v. Lohe, Admr.

      Interurban electric railroad classed as street railroad — Rule, as to passenger standing on platform — Same as on steam cars —Implied agreement of passenger — To rules of carrier— Law of negligence.

    1. An interurban electric railroad is classed as a street railroad by the statutes of this state.
    2. While such interurban railroad companies are subject to the same regulations, and have all the powers of street railroad companies, so far as applicable, the law of negligence governing the standing on a platform of a moving street car in a municipality, is not applicable to the case of standing on such platform of a moving interurban car in the open country.
    3. The law of negligence governing the standing on a platform of a moving interurban car outside of a municipality, is the . same as in the case of steam cars; and where a rule of the company prohibits passengers from standing on the platform, and notice thereof is properly posted, or where the passengers upon request refuse to enter the car, there being in either case vacant, seats, they remain on the platform att their peril.
    4. In a contract for safe carriage there is an implied agreement that the passenger will obey the reasonable rules of the carrier; and where the passenger purposely violates such rule, and is thereby injured, he cannot recover damages from the carrier in an action on the contract.
    (Decided March 3, 1903.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error, The Cincinnati, Lawrence-burg & Aurora Electric Street Eailroad Co., is the owner of an interurban electric street railroad, extending from Cincinnati to Lawrenceburg and Aurora, with a branch extending from Cleves to Harrison. The road is constructed with heavy rails laid on cross tiés, and equipped with large coaches with seats on each side of the aisle, two compartments, one a smoker, a vestibule at each end, with steps leading to the ground, and propelled in the ordinary manner by electricity.
    On July 4, 1900, William Lohe was received as a passenger at Cleves to be carried to Harrison, paid his fare and took a position on the rear platform or vestibule, where he remained smoking a cigar until the car became derailed and fell on its side, and he was killed.
    It was a rule of the company that passengers were not allowed on the platform, and a notice was posted on the platform where he stood: “Passengers not allowed on the platform.” His attention was called to this notice by the conductor, and he was ordered to go into the car, as there were empty seats there for his accommodation. He refused,, and said that he did not care about going in as he was smoking a cigar. Shortly thereafter the assistant conductor requested him to step inside the car, but he remained on the platform until the car became derailed in going around a curve and he was killed. Those in the car were not injured, except one man whose leg was slightly injured.
    The petition of the plaintiff below avers, that in consideration of the fare so paid, the railroad company undertook to safely carry the deceased as a passenger from Cleves to Harrison, and that by the negligence of the company, the car was thrown from the track, and without any fault on his part, he was thereby killed.
    The railroad company answered, and denied all negligence on its part, and denied that his death was caused without any fault on his part.
    Upon a trial before the court and a jury, a verdict was returned in favor of the administrator, and against the company. A motion for a new trial was overruled, and judgment entered on the verdict, to all of which proper exceptions were saved. The circuit court affirmed the judgment; and thereupon a petition in error was filed here by the railroad company, seeking to reverse the judgments of the lower courts. The errors complained of arise upon the charge as given, and upon refusal to charge as requested, and these will be noted in'the opinion.

      Messrs. Peck, Shafer & Peck and Messrs. Shepherd & Shafer, for plaintiff in error.
    Apart from the contract of carriage no obligation rested upon the company to exercise the highest degree of care to the end that he might be carried safely to his destination. Yet by the action of the court below all the obligations of the contract were enforced against the company, while the intestate was excused for the violation of the very provision which would have prevented the injury.
    In order to avail himself of his rights as a passenger it was his duty to go into the place provided for the carriage of passengers, which the platform was not. The same claim could be made if he had been injured while riding on top or beneath the car, that is now made, viz.': That he was not bound to anticipate an injury from derailment, and that his riding-in such a position would have no tendency to cause the car to become derailed.
    The question is, what was the nature of the duty the company ’owed to Lohe while he was in the act of violating a reasonable regulation?
    We contend that by reason of such violation he ceased to be entitled to the protection due- a passenger, and was only entitled to the exercise of that degree, of care which would protect him against wilful or reckless injuries. Thane v. Scranton Trac Co., 191 Pa. St., 249 (43 Atl. Rep., 136); Bard v Penna. Trac. Co., 176 Pa. St., 97; Nieboer v. Detroit Elec. Ry. Co., 87 N. W. Rep., 626; Booth on St. Railways, par. 339; 3 Thompson on Neg. (2 ed.), par. 2956; Nellis Surface St. Railroads, 473.
    The general rule with reference to steam-railroad cars is that if a passenger elects to ride upon the platform without any necessity, real or apparent, for taking that position, and while so riding is injured under such circumstances that he would not have been injured if he had not taken that position, he cannot recover damages from, .the railroad company; further, that when such an exposed position is taken in violation of a known regulation of the company the contributory negligence of the passenger is more clear. It is negligence per se. And this rule has been applied universally without reference to the negligence of the carrier. Thompson on Neg. (5 ed.), par. 2671; Railway Co. v. Miles, 40 Ark., 298; Heazel v. Railway Co., 76 Ill., 501; Railway Co. v. Moneyhun, 146 Ind., 147; Blake v. Railway Co., 78 Ia., 57; Railway Co. v. Thomas, Admr., 79 Ky., 160; Wills, Admr., v. Railway Co., 129 Mass., 351; Hickey v. Railway Co., 96 Mass., 429; Palmer v. Pennsylvania Co., 111 N. Y., 488; Mitchell v. Railway Co., 87 Cal., 72; 11 L. R. A., 130, note.
    With reference to standing on the platform of the ordinary street railroad car the general rule is as follows: Standing or riding on the platform of a street car, when there is room inside, is not negligence per se, but is a question for the jury under proper instructions of the court. Upham v. Railway

      Co., 85 Mich., 12; Nolan v. Railway Co., 87 N. Y., 63; Cincinnati Omnibus Co. v. Kuhnell, 9 Re., 197; 11 W. L. B., 189; Booth on St. Railways, par. 339; Upham v. Railway Co., 12 L. R. A., 129, note.

      Mr. Isaac B. Matson and Mr. Alfred B. Benedict, for defendant in error.
    The Street Railroad Co., plaintiff in error, in asking the reversal of the judgments below, plants itself upon a single proposition:
    That it has a legal right negligently to kill a passenger riding on the rear platform of its car, provided he has been ordered to go inside.
    The proposition is, that if I am standing on the platform of a street car after I have been directed to go inside, the company may negligently poke me in the back with a pole and break my spine, that this may he done with impunity, that no legal wrong is done me. The proposition not only shocks one’s common sense, but is one at which the moral sense of a boa constrictor would revolt.
    'That a negligent plaintiff may recover of a negligent defendant, is a rule of law well settled on both sides of the Atlantic and nowhere better settled than in Ohio. In such cases the question is, whose negligence is the proximate cause of the accident, the plaintiff’s or the defendant’s? The proximate cause of the accident in this case was the company’s negligently taking its car off the track and turning it upside down. If the company had kept its car on the track, where it had contracted with the passenger to. keep it, where William Lohe, as a reasonable and prudent man had a right to expect it would be kept,. he would have ridden to his destination in perfect safety. His standing where he did, did not cause the car to go off the track. What happened was not the natural or probable consequence of his position on the platform.
    This court, so recently as March 5, 1895, ruled distinctly to the contrary of the street railroad company’s proposition in the case of Schwartz, wherein it affirmed without report (33 Bull., 131) the judgment of the circuit court in the case of Schwartz, Admr., v. The Cincinnati Street Ry. Co., 4 Circ. Dec., 272 ; 8 C. C. R., 484.
    The circuit court decided the same proposition in Vail v. The Cincinnati Ry. Co., 7 Circ. Dec., 28; 13 C. C. R., 494; Street Ry. Co. v. Boudrou, 2 Am. & Eng. R. R. Ca., 30; Schwartz v. Railway Co., 4 Circ. Dec., 272 ; 8 C. C. R., 484; the case of 13th and 15th Streets Passenger Ry. v. Boudrou, 92 Pa. St. 475, decided A. D. 1880, is a case directly in point. The court cited and followed the leading English case of Greenland v. Chaplain, 5 Ex.; 2 Shear. & Red. on Neg. (7 ed.), Sec. 523, p. 973; Railroad Co. v. Ball, 53 N. J. L., 283; Watson v. Railway Co., 55 N. J. L., 125; Willmott v. Street Ry., 106 Mo., 535 (1891); Seymour v. St. Ry. Co., 114 Mo., 266 (1892) ; Whalen v. Traction Co., 61 N. J. L., 606; Keith v. Pinkham, 43 Me., 501; Vail v. Railroad Co., 147 N. Y., 377; Nolan v. Railroad Co., 87 N. Y., 63; Graham v. Manhattan R. R. Co., 149 N. Y., 336; Thompson on Neg. (3 ed.), Sec. 2954; Nellis on Surface Railroads, Sec. 271.
    A very full discussion of the subject of contributory negligence is to be found in the work of Beach on Contributory Negligence (3 ed.), Sec. 292.
    But in view of the obligations of a common carrier of passengers, as established and enforced by this court in Railroad Co. v. Kassen, 49 Ohio St., 230, decided as late as 1892, the position of the street railroad company is without' any foundation whatever.
    The Kassen case was followed and approved by this court in Krause v. Morgan, 53 Ohio St., 26, and, also, in Schweinfurth, Admr., v. Railway Co., 60 Ohio St., 215, and by the United States Circuit Court of Appeals for this circuit in Railroad Co. v. Hellenthal, 10 O. F. D., 348; 88 Fed. Rep., 116. Thompson on Carriers of Passengers, p. 544, Sec. 2; Abbott’s N. Y. Dig., under title of Carriers of Passengers; Bigelow on Torts (7 ed.), Sec. 787; Greenland v. Chaplain, 5 Ex.; Sweetland v. Railroad Co., 177 Mass., 574.
   Burket, C. J.

Counsel for the railroad company requested'the court to give the-following charges* to the jury:

“I. If the jury should find, from the evidence, that William Lohe was standing upon the platform of defendant’s car at the time when the car was derailed, ■and that he had been notified by the conductor to go inside the car, and that there was room within the car where he might have been seated, and that said William Lohe failed or refused, to comply with said request, but remained .upon the platform, and that his death was due to the fact of his remaining in that position,- your verdict should be for thé defendant.
. “II. If the jury should find, from the evidence, that the defendant company had established a rule forbidding passengers to stand upon their platforms, and had posted notices of such rule upon the platforms of its cars, and that there was such a notice upon the platform of the car upon which William Lohe was riding upon the fourth day of July, 1900, and that William Lohe was standing upon the platform at the time the car left the track, and that he hacl been requested to leave said platform and go inside the car,- and that there was room for him within the car, and said William Lohe disregarded said notice and remained upon the platform, and if the jury further find that if he had gone into the car and had not remained upon the. platform he would not have been injured, then the verdict of the jury should be for the defendant in this action.”

The court refused both of said charges, and proper exceptions were saved.

After attempting to so clearly define proximate . cause and contributory negligence as to enable the jury to understand the same, the court charged the jury as follows:

“Let us now apply these rules to the case at bar. It is not denied that the deceased, William Lohe, was standing on the rear platform of the car in question, immediately before the car was derailed. It is not contradicted by the evidence that the deceased wag warned or requested to go into the car, and that, as a matter of choice, he preferred to remain outside, on the platform; that the company’s employes did not further attempt to enforce the rule that passengers should remain inside of the car. The deceased was found dead, with a part of his body underneath the car, or the vestibule. How he got there, whether by falling, or jumping, or by being jolted off is disputed.
“A passenger who is not coerced or induced by the railroad company or its employes to stand upon a platform, or who stands upon the platform not as a matter of necessity, but simply from choice, although, it may be caused by the discomfort of a crowded car, assumes the risks and hazards which ensue from that position. The deceased, therefore, assumed the risks and hazards incidental and usual to that position. ■Whether the company, through its employes, posted such warnings upon the car or whether, prior to that time, the defendant company failed, at all other times, nr only occasionally, whether such rule was disregarded by passengers at other times, will be immaterial in this case, because of the actual notice given him Iby the employes.
“The deceased, William Lohe, by his position, therefore, assumed the risk of being jolted off the platform T>y collision with teams, vehicles, or other obstructions upon the highway, or of being jolted off by the turning of sharp curves, or the sudden or quick stoppage of the car in case of emergency. The deceased did not, by the fact of standing upon the platform, assume the risk of a derailment or upsetting of the •car. The fact that he stood on the platform was a condition, and not a cause, of the derailment or upsetting of the car. Therefore, the mere act of standing upon the platform could not be a proximate cause of the injuries and death of the deceased. But ■whether by any other act alone, or connected with the act of standing upon the platform, was the proximate .cause of the injuries and death of the deceased, is for you to determine.”

The correctness of this charge, and of these requests depends to some extent upon the character i|o "be assigned to the interurban railroad upon which the accident occurred.

The law of negligence, or rather of contributory negligence, .of one riding upon a platform of a street nailroad car, is not the same as of one riding upon the platform of a steam railroad car.

The legislation in this state as to railroads and Street railroads has been kept separate and distinct. For a full consideration of the subject, see Bridge Co. v. Iron Co., 59 Ohio St., 179.

Interurban railroads, such as the one,in question in this case, are classed by the general assembly as street railroads. Section 2780-17, Bates’ Revised Statutes. The construction and operation of such railroads is authorized by the act of May 17, 1894, 91 Ohio Laws, 285, and carriéd into .Bates’ Statutes' as sections 3443-8 to 3443-13. Section six of that act is as follows: “Such companies shall be subject to the same regulations now provided for street railroads, in so far as the same are applicable, and shall have all the powers, in so far as they are applicable, that other street railroad companies have.”

It seems reasonably clear that while..operating the cars of an interurban railroad within a municipality, the regulations and powers of a street railroad company are applicable, but when it comes to running cars of such railroads in the open country, upon a track substantially the same as the track of a steam railroad,' and at a high rate of speed, it would seem that the same rules as to negligence, and contributory negligence, should prevail, as are applicable to steam railroads; and that a passenger standing upon the platform of an interurban car in the open country, should be held to the same rules as if he were standing on the platform of a steam car. The danger is the same in either case, and where there is no difference in danger, there should be no difference in the care required, nor in the rights and liabilities flowing from the neglect to observe the proper care.

For an injury received by a passenger on a steam railroad by reason of a collision or derailment while - standing upon the platform, in violation of the known rules of the. company, there being vacant seats in the car, there can be no recovery against the railroad company. The authorities as to this seem to be uniform. Railroad v. Miles, 40 Ark., 298; Hickey v. Railroad Co., 14 All. (Mass.), 429; Railroad Co. v. Thomas, Admr., 79 Ky., 160; Railroad Co. v. Moneyhun, 146 Ind., 147; Palmer v. Railroad Co., 111 N. Y., 488; Wills v. Railroad Co., 129 Mass., 351.

There are cases in which a recovery has been allowed where the passenger rushed to the platform to escape some other danger. Such was the case of Mitchell v. Southern Pacific R. R. Co., 87 Cal., 62, where an express messenger became alarmed at the rate of speed of the train while descending a steep grade, and fearing a derailment he. rushed to the platform intending to jump off into the sand. I.t was held that he could not be held to any particular course of conduct while attempting to avert a present threatened danger.

In the case at bar the deceased was ordered into the car by the conductor, and requested to go in . by the assistant conductor, there were vacant seats inside, a sign was up “Passengers not allowed on the platform,” and yet he remained on the platform because he wanted to smoke a cigar. He remained there at his peril, and even though the company may have been negligent in not preventing the derailment, he was also negligent in standing upon the platform. Those inside the car escaped without injury, and if he had gone inside when ordered to do so, the presumption is that he too would have escaped. It is a case where it required the negligence of both himself and the company to bring about the disaster; and where the injury is brought about by the combined negligence of both, both are without remedy. Coal Co. v. Estievenard, 53 Ohio St., 43, 57, and cases there cited.

In view of the law as above stated, it is clear that the court of common pleas erred in the charge as given, and also in refusing to charge as requested; and that the circuit court erred in affirming the judgment. '

There is another reason why there can be no recovery in this case upon the facts appearing in this record. The action is for a violation of the contract of safe carriage. Such a contract has implied therein that the passenger will obey the reasonable rules of the carrier. The rule against standing on the platform was a reasonable one, and this the deceased deliberately, persistently, and purposely violated, and that violation aided in causing the injury of which complaint is now made. Having himself first violated the contract, and that violation having brought about the injury, he has no cause of action against the company for violating a contract by the terms of which he first refused to be bound. As he, if alive, would have no cause of action his administrator has none. It. is urged that the action might have been in tort. This is true. He could sue either in tort or contract. He elected to sue upon the contract, and he is bound by his election.

The controlling facts of the case seem to be conceded, and the case seems to be one that might well be dismissed by this court after reversing the judgments below, but it may be safer to remand the case to the court of common pleas for further proceedings according to law and this opinion, and it is so ordered.

Judgments reversed, and cause remanded.

Spear, Davis, Shatjck, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Rempe & Son v. Ravens et al.

      Homestead exemptions in attachment and garnishment — Proceedings in garnishment before justice of peace — Sections 6489 and 6498, Revised Statutes — Property exempt from levy — ■ Section 5441, Revised Statutes — Failure to claim exemption during attachment, not waiver, when — Exemption applicable before appropriation under attachment.

    1. In a proceeding in attachment and garnishment under Sections 6489 and 6498, Revised Statutes, where property of the defendant in the hands of a garnishee is at the time of the service of process upon such garnishee, subject to exemption by said defendant, under Section 5441, Revised Statutes, in lieu of a 'homestead, mere failure of the defendant to assert such •right in the attachment suit by a motion or application to ■discharge the attachment, or for a release of the property on the ground that the same is so exempt, does not of itself amount to and constitute an abandonment or waiver by said ■defendant of his right to claim and have such exemption.
    2. If in such action no such motion or application is made by defendant, and -the decision of the justice is in no way invoked by him upon the question of his .(defendant’s) right to demand amd hold said property exempt, the judgment of the • justice upon the final Rearing of said cause “sustaining said , attachment and ordering the garnishee to pay the money in his hands into court,” will not conclude or estop the defendant from thereafter asserting his right to have and hold said money exempt; but he may, notwithstanding said judgment and order, demand such exemption, and upon demand made at any time before the actual appropriation of the same to the payment of the plaintiff’s claim, he is entitled to have said money set off and allowed to him as exempt.
    (Decided March 31, 1903.)
    Error to the Superior Court of Cincinnati.
    On February 2, 1899, The Hartford Fire Insurance Co. filed its petition in tbe superior court of Cincinnati against Henrietta Ravens, Henry Ravens, Edward- M. Spangenberg, assignee of Henrietta Ravens, F. Rempe & Son, a partnership, J. M. Potter, W. J. Behymer and Abraham Tavel as defendants. In its petition plaintiff alleged:
    “That it issued a certain policy of insurance on the house and furniture of the defendant, Henrietta Ravens.
    “That afterwards, to-wit, on the twenty-eighth day of January, 1897, said house was destroyed by fire and the furniture partly destroyed. That after said fire, and before this plaintiff had time to investigate the same, certain proceedings were instituted by the defendants, Rempe & Son, J. M. Potter, W. J. Behymer and Abraham Tavel, and garnishments were issued and served upon this plaintiff, by all of said defendants, on claims owing to said defendants by the defendant, Henrietta Ravens and Henry Ravens.
    “Plaintiff further says that after investigating said fire it determined that there was no liability on its part on the policy; that an assignment was made by the said Henrietta Ravens to the defendant, Edward M. Spangenberg, assignee; and the said Spangenberg, as assignee, brought an action against this plaintiff in the superior court of Cincinnati, known as cause No. 48969; that plaintiff filed an answer to said action, denying any liability therein.
    “That afterwards said cause came on for hearing before the Honorable Edward J. Dempsey and a jury, and was submitted to the jury upon the issues joined, upon consideration whereof, there was found due the said Edward M. Spangenberg, assignee, the sum of three hundred and fifty ($850) dollars, which fund plaintiff now has in its possession; but on account of the demands made upon plaintiff by the said defendants in the attachment processes issued respectively by them, plaintiff is unable to determine who is entitled to said fund. ■
    “Plaintiff further states that each of said defendants threatens to and will, unless restrained by this court, sue this plaintiff for the recovery of said money; and that this action is not brought by collusion with either of the defendants.
    “Wherefore plaintiff prays that the defendants be required to interplead together concerning their claims on said money, and be enjoined from taking any proceeding against plaintiff in regard thereto, and that plaintiff be allowed to deliver said money to some person designated by the court to receive the same, and that it be thereupon discharged from all liability in relation thereto.”
    In said action each and all of the defendants thereto waived the issuing and service of summons and voluntarily entered their appearance therein. The defendants, F. Rempe & Son (now plaintiff in error), and Henrietta Ravens (now defendant in error), each filed answer and cross-petition in said action and each claimed an interest in and title to the money admitted by said Insurance Company to be in its possession. F. Rempe & Son claimed to be entitled to $246.60 thereof by virtue of a judgment and lien obtained by it in an attachment suit instituted by it against Henrietta Ravens and Henry Ravens, her husband, in which suit said Hartford Insurance Co. was garnishee. Henrietta Ravens claimed the whole of said fund of $350 under favor of Section 5441, Revised Statutes of Ohio, as an exemption in lieu of a homestead. All the other defendants in said action made default. On the trial of this cause in the superior court, special term, the following judgment and decree was entered by that court:

      “This cause came on to be heard upon the petition of the plaintiff herein, the answer and cross-petition of the defendant, Henrietta Ravens, the answer and cross-petition of the defendant, F. Rempe & Son, all the other defendants being, in default for answer or demurrer, and was submitted to the court.
    “Upon consideration whereof, the court find upon the issue joined, for the defendant, Henrietta Ravens, and against the defendant, F. Rempe & Son, and that the said F. Rempe & Son is not entitled to the relief prayed for in the answer and cross-petition, but that said defendant, Henrietta Ravens, is entitled to the relief prayed for in her answer and' cross-petition.
    “It is therefore ordered, adjudged and decreed that the plaintiff pay out of the funds in his hands:
    “First — The costs of this action, taxed at $16.94.
    “Second — To the defendant, Henrietta Ravens, or her attorney, Geo. W. Harding, the balance of said fund, amounting to $333.06; to all of which the defendant, F. Rempe & Son, except; and upon the motion of F. Rempe & Son, a stay of proceedings is granted herein for thirty days,' wherein they may file petition in error.”
    This judgment and decree was affirmed by the superior court in general term,- and to reverse this judgment of affirmance this proceeding in error is prosecuted. A further statement of facts wiil .be found in the opinion.

      'Messrs. Burch & Johnson, for plaintiffs in error.
    Rempe & Son claim by reason of these attachment proceedings before the justice of the peace, which appear to be and- are in fact regular, the affidavit containing all the averments:required^by the statute, the answer of the garnishee disclosing sufficient assets in its hands, the finding of .the court sustaining .the attachment and ordering the garnishee to pay the money into court; all the legal requirements being complied with, the proceedings regular in every way, and said judgment not being reversed or vacated by appeal or otherwise, therefore it is conclusive between this plaintiff in error and the defendant, Henrietta Ravens, the parties to that proceeding. Such judgment being a finding that the money due under the policy was not exempt from execution,' it is now res adjudicate/, between the parties. When the court sustained the attachment, that was, in fact, a finding that the statements in the affidavit were true, namely, that the property was not exempt, and that the defendant was guilty of the charges in the affidavit contained; for without making this finding the justice could not sustain the attachment.
    The sustaining of the attachment presupposes a finding that the property was not exempt from execution, and that the defendants were guilty of the wrongs recited in the affidavit. Root v. Davis, 51 Ohio St., 29; Railway Co. v. Cronin, 38 Ohio St., 122.
    We claim that a justice of the peace having jurisdiction of the parties and subject-matter to hear and determine the cause, his decision, while unreversed, is conclusive between the parties. If the justice erred, the remedy was by appeal or proceeding in error from that judgment. Strauss v. Cooch, 47 Ohio St., 115; Cleveland Stove Co. v. Mehling, 11 Circ. Dec., 400; 21 C. C. R., 60; Fischli v. Fischli, 1 Black. (Ind.), 360; Petersine v. Thomas, 28 Ohio St., 596; Swensen et al. v. Cresop, 28 Ohio St., 668; Bridge Co. v. Sargent, 27 Ohio St., 233; Babcock v. Camp, 12 Ohio St., 11; Kirk v. Stevenson, 59 Ohio St., 558.

      Mr. Howard Douglass; Mr. Geo. W. Harding; Mr. Ed. M. Spangenberg; Messrs. Gobb & Howard; Mr. W. A. Hicks and Mr. M. Buskin, for defendants in error.
    There is nothing judicial in the issuing of an order of attachment, as it is issued by the clerk of the court upon the filing of the proper affidavit (see Section 5522, Revised Statutes) and when a justice issues the order he acts as a clerk and only in a ministerial capacity.
    If the affidavit contained the statutory requirements the order issues as of course.
    Where the debt is due the clerk issues the order; when it is not due the attachment must be granted by the court, or by a judge thereof, and of course this is judicial and the court as such passes upon the sufficiency of the affidavit. Section 5565. And in such case the justice of the peace would act judicially.
    The only manner in which the attachment may be attacked is by motion filed by the defendant. Harrison & Wiley v. King, 9 Ohio St., 388; Coston v. Paige, 9 Ohio St., 397.
    Previous to the amendment of the justices’ code the code of civil procedure ás to filing a motion to discharge an attachment applied, and this is a written motion, and we apprehend that in no case could an oral motion be made. Bancroft v. Talbott, 29 Ohio St., 538; Baer v. Otto, 34 Ohio St., 11; Seville v. Wagner, 46 Ohio St., 52.
    Sections 6522-6525, Revised Statutes, regulate the proceedings before a justice. The order of attachment since the adoption of the code of civil procedure directs the officer to seize property, etc., “hot exempt by law from being applied to the payment of the plaintiff’s claim,” etc. Section 5524 and section 6491 of justices’ code.
    Does exempt by law mean specifically exempt, or does it include property exempt by selection of tbe debtor? It certainly does not mean the latter, for by failing to demand and select, tbe debtor may waive tbe right. McComb v. Thompson, 42 Ohio St., 139.
    If no motion is filed to discharge tbe attachment no order with reference thereto is to be made, and tbe court is not required to sustain tbe same, but when judgment is rendered for tbe plaintiff, an order of sale issues to sell tbe attached property. Sections 5544 and 6507.
    If a finding sustaining an attachment is in legal effect a judgment that tbe property is not exempt, by selection or otherwise, and tbe judgment debtor has made no motion to discharge tbe attachment on tbe ground that tbe same is exempt, then what becomes of tbe provision of section 5441, that tbe exemption may b.e demanded, or rather selected by tbe debtor, etc., at any time before sale? “Credits and moneys selected by tbe debtor cannot be taken and held under an order of attachment or by garnishee process.” Chilcote v. Conley, 36 Ohio St., 546.
    Under tbe laws as it formerly stood, if an order sustaining an attachment was necessary .or proper, and bad tbe effect now claimed for it by counsel, then it was a finding that the officer bad not seized any property that was exempt by law from being applied to tbe payment of tbe plaintiff’s claim, and that tbe attached property was not exempt, and tbe judgment debtor was estopped from ever afterwards claiming that it was exempt.

      It would seem that opposing counsel adopted the precise argument that was made by Attorney Lemmon in the case of Close v. Sinclair, 38 Ohio St., 530.
    It is only where the defendant invokes the action of the court upon his motion to discharge the attachment, on the ground that the property is exempt that he is estopped by the judgment rendered thereon, or rather it is a waiver of his right to a trial of the question by a jury. And that is the decision relied upon by counsel. Strauss v. Cooch, 47 Ohio St., 115. The facts in the case at bar do not bring it under that rule.
    A judgment is not evidence of any matter incidently cognizable or merely to be inferred by argument. Miehle v. Andrews-Jones Printing Co., 10 Circ. Dec., 1; 18 C. C. R., 158; Hixson v. Ogg, 53 Ohio St., 361, on question of res judicata. On question of motion to discharge attachment. Kirk v. Stevenson, 59 Ohio St., 556; Bradley v. Wacker, 7 Circ. Dec., 565; 13 C. C. R., 530; Mentel v. McGammon, 7 Circ. Dec., 320; 13 C. C. R., 280.
    At the time the judgment before the magistrate was rendered, neither Henrietta Ravens, nor her husband, was the owner of a homestead, as that had been destroyed by fire.'
    But, however that may be, we think it makes no difference whether she was then the owner of a homestead or not. If she was at that time, she could not claim‘the chattel property or money as exempt, and a motion to discharge the attachment' on that ground would have been overruled.
    We understand the law to be well settled, that the right to select property as exempt may be exercised at any time before the property or fund is actually disposed of, or the order of distribution made, and if Mrs. Ravens was the owner of a homestead, at the time thfe attachment was issued' and ceased to he such owner at the time she filed her answer in the case and demanded the money in controversy, her right thereto would be determined upon the state of facts as they existed at the time the fund was for distribution, and #it was ordered to be paid to her on March 20, 1901, at which time, neither she nor her husband was the owner of a homestead.
    It seems to us that the decision of this court in case of Fry v. Smith, 61 Ohio St., 276, is decisive of the case at bar, regardless of what the decision of the magistrate may have been, unless a motion had been filed before said magistrate to dismiss the attachment on the ground that the property attached was exempt and this motion had been overruled. Also on the same question we refer to Niehaus v. Faul, 43 Ohio St., 63; Ross v. Carter, 54 Ohio St., 664; affirming Carter et al. v. Ross, 4 Circ. Dec., 333; 8 C. C. R., 139, upon grounds stated in the opinion of the circuit court; Wildermuth v. Koenig, 41 Ohio St., 180.
    In this last case it was held where a party had a lien on the lands of another by judgment and before the property was about to be levied upon or seized under an order of sale, it was occupied by the debtor and his family as a homestead, that he was entitled to hold the same as a homestead as against such judgment lien. Cooper v. Cooper, 24 Ohio St., 488; Close v. Sinclair, 38 Ohio St., 530; Carpenter v. Warner, 38 Ohio St., 416.
   Crew, J.

On February 3,. 1897, the plaintiff in error commenced an action in attachment against the defendants in error, Henrietta Ravens and Henry Ravens, her husband, before William McFee, a justice of the peace in and for Columbia township, Hamilton county, Ohio, to recover the sum of $260 alleged to be due it on a certain promissory note executed by said Henrietta Ravens and Henry Ravens. In said suit the affidavit for attachment set forth and alleged as grounds of attachment and garnishment that: “The said defendants are about to convert their property, or a part thereof, into money with the intent to place it beyond the reach of their creditors; have property or rights of action which they have assigned, removed or disposed of, or is about to assign, remove or dispose of property, or a part thereof, with intent to defraud his creditors. Said affiant further makes oath and says that he has good reason to and does believe that the Hartford Fire Insurance Co., etc., L. E. G-uentral, agent, and A. W. Schell & Co., agents and managers, have in their possession certain property, funds and credits, the property of said defendants.”

And said affidavit contained the further averment, required by Section 6489, Revised Statutes, that “the property sought to be attached is not exempt from execution.” In said action garnishee process with summons was duly issued and served upon the Hartford Fire Insurance Co. Said company as such garnishee answered, disclosing that Henrietta Ravens held a policy of insurance in its company under which there might become due to her, because of a loss sustained by her as the result of a fire on and in the property covered by said policy of insurance, the sum of $900, but asserting that at the time of making said answer the amount of said loss had not then been ascertained, and there had not then been any adjustment of the same. On the hearing of this attachment suit the following finding and judgment was made and entered by the justice:

“February 8, 1897, 7 o’clock A. M., the time set for appéarance, this cause coming on to be heard, the defendants in court, trial had; whereupon it is considered by me that the plaintiff recover of the defendants, Henrietta Ravens and Henry Ravens, the sum of two hundred and forty-six and sixty one-hundredths ($246.60) dollars; and it further appearing the defendants have been guilty as charged in the affidavit herein the attachment is therefore sustained; and it appearing that the Hartford Fire Insurance Co. has in its possession certain monies belonging to the defendants, amounting to $900, it is therefore ordered that the garnishee, the Hartford Fire Insurance Co., pay into this court the sum of $260.50, the amount of the judgment and costs herein, taxed at $-.”

The Hartford Insurance Co. never complied with this order and no other or further proceedings were ever had in the attachment case before said justice. It having thereafter, in a suit against said insurance company, been ascertained and adjudged that the amount due Mrs. Ravens from said company on said policy of insurance was $350, and said F. Rempe & Son and Henrietta Ravens, each claiming to be entitled to said fund, said Hartford Insurance Co. commenced an action in the superior court of Cincinnati, brought said fund into court, and asked that said parties be required to interplead therefor and that said court adjudge and direct to whom said fund should be paid. In said action so brought by said insurance company, F. Rempe & Son, plaintiff in error, filed an answer and cross-petition claiming said fund, or so much thereof as might be necessary to satisfy it^ judgment, by virtue of a lien which it alleged it acquired by its judgment obtained in the attachment proceeding. Henrietta Ravens, by answer and cross-petition in said-suit, ■ claimed the right to hold as exempt said sum of $350, under the exemption laws of' Ohio and demanded that the same be set off and allowed to her and her husband in lieu of a homestead. The .facts of this case are not in dispute and it is conceded that said Henrietta Ravens is entitled, in this action, to have said allowance and to hold said fund as exempt, unless her right thereto is cut off or she is concluded and estopped from making such claim, because of the judgment in said attachment suit. It is contended on behalf of plaintiff in error that whether the property taken in attachment by .garnishee process was property subject to exemption, by selection or otherwise, Was, because of the averment in the affidavit in attachment that said property was exempt from execution, a question necessarily -involved in that suit, and being so involved, it is said was determined and adjudicated by the judgment therein rendered; and it is the claim of plaintiff in error that by force of the judgment in that suit' such question became and is, as between the parties, res judicata and that the defendant in error, Henrietta Ravens, is therefore concluded and estopped in this action, because of said judgment, from now claiming or holding said property as exempt.

Whether the matter of her right to exemption was so involved' in the attachment suit as that it-was necessarily determined therein, and whether in this action the effect claimed for it, shall be given to the judgment rendered in said attachment-suit, are the-only questions involved in the present inquiry.'' That the judgment of a court of - competent jurisdiction upon a matter necessarily or directly in issue is, until vacated- or reversed, conclusive as between the' parties, is a rule too well established to admit of question. As said by Peck, J., in the case of Lore v. Truman, 10 Ohio St., 53: “There can be no doubt, at the present day, but that the rule established in the Duchess of Kingston’s Case, in 11 State Trials, 291, cited with approbation by Chief Justice Gibson, in Hibshman v. Dulleban, 4 Watts, 191, and by Lewis, J., in Lentz v. Wallace, 17 Pa. St., 412, is the true one and well expressed: ‘The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea in bar or as evidence, conclusive between the same parties, on the same matter, directly in question in another court. Rut neither the judgment of. a court of concurrent or exclusive jurisdiction, is evidence of .any matter incidentally cognizable,' nor of any matter to be inferred by argument from the .judgment.’

“So it is also said in 3 Phillips’ Evidence, 845, ‘that where a judgment (or. decree) is relied on-by way of evidence as something conclusiveper se, between the parties, it must appear by the record of the •prior suit, that the particular controversy so sought to be precluded, was there necessarily tried and determined. In other words, if, in such cases, the former record clearly shows that the judgment to which this effect is ascribed, could not have-passed without deciding a particular matter, it will be considered as having settled that matter for all future actions; but otherwise not.? ”

Applying this rule to the case át bar, unless it appears of record that in the attachment suit brought by F. Rempe & Son against Henrietta Ravens, that the question of the right of Henrietta Ravens to' select and hold the fund in controversy exempt from exectition was in that suit directly presented and: determined, or that -, such matter was' so. necéssarily involved as dn issue in that proceeding that judgment therein “could not have passed without deciding the particular matter,” then, and in that event, if such facts should not so appear, such judgment as to such matter would not he final and conclusive, as against said Henrietta Ravens, and she would not, because of such judgment, be barred from asserting and claiming such right of exemption in this action. Where as in this case the property sought to be subjected to the payment of the plaintiff’s claim was not property, which was by statute specifically exempt, but was such as was exempt only upon demand and selection by the judgment debtor, the right to claim and have such exemption, being essentially a personal right or privilege, might, at will, be waived or asserted by the person in whose favor such right exists, hence in the very nature of things, until there is an assertion of such right by the person entitled to make the claim, a court is not called upon to make inquiry, nor can it rightfully determine the validity or invalidity of such claim or right, and by force of Section 5441, Revised Statutes, such claim is seasonably made if made at any time before sale or before the actual application of the property. Had Henrietta Ravens in said attachment proceeding filed, as she might have done, a motion to discharge said attachment on the ground that she was entitled to select and hold exempt from execution the property seized in said suit by garnishee process, and had such motion been heard and decided by the justice, then such question might be regarded as res judicata, and such judgment could be effectively pleaded as a bar to the claim for such exemption made by her in this action. Strauss v. Cooch, 47 Ohio St., 115. But no such motion to discharge the attachment having been made by her upon this or any other ground, and she having in no manner invoked the action or judgment of the justice upon the question of her right to select and hold said property as exempt, her right to make such selection and hold said exemption were in no way involved or put in issue in said attachment suit, and in consequence were not determined or adjudicated by the judgment . of said justice in that suit. A claim similar to the one relied upon and presented in argument by counsel for plaintiff in error in this case, was, it would seem, urged upon the consideration of this court in the case of Close v. Sinclair, 38 Ohio St., 530. This was a case involving, as does the case at bar, the question of the right of a judgment debtor after final judgment in an attachment suit, to select and hold exempt the property seized to the amount and value of $500, in lieu, of a homestead. Counsel for plaintiff in error claimed in argument that: “When the court sustained these attachments and ordered the property sold, it adjudicated that this property was not exempt. The proceeding in attachment is essentially in rem, and the order to sell the attached property is an adjudication that it is liable to be applied to pay the claim; and when the debtor has knowledge of the attachment, his claim for exemption comes too late if not made before this final adjudication.” White, J., in the opinion in that case, referring to this claim and argument of counsel, said:

“It is claimed on behalf of the plaintiffs in error, that the orders of sale in the attachment suits had the effect to cut off the right; that such orders, in effect, adjudged that the defendant had no right to hold the attached property exempt from sale. We do not think so. The effect of the attachments and the subsequent orders of sale, was no greater in regard to the right of exemption, than would have been had by a: judgment and execution thereon, levied' on the same property.”

.The court further said:

“A waiver is also claimed to arise from the fact that the debtor made no selection at the time of the levy of the attachments * "' *.
“The property now in question was selected by the debtor on August 4, 1874 — six days before the time fixed for the sale — and was set off and appraised by the officer, on the eighth of the same month. The question is, whether there- was such delay in making the selection, as to operate as a waiver of the right. We think the statute, which declares that the selection may be made ‘at any time before sale/ requires the question to be answered in the negative. 70 O. L., 51. We doubt not the right to make the selection may be waived by the debtor, as was held in Butt v. Green, 29 Ohio St., 667, but we find no circumstances in the present case to justify us in holding that he had waived the right.”

The writ of attachment or garnishment is in the nature of an “execution in advance” and the office and purpose of such writ is to hold and bind the property seized until final judgment in the attachment proceeding, and if upon final hearing in the attachment suit, judgment is entered in favor of plaintiff, the effect of such judgment is to give the plaintiff the right to enforce any lien he shall have acquired by his attachment .or garnishment against whatever interest the defendant may have in the property attached or garnisheed, “subject to be applied to the payment of (his) plaintiff’s claim,” and such only is the legitimate scope and effect of the judgment in so far as it affects or binds the property levied upon, and the fact that the affidavit in attachment contains the averment that the property is “exempt from execution” cannot operate to give to the judgment in attachment the effect of an adjudication of such claim or right in the absence of, and in advance of, an assertion thereof by the person entitled to make it. To hold that the judgment sustaining an attachment is in legal effect a finding and adjudication that the property seized is not, and thereafter cannot be, exempt by selection or otherwise, would be to render inoperative the plain provision of the statute, section 5441, which is, that such selection may be made at any time before sale, a provision which this court has said “should be liberally construed with a view of placing all debtors of the class upon a footing of equality.” 36 Ohio St., 548. A judgment sustaining an attachment and ordering the garnishee to pay into court the money in his hands belonging to the defendant, finds its support, and follows an inquiry, quite apart from defendant’s claim to exemption, and is conclusive only as to such facts as are necessary to be considered in determining said judgment. The judgment we are now considering is doubtless conclusive of defendant’s indebtedness to plaintiff, and as to the amount thereof, and it is conclusive of the fact that the justice found that the garnishee had property in its hands belonging to the defendant, Henrietta Ravens, for these were all essential matters of inquiry in determining said judgment and therefore necessarily embraced in it, but such judgment is not conclusive that the property so held by the garnishee may not be selected by, and allowed to, said Henrietta Ravens as an exemption in lieu of homestead, for that quesr tion was in no way involved by any issue before the court.

In Porter v. Wagner, 36 Ohio St., 471, the third clause of the syllabus is as follows: “A judgment is conclusive by way of estoppel only as to facts without the proof or the admission of which it could not have been rendered.” ' The majority of the cases relied upon and cited in the brief of counsel for plaintiff in error, are cases which only assert the well settled rule, that a valid judgment cannot be collaterally attacked. But no case has been cited by them supporting the proposition for which they here contend.

From the facts disclosed of record in this case we find that the claim and right of the defendant in error, Henrietta Ravens, to the fund in controversy, is superior to that of the plaintiff in error, F. Rempe & Son, and that said Henrietta Ravens was, and is, entitled to demand and hold said fund exempt from execution in lieu of a homestead. Such having been the judgment of the superior court its judgment is

Affirmed.

Burket, C. J., Spear, Davis, Shauck and Price, JJ., concur.


author: Price, J.

text:
    Langabaugh et al. v. Anderson.

      Escape of oil from tank — Flows on to adjoining property and igniting burns building — Action by property holder against lessor and lessees — Lessees charged with negligence — Error to withdraw certain matter from the jury — Question of negligence in pleading — Lessor not liable for negligence of lessee, when — Refusal to charge jury reversable error, when— Contracts — Pleading—Jury.
    1. In an action against the lessor and lessees in an oil and gas lease to recover for the burning of plaintiff’s building on a lot adjoining the leased premises, through the alleged negligence of the lessees, whereby oil escaped from a tank on the latter, and flowed under the building and thence down the slope of the hill to a creek where it came in contact with a Are which followed back the trail of oil and burned, said building, and the plaintiff’s petition on Which issue is: joined, alleges that such escape of oil resulted from the negligent acts and omissions of duty on the part of the lessees,,, in not safely keeping and caring for the oil, it is error for-the court to withdraw from the jury all consideration of the; issues joined on the allegations of negligence, and limit its¡ inquiry to the questions:
    “First — Is crude oil stored in tanks a highly explosive and dangerous substance and a constant menace to property in its vicinity?
    “Second — Did the defendants, or either of them, store crude oil in tanks on Mrs. Scott’s property adjoining plaintiff’s property, and if so, was the storage of such oil there the proximate cause of burning plaintiff’s property?”
    On t&e contrary, the ease should have been submitted to the jury on the questions of negligence put in issue by the pleadr ■ ings.
    2. In the trial of such action, where it appears from the evidence, that the lessor leased the lot for the purpose of producing oil or gas therefrom, reserving to herself one-eighth of the oil produced and delivered in tank, or the pipe lines, but reserving no control or right to direct the manner of drilling, or of the erection of tanks on the leased premises, but who surrendered complete possession and control thereof to the lessees during the term of the lease, such lessor is not liable to the owner of property to which oil escapes to its injury, solely through the negligence and omission of duty on the part,of the lessees; and refusing to so charge when requested by the lessor, is reversible error.
    (Decided March 31, 1903.)
    Error to the Circuit Court of Harrison county.
    The defendant in error, Hugh T. Anderson, brought suit in the court of common pleas, against Edward Langabaugh, Arthur Morton, Frank M. Hardwick and Mary Scott, to recover the value of a residence owned by the plaintiff in the village of Scio, which, he claims, was destroyed by fire on the night of March 18, 1899, through the fault of the defendants, now plaintiffs in error.
    The facts stated in the amended petition, and relied upon for recovery, are in substance, that plaintiff below on and prior to January, 1899, was the owner of a part of lot 6 in the village of Scio, and that Mary Scott was the owner of the adjoining lot, both being in the main part of the village, where houses, mostly wooden structures, were close together, as was well known to the defendants; and that on the twenty-sixth day of January, 1899, Mary Scott entered into a written contract with her codefendants by the terms of which she leased to her codefendants her lot for oil and gas purposes, vesting in them tlj,e right to drill thereon for oil or gas, and that the defendants all knew of the danger to adjoining property in operating said adjoining lot for said purposes. Mary Scott, the lot owner and lessor, was to receive as royalty, or consideration for said lease, one-eighth of the oil that might be produced from said lot, delivered in tank or in pipe lines, the balance of the oil to be the property of the lessees. The plaintiff alleges that the business of drilling for oil and gas on the premises leased was hazardous and dangerous to adjoining property; and further, that: The lessees drilled a well on the lot of Mrs. Scott some time prior to March 18, 1899, which .was then producing oil in large quantities, and the defendants suffered much of the oil to escape and mix in the ground, so that it became combustible, and that in the night of that day, an elevated tank which had been constructed for the temporary storage of the oil, fell over upon the ground, and that the oil therefrom saturated the ground further with oil, and that other large quantities of the fluid from the overturned tank ran over the ground and down a ravine or depression until it reached an open fire, from which. it was ignited, and the fire thus caused burned rapidly back along the line of its escape and communicated with the plaintiff’s building near said tank, and entirely destroyed it, to his damage, $1,500.
    The plaintiff next states, “that the damage thus caused to him, was the direct result of the wrongs and negligence of the defendants in these, to-wit:
    “1. It was unlawful to locate an oil well or contract for, or permit the same to be drilled upon the lot aforesaid of the defendant, Mary Scott, located as it was in such dangerous proximity to the buildings of the plaintiff, and where if the oil should escape, it would naturally spread out over the ground, and, flowing downward, would become ignited from the fires below. * * *
    “2. In substance, that the surroundings were not properly protected with adequate means of controlling and confining the oil produced, because there was no provision whatever made for preventing the flow of said oil down to the open fires below on other lots, in case of accident to the tank; and further that the tank was elevated upon insufficient supports, by reason of which it overturned.
    “3. The temporary tank was negligently and improperly built and supportéd, and when filled with oil was liable to topple over, and that its supports were insufficient.
    “4. That when said well was drilled, there was in force an ordinance of the village of Scio, requiring, ‘that the oil produced from any well within the village should, until transported out of the village, be securely confined and kept in suitable tanks so as to prevent the same from escaping upon the grounds or other property within the corporation, and that each tank, before used, should have dug surrounding it, a ditch or excavation of sufficient size or dimensions, and be so located that in case of accident to the tank, the oil therein would flow into such ditch or excavation * * *.’ The plaintiff alleges a failure to comply with this ordinance.
    “5. The plaintiff further alleges that the defendants, although aware of the dangers from said well, neglected to keep a proper watch or guard at. all over said well at night. Having thus stated the acts of negligence, the prayer of the petition reads: ‘Wherefore and by reason of the several acts of negligence and wrong herein set forth, plaintiff says he has been wrongfully and negligently injured by the defendants in the sum of fifteen hundred dollars, his damages so as aforesaid sustained, for which he asks judgment.’ ”
    Mary Scott, the lessor of her codefendants by answer, admitted her ownership .of the lot which she leased to coplaintiffs in error for oil and gas production, and that they drilled a well upon said lot as alleged, but averred that she had no part in the drilling of the well, or in the construction of any tanks on the premises, and she denies that she had any. power or control over the operation of. said well or any of the devices or means used by her. lessees, in producing or caring for the oil or gas produced, and generally denies all her acts of negligence charged against her.
    For further defense she alleges, that after the execution of the lease, she moved away from the premises to a residence about five miles from Scio, and that her said lessees took possession of the lot so leased and that whatever they did thereon was without any directions or suggestions from her.
    The other defendants, the lessees, by answer admitted the execution of the lease, and the drilling of the well, which produced oil, and denied each and every other allegation in the amended petition. The new matter in the answers, if any, was denied by reply-
    The evidence adduced on the trial tended to establish that the lot so leased by Mrs. Scott to her co-defendants, as well as the lot of the plaintiff, Anderson, are part of land in said village which slopes and declines rapidly towards a valley through which runs a creek or stream of water, and the lot of Mrs. Scott is above the lot of Anderson. The fire occurred about 10 o’clock at night, on the eighteenth of March. The owners of the lease had constructed on the leased lot, a large storage tank, having a capacity of about 250, barrels, and also a smaller tank for temporary storage of about sixty barrels capacity, and this smaller tank was between the well and the larger tank and placed on upright posts a few feet above the ground. A short time before discovery of the fire, this tank, by reason of defect in, or the giving way of the upright posts, turned over, and part of the oil escaping therefrom ran under a portion of Anderson’s house, and thence followed a slight ravine down to the creek and there, or while flowing into the creek, came in contact with fire, ignited and the Are traveled back up the track of the escaped oil until it reached the Anderson premises and consumed the house, and' perhaps other property. The record does not show the exact distance from the house to the creek, nor the location of the fire with which the oil came in contact, but it was away from and some distance below the premises of either of the parties. At the close of the plaintiff’s testimony Mary Scott and her codefendants severally asked the court to direct a verdict in their favor, which was refused and exceptions taken.
    The court stated generally to the jury the claims of the parties, but did not state or explain the allegations of the amended petition, upon which the trial was had. After saying where the burden of proof rested, and the necessity to a recovery of a preponderance of the evidence, the court charged the jury as follows:
    “The three questions of fact which I shall submit to you for your determination in this case are these:
    “First — Is crude oil stored in tanks a highly explosive and dangerous substance and a constant menace to property in its vicinity?
    “Second — Did the defendants, or either of them, store crude oil in tanks on Mrs. Scott’s property, adjoining plaintiff’s property, and, if so, was the storing of such oil there the proximate cause of the burning of plaintiff’s property?

      “Third — If these two propositions or questions are answered in the negative by you, then your verdict should be for the defendants, but if these two propositions or questions are answered by you in the affirmative, then the remaining question for your consideration is: What damage or loss did the plaintiff sustain by reason of the burning of his buildings.
    “I submit only these three questions to you for your determination because of the many undisputed facts in this case.”
    The jury was then instructed that an affirmative answer to each of these questions must be supported by a preponderance of the testimony.
    The defendant, Mrs. Scott, asked special instructions, which were refused, and these will be noticed in the opinion.
    The defendants excepted to the charge, and to the refusal to charge as requested.
    The jury found against all the defendants in the sum of |1,000, for which judgment was rendered, and this judgment was affirmed by the circuit court.
    This proceeding in error is to reverse the judgments of both courts.

      Messrs. Harrison & Aston; Mr. A. O. Barnes; Mr. John C. Dickerson; Mr. Chas. C. Bow and Mr. J ohn 8. Pearce, for plaintiffs in error,
    cited and commented upon the following authorities:

      Simpson v. Seavy, 8 Me., 138; Bowe v. Hunking, 135 Mass., 380; Shear. & Redf. on Neg., 501; Boyd v. Insurance Patrol, 113 Pa. St., 269; Gulzoni v. Tyler, 64 Cal., 334; Bishop v. Ely, 9 Johns. Rep., 294; Burdick v. Cheadle, 26 Ohio St., 393; Shindelbeck v. Moon, 32 Ohio St., 264; Broom Max., 861; Fish v. Dodge, 4 Denio, 311; Wood’s Landlord & Tenant, Sec. 384; 1 Addison on Torts, 197; Fletcher v. Rylands, 3 H. L. R., 330; McCafferty v. Railway Co., 61 N. Y., 178; Hay v. Cohoes Co., 2 Comst., 159; 1 Redf. Railways, 503; Heating Co. v. Rohan, 118 Pa. St., 223; Baker v. Westmoreland Gas Co., 157 Pa. St., 593; Stroughton v. Natural Gas Co., 159 Pa. St., 64; Prichard v. Gas Co., 2 Pa. Supr. Ct., 179; 2 Smith’s Cases on Torts, 316; Brown v. Collins, 53 N. H., 442; Marshall v. Welwood, 38 N. J. L., 339; Losee v. Buchanan, 51 N. Y., 476; Broom Max., 372; Addison on Torts (6 ed.), 459; Ruffner v. Railroad Co., 34 Ohio St., 96; Cuff v. Railroad Co., 35 N. J. L., 17; Railway Co. v. Keighron, 74 Pa. St. 316; Bishop Non-Contract Law, 42; Laidlaw v. Sage, 158 N. Y., 73; Scheffer v. Railway Co., 105 U. S., 252; Hoag v. Railroad Co., 85 Pa. St., 293; McGahan v. Gas Co., 140 Ind., 335; Carter v. Towne, 103 Mass., 507; Bartlett v. Light Co., 117 Mass., 533; Fitzgerald v. Paper Co., 155 Mass., 155.

      Mr. D. A. Hollingsworth, for defendant in error,
    cited and commented upon the following authorities:

      Barnes v. Zettlemoyer, 62 S. W. Rep., 111; Railway Co. v. Marsh, 63 Ohio St., 249; Bryan on Oil & Gas, title, “Negligence;” Wood on Nuisances, Sec. 69, note 3; Cooley on Torts, 142-145; Id., 725; 16 Am. & Eng. Ency. Law, 981; Kelley v. Ohio Oil Co., 57 Ohio St., 317; Gas Fuel Co. v. Andrews, 50 Ohio St., 695; Coal & Ice Co. v. Tucker, 48 Ohio St., 41; Huff v. Austin, 46 Ohio St., 386; Tiffin v. McCormack, 34 Ohio St., 638; St. Marys Woolen Mfg. Co. v. Glycerine Co., 7 Circ. Dec., 582; 14 C. C. R., 522; Brady v. Steel & Spring Co., 102 Mich., 277; Bohan v. Gas Light Co., 122 N. Y. Rep., 18; Pottstown Gas Co. v.

      Murphy, 39 Pa. St., 257; Fish v. Dodge, 47 Am. Dec., 254.
   Price, J.

It may conduce to a clearer understanding of the questions involved in this proceeding, if we notice the relation which the defendants below sustained to each other at the time of the loss by fire for which recovery was had in the lower court; and with this, the location of the premises from which the oil escaped, and the regulations, if any, which the council of the village of Scio had prescribed with reference to the production and storage of oil within its boundaries.

The plaintiff below, in his amended petition, avers that on the twenty-sixth day of January, 1899, the defendant, Mary Scott, entered into a contract with her codefendants, by the terms of which she leased to her codefendants, now her cóplaihtiffs in error, her lot in the village, which is above and adjoining the plaintiff’s lot, for oil and gas purposes, and attaches to his amended petition, and as part thereof, a copy of the lease. By the terms of this instrument, Mrs. Scott granted and demised to her lessees, all the oil and gas in and under her tract of land in said village with the exclusive right of operating thereon for oil and gas, to lay pipe lines on or over the same, with the further right to remove at any time any property placed thereon by the lessee. The term of the grant was sixty days and as long as oil and gas should be found in paying quantities, the lessees “yielding and paying to the lessor one-eighth part of all the oil produced and sold from the premises, free of expense, in tanks or pipe lines to the lessor’s credit”

For the use of half of the house on the premises, the lessees agreed to pay $15 per month. Such are all the provisions of the lease that are important here.

The record shows that Mrs. Scott gave possession of the premises to the lessees and removed to the country several miles from the village, and that the lessees entered upon the lot or lots, and took full possession and proceeded to drill a well for oil or gas, and erected the tanks referred to in the statement of this case.

The plaintiff below, also, by averments in his petition brought upon the record a copy of an ordinance of said village, entitled: “An ordinance to protect the property of Scio corporation from injury by fire, explosion and other causes.” This ordinance provided that: “The oil produced shall, until transported out of the village, be securely confined and kept in suitable tanks so as to prevent the same from escaping upon the grounds or other property within the corporation; and that each tank before being used, shall have dug surrounding it a ditch or excavation of sufficient size and dimensions * * * that the oil would be restrained by the ditch in case of accident to the tank.” A party failing to comply with this regulation was amenable to a fine. Therefore, according to municipal law at that place, the production and storage of oil in tanks was lawful, but they must have about them a trench or ditch to receive escaping oil in case of accident to such tanks.

The production of oil has become an extensive and valuable business, and for several years has been recognized as a legitimate part of our domestic and interstate commerce, and our general assembly has conferred upon companies organized for the storage and transportation of oil, the right to acquire right of way for pipe lines, erection of tanks, and other means of storage, and such companies are invested with the rights of common carriers and subject to corresponding liabilities. See Sections 3878, 3879 and 3880, Revised Statutes of Ohio.

So neither, the production or storage of crude oil is a public nuisance; nor is the storage of it on premises adjacent to or adjoining the premises of another, a private nuisance per se, although the method of its use and the neglect to properly care for it may create a nuisance. The article (oil) itself, has come into common use, and is handled in manifold forms and by various methods, and one cannot fairly conclude, that of itself, it is a source of constant danger and menace to property on adjacent premises. If carefully stored in tanks, and the tanks maintained with care, destruction of or injury to neighboring buildings would not be the probable and reasonable result, and if this be true, then the owner of the oil so stored, cannot be properly charged with storing and maintaining an article which is a constant menace to the property of others.

Yet, the court in the charge eliminated from the case all consideration of the issues joined by the parties on the allegations of negligence, and submitted to the jury an issue not tendered by the pleadings. The cause of action in the amended petition is founded upon acts of negligence and omissions of duty by the defendants, and the plaintiff specifically sets out the acts and omissions upon which he relies for recovery. These charges of negligence were traversed by answers, and so the case stood before the court and jury. Notwithstanding this attitude of the parties and the pleadings, the trial court plainly told the jury, that but three questions were for their consideration, viz.:

“First — Is crude oil stored in tanks a highly explosive and dangerous substance and a constant menace to property in its vicinity?
“Second — Did the defendants or either of them' store crude oil in tanks on Mrs. Scott’s property, adjoining plaintiff’s property, and if so, was the storing of such oil there, the proximate cause of the burning of plaintiff’s property?”

The third question, in case the jury found affirmatively on the first and second, related to the measure of damages sustained.

In addition to what we have said as to the issues joined on the allegations of negligence, it is not improper for us to say that the evidence adduced by the parties are confined to the questions of negligence, save perhaps the testimony of one witness — Timmons, whom the plaintiff called as an expert upon the nature and character of crude oil, and his testimony is that, “crude oil would be dangerous to a man who knows nothing about it. To my mind, the way we handle it, we have no more fear of danger with it than in any other business. We would not bring it anywhere in contact with fire. The facts are that when crude oil is warm enough to produce a vapor it would not be safe anywhere, but when cold is perfectly safe — when it is not producing vapor.”

It was upon this evidence, or else without any evidence, that the court limited the investigations of the jury, and withdrew the consideration of all the other facts in controversy. The charge was without sufficient foundation, unless it can justly be made to rest upon a mere tendency of the evidence. Therefore the simple points or questions submitted to the jury were to be answered, practically without and independent of any testimony, and much time might have been saved, by giving these brief and simple instructions without the examination ,of witnesses.

We think that the first two questions involving, as they do, the liability of the defendants, should not have been left so largely to the chance experience and knowledge of the jury. If it was common knowledge in that jurisdiction, that crude oil stored in tanks was highly explosive, a dangerous substance and a constant menace to property in its vicinity, then why not the court take judicial notice of it, and pronounce such storage a nuisance per se?

But it is claimed by defendant in error that the charge is supported by sufficient legal authority, and the following Ohio cases are cited: Tiffin v. McCormack, 34 Ohio St., 638; Defiance Water Co. v. Olinger, 54 Ohio St., 532; Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St., 560; Gas Fuel Co. v. Andrews, 50 Ohio St., 695; Railway Co. v. Marsh, 63 Ohio St., 236.

We are of opinion that none of these cases supports the charge in review, as an examination of them will show.

In Tiffin v. McCormack, supra, it appears that the city owned or had control of a piece of ground immediately west of plaintiff’s lot, on which was a dwelling house, barn and fruit trees. The city employed a party to quarry stone on its lot for city purposes. Powder was used by the employe to blast the stone, whereby fire was thrown upon the barn and it and the hay and other feed therein contained were destroyed. The city denied negligence charged and asserted that the blasting was done by an independent contractor. The city was held liable for damages caused by the fire.

But would it have been proper in that case for the court to have submitted to the .jury the question whether the stone in the quarry was dangerous and a constant menace to property in its vicinity? It was' the fire thrown by the blast upon the building which caused the injury. So in the case at bar; the presence or storage nearby of crude petroleum did not burn the plaintiff’s property. If the oil escaped by the negligence of defendants, and came in contact with fire beyond the premises, it was the burning oil which ignited the buildings.

In Defiance Water Co. v. Olinger, supra, the first clause of the syllabus shows that negligence or want of care was relied on to recover, viz.: “One who collects on his own premises a substance liable to escape, and if it should escape, likely to cause mischief, must at least use reasonable care to restrain it. If for want of such care, it escapes and injures persons or property rightfully on adjoining premises, he is answerable for the damages sustained on account thereof.”

That case was tried in the lower court on issues as to the negligence of the water company; and would it have been proper in that case, for the court to submit to the jury the question, whether water when stored in the tower, was a dangerous fluid and a constant menace to property in its vicinity? Certainly not. And the groundwork of the action in that case was a charge of negligent construction and maintenance of the water tower.

In Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., supra, there was a storage of nitro-glycerine, a very high explosive, and without proving negligence, it was held that the owner of the explosive was liable for damages caused by its explosion. The difference between the storage of water, stone, crude oil and nitro-glycerine, is marked and easily comprehended, and this point of difference applies in gun powder cases, and other cases arising out of injuries from explosives. The latter are at all times, in all places and under all circumstances dangerous. They are made for their dangerous qualities, and are bought, sold and used as explosives, and hence the owner assumes at once the liability of their accomplishing natural and probable results. Not so as to crude petroleum.

In Gas Fuel Co. v. Andrews, supra, this court held that the provisions of Section 3561a, Revised Statutes, imposes on the gas company the duty of keeping the natural gas under its control while transporting the same, and that if damages resulted to others without their fault, by its explosion, the company would be liable, although not negligent in regard thereto. This holding is because of the statute, and the court did not go further in the case.

We are unable to perceive the reason for defendant in error citing Railway Co. v. Marsh, 63 Ohio St., 236, for there is nothing in it to support the doctrine of the charge of the court in this case.

The celebrated and much criticised case of Fletcher v. Rylands, 3 H. L. R., 330, is. cited and relied on by defendant in error; and in Defiance Water Co. v. Olinger, supra, the former case was quoted from and one of its rules received the approval of the majority of the court, but in the opinion announced on page 540, Bradbury, J., says: “This doctrine would seem to be in exact accord with justice and sound reason, but in the case before us we are not required to apply it to • its full extent, because the defendant in error, in her amended petition, expressly avers negligence in the construction of the stand-pipe, as well as knowledge that it had afterward cracked and become weakened * * *

As yet no decision of this court has adopted the entire scope of Fletcher v. Rylands, and while it holds in general, a good and wholesome doctrine, resting on good morals and sound reason, its application should be made with suitable and necessary limitations.

In the case at bar, the trial court it seems exceeded even the latter case, bécause the application of its doctrine primarily would make the owner and storer of the oil in the tank responsible for its escape onto adjoining premises, and resulting damages from such oil. To this extent the authority is good and may be so accepted. But in this case the action is not for damage by overflow of the oil, but that after oil had run over and away from the plaintiff’s premises some distance, it was intercepted by fire which followed the oil trail back to his buildings, and that this resulted from negligence of. defendants in not using proper means to prevent the escape of the oil, they knowing all the time, that there were open fires in the vallej below which might fire oil that found its way thither. Moreover, we think the charge of the court transgresses the principles of Ruffner v. Railroad Co., 34 Ohio St., 96; and Huff v. Austin et al., 46 Ohio St., 386.

In the latter case F. & Co. sold to defendants a saw mill and sent the plaintiff, an employe, with the mill to aid in setting it up. While so at work, a steam boiler owned and used by defendants on their premises to run the saw mill exploded, and injured the plaintiff. It is held that the- explosion did not raise a prima facie presumption of negligence on the part of the defendants. In the opinion the court say:

“The defendants had a right to place the steam boiler on their premises. Used as it was to run the saw mill, it was in no sense a nuisance. As an agent in the various departments of industry, the steam engine has become a necessity in modern life. But though placed on one’s own premises, the owner of a steam engine and boiler will be held responsible for his negligence, if he so operates the same as to injure one who comes lawfully upon the premises by invitation or permission. Though doing a lawful act upon his own premises, he will be liable for injurious consequences that may result from it to another, if it was so done as to constitute actionable negligence. In such case there is a proper application of the rule that one should enjoy his own property in such manner as not to injure that of another.”

In our judgment, the court erred in limiting the jury as was done, and that the case should have been submitted to it on the issues joined upon the allegations of negligence contained in the amended petition. Thus far we have considered the legal right of all the defendants to complain of the charge.

There is more to be said as to the case against Mrs. Scott, the lessor of her codefendants. After some reluctance she, like many other lot-owners, residents in Scio, leased her lot to her codefendants, as already described, and removed several miles from the village. The village clerk testifies that from 250 to 275 wells had been drilled within its borders, which indicates that the oil fever had become epidemic. It was but reasonable for her to presume that her lessees would erect tanks and drill for oil on the leased premises; but she contributed nothing in any manner to the drilling of the well, or placing of the tanks. She surrendered complete and absolute possession and control to her tenants. She had no interest in what might be done there, except that when the oil was produced, she was entitled to one-eighth of the same in the pipe line. It is true, as shown in the instrument of lease, there is a stipulation, that if her house should be destroyed by fire, the tenants would replace the same, or purchase the entire premises, with $4,000, if the fire was through any negligence of the lessees. This bound them for destruction by negligence and not absolutely, and it was a contract between the parties to the instrument and could in no manner inure to the benefit of third persons. However the court, charged in substance that if she knew, or might have known by the exercise of due care, that her lessees, were liable to store oil upon her lot, and the oil escaped from the premises and reached a fire which ran back to and destroyed buildings on adjoining premises, she would be jointly liable with the lessees.

From the tenor of the charge, such guilty knowledge or means of knowledge, was sufficient to fix her liability, although she directed nothing and did nothing. We cannot believe that such is the law in her case.

If storing oil in tanks on her lot was dangerous, and the stored oil a constant menace, she was not a party to either. Merely permitting another to commit a nuisance does not render one liable for its consequences.

Wood on Landlord & Tenant (2 ed.), in section 536, sums up a discussion of the liability of the landlord as follows:

“The rule may be stated, as the result of the authorities, to be, that in order to charge the landlord the nuisance must necessarily result from the ordinary use of the premises by the tenant, or for the .purpose for which, they were let; and where the ill results flow from the improper or negligent use of the premises by the tenant, or, in other words, where the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care, or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom.”

We have observed that the storage of crude oil is not of itself a nuisance to adjacent or adjoining premises; and if the lessor even knew that oil would be produced by drilling and stored on the leased premises, she would not be contemplating the creation or maintenance of a nuisance, unless she also knew that it would be negligently stored and cared for by the lessees, and it cannot be held as a matter of law, that the lessor should presume that the lessees Vould be negligent in that behalf.

Some of the principles announced by this court in Burdick v. Cheadle, 26 Ohio St., 393, are applicable here. In that case it appears that Oheadle owned certain premises which he fitted up for the sale of dry goods and groceries by his tenant, and he agreed with the tenant thaú he would construct the shelving and other fixtures and fasten them to the wall so that they would be safe. These were put in the room by the landlord so carelessly and negligently, that they fell upon and injured a. customer of the tenant, who brought suit against Oheadle for damages. This court held the customer could not recover. On page 396-7, Mcllvaine, J., says: “Indeed, the noxious fixtures complained of did not amount to a nuisance at all in the legal sense of the term. They were not maintained in violation of any right of the public, or of any member of the public. They were made unsafe, it is true, but did not tend to endanger the person or property of strangers to the premises. They were made unsafe to persons and things which might be for the time being in the store-room, but no person or thing could rightfully be there, except by the permission and upon the request of the lessees. * * * Whatever, therefore, may be the rights of the plaintiff as such customer of the tenant, it is quite clear that he has no remedy against the lessor, as the erector or maihtainer of either a public or private nuisance.”

Mrs. Scott requested the court to charge: “If the jury find that Mary Scott leased the premises in question to the codefendants and surrendered the possession and control of them to them, and had nothing to do with the building of tanks and other devices for producing, storing and taking care of the gas and oil, then I charge you that she is not liable to the plaintiff, and the verdict as regards Mary Scott should be for her.”

The proposition is not very artistically worded, but it contains the law which should have been applied to the facts in her case, and it was error to refuse to so charge.

For error in the charge given and for error in refusing to charge as requested by Mrs. Scott, the -judgments of the lower courts are reversed; and on the undisputed facts, we find for Mary Scott, plaintiff in. error; judgment is rendered in her favor. As to her coplaintiffs in error this cause is remanded for further proceedings according to law.

Judgment reversed.

Burket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.