author: Bartley, C. J.

text:
    John B. Clark v. George Fry.
    1. The right of transit in the use of the public highways is subject to such incidental, temporary or partial obstructions as manifest necessity requires; and among these, are the temporary impediments necessarily occasioned in the building and repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellar drains, etc. These are not invasions, but qualifications of the right of transit on the public highway; and the limitation on them is, that they must not be unnecessarily and unreasonably interposed or prolonged.
    2. Such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or continued, are not nuisances, and do not require a license from the municipal authority to legalize them; although suitable regulations by the city authorities, requiring such obstructions to be properly guarded, and to prevent them from being made in an improper manner, or continued unreasonably, are usual and highly proper.

      3. A city ordinance, imposing, in general terms, a penalty on any person for incumbering or obstructing, any part of any street, lane or alley, etc., rationally construed, has manifest reference to nuisances — in other words, to incumbrances, or obstructions, which, but for some special license, would, be unlawful.

      4. The rule of respondeat superior, as its terms import, only arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is co-extensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates.
    5. This rule of liability does not apply in case of an injury sustained by reason of negligence in the manner of conducting the execution of a job of work in building a house, where the house builder, by a contract with the owner of a lot, has taken upon himself the responsibility of the employment of his own hands, and the control and direction of the work in conformity with the terms of the contract.
    6. Where anything to be done under the contract is in itself mlawful, or necessarily injurious to a third person, the employer as well as the employee would be liable for any injury resulting therefrom; but where this is not the case, and the employer has not the control or direction in the execution of the work, he is not responsible for any negligence or other wrongful act committed in the performance of it.
    7. Where, however, the rule of respondeat superior does apply, the action cannot be maintained jointly against the principal and the agent, the former, in case of recovery against him, having a right of action against the latter for his loss resulting from the wrongful act.
    8. Where, however, the owner of real estate willfully suffers a nuisance to be created, or to be continued, by another, on or adjacent to his premises, in the prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he would be liable for an injury resulting therefrom to a third person.
    This is a petition in error to reverse1 the judgment of the District Court of Lucas county.
    The original action was brought by George Ery, the defendant in error, against John B. Clark, the plaintiff in error, and one Milton G. Freeman, to recover damages occasioned by the fall of Fry into an excavation made in Summit street, in the city of Toledo, in front of a lot owned by Clark.
    The petition is as follows:

      “ George Fry, plaintiff, says that John B. Clark, defendant, before and on the 16th day of May, 1854, was the possessor and occupier of a certain messuage and premises, situate in the city of Toledo, in the said county of Lucas, and near to, and abutting upon, Summit street; and which said street, at the time aforesaid, and from thence hitherto, has been, and still is, a common public street and highway in said city, for all persons to go, pass and repass upon, and that before the day and year aforesaid, and while the said street was a "public highway as aforesaid, the said John B. Clark and Milton G. Freeman, defendants, had caused to be dug into said street, and into and across the sidewalk on the side thereof, a certain hole opening into a certain cellar of and belonging to the said messuage and premises, and permitted the said hole to continue up to and after the day and year aforesaid, without any proper or sufficient covering or guard over or around it to protect passengers along said street and sidewalk from falling into the said hole; and the same was then and there so badly and insufficiently covered, guarded and protected, that the plaintiff, who was then and there passing along the said street and sidewalk, unavoidably stepped and fell into said hole, and thereby the right shoulder and arm of the plaintiff were fractured, dislocated and otherwise injured, and the plaintiff thereby became and was sick, disabled, disordered and diseased, and has so remained and continued up to this time, during all which time the plaintiff has suffered and endured great pain and suffering, and has been prevented from attending to and transacting his usual and necessary business, and has been obliged to pay and lay out large sums of money in and about attempting to be cured of his said injuries, which are yet uncured, and are of such a nature as to render his right arm crippled for the remainder of his life.”
    To this petition Clark answered, that he was not the possessor or occupier of the premises in question at the time of the alleged accident; that he did not cause said hole to he dug, or permit the same to continue without any proper or sufficient covering or guard over or around it, to protect passengers along said street or sidewalk from falling into it; that said hole was not so hadly or insufficiently covered, guarded or protected, that the plaintiff unavoidably fell into the same, and that the injury complained of did not occur to the plaintiff by reason of any fault or neglect of him, the said Clark. He further says, that from the 80th day of March, A. D. 1854, until the first day of April of the same year, he was the occupier and possessor of the said premises, but on the last mentioned day he delivered to Ereeman the full occupancy, possession and control of said premises; that Ereeman on that day took possession and commenced erecting a building thereon ; that said Ereeman had the full occupancy, possession and control of the same until the 10th day of September, A. D. 1855, during which time the said Clark did not, nor could, by reason of said possession and control of Ereeman, claim or exercise any control of or over the same, nor did he in any manner, enjoy or have the possession of the same; that said hole, in the petition referred to, was not dug into said street, or across said sidewalk, but that it was dug by Ereeman, from said building about six feet, and into the sidewalk, but not into that part thereof which before, or at the time, had been or was used by said city, or the public, for sidewalk purposes, but that the walk which then was, and before that time had been, accustomed to be used by the people passing and repassing on and along said sidewalk, was not encroached upon by said excavation. He further says, that said hole was not left with an insufficient guard or protection, but was sufficiently guarded and protected, and that the defendant fell into said hole by his own negligence.
    ■ The answer of Ereeman admits his occupancy of the premises, but in all other respects is substantially the same as that of Clark.

      On the trial in the common pleas, judgment was rendered on a verdict in favor of Ereeman and against Clark. Erom this judgment Clark alone appealed.
    In the district court it was held that the appeal only brought up the case as against Clark, and that the judgment of the common pleas in favor of Ereeman still remained.
    A bill of exceptions was taken on the trial in the district court, which is as follows:
    “ Be it remembered, that on the trial of this cause to the jury, the plaintiff, to maintain the issue on his part, offered evidence tending to prove, and claimed he had proved, that the defendant caused to be excavated a cellar on a certain lot in the city of Toledo, fronting on Summit street, in said city, and an area connected therewith, in front of said cellar, and in said street, and which was about seven feet deep, and that the plaintiff, in attempting to pass along said street in the night, fell into said excavation for said area, without any fault of his own, and was injured thereby.
    “ The plaintiff' also gave in evidence, two ordinances of said city of Toledo, which remained in force, copies whereof are hereunto annexed, and made part hereof, marked respectively “ A ” and “ B,” and proved by the mayor of said city, that no license had ever been granted to the defendant, Clark, under said ordinance “ A,” to make said excavation. He also proved that said excavation was made by Milton G-. Ereeman, under a contract with said defendant Clark, a copy of which is annexed and made part hereof, marked “ C.” The plaintiff also offered testimony to prove, and claimed he had proved, that the excavation extended into the street, which was a thoroughfare much frequented, between seven and eight feet, and up to the time that the plaintiff' fell into the same, it had never been guarded sufficiently to prevent passengers on the street from falling into the same, and that it was a very bad and dangerous place, and that the sidewalk on the side from which the plaintiff approached the hole when he fell in, extended entirely up to the buildings on the street, the space between the plank laid by the city, having been put down by the occuapnts of the lots.
    “ Plaintiff also offered testimony tending to prove that one Albert G-. Clark was the authorized agent of the plaintiff', to superintend fob him the construction of the building, and that he was very frequently about the place, and saw the excavation; that said Albert G-. Clark exercised a control over the work, directing in what manner it should be done, and changing the contract, both by parol and in writing, and that the said agent had full knowledge of the danger of the hole, and had been threatened with prosecution therefor, by the officers of the city.
    “ Defendant then moved the court to direct that the plaintiff become nonsuit, because of his having improperly joined said Freeman and Clark in this action in the common pleas, which motion the court'refused to grant, and to that refusal said Clark excepted.
    “ The defendant then, to maintain the issue on his part, gave evidence to the jury tending to prove, and claimed, he had proved, that said Summit street, opposite said cellar, was eighty feet in width; that on each side of said street, a space had been reserved by said city for sidewalk purposes, sixteen feet in width, leaving forty-eight feet for a carriage way and gutters; that along said space reserved for a sidewalk, and in front of said lot and its vicinity, said city had caused a plank sidewalk, six feet in width, to be constructed, the side of which, nearest to said lot, was about eight feet from said lot, and that the excavation for the area, in front of said cellar, was about six feet in width, extending along the whole front of said lot, which was twenty feet, and six or seven feet in depth.
    “ That the excavation for said area was made by one Edward Connelly, under a sub-contract from said Freeman, and that at the time of the injury complained of, one. Daniel T. Howell had possession of said work, under a contract with said Freeman, by which Howell was to furnish the materials for, and construct all the masonry for said building and area; that after said excavation was completed, and before the injury complained of, said Freeman had built around said excavation, without encroachment upon said plank sidewalk, a good and substantial fence, sufficient to protect passengers along said sidewalk from injuries by said excavation; that said fence was examined by the chairman of the committee on streets, in the council of said city, and declared to be sufficient; that on the evening previous to the injury complained of, when the workmen employed in the excavation of said building left said work, said fence was up and in good condition, but that afterwards, during the night, by the interference of unknown wrong-doers, or in consequence of a heavy rain, or of both, the banks of said excavation were caved in, and said fence thrown down, and that neither said defendant Clark, nor any person connected with the work, had any notice of this occurrence until the next morning, and that while the fence remained in this condition, during the night, the plaintiff, in passing along, received 'the injury complained of; that from the time Freeman took possession of the work, some six weeks before the injury happened, until the building was completed, some three months after the injury, as the building covered the whole front of said lot, that Clark did not possess or occupy, and could not control any part of said premises, and that neither the defendant nor said Albert Q-. Clark had, or attempted, any control over the manner of doing the work, but that said Albert G-. Clark only acted for the defendant in making his payments, under his contract, and in accepting or rejecting the work, as being in compliance or non-compliance with said contract.”
    Upon these facts, so claimed to have been proved by the* defendant, said Clark having rested his case, by his counsel, moved the court to charge the jury as follows:

      1st. That as the petition does not allege or claim that the excavation in the street in front of defendant’s premises was unlaioful, but only charges wrong on the ground that the defendant was guilty of negligence in not keeping up a proper fence or guard around said excavation, the jury must treat the excavation under this petition as lawful; and if the defendant did not stand in such a relation to the work as to be guilty of negligence in omitting to put up, or keep up the guard or fence, then the plaintiff cannot recover.
    2d. That the defendant, as the owner or occupier of the lot in question, had the right, when his contract was made with Ereeman, to excavate and construct the area in the street, provided for in his contract, if it did not unreasonably interfere with the public travel, and the obstruction caused thereby was not continued for an unreasonable length of time.
    3d. That if the jury find, from the evidence, that the defendant Clark had let the work of constructing, the building and area in question, to the defendant, Ereeman, who was to do all of the work and furnish all of the materials on his own credit, and with his own men and his own means, and had sub-let the excavation to one man, and the masonry to another, and that defendant Clark, while the work was in progress, had no possession or occupancy of the premises, and had no control of the mode or manner in which Ereeman should do the work, other than to accept or reject the work, as being in compliance or noncompliance with the contract; that then the defendant Clark is not responsible for any injury resulting to the plaintiff in consequence of the negligence of Ereeman or any of his sub-contractors, or his or their employees, in not guarding the area with a proper fence.
    5th. That the defendant cannot be made liable simply because he contracted with Ereeman to build the area, unless it was impossible to do it in such a manner as not to make it a nuisance.

      6th. That the person or persons in charge of such work were not bound to adopt the strictest means to prevent injury to third persons, but were only required to use such care in guarding the area as a reasonable man looking at it in the ordinary course of things, would say was sufficient; and if the persons so in charge took care, on leaving the work at night, to see that the fence around the area was up and in a secure condition, and the fence so left was afterwards thrown down or removed by the action of the elements, or the act of a wrong-doer, then neither defendant Clark, nor the persons so in charge would be liable.
    7th. That if the jury find from the evidence that Clark had let the entire work under an independent contract to said Freeman, and neither retained nor exercised any control over the work in its progress, except to exact a performance of his contract, and the injury complained of by the plaintiff resulted from the negligence of Freeman or his sub-contractors, or his or their men, then the defendant Clark was improperly joined with Freeman in this action, and the jury must find for the defendant.
    All of which charges were refused by the court; but the court did, among other things, instruct the jury that, as the defendant had shown no license or authority from the authorities of the city of Toledo, or State of Ohio, to make such an excavation in the street in front of his lot, such excavation was unlawful, and being unlawful, the defendant would be liable for any damages which accrued by reason thereof to the plaintiff', when he was not himself in fault, although the work was done by said Freeman, under a contract with said Clark, entered into for that purpose; that if the work had been done by Freeman, on Clark’s own premises, under a contract, Clark would not have been liable for any injury that had occurred, but as it had been done in the street, and not under authority of law, Clark was liable, notwithstanding the work was done by Freeman under a contract; that, as the work was done in the street, and was in itself unlawful, if the jury should find that it was protected by a fence, it did not excuse the defendant; that the plaintiff, however, could not recover if the injury was caused by his own want of care and prudence, and that if there was a fence around the excavation, it should be considered by the jury, not as constituting a complete defense, but as a circumstance to be considered in determining whether the plaintiff had exercised ordinary care and prudence to avoid the injury, and also as a mitigating circumstance in estimating the damages.
    To which refusal to charge as requested, and to the charge as made, said defendant. Clark, in due time, excepted; and the jury having returned a verdict for the plaintiff, said defendant moved the court to set aside said verdict and grant a new trial for the following causes:
    Because the court erred in charging the jury that the digging of the pit for the area, in front of the defendant’s building, was unlawful, the defendant having shown no license or authority from the city authorities, or the State of Ohio, permitting him to make such excavation.
    Because the court erred in refusing to charge the jury as requested by the defendant.
    Which motion the court refused to grant.
    “A.”

      “An Ordinance to prevent the obstruction of streets and other purposes.

      - “ Section 1. Be it ordained and enacted by the Mayor and Council of the city of Toledo, That if any person shall incumber or obstruct any part of any street, lane or alley, now opened and established, or hereafter to be opened and established, any wharf, dock, slip, basin or other places intended for public uses in the city of Toledo, with any article or thing whatsoever, without having first obtained authority from the city council, or a written permission for a limited period, on good cause, from the mayor; every person so offending shall forfeit and pay for every such offense, a penalty of not less than one, or more than fifty dollars, in the discretion of the mayor, with costs of suit, to be prosecuted for, and recovered in the manner pointed out in the 24th section of the city charter; and a further penalty of not less than one, or more than fifty dollars, shall be incurred by such person, for each and every day such incumbrance or obstruction shall continue, after such person shall have twenty-four hours notice, in writing, from the mayor, street commissioner, or an alderman, to remove the same, in the manner aforesaid.”

      “B.”

      “An Ordinance to provide far guarding cellar stairways and excavations.

    Section 1. Be it ordained by the Council of the city of Toledo, That all cellar stairways that project into any of the streets, and all excavations for cellars or drains, or for other purposes, made in or near the line of any of the streets of the city, shall be guarded by a good and sufficient railing. Every owner or occupant of any lot, who shall neglect to provide such railing, shall forfeit and pay the sum of five dollars for each and every violation thereof; and the further sum of five dollars for every twenty-four hours that he shall neglect to comply with the same, after being notified by the marshal, city engineer, or road supervisor ; to be recovered before the mayor.”
    “C.”
    “ Contract referred to in the foregoing hill of exceptions.

      “ Articles of agreement entered into this first day of April, A. D. eighteen hundred and fifty-four, between Milton G. Freeman of the first part, and John B. Clark, by his agent, A. G. Clark, of the second part, witnesseth: That the said party of the first part, for, and in consideration of the covenants and agreements on the part of the party of the second part hereinafter mentioned, does hereby covenant and agree to build and construct on the upper one-third of lot fourteen (14,) in the Port Lawrence Division of Toledo, a brick store building, according to the specifications for said building, hereunto attached, and which are a part of this contract; furnishing all materials and labor necessary for the full and entire completion of the building, according to said specifications; the work to be done in a good mechanical and workmanlike manner, and to furnish such materials as are specified, and where the quality of the same is not designated, they are to be of good quality, such as are suitable for, and should be put into such a building. The building is to be completed by, or before the first day of August next. And the said party of the first part also hereby agrees, that the party of the second part may retain a stipulated damages for the non-completion of the building at the times specified, out of the contract price for the building, the sum of five dollars for each and every day which shall elapse after the said first of August, before the building is fully completed.”
    “And the said John B. Clark, the party of the second part, in consideration of the full and complete performance of each and every covenant and agreément on the part of the party of the first part hereinbefore mentioned, does hereby covenant and agree to pay to the party of the first part, over and above the sum of twenty-five cents per cubic yard, for the excavation of the basement and drain, when the same is done, the sum of twenty-five hundred and twenty-five dollars, as follows: Four hundred dollars when the joists for the floor of the first story are laid and drain completed, and the walls of the area in front constructed; eight hundred dollars when the entire walls for the building are up ; four hundred dollars when the floors are all laid and the roof is on; four hundred dollars when the entire basement and first story are completed; and the balance when the entire building is completed.
    (Signed) “ M. G. FREEMAN,
    “ JOHN B. CLARK,
    “ Per A. G. Claiík, his Ag’t.”

      Copy of so much of the specifications, referred to in the hill of exceptions, as are important to the decision of the cause.

    “ The wall for basement is to .be built of good foundation stone for such a building, the wall being two feet at the bottom, and of same thickness, until above bottom of basement, for the joists of basement floor; and from thence, above the level of the ground around, full twenty inches in thickness, with an area in front six by twenty feet, built of stone, and the walls of the same thickness as that of the basement, said area having a brick wall across the same one foot in thickness. Down into said area there is to be a passage way, leading into the basement, with suitable steps, made of white oak. Over the area in front shall be put a good wood grating.
    “ The ground for the basement and drain shall be excavated, all surplus earth being moved from the lot; the drain, after the plank are put down, shall be filled up, and all planks in sidewalk and street, removed for the construction of the same, shall be replaced as they now are. This building is to be constructed, the walls of the building on the southwesterly side being used as far as it will answer; but where it is not of sufficient height or depth for this building, suitable walls are to be constructed.”

      M. JR. $• JR. Wcdte, and ITill f Pratt, for plaintiff in error.
    Tbe leading error in tbe court below, and tbe one wbicb lies at tbe foundation of all we complain of, is found in that portion of tbe charge to tbe jury wbicb reads as follows, to wit: “ Tbat, as tbe defendant bad shown no license or authority, from tbe authorities of the city of Toledo or State of Ohio, to make such an excavation in the street in front of bis lot, such, excavation was unlawful; and, being unlawful, tbe defendant Clark was liable for any damage wbicb occurred, by reason thereof, to tbe plaintiff, when be (tbe plaintiff) was not himself in fault, although tbe work was done by Ereeman, under a contract with Clark, entered into for tbat purpose.”
    This ruling is erroneous.
    1. At common law, owners of lots in a city may encroach upon tbe street adjoining, and occupy it, partially and temporarily, for tbe purpose of improving their lots, provided it be done in a reasonable manner, and not continued for an unreasonable length of time. Commonwealth v. Passmore, 1 Serg. & R. Rep. 217; The People v. Cunningham, 1 Denio Rep. 524; Rex v. Jones, 3 Camp. Rep. 231.

      The work to be done in the street, under the provisions of this contract, would not necessarily be an unreasonable obstruction, and thus need not be a nuisance. Rex v. Jones, 13 Eng. Com. Law Rep. 96; Bush v. Steinman, 1 Bos. & Pull. 404.
    2. The city ordinances do not make the construction of the area unlawful. The obstruction contemplated by the ordinance must be one that, but for the license, would be unlawful.
    Even if the excavation, without a license, would be unlawful under the ordinance, still Clark is not liable. The contract being for the performance of a work not necessarily unlawful, Clark is not necessarily liable. Carman v. S. & I. R. R. Co., 4 Ohio St. Rep. 399.
    The presumption is, if a thing can be lawfully done, it will be so done.
    3. If the work to be done, under the contract with Freeman, was not necessarily and of itself unlawful, Clark cannot be made liable for injuries resulting from its negligent performance, unless he himself interfered with, and controlled the work, as it progressed.
    The case of Bush v. Steinman, 1 Bos. & Pull. 404, which seems to favor a contrary doctrine, has been oftentimes overruled, and, in fact, is said never to have been the law. Blake v. Ferris, 1 Seld. Rep. 63, and cases there cited; Hobitt v. London & N. W. Railway Co., 4 Exch. Rep. 254.
    In Carman v. S. & I. R. R. Co., 4 Ohio St. Rep. 399, this court substantially recognizes the principle for which we contend. See Overton v. Freeman, 8 Eng. Law & Eq. Rep. 479; Peachy v. Rowland et al., 16 Eng. Law & Eq. Rep. 44.
    ¥e admit that Clark had no right to use his lot himself, or authorize others to use it, so as to create a nuisance in the street; but if he parts with the possession to another, for a lawful purpose, and that other is guilty of illegal acts on the premises while thus in possession, Clark is not liable unless he himself is in some way directly connected therewith. While out of his possession, and out of his control, it is not Ms property, within the meaning of the maxim, Sic utere tuo ut alienum non Icedas.

    4. The action, as made in the petition, does not proceed upon the ground that the original excavation was unlawful, but that the same, after it was made, was permitted to remain without any sufficient or proper protection against accident.
    The claim, then, is not that the original excavation was a nuisance, but that it was improperly protected, and because it was improperly protected the defendants are liable.
    5. Clark and Ereeman were improperly joined as defendants. Parsons v. Winchell, 5 Cush. Rep. 592.
    6. As this misjoinder was first disclosed by the evidence, a nonsuit was proper. Cooper v. Whitehouse, 25 Eng. Com. Law Rep. 535.

      Bassett $ Kent, for defendant in error.
    The words of the petition charging the digging and continuing the hole, taken together, describe a nuisance. As to what a nuisance is, see Bla. Comm. 215, 218; 4 lb. 167; Jacob’s Law Diet., Art. Nuisance. In a petition describing a nuisance, as defined at common law, it was unnecessary to allege that it was unlawfully made or continued.
    This, also, disposes of the fifth and sixth points of the argument for the plaintiff in error, for if the petition describes a nuisance, it is not a misjoinder to charge two jointly with making it. This is not a case of the master’s liability for the negligence of his servant, as between Ereeman and Clark, and therefore the case of Parsons v. Winchell, 5 Cush. Rep. 592, has no application.
    As to the first proposition of the argument for plain tiff in error, in the words that the learned counsel have seen fit to state their proposition, it may perhaps not be necessary in this case to deny that it contains, in the abstract, a correct enunciation of a principle of law. But the real question is something quite different from the abstract statement of the general principle. Hoes the law permit the owners of lots in a city to encroach upon the street adjoining, for the purpose of improving their lots, if by such encroachment they create not merely an inconvenience to the public using the street, but, as in this case, a nuisance absolutely endangering the life and limb of every passenger along the street after night-fall ?
    The authorities quoted do not sustain the proposition, that a dangerous hole in the street is justifiable, even if it is necessary to make it for the purpose of building.
    We submit, that no private necessity will justify a dangerous place in a much-frequented thoroughfare in a city.
    To justify an individual in the use of a highway, the occupation must be for some purpose that benefits the public. Rex v. Russell, 13 Eng. Com. Law Rep. 254.
    The plaintiff contracted for what was unlawful, under the ordinances of the city — to have an area made in the sidewalk, “ without having first obtained authority from the city council, or a written permission, on good cause, from the mayor.”
    An owner of real estate has no right to so part with the control of it as to suffer a nuisance to be created upon it, without being liable for the nuisance.
    This we hold to be the weight of authority of the American and English cases, from the much-discussed Bush v. Steinman, down to the present day. And, so far, Bush v. Steinman has never been overruled, although a wrong reason was given for a correct decision, which has caused some severe animadversion upon the case.
    This view is fully recognized by the very cases that are quoted as overruling this case, especially Quarman v. Burnett, 6 M. & W. 497; Rapson v. Cubitt, 9 M. &. W. 709; Milligan v. Wedge, 12 Adol. & Ellis 737. And Reedie v. Northwestern Railway Company, 4 Welsb., Hurst. & Gordon 244, cannot be treated as overruling this principle.

      In Bailey v. The Mayor of New York, 2 Denio’s Rep. 434, (3 Hill’s Rep. 531,) this rule is distinctly sustained.
    Again, Clark was liable, because the excavation Freeman made was in accordance with the contract with Clark.
    This case comes within Carman v. S. & I. R. R. Co., 4 Ohio St. Rep. 399, 415.
   Bartley, C. J.

The first inquiry presented in the determination of this case is, whether the excavation extending into the street, in front of the lot of the plaintiff in error, was in itself unlawful, even although guarded by a sufficient fence. The district court instructed the jury, “ that, as the defendant had shown no license from the authorities of the city of Toledo, or the State of Ohio, to make such an excavation in the street, the same was unlawful; and being unlawful, the defendant, Clark, was liable for any damage which occurred by reason thereof to the plaintiff, if the latter was not himself in fault.” Did the district court err in giving this instruction ?

The right of the public in the use of a highway, is the right of transit to every person who has occasion so to use it. This right is, however, subject to such incidental and temporary, or partial obstructions as manifest necessity may require. Even the use of a highway, for mere transit by one part of the public, may, at the time of a multitude upon it, oppose a temporary obstruction to the passage of another part of the public. A company of persons stopping and standing on the pavement of a street, or persons stopping in the street with their wagons or carriages, for mere temporary purposes of business, interpose impediments to the free 'and uninterrupted transit upon a public highway. The delivery of freight, and every variety of goods, fuel, etc., at business and other houses, on a street, is a necessary incident to the use of the public highway. And the repair or improvement of streets, and the deposit of the materials for the same, often create obstructions to the uninterrupted transit by the public. So, also, the improvement, or building, or repair of houses, and the construction of sewers and cellar drains, on adjacent lots, often create necessary temporary impediments upon public highways. These are not invasions of, but simply incidents to, or rather qualifications of, the right of transit; and the limitation upon them is, that they must not be unnecessarily and unreasonably interposed or prolonged. In Commonwealth v. Passmore, 1 Serg. & Rawle Rep. 217, the supreme court of Pennsylvania said on this subject: “It is true, that necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute, it is enough if it be reasonable. No man has a right to throw wood or stones into the street at pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials, may be placed in the street, provided it be done in the most convenient manner.” The same doctrine was adopted by the court of appeals in New York in The People v. Cunningham, 1 Denio 524. And it appears to be a doctrine of general recognition in England as well as in this country. Rex v. Jones, 3 Camp. Rep. 231. In Rex v. Ward, 4 Ad. & El. Rep. 405, Lord Denman, in speaking of a hoard erected for repairing a house, said: “ That the hoard is placed for the safety of those possessing the right of way; it protects them from inevitable danger if it leaves them a free passage, and leads them another way if the whole street is necessarily obstructed. Every way to which houses adjoin, must be considered as set out, subject to these occasionable interruptions, which resemble the temporary acts of loading coals in keels, alluded to in Rex v. Russell, 6 B. & C. Rep. 566.”

These incidental and temporary encroachments on the highway, however, must be necessary and reasonable. And if they be extended further into the street, or continued longer than is necessary and reasonable, or if negligently left in an unsafe and improper condition, they become nuisances, and are liable to be abated. And for the protection of the streets of a city from improper and unreasonable encroachments of this kind, the city authorities usually provide salutary and convenient regulations.

On the trial of this cause, therefore, in the district court, the questions arose: first, whether the excavation in controversy made in the street, was necessary and proper in the construction of the building, or making the improvement, undertaken on the lot of the plaintiff in error; and, if so, secondly, whether due care was taken to guard it by a railing or fence, with a view to secure persons passing the street from danger. And these were questions of fact for submission to the jury under proper instructions. The district court, however, did not submit these inquiries to the jury, but proceeded on the ground that the excavation was necessarily unlawful, unless authorized by a special license, either from the authorities of the city of Toledo, or from the State of Ohio; and, consequently, that nothing could relieve either the owner of the lot, or the contractor, from liability from any damages that might accrue by reason of the excavation, to any party not in fault himself.

The state never grants a license for any such purpose as this; and if the excavation was one of those incidental encroachments on the street which become necessary in the improvement of the lot fronting upon it, and was properly guarded, and not continued an unreasonable length of time, it was not a nuisance, and a license from the city authorities to legalize it was not requisite. The district court appears to have acted upon the idea that the excavation was malum prohibitum by virtue of the ordinance of the city given in evidence, imposing a penalty on any person for incumbering or obstructing any part of any street, lane or alley, etc. This ordinance rationally construed, has manifest reference to nuisances; in other words, to incumbrances and obstructions which, but for the license, would be unlawful. It is not reasonable to suppose, that the city authority required that every man who allowed his horses and wagon to stand upon the street, while attending to the necessary demands of his business, and that every merchant who unloads a dray load of goods on the sidewalk, for the purpose of passing them into his store, should obtain a special license therefor. Such obstructions as result from a law of necessity, and are incident to the use of a highway, cannot be properly made penal offenses. Resides, the other ordinance given in evidence, by direct implication authorizes such excavations, by providing that, “ they shall be protected by a good and sufficient fence,” etc., and making the omission to provide such protection, a penal offense. It is not very reasonable to suppose that the city authority would, in one ordinance, make it a penal offense to omit to fence that which was absolutely prohibited under a penalty in another ordinance, if not specially licensed. Construing these ordinances together, and with reference to their reasonable and manifest intent, it is clear that the ordinance first alluded to has reference to those obstructions in the public highway, which are nuisances, and not those occasional impediments incident to the nature of a highway, and arising upon the law of necessity.

The district court, therefore, erred in the instructions given to the jury, as well in the refusal to instruct the jury as requested, as in the instruction given.

Again, it is insisted that the district court erred in the refusal to instruct the jury, that as the work to be done under the contract with Ereeman was not necessary, and of itself unlawful, Clark cannot be made liable for injuries resulting from its negligent performance, unless he himself intei’fered with, and controlled the work as it progressed.

As the excavation was an act pertaining to the construction of a building on a lot fronting upon the street, if necessary and proper, it was not necessarily or intrinsically unlawful; and whether it became unlawful, depended on whether it was extended to an unnecessary or unreasonable extent into the street; or whether it was made in an improper and dangerous manner; or whether, through negligence, it was left insufficiently guarded by a fence, or allowed to continue an unreasonable length of time. And these were questions of fact to be determined by the jury upon the evidence in the case. But whether the liability to the defendant in error, if any existed, attached to Freeman alone, or to Clark for the negligence of his servant or agent, or to Clark and Freeman, as joint tort feasors., depended upon a legal question arising upon the relation between Clark and Freeman in respect to the transaction alleged as the occasion of the injury. If the excavation had been ipso facto unlawful as an unnecessary incroachment on the street, Clark and Freeman would have been liable, if any liability existed, jointly, as wrong-doers. But if there was nothing in the work that Clark had required by the contract to he done which was in itself unlawful, or which, properly done, could be the occasion of an injury to any one; and Freeman, wholly free from the control of Clark as to the manner of doing the work, had, by his own wrongful and negligent conduct, been the cause of the injury, he alone would be liable. If, however, Freeman, acting under the control and direction of Clark, as his servant or agent, had negligently and wrongfully allowed the excavation to he in an unfenced or otherwise dangerous condition, whereby the injury was sustained, Clark would be liable, although not jointly, with Freeman. In this last instance supposed, either Clark or Freeman might he sued separately; but inasmuch as Clark, although he could not excuse himself on the ground that the nuisance had been occasioned by the negligence of Freeman, would have a right of action against Freeman for the recovery of such damages as he might be compelled to pay by reason of his negligence, he (Clark) could not be joined in the same action with Freeman. This doctrine was expressly ruled in Parsons v. Winchell, 5 Cush. Rep. 592; and it appears to rest upon a reason which is entirely satisfactory. The inquiry, therefore, arose in this case, whether the injury was caused by reason of the negligence or want of due care on the part of Ereeman to protect and guard the excavation by a fence or other sufficient means; and if so, whether by means of Ereeman’s neglect Clark became liable. The former was a question of fact for the determination of the jury, the latter a question of law which has much perplexed courts of justice both in England and in this country.

Where the relation of master and servant, or that of principal and agent, exists, there is no difficulty in ascertaining the rule of liability, and the ground upon which it rests, in case of an injury done by the servant or agent while in the exercise of his employment. The liability of the master to answer for the conduct of his servant, or that of the principal for the conduct of his agent, is founded on the superintendence and control which the master is supposed to exercise over his servant, or the principal over his agent. 1 Bla. Com. 431. By the civil law, that liability was confined to the person standing in the relation of paterfamilias to the person doing the injury. And although by the common law, the rule of liability has been extended to cases where the agent is not a mere domestic, yet the principle and the reason upon which it rests is the same. This rule of respondeat superior, as its terms import, arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, whether between principal and agent or master and servant, and is co-extensive with it, and ceases where the relation itself ceases to exist. It is founded on the power of control and direction which the superior has a right to exercise, and which, for the safety of other persons, he is bound to exercise over the acts of his subordinates, and in strict analogy to the liability ex contractu upon the maxim quifacitper aliumfaeitper se. The direct coincidence and coexistence of the rule of respondeat superior with, the relation to which it belongs, is an unvarying test of its application. Quarman v. Burnett et al., 6 M. and W. 497.

Had Clark employed hands to work at the building of his house under his own superintendence, control and direction, the workmen would have been bound to follow his direction in reference to every part of the work; he would have been, in fact, master of the persons under his employ, and he would have been undeniably liable for any injury which any third person might have received through the carelessness of any of the workmen in doing the work. But Clark did not so undertake to build his house. He let out by contract the building of the house to Freeman, who undertook to furnish the materials, make the excavation, build the walls of the foundation, put up the building, and complete the work, replacing the plank removed from the side walk, etc., within a specified time, and in a specified manner, and for a stipulated compensation. There is nothing in the terms of the contract which created the relation of superior and subordinate, by placing Freeman under the superintendence and direction of Clark in the prosecution of the work. By the terms of the contract, Freeman occupied the position of a contractor, selecting and employing his own subordinates, etc., undertaking, upon his own responsibility, to conduct, direct and control the performance of the work, in conformity with the terms of the contract. Now, in the mode and manner of conducting the work under the contract, and in the selection and employment and directing of the hands, in the performance of the work, the contract clearly does not create the relation of superior and subordinate as between Clark and Freeman, or place the latter under the power and control of the former. "When a person is engaged in doing a job or piece of work under an employment or contract which does not create the relation of mere principal and agent, or master and servant, but which leaves to the contractor the free and independent use of his own skill, judgment, means and servants in the execution of it, upon what principle can the employer be made liable for any injury occasioned to a third party by reason of the negligence of the contractor or any of his subordinates ? It is clearly not upon the principle of respondeat superior.

It is true that some of the earlier English decisions, as well as some of the adjudications .in this country, have carried the doctrine of the liability of the employer, or principal contractor, far beyond that arising out of the relation of superior and subordinate; but this course of adjudication, which appears to have started with the case of Bush v. Steinman, 1 Bos. & Pull. 404, does not appear to rest on any fixed and definite, or just and satisfactory principle.

The case of Bush v. Steinman was an action on the case, against the defendant, for causing a quantity of lime to be placed on the highway, by means of which the plaintiff and his wife, who were riding in a chaise, were overturned and much hurt, and the chaise damaged. The facts were as follows: The defendant, having purchased a house by the roadside (but which he had never occupied), contracted with a surveyor to put it into repair for a stipulated sum. A carpenter, having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose servant the lime in question was laid in the road. The Lord Chief Justice was of opinion, that the defendant was not answerable for the injury sustained by the plaintiff, under these circumstances; but in order to save expense in taking the question further, a verdict was taken for the plaintiff, Avith liberty to the defendant to move to have a nonsuit entered. The motion was made before Eyre, chief justice, and Heath and Rook, justices, and denied, as it was said, with the concurrence of Mr. Justice Buffer. And the chief justice, in delivering the opinion of the court, clearly intimating his hesitation and doubt in the decision, says; “ The relation between master and servant, as commonly exemplified in actions brought against the master, is not sufficient to support the action; and the general proposition, that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seems to be too large and loose.” And although he confesses his difficulty in stating any precise and definite principle on which the action was founded, yet he concurred with the other judges in sustaining it. This decision is said to have been followed, in a few instances, in England, but in the more recent and well-considered adjudications, it has been directly and distinctly overruled. In Quarman v. Burnett et al., 6 M. & W. 497 (Exch. Rep.), and again, in Rapson v. Cubitt, 9 Ibid. 709, the generaldoctrine of the case was denied, with the remark, that it might, perhaps, be sustained in a restricted application to injuries, occasioned by the negligent management of fixed real property. In Reedie v. London & Northwestem Railway Company, 4 Exch. Rep. 244, the distinction attempted, between the liability of the owner of fixed and the owner of moveable property, is shown to be without foundation; and Baron Rolf, in delivering the opinion of the court, after alluding to the attempted distinction mentioned, said: “ According to the modern decisions, Bush v. Steinman must he taken not to he law, or, at all events, that it cannot be supported on the ground on which the judgment of the court proceeded.” In accordance with this doctrine, is the case of Overton v. Freeman, 8 Eng. Law & Eq. Rep. 479, in which the court said: “ The defendants, not personally interfering and giving directions, but contracting with third persons to do a legal act, are not responsible for an illegal act done in performance of such contract. It might be otherwise, if the thing contracted to be done were itself illegal. In this case the defendants contracted to have stones laid down in the pavement, but do not appear to have contracted to have the stones laid in the manner which caused the injury.”

So, in Peachy v. Rowland et al., 16 Eng. Law & Eq. Rep. 44, the defendants had contracted with A. to fill in the earth over a drain, which was being made for them across a portion of the highway, from their house to the common sewer. The work was so negligently done as to constitute a public nuisance, and an action was brought against the defendants to recover damages, by a person who had sustained an injury in consequence. Maulé, J., says: “ The evidence is, that Ansell had contracted to fill the earth, and employed men under him. But even assuming that he was their servant, was there no other way in which he could perform their orders but by putting the earth so as to create a nuisance ? You must show that the defendants could have been indicted for obstructing the highway. If the thing which they ordered to be done might have been done in a perfectly innocent and proper manner, they are not liable. It would be a different question, if it could only have been done in such way as to involve a criminal act.” And again he says: “ Now, here there was a public wrong, and the question is, Bid they employ Ansell to do the work in the special manner in which he did it; did they order him to commit a nuisance?”

To the same effect is Knight v. Fox, 5 Exch. Rep. 721, and many other more recent decisions in England. And the ground of these decisions seems to be, that the subcontractor, in such ease, is not the servant of the principal contractor, or employer; and if the latter does not take upon himself any control, or personal interference with the execution of the work, he cannot stand in the position of a tort-feasor, for the acts of persons not done under his control and direction.

It appears that, in Massachusetts, the doctrine of Bush v. Steinman has been followed to the full extent, in numerous decisions — Gray v. The Portland Bank, 3 Mass. Rep. 385; Stone v. Godman, 15 Pick. Rep. 297; Lowell v. Boston and Lowell R. R. Co., 23 Pick. Rep. 24 — but somewhat modified in the case of Elder v. Bemis, 2 Metc. Rep. 599.

In the case of Black v. Ferris, 1 Seld. Rep. 49, the subject was very fully reviewed by the court of appeals of New York, and the doctrine of the recent English decisions adopted. In this case it was held, that the liability of the employer for injuries occasioned by the negligence or improper conduct of an employee, in the execution of a lawful undertaking, could only arise where the employment created the relation of superior and subordinate; that the immediate employer of the agent or servant, through whose negligence an injury occurs, is the person responsible for the negligence of,such agent or servant; and that there cannot be two superiors severally responsible in such case.

It is very true, if the owner of real estate should willfully allow a nuisance to he created, or to be continued by another on, or adjacent to his premises, in the prosecution of a business for his benefit and under his authority, when he had full power to prevent or abate the nuisance, he would be justly liable for any injury which might result therefrom to another person. Here the owner would be in the actual wrong, in willfully suffering the continuance of the nuisance, upon the maxim, “ Sic utere tuo ut alienum non Icedas.”

Judgment of the district court reversed, and cause remanded for further proceedings.

Swan, Brinkerhopp, Scott and Sutlipp, JJ., concurred.


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    George G. Holman and Wife v. James Riddle et al.
    1. Where material words in a will were erased, and a foot note of the erasure made before the will was executed, and the words so erased were restored by the testator’s direction before he executed the will, the will must be deemed valid, although the foot note was erased by some unknown hand after the execution and attestation of the will.
    2. Affidavits of jurors, stating that they misunderstood the charge of the court, will not be received on motion to set aside the verdict.
    3. Exceptions may be taken to the ruling and charge of the court upon the trial of an issue contesting the validity of a will.
    A On bill of review in such case, the court can only examine such matters as appear upon the record; the testimony before the jury in regard to the validity of the will being oral and forming no part of the files or record, cannot be reviewed.
    S. The order of a court of probate which recites that the will was presented to the court for probate, and the subscribing witnesses were sworn and examined in open court, and their testimony was reduced to writing and filed by order of the court; and that, thereupon, the court ordered the will to be filed and admitted to record, is sufficient evidence that the will was proved in accordance with law, and ordered to be recorded.
    Bill or Review reserved by tbe District Court of Hamilton county.
    Tbe principal question in tbe case related to tbe validity of tbe will of John Riddle, deceased.
    In 1847, tbe will was admitted to probate by tbe court of common pleas of Hamilton county.
    Tbe journal entry is as follows:
    “ The last will and testament of Col. John Riddle, sen., deceased, was this day presented to the court for probate, whereupon Joseph Smith and Miles Greenwood, two of the subscribing witnesses thereto, personally appeared in open court, and were duly sworn and examined by the court, and their testimony was reduced to writing and filed by order of the court; it being shown to the satisfaction of the court that Joseph G. Hunt, the other subscribing witness, is not within the State of Ohio, or the jurisdiction of this court, and cannot, therefore, be produced in court; and the court find, from said testimony, that the said Col. John Riddle, sen., deceased, was, at the time of executing said will, of legal age, of sound and disposing mind and memory, and under no undue or unlawful restraint whatsoever. And thereupon the codicil to the said last will and testament being also at the same time presented to the court for probate, and Jacob H. Clemmer, Ferdinand Bodman, and William Loder, tbe subscribing witnesses to said codicil, personally appeared in open court, and were duly sworn and examined by the court, and their testimony was reduced to writing and ordered to be filed, and the court find, from the testimony of said witnesses, that the said Col. John Biddle, sen., deceased, was, at the time of executing said codicil to the last will and testament aforesaid, of legal age, sound and disposing mind and memory, and under no undue or unlawful restraint whatsoever; and thereupon the court order the said last will and testament, and said codicil thereto, to be filed and admitted to record.”
    August 24,1847, James Riddle filed his hill in chancery, in the superior court of Cincinnati, attaching thereto, as exhibits, twro papers in writing, one dated September 24, 1838, and the other December 30, 1845, alleging said papers to be the last will and testament of his father, John Riddle, sen., deceased, and asking, among other things, a construction thereof, and making all parties interested defendants.
    In due time, George G. Holman and wife, and Joseph Jackson and wife, defendants, filed their answer to said bill, in the nature of a cross-bill, denying that said papers were the last will and' testament of the said John Riddle, sen., alleging that he died intestate, and asking the court to direct an issue to’ be made up and tried by a jury, as provided by law, to ascertain whether said papers were the valid last will and testament of the decedent or not.
    An issue was made up and tried in the superior court, and the case taken by appeal to the district court. This issue was tried by a jury who failed to agree, and at the October term, 1854, of the last named court, another jury was impanneled to try said issue; and, upon the trial thereof, it appeared from the evidence that the codicil dated December 30, 1845, was copied by J. H. Clemmer, on the day of its date, from a form furnished him by Edward C. Roll. By this codicil, Eliza Jane Riddle, who intermarried with Roll, would receive upward of $40,000, in addition to what she already had received. Clemmer copied this paper in the office of A. N. Riddle, in Cincinnati, where it is claimed it was executed.

      This codicil contained the following language, viz:
    “ It is my will that the residue of my estate, both real and personal, not before devised or bequeathed, and all that has been acquired since the making of my said will aforesaid, as well as that which may hereafter be acquired, shall be disposed of by my said executors, as provided for in my said will aforesaid; and the proceeds arising therefrom to be equally divided among my sons and daughters, their heirs and assigns, except my grand-daughter, who is the daughter of James B. Ray, who, it is my will, is only, to have the amount ($500) bequeathed to her in my said will aforesaid, and no other part of my said estate, either real or personal.”
    Tbe bill of exceptions shows that the contestants gave evidence tending to prove that tbe codicil aforesaid, as originally written, contained tbe words “ and daughters;” that before tbe execution of said codicil, a line was drawn through said words “ and daughters,” with a pen, and a note of the fact of their being thus stricken out, made at the foot of the attesting clause, and that after the execution of said codicil, the said words, “ and daughters,” had been restored by an erasure of the line that had been drawn through them as aforesaid, and the said foot note was erased. And evidence was given on the part of the affirmants to said will and codicil, tending to prove that the restoration as aforesaid of said words, uand daughters” and the erasure of said note, both took place before the execution of said codicil, and by the express direction of the testator.
    And the foregoing, and other testimony, having been given, and the cause argued by counsel, the court charged the jury, among other things, that if the jury found that the words, “ and daughters,” were restored after the execution of the codicil, they should find a verdict in favor of the contestants, and against the validity of said paper writings, purporting to be a will and codicil, and that it mattered not, so far as the present trial was concerned, by whom or where they were restored, provided such restoration took place after the execution of the codicil; that such alteration, if made after the execution of said codicil, by whomsoever or wheresoever made, was fatal to the said paper writings in the present trial, for the reason that it was a material alteration, and made said codicil, as proved and recorded, and as now presented, other and different from what it was when executed. But if the jury should find that said words, “ and daughters,” were restored by the testator’s direction before he executed said codicil, and that he executed it with these words in it, intending them to form a part thereof, that then the jury should find a verdict in favor of the validity of said will and codicil, even though they should be of opinion that the note aforesaid, by which the striking out, as aforesaid, of said words, “ and daughters,” had been mentioned, was not erased until after the execution of said codicil; for that under such circumstances the erasure of said foot note would be an immaterial alteration.
    And the counsel for the affirmants asked the court to instruct the jury that they would hot be warranted in finding against the validity of said paper writings, unless the testimony satisfied them beyond a reasonable doubt that said words, “ and daughters,” were restored after the execution of said codicil, which instruction the court refused to give; and, on the contrary, told the jury that the law did not require that they should be satisfied beyond a reasonable doubt; that all that was necessary was, that there should be such a preponderance of testimony as satisfied them that said alteration took place after the execution of the instrument; and that if they were so satisfied, they should find against the validity, even though they might entertain a reasonable doubt upon the subject.
    “Whereupon the jury returned a verdict, finding said papers to be the last will and testament of John Riddle, senior, deceased.
    And the contestants then moved the court for a new trial upon two grounds:
    1st. The court misdirected the jury as to the law; and,
    2d. The jury misunderstood the charge of the court in matters material to the issue, and acted upon such misunderstanding in finding their verdict.
    And to sustain the second ground for a new trial, the contestants offered in evidence the affidavits of two jurors. They state that they understood the court to charge the jury, among other things, that all doubts must be resolved in favor of the will, and that the jury must be satisfied, beyond any doubt, that the alteration appearing upon the face of the will, or codicil, was made after the execution of the codicil, otherwise they must sustain the will; that it devolved upon the contestors of thé will to show to the satisfaction of the jury, by positive proof, when, where, and by whom the attestation was made; and if they failed to do that, the jury must find for the will, and although the jury should be satisfied that the foot-lines were erased after execution of the codicil, such alteration was immaterial, and the jury must find for the will, unless the contestors showed, by positive proof, that the woz’ds “ and daughters ” were restored after the execution of the codicil. Under these charges, they agreed to the verdict sustaining the will, though they believed, and still believe, that the erasure of the foot-line and the restoration of the words “ and daughters,” were made after the execution of the codicil. But on arriving at that belief, there was some little doubt, as no witness could speak positively as to when the words “ and daughters ” were restored, or by whom restored.
    This motion was overruled by the couz-t, and the contestants excepted.
    And the eouz't thereupon entered a decree, finding said papers to be the valid last will and testament of the said decedent, and dismissing said cross-bill, and directing the contestants to pay all costs.
    It is this verdict and decree, which the plaintiffs, by bill of review, seek to set aside; and the questions involved were, upon motion of the contestants, resez-ved by the district court for decision in the Supz’eme Court.

      J. B. Baton, and T. Bwing, for complainants.

      Worthington § Matthews, for defendants.

      Box § French, for the executors.
   J. R. Swan, J.

I. We do not perceive any error in the charge of the court. The memorandum at the foot of a will, of an erasure, which was, before the execution of the will, in fact restored by the testator, would not affect such restored part; and under such circumstances an erasure of the foot note, after the execution of the will, could not be deemed a material alteration of the will.

II. The court below refused to receive the affidavits of jurors that they misunderstood the charge of the court.

It would be a great improvement in the administration of justice, if each juror could be made to understand perfectly the testimony and the charge of the court, and deduce the truth and apply the law without mistake. But it requires but little experience to teach even a theorist that courts and jurors can only approximate to right and truth, and that the rules of law must be too general for exact justice in every case; and the truth too difficult to ascertain to be arrived at with any great degree of certainty. Law reformers who demand an exact administration of justice should begin by infusing into the moral and intellectual faculties of judges and jurors infinite knowledge and purity.

Practically, if a juror’s affidavit, stating his idea of the law as the judge had expounded it, or the facts as he understood the witnesses, were to be held sufficient to set aside a verdict, provided it should turn out that he was mistaken in any particular, scarcely any verdict could stand. Besides the improbability that, in cases of any intricacy, all the jurors would understand perfectly all the principles of law expounded to them, it would be extremely easy for a juror, who had been tampered with, to swear that he had formed his verdict upon such grounds as would insure a new trial, and it would be impossible to detect the collusion or punish the perjury. The practice would hold out strong inducements for suitors to tamper with jurors. Such affidavits have, therefore, upon grounds of public policy, been in general rejected by courts. Norris v. The State, 3 Humph. Rep. 333; Handy v. Prov. Mer. Ins. Co., 1 R. I. Rep. 400; Harnbarger v. Kinney, 6 Gratt. 287; Murdock v. Sumner, 22 Pick. Rep. 156; Saunders v. Fuller, 4 Humph. 516; Hulett v. Barnett, 10 Ohio Rep. 459.

The charge of the court was clear and explicit. If the verdict itself was wrong, the court could have set it aside without any inquiry into the secret operations of the minds of the jurors.

"We think the court did not err in refusing, on the affidavits of the jurors, to set aside the verdict.

III. Although we are of the opinion that a bill of review lies in a case like this, yet the proceedings of the. court of law upon the issue out of chancery, cannot be examined upon such a bill of review any further than the same appears upon the record. The testimony before the jury upon the trial of the issue in this case is not embodied in a bill of exceptions, nor brought upon the record. It is presumed to have been oral.

IY. The [probate of the will is objected to because it does not appear in the order of the probate court, admitting the will and codicil to record, that the court found the will and codicil duly attested and executed.

The statute provides:

“ Sec. 16. If it shall appear tbat such will was duly attested and executed, and that the testator at the time of executing the same was of full age, and of sound mind and memory, and not under any restraint, the court shall admit the will to probate.
“Sec. 18. Every will, when admitted to probate, as above mentioned, shall be filed in the office of the clerk of the court, and recorded, together with the testimony, by the clerk, in a book which shall be kept by him for that purpose.
“ Sec. 19. A copy of such recorded will, with a copy of the order of probate annexed thereto, certified by the clerk under the seal of the court, shall be as effectual, in all cases, as the original will would he if produced and established by proof.”

The order of the probate court admitting the will of Riddle to probate, omits to state that the court found that the will was duly attested and executed. .

The order of the court, however, admitting a will to probate, is the final order and adjudication upon the testimony, which is required to be reduced to writing. The objection to the probate in this case, is not one of jurisdiction ; but whether the court did its duty by passing upon or by being satisfied as to the attestation and execution of the will, before it made its order admitting the will to record.

The order itself is predicated upon the preliminary evidence, and is the legal inference from it; and in a collatteral proceeding, instead of rejecting the order admitting the will to record as a nullity, because the court omitted to state in the order the grounds upon which it was made, we must presume that the court did its duty, and based its order on satisfactory evidence.

Bill dismissed.

Brinkerhoee, Scott and Sutliee, JJ., concurred.


author: By the Court

text:
    Lewis Becker v. The State of Ohio.
    1st. In an indictment for a violation of tbe first section of the act of May 1st, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” it is not necessary to a perfect description of the offense, as defined by the said first section, that the indictment should contain an averment that the liquor sold was not “ wine manufactured of the pure juice of the grape cultivated in the Slate of Ohio, or beer, ale, or cider,” as specified in the proviso at the end of the eighth section of said act.
    .2d. Said proviso forms no part of the description of the offense of violating said first section, being contained in a distinct section of the act fixing the penalty for such offense; and the benefits of said proviso must be taken advantage of by the accused in making his defense upon the facts.
    3d. This is in accordance with the rule laid down in Him v. The State, 1 Ohio State Rep. 24.

      This is a motion for a writ of error to reverse the judgment of the Court of Common Pleas of Miami county.
    In December, 1858, Becker was indicted in said court for a violation of the first section of the act of May 1st, 1854, “to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” Swan’s Rev. Stat. 898.
    Said first section provides:
    “ That it shall be unlawful for any person or persons, by agent or otherwise, to sell, in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building or premises, or other place of public resort connected with said building.”
    The eighth section of the act fixes the penalties for violating the first, second, third and fourth sections, and contains a proviso:
    “ That the provisions of the first and fourth sections of this act shall not extend to the sale of the wine manufactured of the pure juice of the grape cultivated in this state, or beer, ale, or cider.”
    The indictment charges that on the 4th day of July, 1858, Becker sold intoxicating liquors in violation of said act, to one Patrick Beston, to be drank on the premises where sold; but there is no averment, in any form, that the liquor so sold was not “wine manufactured of the pure'juice of the grape cultivated in the State of Ohio, or beer, ale or eider.” And on this ground Becker moved the court below to quash the indictment, but the motion was overruled, and Becker was tried, convicted, and sentenced to fine and imprisonment.
    The only question presented to the court, relates to the sufficiency of the indictment. Is it sufficient without containing the negative averment that the liquor sold was not “ wine manufactured of the pure juice of the grape cultivated in the State of Ohio., or beer, ale or cider.”

      S. JE. Browne, for the motion.
   By the Court

Held:

That in an indictment for a violation of the first section of the act of May 1st, 1854, “to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” it is not necessary to a perfect description of the offense as defined by the said first section, that the indictment should contain an averment that the liquor sold was not “wine manufactured of the pure juice of the grape cultivated in the State of Ohio, or beer, ale or cider,” as specified in the proviso at the end of the eighth section of said act.

That said proviso forms no part of the description of the offense of violating said first section, being contained in a distinct section of the act fixing the penalty for such offense; and the benefits of said proviso must be taken advantage of by the accused in making his defense upon the facts.

This is in accordance with the rule laid down in Hirn v. The State, 1 Ohio St. Rep. 24.

Motion overruled.


author: By the Court:

text:
    Benjamin Wheeler et al. v. William Lynn, Treasurer of Muskingum County.
    This is an application for an injunction upon petition, in an action purporting to be brought in this court, to enjoin illegal taxes.
   By the Court:

We have no original jurisdiction under the constitution to hear and determine the action. Case stricken from the docket.


author: Sutliff, J.

text:
    The State of Ohio ex rel. Wesley Smead et al. v. The Trustees of Union Township, in Fayette County, and the Treasurer of said County.
    Under the act of assembly of February 19,1851, section 5, (L. L. Vol. 4-9, p. 433,) and the act of March 20, 1849, (L. L. Yol. 47, p. 178,) an election was notified and held in Union township, Fayette county, July 2, 1853, authorizing the trustees to subscribe for $15,000 of stock in the Dayton, Xenia & Belpre Railroad Company, and a copy of the poll book duly certified to the auditor of the county, showed the vote to be in favor of the subscription; and on the 10th of September, 1853, the trustees subscribed for $15,000 of stock, and in payment for the same, issued to the company township bonds to that amount, payable to said railroad company or order in 1864, on seven per cent, interest, payable -semi-annually, the bonds stating that they were issued in pursuance of the provisions of said acts of assembly; and for the payment of the interest thereon a tax had been levied and paid by the township for the years 1854, 1855, 1856 and 1857, to the treasurer of the county; and upon the order of the trustees of the township, the interest for 1854 had been paid when due, by the treasurer, to the holders of the bonds, to whom they had been negotiated ; and the trustees refusing to give an order to the treasurer to pay the money so collected to said- bond-holders for the remaining interest, on the ground that said acts of assembly were not in force under the constitution of 1851, and that the provisions of the acts had not been strictly regarded in the proceedings preliminary to the issuing of the bonds; Held:
    1st. That said acts of assembly were not abrogated by the constitution of 1851.
    2d. That as to third persons, bona fide holders of the bonds, without notice, the trustees were estopped to aver such irregularity in their proceedings, and that the bonds were not in fact issued agreeably to the provisions of said acts of assembly. . \
    This is an application for a peremptory mandamus to compel tbe trustees of Union township, in Fayette county, and tbe treasurer of said county to pay tbe over due interest upon certain bonds issued by said trustees to tbe Dayton, Xenia and Belpre Railroad Company, and by that company indorsed to tbe relators.
    Tbe case may be stated as follows:
    On tbe 19tb day of February, 1851, tbe general assembly passed “ an act to charter tbe Dayton, Xenia and Belpre Railroad Company.” 49 L. L. 432.
    It is provided in the first section of this act that certain persons therein named—

      “Be and they are hereby created a body corporate and politic, with perpetual succession, by the name and style of the Dayton, Xenia and Belpre Railroad Company, with power to construct and maintain a railroad from Dayton, in Montgomery county, to Xenia, in Greene county, and thence to intersect with the Belpre and Cincinnati railroad, at or near the point where said railroad crosses Rattlesnake creek, in the county of Highland, Ohio-”
    Th.e fiffcb. section provides:
    “ That the trustees of any township through or in which the line of the Dayton, Xenia and Belpre Railroad Company may be surveyed or located, and the trustees of any township adjoining any township through or in which the line of said road may be surveyed or located as aforesaid, and the trustees of any township, any part of which lies within ten miles of any surveyed or located line of said road, are hereby authorized to subscribe any sum not exceeding fifteen thousand dollars to the capital stock of said company; and the trustees of each of such townships shall, in all respects, have all the rights, privileges and powers, and be subject to all the restrictions and conditions of ‘ an act to. authorize subscriptions to the capital stock of the Bellefontaine and Indiana Railroad Company, by towns and townships on the line of said road,’ passed March 20,1849; and said act shall, in all respects, be applied to all subscriptions made by virtue of this act, and to all acts done, or to be done by virtue hereof, and to all officer’s acting under the provisions of this act, and to all taxes to be levied for the payment of principal and interest of all subscriptions made, moneys borrowed, or securities given therefor, so far as the same applies to this act.”
    By said act of March. 20,1849, (47 L.L. 179,) it is provided as follows:
    “ Sec. 1. That the town council of any incorporated town, and the trustees of any township through which the Bellefontaine and Indiana Railroad Company may be located, are hereby authorized to subscribe any sum not exceeding fifteen thousand dollars to the capital stock of said company; and for the payment thereof the town council and the township trustees of any town or township which may subscribe stock as aforesaid, are hereby authorized to borrow money or issue bonds or orders at a rate of interest not exceeding seven per cent, per annum on the credit of such town or township ;• they shall levy and collect, annually, such taxes as, together with the dividends arising from said stock, will pay the interest of such loan, bonds or orders, and incidental charges; and at the end of five years they may levy and collect taxes sufficient, together with the dividends aforesaid, to pay one-half of the principal of said loan, bonds or orders, and at the end of ten years a tax sufficient to pay the remainder thereof.”

      “ Sec. 2. That no subscription shall be made by any town or township, without the assent of the people of such town or township, which assent shall be obtained as follows: The council of such town and the trustees of such township, shall give at least' thirty days notice previous to the next annual election in such towns and townships for town and township officers, or at any special election which such town council and township trustees may and are hereby •authorized to call for that purpose, that a vote will be taken at such annual or special election, as the case may be, on the question of making such subscription as aforesaid, which notice shall be published in some newspaper, if any such shall be published in the town or township, and by written advertisements, posted in three of the most public places in such towns and townships, and the qualified electors of said towns and townships shall, at said elections, vote by ballot, ‘ for subscription/ or ‘ against subscription.’ ”
    “ Sec. 3. The judges of the election in said several towns and townships, shall transmit certified returns of said ballotings, in said towns and townships, to the auditor of their respective counties, within two days after such election; and if it shall appear that a majority of the ballots cast in any of said towns or townships is in favor of such subscription as aforesaid, such subscription may be made in the manner aforesaid, in behalf of each of said towns and townships voting therefor as aforesaid,” etc.

      “ Sec. 4. All taxes levied under this act, shall bo certified to the county auditor of the proper county, and by him be placed on the county duplicate, and be collected by the county ^treasurer, in the same manner as state and county taxes, and by such treasurer paid out on the order of the proper authorities of the town or township entitled thereto, for the purpose aforesaid, and for no other.”
    Sec. 5 provides for assessing and collecting taxes sufficient to pay tbe principal and interest wbick may become past due on bonds, etc.
    “ Sec. 7. It shall be the duty of the county treasurer to pay the said orders, bonds, or evidences of indebtedness of towns or townships over due, in the same order in which they shall be presented, as fast as the money collected will enable him so to do,” etc.
    On tbe 2d day of July, 1853, a special election was held in Union township, and a vote taken by the qualified electors of the township for and against “ subscription” to the capital stock of the Dayton, Xenia and Belpre Railroad Company, and resulted in 247 votes for, and 41 against “ subscription,” as appears from a copy of the poll-book duly certified to the county auditor.
    'Whereupon the trustees of the township, on the 10th day of September, 1853, on behalf of the township, subscribed fifteen thousand dollars to the capital stock of said company; and for the payment thereof, issued, on the credit of the township, their thirty bonds, of five hundred dollars each, payable to said company or order, with interest thereon at the rate of seven per cent, per annum, payable on tbe presentation of the proper coupons therefor, at the office of the Ohio Life Insurance and Trust Company, in the city of New York, on the first days of July and January in each year, until the payment of the principal sum, on January 1st, 1864.
    The bonds state, upon their face, that they were issued by virtue of said act of February 19, 1851.
    The bonds were delivered to the company; and for them the township received a certificate of stock in the company for the amount of the subscription.
    The relators are bona fide holders, for value, of twenty of these bonds.
    For the payment of the interest on the bonds, a tax was levied and paid by the township for each of the years 1854,1855,1856,1857, to the treasurer of the county. The treasurer, upon the order of the trustees of the township, paid to the holders of the bonds the two installments of interest for 1854, when due, but refused, and refuses to pay the interest over due, though properly demanded, for the reason that he has not only received no order from the ti’ustees so to do, but that, on the contrary, they have ordered him not to pay such interest.
    The trustees claim to be justified in refusing to order the payment of the ovex’-due interest on the bonds, on the ground that the acts of assembly under which they wex’e issued, were superseded by the constitution of 1851, before they were issued; and if not so superseded, that in the proceedings preliminary to the issuing of the bonds, the provisions of said acts were not complied with, in various particulars, as to the notice of the election, and the survey and location of the road, etc.
    But as the decision of the case does not depend upon the facts in regard to these preliminary proceedings, they axo omitted; the general finding in regard thereto, appearing in the opinion of the court.

      N. H. Swayne, and N. Hush, for the relators.

      Briggs $ Maynard, and R. A. Harrison, for defendants.
   Sutliff, J.

The fact that the election, and subscription of stock by the trustees, and their issue of the bonds, were subsequent to the adoption of the constitution of 1851, presents, substantially, the same question decided in the case of Cass v. Dillon, 2 Ohio St. Rep. 607.

In that case the decision turned upon the question, whether the act of assembly of March 24, 1851, authorizing a subscription of stock in the Cincinnati, Wilmington and Zanesville Railroad Company (49 O. L. Laws 539), was abrogated by the new constitution. That act was for a similar purpose, and contained provisions similar to the acts of assembly of February 19,1851, and of March 20, 1849, presented for consideration in this case.

Although the question, as an original one, when presented in that case, seemed to be one not free from embarrassments and doubt, the majority of the court held that the acts of. the assembly, passed under the constitution of 1802, authorizing subscriptions and issuing of bonds, was not abrogated by the new constitution; an opinion with which we are well satisfied.

The provision of the new constitution, by which, it is said, these laws were abrogated, is contained in sec. 6 of art. 8, and is in these words:

The general assembly shall never authorize any county, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation or association whatsoever, or to raise money for, or loan its credit to, or in aid of any such company or corporation, or association.”

This provision, it will be observed, does not inhibit such subscription, or issuing of bonds, by virtue of existing laws. It only prohibits the general assembly from passing such laws in future, after the adoption of the new constitution. It is therefore evident that the subscription and issuing of the bonds, not being forbidden by the constitution, the same were valid by force of the acts under which issued, unless those acts of assembly were abrogated by that or some other provision of the new constitution. But the section referred to is the only one particularly relating to this subject; and if those acts of the general assembly are repealed by this provision of the constitution, it must be by implication merely, as no such intention is expressed.

Sec. 1 of the schedule in the new constitution, provides that “ all laws of this state in force on the first day of September, 1851, not inconsistent with this constitution, shall continue in force until amended or repealed.”

Unless, therefore, the acts of assembly in question are such as cannot consist with the provision of section 6 of art. 8, the constitution does not require their abrogation, but expressly requires that they shall continue in force.

It is a well settled rule of law, that repeals by implication are never favored. And this rule applies, as well to the constitution and previously existing statutes, as it does to old statutes and new. If any reasonable construction may be given to each, so that both may stand, such construction must be given. If it cannot be, but the two are evidently irreconcilable and cannot reasonably coexist, the former statute must of necessity give way, and be considered as abrogated or repealed by implication.

In the case of Evans v. Dudley, 1 Ohio St. Rep. 441, Judge Ranney, in remarking upon this subject, uses the following lafiguage: “ As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they cannot be reconciled, in order to make the latter operate a repeal of the former.”

But in this case there is no inconsistency in the language of the acts of assembly, and the provision of the constitution under consideration. The provision of the constitution is prospective in its terms. There are many other provisions of the constitution likewise prospective in their terms, and which inhibit, in future, such legislation and laws as the constitution found existing, and evidently contempla ted. leaving unimpaired and in full force. Such is the provision in sec. 1, art. 18, that “ the general assembly shall pass no special act conferring corporate powers.” Section 7 of the same article provides that, “ no act of the general assembly authorizing associations with banking powers shall take effect until it shall be submitted to the people at the general election next succeeding the passage thereof, and be approved by a majority of all the electors voting at such election.” And there are numerous provisions in the new constitution prohibiting the passing, in future, such laws as are to be found, and in full force, here and there throughout our statute book. But no lawyer has ever supposed the fact of an inhibition by the new constitution upon a future legislature passing similar laws, is by necessary implication a repeal of such existing acts passed under the old constitution, and in accordance with its provisions.

It is, however, upon this point of the case sufficient to .say, that we fully assent to the reasoning and conclusions of the majority of the court in the case of Cass v. Dillon, as expressed by the able and learned opinion delivered by Judge Thurman in that case. This court has had occasion, at different times heretofore, to carefully consider various objections urged to the constitutionality of statutes similar to those under consideration, and their constitutionality has been unifoi’mly affirmed by the court. The validity of the acts of assembly referred to, can, therefore, no longer be regarded by the court as doubtful. See C. W. Z. R. R. Co. v. Comm’rs of Clinton Co., 1 Ohio St. Rep. 77; S. & I. R. R. Co. v. Trustees of North Township, Ib. 105; Citizens’ Bank v. Wright, 6 Ohio St. Rep. 518; State ex rel. Garrett v. Van Horn, 7 Ohio St. Rep. 327.

It is further insisted, that even if the acts of assembly be regarded as in full force, their provisions have not been so complied with as to render the bonds obligatory.

The proofs in the case, with the agreed statement of facts, show that a survey of the road had been made before the election; that the election was held and conducted substantially in accordance with the requirements of the statute; and that the survey and location of the line of the road was made within the required distance.

In the case of The State ex rel. Garrett et al. v. Van Horn, 7 Ohio St. Rep. 827, this court held that, in such a case as the one under consideration, where the tax payers had, without protest or interference, suffered the election to take place, and authorized the subscription to be made and the bonds to be negotiated, they could not afterwards, as against innocent bond holders, deny their recognition of the acts of their agents, on the ground that the railroad was not located until after the election and subscription.

"We are well satisfied with the correctness of this doctrine, and its reasonable application as expressed in that case; and if the proof left any similar question in this case in doubt, we could not withhold the application of the same rule. To withhold such application would certainly be in disregard of the most wholesome application of the doctrine of estoppel in an appropriate case for its exercise. The case is simply this: The inhabitants and tax payei’s of Union township, under the statutes referred to, call an election, and by a vote of 247 to 41, assert their right to subscribe for, and become owners of, $15,000 of the stock of the road, and to pay for the same by negotiating their bonds to that amount; and, by their vote, they instruct their agents^ the trustees, to subscribe for the stock, and to issue and negotiate the bonds. Under this instruction, and, at least the tacit assent of the 41 voters, the trustees subscribe for the stock, and issue the bonds and negotiate them, and thereby pay for the stock as requested. Third persons, reposing in full confidence upon the bona fide character of the transaction on the part of the township, purchase the bonds; no individual in the township protesting or even making any objection to the subscription, or the issuing and negotiation of the bonds. • And, as if to give to third persons still stronger confidence in the bonds, the township has continued year after year for a number of years to assess and pay a tax to meet the annual interest upon those securities. Under these circumstances it is, that the township, while still retaining the pi-ice axxd proceeds of the bonds, proposes to set up as a defense to their payment, that the township had not in fact proceeded in all respects strictly in conformity with the statute in issuing said bonds; and that, therefore, they are void.

We hold that the township, as to third persons, holding in good faith these securities, is estopped to aver a matter in defense so evidently inconsistent with its previous conduct and representations in the premises.

It is urged, however, on the part of the defense, that, notwithstanding the bonds contain words of negotiability, and were transferred to the relators for value-before due, it appears upon their face that they were issued by vii’tue of the authority conferred upon the trustees by said acts of the general assembly, and the election held in pursuance thex’eof. But to give this argument any force, the fact of issuing the bonds must have been an independent act of a third party. When taken in connection with the fact that the trustees in issuing the same were acting under the direction, and in fact as the agents of the township, the recitals of the bonds become those of the principal, and would seem rather to estop the trustees to allege any thing contrary to such recitals.

Indeed the defense proposed to be set up, that in issuing these securities the township had not been careful in all x-espects to comply with the provisions of the statutes under which the proceedings were had, would seem to savor too xnuch of taking advantage of ones own wrong to meet much favor in a court of justice. It would cex’tainly be counter to the spirit of the maxim, nemo ex suo delicto meliorem snam conditionemf acere potest.

This is not such a case as that where an officer, acting independently upon his own mistaken construction of a law, places himself without its provisions, so that his acts cease to be official and obligatory upon others. The trustees in this case not only acted officially, hut they acted under the instructions as well as with the actual assent of the tax payers and voters, whose agents they in fact were, in making the subscription, and issuing the bonds. The township has also, as before remarked, received and still holds the price and fruit of the bonds, negotiated at their direction. The township cannot, therefore, in such case be permitted to repudiate the acts of its agents, the trustees, who negotiated the bonds.

Ve think, therefore, that the township authorities ought to pay the over due interest.

Peremptory mandamus awarded.

Swan, Brinkerhobi' and Scott, JJ., concurred.