author: Davis, J.

text:
    Thomas v. The Guarantee Title & Trust Company.

      Action against am abstracter — For negligence in certifying title — Does not sound in tort — Must be founded on contrac Abstracter liable only to employer — Usage can not create contract — Doctrine of caveat emptor — Law of privity of contract.

    1. An action against an abstracter to recover damages for negligence in making or certifying an abstract of title does not sound in tort, but must be founded on contract; and the general rule is that an abstracter can be held liable for such negligence only to the person who employed him.
    2. Usage or custom cannot create a contract or liability, where none otherwise exists. A usage or custom can only be used to explain, or aid in the interpretation of, a contract or liability existing independently of it. It cannot be permitted to contradict or vary the express terms of a contract, nor to vary the legal import thereof.
    3. A custom which would relieve a purchaser from the obligations imposed upon him by the doctrine of caveat emptor, which requires a vendee to protect himself by express covenants and investigation of the title which he is to acquire, is contrary to law.
    (No. 11161
    Decided February 23, 1910.)
    Error to the Circuit Court of Cuyahoga county.

      The plaintiff in error in his petition, as amended in the court of common .pleas, averred that on or about the 28th day of September, 1899, one Charles D. Cavanaugh had a life estate under the will of his father Charles Cavanaugh in certain real estate situated in Cuyahoga county and described in the petition; that on or about the said date Charles D. Cavanaugh employed the defendant to prepare and deliver to him an abstract of the title to said real estate and of the encumbrances thereon, and. to certify to the correctness of such abstract; and that accordingly on said date, the defendant delivered to him such abstract with the following certificate: “We have examined the records of Cuyahoga county for title and encumbrances of the above described premises from the year 1795 down to the present date and the same appears good in Charles D. Cavanaugh, subject only to the above encumbrances by said record of this date.” The plaintiff also averred that the phrase “title good in Charles D. Cavanaugh” has a long established customary meaning in the community where it was used, to-wit: the meaning of a good title in fee simple. The plaintiff also averred that there was a custom in the community in which this transaction occurred which was well known to the defendant, that the owner of real property should procure an abstract or certificate of title and encumbrances whenever he proposed to , sell or in any manner encumber his real estate; that it also was the custom, as the defendant well knew, for persons intending to lend money on mortgasres or other encumbrances on real estate, as well as for persons intending to buy real estate, to demand the production and delivery of an abstract of title to said property or a certificate of the title thereto with the encumbrances thereon; and that it was the custom of persons so making such demand to rely on such documents relating to the title and encumbrances on said premises in receiving or accepting any transfer, mortgage, or other encumbrances thereon; and that as the successive encumbrances or transfers were made of such real estate, the aforesaid abstracts or certificates were from 'time to time extended to show the state of the title and encumbrances at the time of the intended transaction; and that it was not the custom of the person or persons so extending or bringing up to date the said abstract or certificate to do over again the work which had already been done in the preparation thereof, but that, on the contrary, it was the custom in extending said abstracts or certificates, simply to search the records of the county in which the property was situated from the 'date of the last succeeding certificate up to the date desired by the person desiring such extension to be made. Plaintiff also alleged that the defendant not only knew this custom, but also knew that such abstracts or certificates were meant to, and did, circulate in the community and oass. from assignors to assignees of such real property, and be relied on by each successively for an indefinite period of time. The plaintiff also alleg-ed that defendant was guilty of negligence in issuing the certificate aforesaid, that the title was good in said Charles D. Cavanaugh, when in fact he had but an estate for life therein. It was further averred in said. amended petition that the aforesaid certificate was, on October 11, 1899, extended by the defendant to and including said date, and thereafter extended by the defendant to May the 24th, 1902, and afterwards extended by the Cuyahoga Abstract Company to June the 24th, 1902, and that on or about the last named date the said Charles D. Cavanaugh and his wife conveyed the aforesaid premises to the plaintiff by warranty deed, and the plaintiff says that by reason of said negligence of the defendant he lost the difference in value between the fee simple of said lands and the estate for life in said lands, to his damage in the sum of two thousand dollars, for which he prays judgment. The defendant demurred to the petition as amended, upon the ground that defendant does not state facts sufficient to constitute a cause of action, and the demurrer was sustained by the court of common pleas and, the plaintiff not desiring to plead further, judgment was rendered against him. This judgment was affirmed by the circuit court and the case is before this court on proceedings in error to reverse the judgments of the circuit court and court of common pleas.

      Messrs. M. B. & H. H. Johnson and Mr. T. H. Hogsett, for plaintiff in error.
    This is an action of tort for negligence. It is not an action for deceit. It is not an action for breach of a contract. It cannot be too strongly emphasized that in this case no reliance whatever is placed upon the fact that the defendant in error was under a contract with Cavanaugh to use due care in the preparation of the certificate. The rights of the plaintiff in error are claimed to exist independent of that contract. The theory of our case is perfectly plain and simple.
    Perhaps the most accurate analysis of the requisites for actionable negligence is found in 1 Shear. & Redf. on Negligence (5 ed.), Section 5.
    The damage to the plaintiff in error is apparent and no intervening agency broke the causal connection between the breach and its natural conseqhences. It will be necessary to discover the foundation of the general rule which imposes on one a duty to use care with respect to another and to state and analyze at more than usual length the cases analogous to the one at hand, for the reason that the present case is one of first impression. ITence, we must have recourse to analogies. The first class of analogous cases which we ask the court to consider is the so-called sub-vendee cases.
    It is a universally established rule of law that where a manufacturer or dealer in dangerous or poisonous articles negligently prepares or labels the same, he is liable not only to his immediate vendee but also to sub-vendees who may be injured as a result of that negligence. Thomas v. Winchester, 6 N. Y., 397; Devlin v. Smith, 89 N. Y., 470; Heaven v. Pender, L. R., 11 Q. B., 506; Davis v. Guarnieri, 45 Ohio St., 470; George v. Skivington, L. R., 5 Ex. (1869), 1; Balm Co. v. Cooper, 83 Ga., 457.
    The second class of cases to which we call the court’s attention is the so-called “exchange car” cases. Glynn v. Railroad Co., 175 Mass., 510;
      Fowles v. Briggs, 116 Mich., 425; Railway Co. v. Merrill, 65 Kans., 436.
    And we have three cases in which recovery was allowed. Teal v. Mining Co., 84 Minn., 320; Boyd v. Railway Co., 45 S. E. Rep., 186; Railroad Co. v. Snyder, 55 Ohio St., 342.
    Closely resembling, in principle, the preceding “leased car” cases is the “leased premise” case, Manufacturing Co. v. Shoe Co., 71 N. H., 522.
    A third class of cases involving the application of principles similar to those which should govern the present case is the telegraph cases., Telegraph Co. v. Dryburg, 35 Pa. St., 298; Tobin v. Telegraph Co., 146 Pa. St., 375; Telegraph Co. v. Dubois, 128 Ill., 248; Laudie v. Telegraph Co., 126 N. Car., 431.
    Three time-table cases deserve consideration. Denton v. Railway Co., 5 E. & B., 860; Heirn v. M’Coughan, 32 Miss., 17; Gordon v. Railroad Co., 52 N. H., 596.
    Another collection of cases bearing a striking resemblance both in principle and in their history to cases like the present, are those in which the inhabitants of a city who have lo,st property by fire have sought to recover against a water company which has contracted with the city to furnish water for use in extinguishing fires and to maintain a certain pressure for that purpose. Fisher v. Water Supply Co., 128 N. Car., 375; Mugge v. Water Works Co., 52 Fla., 371; Trust, etc., Co. v. Fisher, 200 U. S., 57; Building & Loan Assn. v. Bank, 118 Tenn., 678.

      We now call attention to another class of cases in which liability has been held on the same ground as that contended for in the present case. Young v. Grote, 4 Bing., 253; Merritt v. Boyden, 191 Ill., 136; Bishop v. Weber, 139 Mass., 411; Edwards v. Lamb, 69 N. H., 599; Harriott v. Plimpton, 166 Mass., 585; Cann v. Wilson, 39 Ch. Div., 39.
    If caterers, physicians and valuers, because of the business in which they are engaged, owe a duty of care to that class of persons who may be expected to rely upon their express or implied representations, it is difficult indeed to see why an abstracter of title does not in the same manner owe a similar duty to that class of-persons who may reasonably rely on statements or ’ representations of the abstracter. 1 Cyc., 214; Chase v. Heaney, 70 Ill., 268; Lattin v. Gillette, 95 Cal., 319.
    We next call the court’s attention to some cases in which the liability of corporation directors for negligent reports, etc., has been the question at issue. Houston v. Thornton, 122 N. Car., 365; Seale v. Baker, 70 Tex., 283; Kinkler v. Junica, 84 Tex., 116; Railway Co. v. Bank, 56 Ohio St., 351; Mason v. Moore, 73 Ohio St., 275.

      Messrs. Goulder, Holding & Masten, for defendant in error.
    It may be said in passing that the facts plead in the amended petition as to custom do not constitute such a custom as the law will recognize, in that there is no allegation that the custom is the universal mode of dealing in the community. Lawson on Usages and Customs, 41; Porter v. Hills, 114 Mass., 106; Lowe v. Lehman, 15 Ohio St., 179; Wrightson v. Bettinger, 2 C. C., 381.
    Moreover, the custom alleged by its very nature is not compulsory on anyone; and it is a well settled rule of law that a custom to have any force or recognition must be compulsory and not left to the option of men to use it or not. Lawson on Usages and Customs, 36; Somerby v. Tappan, Wright, 570.
    Without a contractual relation a custom of trade can impose no duty of- diligence in making abstracts or certificates of title. Kahl v. Love, 37 N. J. L., 5; Gordon v. Livingston, 12 Mo. App., 267; Day v. Reynolds, 23 Hun, 431; Russell v. Abstract Co., 87 Ia., 233; Commonwealth v. Harmer, 6 Phila., 90; Siewers v. Commonwealth, 87 Pa. St., 15; Zweigardt v. Birdseye, 57 Mo. App., 462; Mallory v. Ferguson, 50 Kans., 685; Savings Bank v. Ward, 100 U. S., 195; Buckley v. Gray, 110 Cal., 339; Mortgage & Trust Co. v. Hughes, 20 Fed. Rep., 39; Winterbottom v. Wright, 10 Mees. & W., 109; Collis v. Selden, L. R., 3 C. P., 495; Burdick v. Cheadle, 26 Ohio St., 393.
    There are a few cases where abstracters have been held liable to parties other than those actually contracting with them, but in every instance the liability has been held to be created either because the contract was expressly made for the benefit of the third party, of which fact both parties to the contract had knowledge, or the third party has been found to be brought into privity of contract with the abstracter. Young v. Lohr, 118 Ia., 624;
      Brown v. Sims, 22 Ind. App., 317; Loan & Savings Co. v. Abstract Co., 31 Mont., 448; Abstract Co. v. Post, 55 Neb., 742; Building & Loan Assn. v. Title Co., 64 N. J. L., 27; Appleby v. State, 45 N. J. L., 161; Dickle v. Abstract Co., 89 Tenn., 431; Denton v. Title Co., 112 Tenn., 320; Houseman v. Building & Loan Assn., 81 Pa. St., 256; Building & Loan Assn. v. Houseman, 89 Pa. St., 261; Chase v. Heaney, 70 Ill., 268; Lattin v. Gillette, 95 Cal., 319.
    And there are several cases which refuse to recognize the liability of the abstracter as extending even to third persons who are parties to the very transaction for which the abstract was prepared Mallory v. Ferguson, 50 Kans., 685; Gordon v. Livingston, 12 Mo. App., 267; Zweigardt v. Birdseye, 57 Mo. App., 462; Savings Bank v. Ward, 100 U. S., 195.
    Where the abstracter has re-published the abstract to the plaintiff and has thus entered into a contractual relation with the plaintiff, the courts have held that the abstracter was liable. Siewers v. Commonwealth, 87 Pa. St., 15 ; Building & Loan Assn. v. Bank, 118 Tenn., 678.
    The text-writers uniformly lay down the rule that to fix liability for negligence upon an abstracter there must be privity of contract with the injured party. Martindale on Abstracts of Title, Section 185; Warvelle on Abstracts, 8; Niblack on Abstracters of Title, Art. 18.
    And the text-writers on negligence lay down same rule. 1 Shear. & Redf. on Negligence (5 ed.), Section 574; 5 Thompson on Negligence, Section 6705.

      It is a general rule of law that a custom of trade imposes no duty on anyone unless as part of a contract. The dealings of trade are by contract, and it is only as the custom is read into the contract that it becomes relevant. Burdick v. Cheadle, 26 Ohio St., 393; Tilley v. County of Cook, 103 U. S., 155; Bliven v. Screw Co., 23 How., 420; Lawson on Usages and Customs, 356-370; Bank v. Ward, 100 U. S., 196; Leach v. Perkins, 17 Me., 462; Ulmer v. Farnsworth, 80 Me., 500; United States v. Fillebrown, 7 Pet., 28; McAllister v. Barnes, 35 Mo. App., 668; 27 Am. & Eng., Ency. Law (1 ed.), 712; Daun v. Brewery Co., L. R., 8 Eq., 155; Mensies v. Lightfoot, L. R., 11 Eq., 459; Barlow v. Lambert, 28 Ala., 704; Schooner v: Reeside, 2 Sumner (U. S.), 567.
    The abstract, after passing from the hands of the abstracter, cannot be recalled. It passes into the hands of another human agency, who may either retain it or pass it on to others. That human ag'ency is beyond the control of the abstracter.
    If such a right of action in tort by subsequent persons relying on the abstract were recognized by the courts, the statute of limitations would be postponed indefinitely. 25 Cyc., 1137; Addison on Torts, 1163; Ormsby v. Longworth, 11 Ohio St., 653; Railroad Co. v. Robbins, 35 Ohio St., 483; Railroad Co. v. Fink, 41 Ohio St., 321; Cameron v. Cincinnati, 9 Dec. Re., 754; Carpenter v. Canal Co., 35 Ohio St., 307; Houston v. Thornton, 122 N. Car., 365; Commonwealth v. Harmer, 6 Phila., 90.

      When the certificate of title was delivered to Cavanaugh it passed entirely beyond the control of defendant in error. Cavanaugh could hold it or pass it on to others. At very least no one could rightfully use it without his permission or request, but defendant in error could not recall it or govern its use in any way. Those using the certificates upon Cavanaugh’s 'permission or request must look to him and not to defendant in error. Longabaugh v. Anderson, 68 Ohio St., 131; Wharton on Negligence, Section 138, cites thefirue test as to whether or not the intervention of an independent human agency breaks the chain of cause and effect. Mill Co. v. Oil Co., 63 Fed. Rep., 400; Losee v. Clute, 51 N. Y., 494; Fowles v. Briggs, 116 Mich., 425; Glynn v. Railroad Co., 175 Mass., 510; Carter v. Towne, 103 Mass., 507; Railway Co. v. Merrill, 65 Kans., 436.
   Davis, J.

So far as we have been able to discover, there has been no exception to the general rule that an action against an abstracter to recover damages for negligence in making or certifying an abstract of title, must sound in contract, the general rule being, that the abstracter can be held liable only to the person who employed him Savings Bank v. Ward, 100 U. S., 195; Eq. B. & L. Association v. Bank, 118 Tenn., 678; Mallory v. Ferguson, 50 Kans., 685; Schade v. Gehner, 133 Mo., 252; Talpey v. Wright, 61 Ark., 275. Even in the exceptional cases in which courts have sought to mitigate the rigor of the rule, that object has been accomplished by straining the doctrine of privity of contract. The following are typical cases of that kind: Brown v. Sims, 22 Ind. App., 317; Denton v. Nashville Title Co., 112 Tenn., 320; Economy B. & L. Association v. West Jersey Title Co., 64 N. J. L., 27.

The plaintiff in error, however, through his counsel, fully and frankly disclaims any reliance whatever* upon the contract of the abstracter; and claims that his rights exist independently of contract. The theory is that the defendant knowing of the custom alleged (which, in substance, is that all subsequent parties dealing in respect to that real estate would rely upon and act. upon the accuracy of the abstract) a legal duty was thereby imposed upon it to make the abstract accurate, and that, therefore, the certificate by the defendant to its employer would enure to the benefit of all subsequent grantees, by “a natural continuous sequence uninterruptedly connecting the breach with the damage, as cause and effect.” It is at this point, as we think, that the theory of the plaintiff in error breaks down.

In the first place, it is elementary law that uSage| or custom cannot create a contract or liability where none otherwise exists. A usage or custom can only be used to explain, or aid in the interpretation of, a contract or liability already existing independently of it. It cannot be permitted to contradict or vary the express terms of a contract; nor can it vary the legal import of a contract. We need not go far for ‘authority as to this statement of the law. In Savings Bank v. Ward, supra, Mr. Justice Clifford said: “Testimony was introduced at the trial tending to show that there is a local usage in the district that the attorney examining- the title of such an applicant for a loan shall be considered as also acting for the lender of the money, and complaint is made that the court below did not submit the evidence to the jury, with proper instructions. Evidence of usage is not admissible to contradict or vary what is clear and unambiguous, or to restrict or enlarge what requires no explanation. Omissions may be supplied in some cases by such proof, but it cannot prevail over or nullify the express- provisions of the contract. So, where there is no contract, proof of usage will not make one, and it can only be admitted either to interpret the meaning of the language employed by the parties, or where the meaning is equivocal or obscure. Thompson v. Riggs, 5 Wall., 663, 679.” In Columbus & Hocking Coal & Iron Co. v. Tucker, 48 Ohio St., 60, this court said, per Spear, J.: “Equally immaterial, as we think, is the matter óf custom among coal operators in the Hocking Valley and the surrounding mining districts near thereto, of depositing slack and refuse on their own lands, when such custom is invoked to justify deposits so placed as to naturally allow them to wash down to the injury of lands lying below them. The right of the plaintiff to the uninterrupted use of his land, and the unimpaired use of the water of Monday creek being secured to him by the common law, how is it possible that a custom can deprive him of them? Why should a usage, the effect of which, if recognized, is to permit one man to take from another his property rights without compensation, be sanctioned? If it be assumed that the custom is a genera] one, then

it is part of the common law itself, anc mere would be presented an instance of. two rules of law, equally binding, and yet wholly inconsistent the one with the other. If it be claimed that the custom is a particular one, then we have the anomaly of a landowner's common law right in his land taken from him by a usage of a particular trade established by strangers, which it is not pretended he has ever been cognizant of, much less assented to. To have affected the plaintiff, the custom must have been shown to have been reasonable and certain, known to him, or to have been so general and well established that knowledge would be presumed, peaceably acquiesced in, and not unjust, oppressive, or in conflict with an established rule of public policy. The alleged custom possessed scarcely one of these attributes. Even though it had been common throughout the state, it would not avail. A usage which is not according-to law, though universal, cannot be set up to control the law. Meyer v. Dresser, 111 Eng. C. L. R., 646; Stoever v. Whitman, 6 Binn., 416; Inglebright v. Hammond, 19 Ohio, 337.”

In the second place, in the absence of fraud or such mistake as a court of equity would recognize, in order to uphold the theory advanced in this case it would be necessary to ignore the doctrine of caveat emptor, which requires a vendee to protect himself by investigation and express covenants.

In the third place, the fantastic and impracticable theory that “a natural continuous sequence uninterruptedly connecting the breach with the damage, as cause and effect,” gives rise to a cause of action to each subsequent grantee, his heirs and' assigns, on through “the corridors of time” to eternity, may be, as it seems to us, conclusively answered in the words of Beasley, C. J., in Kahl v. Love, 37 N. J. L., 5, 8, viz.: “There would be no bounds to actions and litigious intricacies if the ill-effects of the negligence of men may be followed down the chain of results to the final effect.”

The argument founded upon certain classes of decisions, designated as sub-vendee cases, telegraph cases, time-table cases, professional cases, and director cases, does not impress us as possessing any relevance to the issue here. Those decisions are founded upon a public, or quasi public, nature inherent in the business or transactions involved. The transaction which is the basis of this action contained no element.of deceit or fraud; it was a mere private contract of employment for services upon a subject-matter about which the public were not, and could not be, concerned. In the nature of the transaction it could not be fairly implied that the public, or any considerable part of the public, would be concerned with the subject-matter of the transaction; or that the manner in which it must be conducted would depend on a custom which is contrary to law, and which would relieve a purchaser from the obligation to investigate fot himself the title to property which he purchases.

The judgment of the circuit court is •

Affirmed.

Summers, C. ■ J., Crew, Spear, Spiauck and Price, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Thurlow v. Board of Commissioners of Guernsey County.

      Sheriff’s fees — Proceedings on change of venue — Section 7264, Revised, Statutes — Fees paid by county procuring indictment.

    The fees of the sheriff of a county to which, under favor of section 7264, Revised Statutes, a criminal prosecution has been removed for trial, for services rendered in and about the trial of such case, should be allowed and paid by the commissioners of the county in which the indictment was found.
    (No. 11059
    Decided February 23, 1910.)
    Error to the Circuit .Court of. Guernsey county.
    The action below originated in the presentation of a claim by the plaintiff in error, T. M. Thurlow, .as sheriff of Noble county, to the defendants in error as County Commissioners of Guernsey county. The claim was rejected and an appeal taken by the sheriff to the common pleas, where, upon trial, a judgment was rendered in favor of the plaintiff. Upon error to the circuit court that judgment was reversed. The sheriff asks a reversal of this latter judgment and an affirmance of that of the common pleas.
    By the agreed statement of facts it is shown that, at the May term, 1905, of the court of common pleas of Guernsey county, one Barber was indicted for a felony. Subsequently, on motion, a change of venue was ordered and the cause duly certified and# removed for trial to the adjoining county of Noble. At the September term of the same year, trial was had which resulted in a verdict of not guilty, and the defendant was discharged. During all the time the prosecution was pending in Noble county the plaintiff in error was sheriff of that county. His claim against the Board of Commissioners of Guernsey was for sheriff’s fees for proper services rendered by him as sheriff in and about that prosecution, amounting, as found by the common pleas of Guernsey, to $238.58, which claim formed the basis of his demand of the Board of County Commissioners.

      Messrs. Turnbaugh & Eagles on and Mr.-A. M. Morris, for plaintiff in error.

      Mr. Charles S. Sheppard, prosecuting attorney, for defendant in error.
   Spear, J.

The question at issue involves a consideration of statutory provisions relating to the fees of sheriffs, and especially a construction of section 7264 of the Revised Statutes. Prior to the act of February 7, 1898, that section was as follows: “When the venue is changed, the clerk of the county in which the indictment was found shall make a certified transcript of all the proceedings in the case, which, together with the original indictment, he shall transmit to the clerk of the court of the county to which the case is sent, and the trial shall be conducted in all respects as if the indictment had been found in that county; the prosecuting attorney of the county in which the indictment was found shall take charge of and try the case; and the court on application, “may appoint one or more attorneys- to assist him in the trial, and allow such compensation as it deems reasonable; and the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expenses of the prosecuting attorney, incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment was found.”

A construction was given by this court to the above quoted section respecting the fees of a sheriff of a county to which the prosecution had been removed in the case of Commissioners v. The State, 49 Ohio St., 373, in which case it was held that the county in which the indictment is found is not liable for the fees of the sheriff of the county in which the trial is had in a criminal case where the state fails to convict, the only compensation of the sheriff in such case being the allowance not exceeding three hundred dollars provided by section 1231 of the Revised Statutes. The matter of jury fees was involved in State ex rel. v. Board of Commissioners, 14 O. C C., 26, and it was held by the circuit court, opinion by Sibley, J., that the costs in such case which the county where the indictment was found has to pay do not include expenses incurred for securing a jury to . try the case.

It follows that, unless there has been a change in the phraseology of the statute which changes its meaning and effect, the question is already determined. It is, however, claimed by counsel for plaintiff in error that such a change has been made by the amendment of February 7, 1898, 93 O. L., 7. As amended by the above act that section was made to read as follows: “When the venue is changed, the clerk of the county in which the indictment was found shall make a certified transcript of all the proceedings in the case, which, together with the original indictment, he shall transmit to the clerk of the court of the county to which the case is sent, and the trial shall be conducted in all respects as if the indictment had' been found in that county; the prosecuting attorney of the county in which the indictment was found shall take charge of and try the case; and the court on application, may appoint one or more attorneys to assist him in the trial, and allow such compensation as it deems reasonable; and the cost accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expense of the prosecuting attorney incurred in consequence of such change of venue, and also including the fees of the clerk of the court and the sheriff, and the jury fees of the jury sitting in the trial of the case in the court of the county to which the venue is changed, shall be allowed and paid by the commissioners of the county in which such indictment was found.”

It would seem that, standing by itself, the language of this amendment to the effect that costs for which the county in which the indictment was found is liable shall include the fees of the sheriff of the county where the trial is had is intended as a provision awarding compensation to the sheriff for his services, and this was the construction given the section as so amended by the court of common pleas. But the contention of counsel for defendant in error is that by reading section 1231 of the Revised Statutes into section 7264 it results that, inasmuch as the sheriff is never paid when the state fails to convict in the county where the indictment is found (except by the allowance under section 1231), that officer should not be placed in a better position by a mere change of venue; and this seems to have been the opinion of the circuit court. The section last referred to is as follows: “The court of common pleas in each county shall make an allowance of not more than three hundred dollars, per annum, for the sheriff, for services in criminal cases, where the state fails to convict, or the defendants prove insolvent, and for other services not particularly provided for, to be paid out of the county treasury.”

It is undoubtedly true that section 1231 should be considered in an inquiry as to the meaning of section 7264 since it relates to the same subject-matter, but we are not convinced that it controls the later enactment. There has been no attempt to repeal section 1231 and it still stands as: the general law upon the subject; nor does the inquiry call for a discussion of the rule as to repeals by implication. Another rule we think is applicable. That is with respect to the effect of subsequent legislation taking a particular phase of a subject-matter out of the operation of the previous general law. Some effect must be given to the language of the amendment, and if it was not inteuded to enlarge the compensation of the sheriff it is difficult to perceive any substantial reason for the change in the law affecting his fees. Putting the two sections together it is natural to conclude that the amendment of section 7264 was intended as taking the matter of sheriffs’ fees in prosecutions in counties other than the one where the indictment was found out of the provisions of the general section, so that the law would now mean that generally the fees of sheriffs in their own county in cases where the state fails to convict shall, as heretofore, be compensated only by the allowance authorized by section 1231, but in counties to which a criminal prosecution has been removed the sheriff’s fees in and about that prosecution must be paid by the county where the indictment was found. This construction does no violence to the language of either section and gives effect to the apparent purpose of both. Manifestly the change in section 7264 does enlarge the claim respecting clerk’s fees and jury fees, without respect to acquittal or conviction. The fees of the sheriff are classed with the others, and if any qualification in fact against the sheriff had been intended it would have been but natural to express it. None is found in the language, and we think none should be imported into it.

The court is not necessarily concerned with the reasons of the general assembly in passing the amendment. It may be that it was realized that, since a sheriff is an officer of the particular county wherein he has been chosen, and neither he nor his county owes any special duty to incur expense or to render service for the benefit of the adjoining counties, that, out of fairness to that officer, and as a spur to an active discharge of duty in the interest of the state, special provision for his fees in a prosecution like the one here considered would not only be a proper provision but a wise one. But whether the reasons for the legislation be satisfactory or otherwise, we must take the language of the act as we find it, and that provides for the compensation claimed.

This conclusion requires a reversal of the judgment of the circuit court and an affirmance of that of the common pleas, and it will be so ordered.

Reversed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


author: Crew, J.

text:
    The Hocking Valley Railway Company v. Phillips.

      Railroad companies must construct — And maintain fences, crossings and cattle guards — Section 3324, Revised Statutes — Railroad liability limited to ozim right of zvay.

    The liability of a railroad company, under Section 3324, Revised Statutes, to respond in damages for injuries to stock in consequence of its neglect to construct and maintain a sufficient fence on each side of its road, is limited to loss or injuries occurring upon its own right of way.
    (No. 11529
    Decided February 23, 1910.)
    Error to the Circuit Court of Wood countv.

      Suit was brought by defendant in error George Phillips, before a justice of the peace of Montgomery township, Wood county, Ohio, against The Flocking Valley Railway Company and The Toledo, Fostoria & Findlay Railway Company as defendants, to recover the value of a steer which was killed by the latter company on its private right of way. In the justice's court judgment was rendered in favor of the plaintiff George Phillips against the defendants jointly, for the sum of forty-five dollars and the costs of suit. The cause was then appealed to the court of common pleas, where, a jury being waived by the parties, the cause was submitted’ to the court upon the following agreed statement of facts:

      “1. The Flocking Valley Railway Company owns and operates a line of railway from Toledo to Columbus.

      “2. The defendant, The Toledo, Findlay and Fostoria Railway Company owns and operates a line of railway on its private right of way extending from Toledo to Fostoria parallel to, and adjoining The Flocking Valley Railway Company.
    “3. The Flocking Valley Railway, or the private right of way of The Hocking Valley Railway Company was, at the date alleged in the petition, fenced on both sides, but the fences were so much out of repair as that they were insufficient to turn stock.

      “4. The Toledo, Findlay and Fostoria Railway Company had not at that time, and never has had any fence between its right of way and the right of way of The Hocking Valley Railway Company where the same parallels the right of way of The-Hocking Vailey Railway Company, but has constructed a fence on the west side of its right of way.
    “5. On or about the date alleged in the petition the plaintiff was the owner of a steer of the value of forty-five ($45.00) dollars.

      “6. The steer was at and immediately before he went across the right of way of The Hocking Valley Railway Company, and upon the right of way of the other defendant where he was killed, on the land of John Phillips adjoining the right of way of The Hocking Valley Railway Company on the east.

      “7. Owing to the defective condition of The Hocking Valley Railway Company’s fence, the steer passed through the enclosure in which he was, on to the track of The Hocking Valley Railway Company.
    “8. He went away from the right of way of that company, upon the right of way of The Toledo, Findlay and Fostoria Railway Company, where he was struck by one of its cars and killed. The steer was struck shortly after midnight; that the night was dark; that when the motorman saw the steer he was standing along west of the track of The Toledo, Findlay and Fostoria Railway Company and was within three hundred feet of the car; that the motorman immediately applied both the ordinary and emergency brakes, but was unable to stop the car, and that the car was equipped with the usual- appliances used on all such cars.”
    The court of common pleas, upon the foregoing agreed statement of facts, entered judgment in favor of the plaintiff George Phillips against The Hocking Valley Railway Company for the sum of forty-eight dollars and sixty cents, and for costs, but found in favor of The Toledo, Fostoria & Findlay Railway Company and dismissed it from the suit. The plaintiff George Phillips, and the defendant The Hocking' Valley Railway Company, each filed a motion for new trial, which said motions were heard and overruled and exceptions duly noted. Thereupon The Hocking Valley Railway Company filed its petition in error in the circuit court asking a reversal' of the judgment rendered against it, and George Phillips filed his cross-petition in error therein, asking a reversal of the judgment of the court of common pleas dismissing from the. suit and discharging from liability The Toledo, Fostoria & Findlay Railway Company. The judgment of the court of common pleas was in all respects affirmed by the circuit court. The Flocking Valley Railway Company prosecutes the present proceeding in error to obtain a reversal of the judgment of the circuit court, affirming the judgment rendered against it by the court of common pleas. No complaint is made by the defendant' in error George Phillips in this court of the action and judgment of the circuit court in affirming the judgment of said court of common pleas dismissing and releasing The Toledo, Fostoria & Findlay Railway Company.

      Mr. James O. Troup; Mr. V. O. Hunter and Mr. Richard Inglis, for plaintiff in error.
    So far as the evidence which theVourt admitted goes, _The Hocking Valley was at fault, in that both of its fences were insufficient to turn stock. There is no question that it would have been liable under Section 3324, Revised Statutes, for the death of this steer had that death occurred upon its right of way by reason of the operation of the railroad. Railway Co. v. Liidtke, 69 Ohio St., 384.
    The plaintiff must show, not merely a duty toward him, but a duty to prevent or avoid the very damage for which he would recover. The leading cases upon this subject are Smith v. Tripp, 12 R. I., 75; Wakefield v. Newell, 12 R. I., 75.
    In O’Donnell v. Railroad Co., 6 R. I., 211, it is held, that an action does not lie against a railroad company for failure to blow crossing whistle required by statute, in favor of a person injured on a railroad track at' some place other than the crossing. Reynolds v. Railway Co., 69 Fed. Rep., 808; Pike v. Railroad Co., 39 Fed. Rep., 754; Evans v. Railroad Co., 62 Mo., 49; Elwood v. Railroad Co., 4 Hun, 808; Clark v. Railway Co., 35 Kans., 350; Harty v. Railroad Co., 42 N. Y., 468; Gowan v. Railroad Co., 25 Minn., 328.
    It is a general rule that where there are parallel railroads, and their respective fences are out of repair, so that stock get through the fences of one railroad, cross its right of way and go upon the right of way of the other railroad, the railroad whose right of way was crossed by the stock is not liable for the injury. Shepard v. Railroad Co., 35 N. Y., 641; Kelver v. Railroad Co., 126 N. Y., 365; Frisch v. Railway Co., 95 Minn., 398; Bear v. Railway Co., 141 Fed. Rep., 25.

      A court has held that the same rule applies in Ohio. Hall v. Railway Co., 14 O. D., 74.
    The same rules as to negligence which govern steam railroads are applicable to interurban railroads in the open country, upon tracks substantially like the tracks of a steam road. Railroad Co. v. Lohe, 68 Ohio St., 101; Kerwhacker v. Railroad Co., 3 Ohio St., 172; Thornton on Railroad Fences and Private Crossings, Section 8; Beach on Contributory Negligence, Section 225.

      Mr. G. C. Sheffler and Mr. N. R. Harrington, for defendant in error.
    Defendant in error contends that upon the agreed statement of facts there was an absolute liability upon The Hocking- Valley Railway Company to pay the damage sustained by the plaintiff. This liability is fixed by the statute, as construed by the courts of this state in the following cases: Hall v. Railway Co., 14 O. D., 74; Railway Co. v. Allen, 40 Ohio St., 206; Railway Co. v. Smith, 38 Ohio St., 410; Railway Co. v. Schultz, 43 Ohio St., 270; Gill v. Railway Co., 27 Ohio St., 248; Section 3324, Revised Statutes.
   Crew, J.

At common law a railroad company was not required to enclose or fence its right of way, and domestic animals straying or going upon such right of way were considered trespassers thereon, and if killed or injured the owner thereof was without remedy. The obligation to fence, if any exists, is statutory and must rest upon legislative enactment, for no such duty is imposed by the common law. In this state, by Section 3324, Revised Statutes, the duty is imposed upon every railroad company to construct and maintain, on each side of its right of way, a fence sufficient to turn stock, and the company is made liable in damages for loss or injury to either persons or property resulting from its failure to perform that duty. The precise question here presented, by the record now before us, is, whether in the present case, under this statute, upon the agreed facts, the failure of The Hocking Valley Railway Company to maintain along its right of way fences sufficient to turn stock, renders it liable in damages to the defendant in error George Phillips, because of the killing of his steer which it is admitted was not killed by said Hocking Valley Company, nor on its right of way. A solution of this question depends upon the construction proper to be given above Section 3324, Revised Statutes, the provisions of which, so far as they are here pertinent, read as follows: “A company or person having control or management of a railroad shall construct, or cause to be constructed, and maintain in good repair on each side of such road, along the line of the lands of the company owning or operating the same, a fence sufficient to turn stock, * * * and such company or person shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of any such fence, * * * or any neglect or carelessness in the construction thereof, or in keeping the same in repair.” This statute, which is in the nature of a police regulation, was enacted from considerations of public policy, and its obvious purpose is to prevent stock from getting upon the right of way and track of a railroad company and thereby endangering not only their own safety, but the lives and safety of the traveling public. But it was neither the design nor is it the effect of this statute, to make the railroad company liable for all injuries, regardless of where or how they may occur, which would not have occurred but for the failure of the company to construct and maintain sufficient fences. Under this statute, we think, the liability of a railroad company for injuries to stock going upon its right of way in consequence of the company’s neglect to construct and maintain proper fences, is a liability for such damages only as result from injuries received upon its right of way as the direct and natural consequence of the absence of sufficient and proper fences. In other words, the duty of the railroad company under this statute has relation only to dangers upon its own right of way. Section 2692 of the General Statutes of the state of Minnesota provides that: “All railroad companies in this state shall within six months from and after the passage of this act, build or cause to be built good and sufficient cattle guards at all wagon crossings and good and substantial fences on each side of such road.” Section 2693 of said statutes provides that: “All railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies, and a failure to build and maintain cattle guards and fences as above provided shall be deemed an act of negligence on the part of such companies.” The supreme court of Minnesota in the case of Frisch v. Chicago Great Western Ry. Co., 95 Minn., 398, construing these sections, say: “It has been uniformly held by this court that the purpose of the statute we'are here considering is to prevent domestic animals from getting upon railroad tracks, thereby endangering the safety of the traveling public, persons in charge of trains, and of the animals themselves, by requiring the roads to be inclosed by proper fences and cattle guards. Blais v. Minneapolis & St. Louis Ry. Co., 34 Minn., 57; Smith v. Minneapolis & St. L. Ry. Co., 37 Minn., 103. The language of Section 2693 and the purpose of its enactment clearly indicate that the liability upon a railroad company for loss of domestic animals by a failure to fence its road is limited to animals killed or injured on its right of way. We so construe the section.” This statute was also considered by the circuit court of appeals, eighth circuit, in Bear v. Chicago Great Western Ry. Co., 141 Fed. Rep., 25, and it was held, that the statute entailed a liability upon a railroad' company only for a damage done upon its own right of way. The •facts of that case are in many respects quite similar to the facts in the case at bar. The plaintiff Bear was the owner of a valuable horse alleged to be worth more than two thousand dollars. The horse being in the public highway went upon the defendant company’s right of way through an opening in the defendant’s fence, crossed the defendant’s right of way and track, and went upon the right of way and track of the Northwestern Railway Company, where it was killed by' a passing train owned and operated by the latter company. In the opinion in that case, Hook, Circuit Judge, says: “As to the construction of Section 2693: By its terms it relates alone to domestic animals killed or injured through the failure of a railroad company to inclose its right of way; such failure being termed an act of negligence. Does it include a case, such as this, where the animal was not killed on the right of way of the defendant? The enactment of the statute was in view of the obvious and special dangers incident to a railroad right of way and the moral duty of the owner to adopt reasonable precautions to guard against them. This moral duty was made a statutory duty, and the means prescribed as being best suited to attain the object were the erection and maintenance of fences and cattle guards. The defendant’s duty was in relation to the dangers upon its own possessions. The duty to exclude stock from an adjoining or a distant right of way was upon the company that owned it.” A like interpretation and effect must, we think, be given to Section 3324 of our statutes. It therefore necessarily follows, that upon the admitted facts of the present case, The Hocking Valley Railway Company is not liable to the defendant in error, George Phillips, because of the loss he sustained, for in contemplation of law it has done him no wrong. In an action for neglect of duty it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but to entitle him to recover, he must further show that such duty was imposed for his benefit, or was one which the defendant owed to him for his protection and security, from the particular loss or injury of which he complains. Smith v. Tripp, 13 R. I., 152; O’Donnell v. The Providence & Worcester R. R. Co., 6 R. I., 211. We have examined all the authorities cited by counsel for defendant in error, and such examination discloses that in each of the cases cited and relied upon, the loss or injury for which a recovery was had, occurred upon the right of way of the company against which judgment was permitted. Hence, these authorities are not controlling, neither are they in conflict with our holding in the present case.

Judgment reversed and judgment for plaintiff in error.

Summers, C. J., Spear, Davis, Si-iauck and Price, JJ., concur-»


author: Summers, C. J.

text:
    The Toledo Railways & Light Company v. Mason.

      Action to recover damages for personal injuries — New trial may be granted — On ground of inadequacy of damages allowed — Circuit court may reverse judgment of common pleas — On ground verdict not sustained by sufficient evidence.

    1. In an action to recover damages for personal injuries, a new trial may be granted on the ground of the inadequacy of the damages found by the jury, when it appears upon the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly involved in the plaintiff’s claim.
    2. On error in the circuit court to the overruling of a motion for a new trial on the ground of the inadequacy of the damages found by the jury in an action for personal injuries, the circuit court may reverse the judgment of the court of common pleas and grant a new trial on the ground that the verdict is not sustained by sufficient evidence.
    (No. 11759
    Decided February 23, 1910.)
    Error to the Circuit Court of Lucas county.

      The defendant in error, Ella J. Mason, sued the plaintiff in error to recover damages for personal injuries sustained by her in alighting from a street car, operated by plaintiff in error, on which she was a passenger. She avers that she was seriously and permanently injured and prays for ten thousand dollars as damages. The defendant admits that she was a passenger, and that she was, to some extent, injured. The plaintiff testified that she was sixty-two jrears of age, that prior to her injuries she was continuousfy employed in nursing and earned from ten to fourteen dollars per week; that she was confined to her bed for three weeks after the accident and that for two months she was unable to do anything, and that she had earned but ten dollars in the year following the accident, and that her eyesight and her heart are affected. The jury returned a verdict for $25.05.
    The • plaintiff moved for a new trial on the ground, among others, that “the verdict is so inadequate and insufficient as to show bias and prejudice on the part of the jury,” that the verdict is contrary to the weight of the evidence and that the verdict is contrary to law. The trial court overruled the motion and entered judgment on the verdict. The plaintiff prosecuted error in the circuit court and that court reversed the judgment and remanded the case for a new trial on the ground that the trial court erred in not granting a new trial on the ground that the verdict was so inadequate that it was not sustained by sufficient evidence. Error is prosecuted in this court.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. Stephen Brophy and Mr. Orville S. Brumback, for defendant in error.
   Summers, C. J.

It seems to have been assumed in some cases that at common law, in an action for damages, sounding in tort, a court might set aside the verdict of a jury when it was so excessive that it appeared to have been influenced by passion or prejudice, but that it was powerless to disturb one that was inadequate. The fact was, however, and the doctrine now generally accepted is, that the verdict of a jury is subject to the supervision of the court whether too large or too small. A leading case is Phillips v. London & Southwestern Railway Co., (1879) 5 Q. B., 78. That was a suit for personal injuries. On the trial before Field, J., and a special jury, the jury gave the plaintiff seven thousand pounds. The plaintiff moved for a new trial, which was granted by the Queen’s Bench Division on the ground that the amount of damages given by the jury was so small as to show that they must have left out of consideration some of the circumstances which ought to have been taken into account. The defendants appealed. James, L. J., in the court of appeals said: (85) “We agree that judges have no right to overrule the verdict of a jury as to the amount of damages, merely because they take a different view, and think that if they had been the jury they would have given more or would have given less, still the verdicts of juries as to the amount of damages are subject, and must, for the sake of justice, be subject to the supervision of a court of first instance, and if necessary of a court of appeal in this way — that is to say — if in the judgment of the court the damages are unreasonably large or unreasonably small, then the court is bound to send the matter for a reconsideration by another jury.” He also says that they are of the opinion that the damages were unreasonably small, on the grounds and reasons stated by the Chief Justice in the Queen’s Bench Division. The case in the Queen’s Bench Division is reported in (1879) 4 Q. B., 406. On page 408 Cockburn, C. J., says: “It was contended, on behalf of the defendants, that even assuming the damages to be inadequate, the court ought not on that account to set aside the verdict and direct a new trial, inadequacy of damages not being a sufficient ground for granting a new trial in an action of tort, unless there has been misdirection, or misconduct in the jury, or miscalculation, in support of which position the cases of Rendall v. Hayward (1), and Forsdike v. Stone (2) were relied on. But in both those cases the action was for slander, in which, as was observed by the judges in the latter case, the jury may consider, not only what the plaintiff ought to receive, but what the defendant ought to pay. We think the rule contended for has no application in a case of personal injury, and that it is perfectly competent to us if we think the damages unreasonably small to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insuffident to meet the justice of the case.” The case was tried the second time before Lord Coleridge, C. J., and a jury, and resulted in verdict and judgment for sixteen thousand pounds which was affirmed Toth in the Queen’s Bench Division and in the Court of Appeals, (1879) 5 C. P., 280. The statement' of the law by James, L. J., 5 Q. B. (1879), 78-85, is cited with approval by Lord Davy in Watt v. Watt, (1905) A. C., 115-121.

The following American cases may be cited as taking the same view: Fischer v. The City of St. Louis, 189 Mo., 567, 107 Am. St., 380; Benton v. Collins, 125 N. Car., 83, 47 L. R. A., 1; Tathwell v. City of Cedar Rapids, 122 Ia., 50; Miller v. The D. L. & W. R. R. Company, 58 N. J. L., 428; Ellsworth v. City of Fairbury, 41 Neb., 881; McDonald v. Walter, 40 N. Y., 551; Henderson v. St. Paul & D. R. R. Company, 52 Minn., 479; Robinson v. Town of Waupaca, 77 Wis., 544; Whitney v. Milwaukee, 65 Wis., 409.

Among the grounds for a new trial enumerated in Section 5305, Revised Statutes, are these: “4. Excessive damages, appearing to have been given under the influence of passion or prejudice. 5. Error in the assessment of the amount of recovery, whether too large, or too small, when the action is upon a contract, or for the injury or detention of property. 6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law,” and prior to its repeal in 1898 (93 O. L., 217), Section 5306, Revised Statutes, provided: “A new trial shall not be granted on account of the smallness of damages, in an action for injury to the person or reputation, nor in.any other action where the damages equal the actual pecuniary injury sustained.” Counsel for plaintiff in error concede that the repeal of the section restores to' the trial court its common law power to set aside a verdict on the ground that it is inadequate, but contend that it is discretionary with the trial court and that the circuit court, the reviewing* court, has not power to reverse the judgment of the trial court, overruling a motion for a new trial on that ground, and upon such ground grant a new trial; and that to hold that it may is to add to the cases specified in' subdivision 5 of Section 5305. There are cases holding that it is discretionary (Ft. Wayne & Belle Isle Ry. Co. v. Wayne Circuit Judge, 110 Mich., 173; Benton v. Collins, 125 N. Car., 83), but in Tathwell v. City of Cedar Rapids, 122 Ia., 50, under code provisions substantially identical with those of this state, and where there had been a repeal of a similar provision that, “A new trial shall not be granted on account of the smallness of damages, in an action for injury to the person or reputation, where the damages equal the actual pecuniary injury sustained,” it is held: “1. At common law the court had the same power to grant a new trial where the verdict was inadequate as where it was excessive, and the provisions of the code supersede the common law rules, only so far as the same are inconsistent. 2. Code, Section 3755, when liberally construed, as it should be, authorizes a new trial where the verdict is inadequate, notwithstanding the omission from the present code of the provision contained in Section 2839 of the code of 1873. 3. Where the trial judge finds that the jury failed to allow the amount of damages shown by the uncontradicted testimony, he may set the verdict aside as in conflict with the evidence and grant a new trial.”

In the well considered opinion by McClain, J., in answer to the contention in that case that the repeal had taken away all power to grant new trials on the ground of inadequacy of the verdict, excepting in actions upon contract, or for the injury or detention of property, said it was more reasonable to infer that the repeal “indicates an intention to abolish the limitation found in that section on the right to grant new trials for inadequacy of damages, and that the legislature understood that, after this section was omitted, the general power to set aside verdicts because not supported by the evidence would extend to verdicts which were inadequate as well as those which are not only partially, but entirely, contrary to the evidence.” He also said that the power to set aside a verdict that is manifestly inadequate under the evidence is expressly given by the sixth subdivision, “That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.”

The limitation in subdivision 5 of Section 5305 was made, probably, in view of the denial of a new trial on account of the smallness of the damages in an action for. injury to the person or reputation; and, conceding that the repeal of Section 5306, whatever may have been the supposition of the legislature, can not under any known rule of construction be held to add actions for an injury to the person or reputation to the actions enumerated in subdivision 5 of Section 5305, yet, in view of the repeal of original Section 5306, Section 5305 must be construed as not depriving the court of power to grant new trials in the actions mentioned in original Section 5306 when the verdict is inadequate.

The granting of a new trial on the ground that the damages are inadequate is held discretionary-in the trial court and not -reviewable in Benton v. Collins, 125 N. Car., 83, and in Ft. Wayne & Belle Isle Railway Company v. Wayne Circuit Judge, 110 Mich., 173, discretionary but reviewable in case of abuse of discretion. Jung v. Keuffel et al., 144 N. Y., 381, does not hold that the. matter is not reviewable, but that it is reviewable in the general term of the supreme court and not in the court of appeals. In most of the cases cited, the matter is reviewed, and in Fischer v. City of St. Louis, 189 Mo., 567, and in Miller v. The D. L. & W. R. R. Company, 58 N. J. L., 428, a new trial was granted in the supreme court.

But while we hold that a new trial may be granted on the ground that the verdict is inadequate, yet attention should be given to the circumstances under which it is held proper that it should be granted.

The present case falls clearly within the principles applied in Phillips v. London & Southwestern Railway Company, (1879) 5 Q. B., 78, and Tathwell v. City of Cedar Rapids, 122 Ia., 50. If the plaintiff is entitled to recover then the amount assessed did not cover the time actually lost and the judgment is affirmed.

Judgment affirmed.

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


author: By the Court.

text:
    The May Company v. The Bailey Company.

      Order for temporary injunction — In siiit for ultimate injunction— Not a judgment or final order — Cannot be reviewed by circuit court, when.

    An order of the^ourt of common pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the circuit court on petition in error.'
    (No. 11575
    Decided February 23, 1910.)
    Error to the Circuit Court of Cuyahoga county.
    The parties are corporations and rivals in the conduct of department stores in the city of Cleveland. The Bailey Company brought suit in the court of common pleas to enjoin The May Company from further proceeding in a course of unlawful competition by interfering with its contractual rights and property in trading stamps, and unlawfully and fraudulently diverting business. The petition alleged the details of the conduct of the defendant which was alleged to be unlawful, and concluded with a prayer that during the pendency of the action the defendant might be enjoined from continuing its interference, and that upon the final hearing such injunction might be made perpetual, and for general relief. Shortly after the filing of the petition the common pleas court granted a temporary injunction in accordance with the prayer of the petition. The May' Company filed a petition in error in the circuit court to reverse the order of the court of common pleas allowing the temporary injunction. The petition in error was dismissed in the circuit court upon the ground that the order of the common pleas court was not reviewable upon error, and that order of dismissal is assigned as error here.

      Messrs. Kline, Tolies & Goff, for plaintiff in error, cited and commented upon the following authorities:

      Burke v. Railroad, Co., 45 Ohio St., 631; Railway Co. v. Hamilton, 3 C. C., 455; Furniture Co. v. Railroad Co., 7 N. P., 640; Missionary Society v. Ely, 56 Ohio St., 405; Sections 6707 and 6709, Revised Statutes.

      Mr. Thomas H. Hogsett and Messrs. M. B. & H. H. Johnson, for defendant in error, cited and commented upon the' following authorities:

      Village of Canfield v. Brobst, 71 Ohio St., 42; 2 High on Injunctions, Section 1693; Burke v. Railroad Co., 45 Ohio St., 631; Railway Co. v. Burke, 10 Dec. Re., 136, 20 W. L. B., 287; Dustin v. Bauer, 11 W. L. B., 191; Missionary Society v. Ely, 56 Ohio St., 405.
   By the Court.

Counsel for the plaintiff in error rely upon the case of Burke v. Railway Company, 45 Ohio St., 631, as authority for the conclusion that the order of the court of common pleas in this case was reviewable under Section 6709 as a final order, and that it is within the definition of a final order as given in Section 6707, Revised Statutes. It is not claimed that the court of common pleas in allowing the temporary injunction rendered a final judgment in the case, or that it made an order which determines an action and prevents a judgment. The precise claim is, that it made “an order affecting a substantial right made in a special proceeding.” Whether the order involved in the case of Burke v. Railway Company was or was not an order affecting a substantial right made in a special proceeding, it is entirely clear that the order in the present case is not of that character. This was a suit for injunction. The order of the court of common pleas was not ancillary to the exercise of its jurisdiction upon any other subject. The application for, and allowance of, the temporary injunction was a part of the ancient suit in equity administered in the main case without any provision of the statute authorizing it, or providing for it, as a proceeding in an action. There was no occasion for dividing up the case, leaving part of it in the court of common pleas, while a part of it was taken to the circuit court. The questions involved in the allowance of the temporary injunction were not different from those which would be involved in a consideration of the final judgment, and the case should have been disposed of wholly in the court of common pleas, before a resort was had to the jurisdiction of the circuit court. This view of the subject derives some support from the provisions of Section 5226, Revised Statutes, providing for an appeal to the circuit court from an interlocutory order dissolving an injunction, as well as from what we understand to have been the consistent practice upon the subject.

Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    LaFollette, Treasurer, v. Murray.

      Tax on liquor business — Section 4364-9, Revised Statutes — Applies to malt liquors non-intoxicating.

    Section 4364-9, Revised Statutes, (98 O. L., 100), in effect April 10, 1906, applies to the business of trafficking in malt liquors, whether intoxicating or non-intoxicating.
    (No. 11855
    Decided February 23, 1910.)
    Error to the Circuit Court of Guernsey county.
    The case is stated in the opinion.

      Mr. Charles S-. Sheppard, prosecuting attorney, for plaintiff in error.
    The agreed statement of facts simply states that “Friedon Beer” does not intoxicate, containing 47-100 alcohol, but does not state or intend to state that this malt beer is not an “intoxicating liquor,” within the meaning of that phrase. Even if the court should hold that the malt liquor must be “intoxicating liquor,” still we confidently assert and claim that the legislature and courts have construed the phrase “intoxicating liquors” to include a malt liquor, whether intoxicating or not.
    Chapter Seven, Revised Statutes is entitled, “Intoxicating Liquors and Cigarettes,” and at least in three different places in that chapter the phrase “intoxicating liquors” is defined and declared that it shall be construed to mean any distilled, malt, vinous, or any intoxicating liquors, and this exact language was construed by the supreme court in case of State v. Kauffman, 68 Ohio St., 635, and distinctly held the language to include a malt liquor whether intoxicating or not. Weisbrodt v. State, 50 Ohio St., 192.
    The same has been held by numerous circuit courts in the state. Dominick v. State, 27 C. C., 305; Otte v. State, 29 C. C., 203; State v. Intoxicating Liquors, 41 N. W. Rep., 6.
    In construing the phrase “any vinous, malt or fermented liquors, or any other intoxicating drinks,” the court of appeals say: “So in this case we think that the statute is subject to the construction that congress intended to say that vinous, malt and fermented liquors were intoxicating, and then, because a large class of intoxicants had not been named in the statute, the words ‘all other intoxicating liquors’ were intended to cover them.” United States v. Cohn, 52 S. W. Rep., 44.
    This is a malt liquor, and so conceded. All malt liquors are alcoholic, and come within the definition of intoxicating liquors.
    We therefore confidently assert that the different or similar phrases used in the different laws relating to intoxicating liquors as above set forth, each and all mean and were intended to mean one and the same thing. That the use of the word “other” adds nothing whatever to the meaning already included in- the Section 4364-9 before the amendment, as will appear by the meaning given by the legislature itself in Section 4364-9/ and 4364-9/i, Revised Statutes, prior to the amendment, and the other references herein set forth.
    The statute under consideration was construed by the supreme court in the case of State v. Auditor, 68 Ohio St., 635, and in which case the question arose as to whether “Bishop’s Beer” was liable for the payment of the Dow tax, it being a malt liquor but not intoxicating. The court held that the statute included a malt liquor whether intoxicating or not, and as there has been no real change in the meaning of the section, the same construction placed upon said section by the supreme court must still prevail. Stevenson v. State, 70 Ohio St., 11; State, ex rel., v. Commissioners, 36 Ohio St., 326; State v. Vanderbilt, 37 Ohio St., 640; State, ex rel., v. Stockley, 45 Ohio St., 308; Williams v. State, 35 Ohio St., 175.
    It is a familiar rule of construction that the validity of an act is determined by its practicable operation, and not by its title or declared purpose. Miller v. Crawford, 70 Ohio St., 207.
    Again, it is a universal rule of construction that in the construction of a statute meaning must, if possible, be given every part and every word. State v. Durflinger, 73 Ohio St., 154.
    Applying this rule in the construction of Section 4364-9, Revised Statutes, under consideration, what meaning could the legislature have intended by the use of the words “spirituous,” “vinous” or “malt,” if intoxicating liquors only were intended?

      Mr. John F. Stockdale, for defendant in error.
    Courts have laid down many rules governing the construction of statutes. The cases are too numerous for us to include them all in this brief, but we call attention to a few which we think may aid the court in arriving at the true intent of the legislature in this act. In Harris v. State,
      57 Ohio St., 92, the court uses this language, “The title under which a statute is classified is a part of it, and to be considered in arriving at the intent.”
    The title of the chapter under which the Aikin law is found, (Chapter 7, Title 5, Revised Statutes) is, “Intoxicating Liquors and Cigarettes,” If the title is part of the statute and to be considered in arriving at the intent, then in looking at this statute we would expect to find legislation in regard to intoxicating liquors and cigarettes and nothing else.
    The constitution of Ohio, (Section 16, Art. 2) provides as follows: — “No bill shall contain more than one subject, which shall be clearly expressed in its title.” And in examining the Aikin law, we find it entitled, “An act providing against the evils resulting from the trafficking in intoxicating liquors.” It is not a law having for its purpose the raising of revenue, or anything else, but to provide against evils resulting from trafficking in intoxicating liquors.
    Taking the title under which the act is found together with the title of the act itself, how can it be said that' it refers to or has anything to do with other than intoxicating liquors or cigarettes. Howard v. Lacroix, 1 McGloin, 16.
    And again in State v. Holmes and State v. Rowley, 25 Kans. (20 Am. Law Reg., 555).
    If these rules are to be followed, how can it be said that a beverage that is non-intoxicating is subject to the payment of this tax? The principles above set forth were followed by this court in Burgunder v. Weil, 60 Ohio St., 242; Bronson v.
      Oberlin, 41 Ohio St., 483; Harris v. State, 57 Ohio St., 92; State v. Johnson, 64 Ohio St., 270; Shultz v. Cambridge, 38 Ohio St., 659.
    And again “Words ejusdem generis, as ‘any other’ or ‘other’ or ‘otherwise,’ are restricted to matter similar to those previously enumerated.” Rutherford v. Railroad Co., 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312; Myers v. Seaberger, 45 Ohio St., 234; Toedemeier v. Clackamas County, 54 Pac. Rep., 954; Loan & Trust Co. v. Hamilton, 59 U. S. App., 403, 88 Fed. Rep., 588; Fuellhart v. Blood, 21 Pa. Co. Ct., 601; Conn v. Commissioners, 51 N. E. Rep., 1062.

      Mr. A. J. Freiberg, argued orally for defendant in error.
   By the Court.

Section 4364-9, Revised Statutes, reads as follows: “Upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors, there shall be assessed yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation, or co-partnership engaged therein, and for each place where such business is carried on by or for such persons, corporation, or co-partnership, the sum of one thousand dollars.”

This action was commenced by the plaintiff in error as treasurer of Guernsey county to collect an assessment on the duplicate against the defendant John Murray, and charged against the property in which he had conducted the business of trafficking in malt liquors, being the property of Bessie Murray, the other defendant. The defendants answered, averring that neither of them, nor anyone had engaged in trafficking in intoxicating liquors on said premises. The case.was submitted on an agreed statement of facts, in which it was admitted that the defendant John Murray had sold on the premises, from December 11, 1908, to February . . ., 1909,' what is known as “Friedon Beer,” a malt liquor containing forty-seven one hundredths of one per. cent, of alcohol, but not intoxicating, and that no liquor had been sold on the premises.

The court found for the plaintiff and entered judgment for $298.11, being $200 tax, $90.11 penalty, and $8.00 collection fee, and adjudged the same a lien on the premises. On error the circuit court reversed and dismissed the petition.

The section originally was Section 1 of the Dow law passed in 1886 (83 O. L., 157), and it read then as it does now, excepting that the word any was used in the place of the word other (malt, or any intoxicating liquors), and the amount of the tax was two' hundred dollars, and then followed this proviso: “Provided, if such business continues through the year, to-wit: from the fourth Monday in May exclusively, in the trafficking in malt or vinous liquors, or both, such assessment shall be but one hundred dollars.”

In 1888 (85 O. L., 117), the act was amended by increasing the tax to $250 and omitting the proviso. The section was again amended in 1896 (92 O. L., 34), by raising the tax to $350. The section as it then read was construed in 1903 in State of Ohio, ex rel. Guilbert, Auditor of State, v. Kauffman, Auditor of Montgomery County, 68 Ohio St., 635, where it is said: “Section 4364-9, Revised Statutes, imposes a tax on the business of trafficking in any intoxicating liquors, and also on the business of trafficking in spirituous, vinous or malt liquors. The generic term 'malt liquors’ -includes both non-intoxicating and intoxicating malt liquors.”

The only change made by' the amendment of 1906 (98 O. L., 100), when the statute was passed in its present form, was to raise the tax to one thousand dollars and to substitute the word other for any, and it is contended that by this amendment the legislature intended to so change the law as to exempt from the tax vinous and malt liquors that are non-intoxicating.

It is evident from the proviso in the original act that the tax applied to malt liquors and was not limited to malt intoxicating liquors. The legislature dropped the proviso, probably because- it was used to evade the higher tax, and the court rightly interpreted- the statute, although it was then just as forcibly urged as it now is, that the word malt qualified the words intoxicating liquors and not the word liquors. The decision was not grounded upon the use of the word any, and if the legislature intended such an important change as the exemption of non-intoxicating vinous and malt liquors from the tax, it would have clearly expressed its intention, and we must conclude that the meaning of the section was not changed by the substitution of the word other for the word any.

Judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed.

Judgment reversed.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 11928.
    Colter, a Taxpayer, etc. v. The City of Cincinnati et al.
    Decided September 21, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. H. R. Probasco, for plaintiff in error.

      Mr. Albert R. Morrill, assistant city solicitor, for defendants in error.
   Judgment reversed on authority of Frisbie v. The City of Columbus, 80 Ohio St., 686.

Crew, C. J., Summers, Davis, Shauck and Price, JJ., concur.


text:
    No. 11024.
    Gray et al. v. Arb.
    Decided September 28, 1909.
    Error to Circuit Court of Columbiana county.

      Mr. W. F. Tones, for plaintiffs in error!

      Messrs. Wells & McDonald and Messrs. Potts & Wells, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear and Price, JJ., concur.


text:
    No. 11029.
    The Village of Belle Center v. Stewart.
    Decided September 28, 1909.
    Error to Circuit Court of Logan county.

      Mr. J. C. Hover and Mr. Duncan Dow, for plaintiff in error.

      Messrs. Briggs & Stewart, for defendant in error.
   Judgment affirmed.

Summers, Spear and Price, JJ., concur.


text:
    No. 11032.
    The Home Building & Realty Co. et al. v. Blasberg et al.
    Decided September 28, 1909.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Foster, Foster & 'Hartman, for plaintiffs in error.

      Mr. W. B. Neff and Mr. Joseph Moore, for defendants in error.
   Petition in error dismissed on authority of Thatcher v. Watson et al., 51 Ohio St., 561.

Crew, C. J., Summers, Spear, Davis, Sitauck and Price, JJ., concur.


text:
    No. 11033.
    Stoppleman v. The City of Dayton.
    Decided September 28, 1909.
    Error to Circuit Court of Montgomery county.

      Messrs. Murphy & Elliff, for plaintiff in error.

      Mr. Philo G. Burnham, city solicitor; Mr. Walter V. Snyder; Mr. Charles J. Brennan arid Mr. 'William - A. Pohlman, assistant city solicitors, for defendant in error.
   Judgment affirmed.

Crew, C J., Summers, Spear, and Price, JJ., concur.


text:
    No. 11084.
    The Lake Shore Electric Railroad Co. v. Collier, Admr.
    Decided September 28, 1909.
    Error to Circuit Court of Sandusky county.

      Mr. T. H. Hogsett; Messrs. M. B. & IT. H. Johnson and Messrs. Kinney, O’Farrell & Riméis pack, for plaintiff in error.

      Messrs. Love

      & Cfilbert, for defendant in error.
   Judgment affirmed.'

Summers, Spear and Price, JJ., concur.


text:
    No. 11180.
    Freericks, doing business as the New Mohn Laundry, v. Drilling, an Infant, by etc.
    Decided September 28, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. Frank FI. Freericks, for plaintiff in error.

      Messrs. Karch & Quasser and Mr. Thos. L. Michie, for defendant in error.
   Judgment affirmed.

Summers, Spear, Shauck and Price, JJ., concur.


text:
    No. 11509.
    The Cleveland & Southwestern Traction Co. v. Garnett.
    Decided September 28, 1909.
    Error to Circuit Court of Lorain county.

      Messrs. E. G. & FI. C. Johnson and Mr. C. W. Collister, for plaintiff in error.

      Messrs. Skiles, Green & Skiles and Messrs. Stroup & Fauver, for defendant in error.
   Judgment affirmed.

Crew,. C. J., Summers, Spear, Davis, Shauck and Price JJ., concur. .


text:
    No. 11515.
    The Somers Mining Co. v. Martinenche.
    Decided September 28, 1909.
    Error to Circuit Court of Carroll county.

      Messrs. Fimple & Eckley and Mr. Davis Hawley, Jr., for plaintiff in error.

      Mr. Allen Cook, for defendant in error.
   Judgment affirmed.

Summers, Spear and Price, JJ., concur-.


text:
    No. 11037.
    Haskell v. The Columbus Savings & Trust Co.
    Decided October 5, 1909.
    Error to Circuit Court of Franklin county.

      Messrs. Doyle & Lewis and Mr. B. L. Bar gar, for plaintiff in error.

      Mr. Cyrus Huling and Mr. Barton Griffith, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis, Spiauck and Price, JJ., concur.


text:
    No. 11040.
    Alford, Admr., v. Compton, Admr., et al.
    Decided October 5, 1909.
    Error to Circuit Court of Putnam county.

      Messrs. Watts & Moore, for plaintiff in error.

      Messrs. Poe & Poe; Messrs. Handy & Unverferth and Mr. D. M. Bailey, for defendants in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 11044.
    Ingels et al. v. Ruth.
    Decided October 5, 1909.
    Error to Circuit Court of Greene county.

      Messrs. Closs & Leubert; Mr. S. W. Dakin and Mr. Charles Darlington, for plaintiffs in error.

      Messrs. Snodgrass & Schnebly, for defendant in error.
   Judgment affirmed.

Summers, Spear, Davis, Sitauck and Price, TJ., concur.


text:
    No. 11045.
    Plummer v. Williams.
    Decided October 5, 1909.
    Error to Circuit Court of Jackson county.

      Mr. Elmer C. Powell, for plaintiff in error.

      Mr. R. H. Jones and Mr. J. M.

      McGillivray, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11047.
    The Cleveland Trust Co. v. Moore.
    Decided October 5, 1909.
    Error to Circuit Court of Warren county.

      Messrs. Kline, Tolies & Goff, for plaintiff in error.

      Mr. J. M. Dawson and Mr. Willard J. Wright, for defendant in error.
   Judgment affirmed.

Crew*, C. J., Summers, Spear, Si-iauck and Price, JJ., concur.


text:
    No. 11048.
    Shirkey, Trustee, v. Jervis et al.
    Decided October 5, 1909.
    Error to Circuit Court of Lawrence county.

      Mr. Thos. D. Shirkey and Mr. John Hamilton, for plaintiff in error.

      Mr. A. R. Johnson, for defendants in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis, Shaucic and Price, JJ., concur.


text:
    No. 11057.
    Schoenberg v. Schoenberg.
    Decided October 5, 1909.
    Error to Circuit Court of Hamilton county.

      Messrs. Spangenberg & Spangenberg, for plaintiff in error.

      Messrs. Horstman & Horstman, for defendant in error.
   Judgment affirmed.

Crew, C. J., Spear and Shaucic, JJ., concur.


text:
    No. 11069.
    The City of Columbus v. Coffman et al.
    Decided October 5, 1909.
    Error to Circuit Court of Franklin county.

      Mr. George S. Marshall, city solicitor; Mr. E. L. Weinland and Mr. F. R. Hoover, assistant city solicitors, for plaintiff in error.

      Mr. George D. Jones and Mr. O. H. Mosier, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11078.
    Whitehead et al. v. Cox.
    Decided October 5, 1909.
    Error to Circuit Court of Lorain county.

      Messrs. Ingersoll, Stetson & Wilcox, for plaintiffs in error.

      Messrs. Stroup & Fauver and Messrs. Thompson, Glitsch & Cinniger, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11089.
    Toledo, St. Louis & Western Railroad Co. v. Williams et al.
    Decided October 5, 1909.
    Error to Circuit Court of Van Wert county.

      Mr. Charles A. Schmettau; Mr. George P. Greenhalgh and Mr. Clarence Brown, for plaintiff in error.

      Mr. Lee Elliott; Mr. O. A. Balyeat and Mr. FT. L. Conn, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11098.
    The Northern Ohio Traction & Light Co. v. The Village of Kent.
    Decided October 5, 1909.
    Error to Circuit Court of Portage county.

      Messrs. Rogers, Rowley & Rockzvell and Mr. A. S. Cole, for plaintiff in error.

      Mr. C. H. Curtiss, for defendant in error.
   Judgment affirmed.

Crew, C. J., Spear and Spiauck, JJ., concur.


text:
    No. 11108.
    Johns v. Kiser, Treasurer.
    Decided October 5, 1909.
    Error to Circuit Court of Miami county.

      Mr. B. F. Harwitz, for plaintiff in error.

      Mr. J. S. Forgy, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11142.
    Chaney v. Young et al.
    Decided October 5, 1909.
    Error to Circuit Court of Coshocton county,

      Mr. James Glenn and Mr. John M. Szvartz, for plaintiff in error.

      Mr. C. B. Himt and Messrs. Voorhecs & Voorhees, for defendants in error.
   Judgment affirmed.

Crew, C. J., Spear and Shaucic, JJ., concur.


text:
    No. 11165.
    Grosse v. Oppenheimer et al.
    Decided October 5, 1909.
    Error to Circuit Court of Hamilton county.

      Mr. John C. Rogers, for plaintiff in error.

      Mr. Benton S. Oppenheimer; Mr. William M. Fridman and Mr. H. L. Kronenberger, for defendants in error.
   Judgment affirmed.

Crew, C. J., Spear and Sitauck, JJ., concur.


text:
    No. 11541.
    Pennsylvania Company v. Day et al.
    Decided October 5, 1909.
    Error to Circuit Court of Seneca county.

      Messrs. Marshall &

      Fraser and Messrs. Royer & Spitler, for plaintiff in error.

      Messrs. Dore & Dore, for defendants in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11568.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Hatcher.
    Decided October 5, 1909.
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride' & Wolfe, for plaintiff in error.

      Messrs. Skiles, Green & Skiles, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis, Si-iaucic and Price, JJ., concur.


text:
    No. 11612.
    Skelton et al., County Commissioners, et al. v. Timmonds et al.
    Decided October 5, 1909.
    Error to Circuit Court of Scioto county.

      Mr. Harry W. Miller, prosecuting attorney, and Mr. John C. Miller, for plaintiffs in error.

      Mr. Oscar W. Newman, for defendants in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Spiauck and Price, JJ., -concur.


text:
    No. 11657.
    Hague et al., Exrs., et al. v. Hague et al.
    Decided October 5, 1909.
    Error to Circuit Court of Muskingum county.

      Mr. John R. Stonesipher and Mr. John J. Adams, for plaintiffs in error.

      Messrs. Winn & Bassett, for defendants in error.
   Judgment affirmed:

Summers, Davis and Price, JJ., concur.


text:
    No. 11658.
    Hague et al., Exrs., et al. v. Hague et al.
    Decided October 5, 1909.
    Error to Circuit Court of Muskingum county.

      Mr. John R. Stonesipher and Mr. John J. Adams, for plaintiffs in error.

      Messrs. Winn & Bassett, for defendants in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11699.
    Jackson et al. v. Dershem, Guardian, et al.
    Decided October 5, 1909.
    Error to Circuit Court of Darke county.

      Mr. M. B. Trainor, for plaintiff in error.

      -Mr. D. W. Bozvman and Mr. W. Y. Stubbs, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11779.
    Lynch v. The State of Ohio.
    Decided October 5, 1909.
    Error to Circuit Court of Delaware county.

      Messrs. Marriott & Freshwater, for plaintiff in error.

      Mr. Eugene S. Owen, city solicitor, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11786.
    Griner v. The State of Ohio.
    Decided October 5, 1909.
    Error to Circuit Court of Allen county.

      Messrs. Becker & Becker, for plaintiff in error.

      Mr. B. F. Weíty, prosecuting attorney, and Mr. B. E. O’Connor, assistant prosecuting attorney, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11001.
    Orewiler v. Oberlander.
    Decided October 12, 1909.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek & Stalter and Mr. Thomas Beer, for plaintiff in error.

      Messrs. Carter & Goodrich, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11020.
    The Baltimore & Ohio Railroad Co. v. Sweet & Summers.
    Decided October 12, 1909.
    Error to Circuit Court of Huron county.

      Mr. F. A. Durban and Mr. Robert J. King, for plaintiff in error.

      Mr. C. R. Summers, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11043.
    The State, ex rel. Lanius, v. The Board of Trustees of the Sinking Fund of the City of Galion.
    Decided October 12, 1909.
    Error to Circuit Court of Crawford county.

      Mr. W. J. Schwenck, for plaintiff in error.

      Mr.. L. Barker, for defendant in error.
   Judgment affirmed.

Crew, C. J., Sitauck and Price, JJ., concur. Spear and Davis, JJ., dissent.


text:
    No. 11049.
    The Lima Electric Railway & Light Co., v. McComb, Admr.
    Decided October 12, 1909.
    Error, to Circuit Court of Allen county.

      Messrs. Cable & Parmenter and Mr. W. B. Richie, for plaintiff in error.

      Messrs. Ridenour & Half-

      hill, for defendant in error.
   Judgment affirmed.

Crew, C. J., Spear and Price, JJ., concur.


text:
    No. 11073.
    Perry et al. v. Miller.
    Decided October 12, 1909.
    Error to Circuit Court of Licking county.

      Messrs. Jones & Jones and Mr. J. R. Fitzgibbon, for plaintiffs in error.

      Messrs. Kibler & Montgomery, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11076.
    Patchell v. The Board of Commissioners of Clermont County et al.
    Decided October 12, 1909.
    Error to Circuit Court of Clermont county.

      Messrs. Nichols & Nichols, for plaintiff in error..

      Mr. C. C. Kearns, prosecuting attorney, and Mr. Eli H. Speidel, for defendants in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11083.
    Gardner, Admx., v. Wilson et al.
    Decided October 12, 1909.

    Error to Circuit Court of Columbiana county.

      Messrs. Taylor & Harris, for plaintiff in error.

      Mr. J. G. Moore and Mr. John E. Scott, for defendants in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11143.
    Teare v. The German-American Bank et al.
    Decided October 12, 1909.
    Error to Circuit Court of Ottawa county.

      Messrs. Smith,

      Taft & Arter, for plaintiff in error.

      Mr. George A. True and Mr. R. H. Crawford, for defendants in error.
   Judgment affirmed.

Summers, Davis, and Price, JJ., concur.


text:
    No. 11147.
    Wright, Admr., v. Trimmer.
    Decided October 12, 1909.
    Error to Circuit Court of Hocking county.

      Mr. O. W. H. Wright, for plaintiff in error.

      Mr. S. Weldy, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11157.
    Pingree et al. v. Rosenberg.
    Decided October 12, 1909.
    Error to Circuit Court of Mahoning county.

      Mr. George Edwards, for plaintiffs in error.

      Messrs. Miller & Huxley and Messrs. Bates & Meyer, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11174.
    Smith v. Parmerlee et al.
    Decided October 12, 1909.
    Error to Circuit Court of Preble county.

      Messrs. Renner & Renner, for plaintiff in error.

      Messrs. Risinger & Risinger, for defendants in error.
   Judgment affirmed.

Crew, C. J., Spear and Sitauck, JJ., concur.


text:
    No. 11176.
    Brushart v. Labold, doing business as D. Labold & Co.
    Decided October 12, 1909.
    Error to Circuit Court of Scioto county.

      Mr. James S. Thomas, for plaintiff in error.

      Mr.

      Arthur H. Bannon, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11185.
    Warne et al v. Boyd.
    Decided October 12, 1909.
    Error to Circuit Court of Guernsey county.

      Messrs. Wells & Carnes, for plaintiffs in error.

      Messrs. Turnbaugh & Eagle-son, for defendant in error.
   Judgment affirmed.

Summers, Davis and Price, JJ., concur.


text:
    No. 11187.
    Rogers v. The City of Bowling Green.
    Decided October 12, 1909.
    Error to Circuit Court of Wood county.

      Messrs. James & Kelly and Mr. Edward Beverstock, for plaintiff in error.

      Mr. P. J. Chase, city solicitor, for defendant in error.
   Judgment affirmed.

Crew, C. J., Spear and Sitauck, JJ., concur.


text:
    No. 11196.
    Bloom v. Kloeb.
    Decided October 12, 1909.
    Error to Circuit Court of Auglaize county.

      Messrs. Roby & McLaughlin, for plaintiff in error.

      Messrs. Goeke & Anderson and Messrs. Lloskins & Smith, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11204.
    McCombs v. Webb.
    Decided October 12, 1909.
    Error to Circuit Court of Harrison county.

      Mr. Albert O. Barnes, for plaintiff in error.

      Mr. J. H. White, for defendant in error.
   Judgment affirmed.

Crew, C. J., Spear and Shaucic, JJ., concur.


text:
    No. 11554.
    Mateer v. The Ohio Central Traction Co.
    Decided October 12, 1909.
    Error to Circuit Court of Richland county.

      Messrs. Brucker & Cummins, for plaintiff in error.

      Mr. Dan Babst and Messrs. Cummings, McBride & Wolfe, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11571.
    The Toledo & Indiana Railway Co. v. Raker, Admr.
    Decided October 12, 1909.
    Error to Circuit Court of Fulton county.

      Messrs. Files & Faxon and Messrs. King, Tracy, Chapman & Welles, for plaintiff in error.

      Messrs. Handy & Wolf and Messrs. Bailey, Mallahan & Conway, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be and the same hereby is reversed for error in affirming the judgment of the court of common pleas. And this court proceeding to render, the judgment which the circuit court should have rendered, finds that said court of common pleas erred in the following portion of the charee to the jury commencing on page 107 of the printed record and continued oh page 108, to-wit: “T have said to this jury several times that this company was bound to afford Mr. Guthrie and his employees with a safe' place in which to perform this work; this instruction goes to the jury with this limitation — that what would be a safe place to work depends upon the nature of the work to be done and the conditions which the decedent could have anticipated as the jury might see from this testimony would exist at the place at the time when the work was to be performed. If the work necessary under all circumstances would be attended with danger, the obligation' of the company to afford a safe place to work does not go to the extent of insuring Mr. Durst absolutely from injury, but only goes to the extent of saying to him that the place in which he was to work would be kept as safe as it were possible to keep such a place, considering all the circumstances attendant at that time and place, but the company sending any person there or inviting any person by a contract to work at this place, was bound to see that all the precautions possible not inconsistent with the proper conduct of its. business should be taken by it to render this place as safe as such a place might be made.” The deceased was not an employe of the railway company but an employe of an independent contractor when injured, and the standard laid down by the charge by which to measure the duty of the railway company is too high under the facts disclosed in the record.

Summers, Spear, Davis, Shauc.k and Price, JJ., concur.


text:
    No. 11586.
    White et al. v. Drew.
    Decided October 12, 1909.
    Error to Circuit Court of Hocking county.

      Mr. Edwin D. Ricketts and Mr. S. H. Bright, for plaintiffs in error.

      Mr. John C. Pettit, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Davis and Shauck, JJ., concur.


text:
    No. 11622.
    The Baltimore & Ohio Railroad Co. v. McKinley.
    Decided October 12, 1909.
    Error to Circuit Court of Richland county.

      Mr. F. A. Durban; Mr. R. J. King and Messrs. Ctimings, McBride & Wolfe, for plaintiff in error.

      Messrs. Skiles, Green & Skiles, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis and Price, JJ., concur.


text:
    No. 11625.
    The Cleveland, Akron & Columbus Ry. Co. v. Doelfs.
    Decided October 12, 1909.
    Error to Circuit Court of Knox county.

      Messrs. Waight & Moore, -for plaintiff in error.

      Messrs. Ovoen & Carr, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear and Shauck, JJ., concur.


text:
    No. 11629.
    Gassman v. Kerns et al.
    Decided October 12, 1909.
    Error to Circuit Court of Hancock county.

      Mr. George H. Phelps, for plaintiff in error.

      Mr. W. B. Wheeler; Mr. Charles A. Blackford; Mr. W. L. David and Mr. A. G. Fuller, for defendants in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11635.
    Quinn v. The State of Ohio.
    Decided October 12, 1909.
    Error to Circuit Court of Clark county.

      Mr. John M. Cole and Mr. Burt Rabbits, for plaintiff in error.

      Mr. Lawrence E. Laybourne, prosecuting attorney, for defendant irr error.
   Judgment affirmed.

Crew, C. J., Summers and Price, JJ., concur.


text:
    No. 11682.
    The Baltimore & Ohio Railroad Co. v. Nutting.
    Decided October 12, 1909.
    Error to Circuit Court of Knox County.

      Mr. F. A. Diirban; Mr. R. J. King and Messrs. Waight & Moore, for plaintiff in error.

      Mr. F. V. Owen; Mr. Llarry W. Koons and Mr. William M. Koons, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear and Price, JJ., concur.


text:
    No. 11763.
    Staas v. The State of Ohio et al.
    Decided October 12, 1909.
    Error to Circuit Court of Cuyahoga county.

      Mr. O. W. Broadwell and Messrs. Tanney & Barber, for plaintiff in error.

      Mr. William G. Geier, assistant prosecutor, for defendants in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11828.
    The Northern Ohio Traction & Light Co. v. Yesteramski.
    Decided October 12, 1909.
    Error to Circuit Court of Portage county.

      Messrs. Rogers, Rowley & Rockwell and Mr. A. S. Cole, for plaintiff in error.

      Mr. J. J.

      McCormick and Mr. W. J. Beckley, for defendant in error.
   Judgment affirmed.

Crew, C. J., Summers, Spear, Davis and Si-iauck, JJ., concur.


text:
    No. 10916.
    The Aetna Insurance Co. v. Penn et al.
    Decided October 19, 1909.
    Error to Superior Court of Cincinnati.

      Messrs. Paxton &'

      Warrington and Mr. James J. Muir, for plaintiff in error.

      Mr. W. A. Hicks; AJr. W. F. North and Messrs. Obermeyre & Sharp, for defendants in error.
   On rehearing.

Former judgment adhered to.