author: Summers, J.

text:
    The Interurban Railway & Terminal Company et al. v. The City of Cincinnati et al.

      Exchange of transfers by street and interurban railroads — Not required, when — Under Sections 2505c and 5445-11, Revised Statutes — Absence of city ordinance concerning same• — Municipal control of street railways.

    In the absence of an ordinance requiring street railroads in a city generally to exchange transfers, neither Section 2505c, Revised Statutes (97 O. L., 379), nor Section 3443-11, Revised Statutes (91 O. L, 285), makes the power it confers upon urban and interurban street railroad companies to agree, as to the use by the latter of so much of the tracks and other property of the former as may be necessary or desirable to enable it to enter or pass through the municipality, conditional upon an exchange of transfers.
    (No. 9821
    Decided October 30, 1906.)
    Error to the Superior Court of Cincinnati.
    The facts are stated in the opinion.

      Mr. Frank F. Dinsmore, for plaintiffs in error, cited and commented upon the following authorities :

      Williams v. City Electric Street Railway Co., 41 Fed. Rep., 556; Massachusetts Loan & Trust Co. et al. v. Hamilton, 88 Fed. Rep., 588; Newell v. Minneapolis, etc., Railway Co., 35 Minn., 112; Carli v. Stillwater Street Railway & Transfer Co., 28 Minn., 373; Fulton v. Short Route Railway Transfer Co., 85 Ky., 640; State v. Dayton Traction Co. et al., 18 C. C., 490; 64 Ohio St., 272; Massillon Bridge Co. et al. v. Cambria Iron

      Co., 59 Ohio St., 179; Cincinnati, etc., Electric Street Railroad Co. v. Lohe, Admr., 68 Ohio St., 101; Zanesville v. Zanesville Telegraph & Telephone Co., 64 Ohio St., 67; People v. Kerr et al., 27 N. Y., 188; Kittinger v. Buffalo Traction Co., 160 N. Y., 377; Cincinnati Street Railroad Co. et al. v. Smith et al., 29 Ohio St., 291; People v. Law et al., 34 Barbour, 494; Potter v. Collis et al., 46 N. Y. Supp., 471; Milbridge & Cherryfield Electric R. R. Co., Appellants, 96 Me., 110; Savannah & Thunderbolt Rd. Co. v. Mayor et al., 45 Ga., 602; Atlanta v. Gate City Gas Light Co., 71 Ga., 106; Floyd v. Rome St. Rd. Co., 77 Ga., 614; Patterson & Passaic H. R. R. Co. v. Mayor, etc., of Patterson, 24 N. J. E., 158; Philadelphia & Trenton R. Co., In re, 6 Wharton (Pa.), 25; Mercer et al. v. P., Ft. W. & C. R. Co. et al., 36 Pa. St., 99; Millvale Borough v. Evergreen R. Co., 131 Pa. St. (7 L. R. A., 369); Baltimore & Fredericktown Turnpike R. Co. v. Baltimore, etc., Railroad Co., 81 Md., 247; Chicago, Newton & S. W. R. R. Co. v. Mayor, 36 Ia., 299-303; Clinton v. Cedar Rapids & M. R. R. Co., 24 Ia., 455; Hine v. K. & D. M. R. R. Co., 42 Ia., 636; Dillon on Municipal Corporations, Section 71-701; Dubach v. Hannibal & St. Joseph Rd. Co. et al., 89 Mo., 483; Sections 1536-183, 1536-184, 1536-185, 2501 to 2505d inclusive, 3437, 3438, 3439, 3443-8 to 3443-17. inclusive, and 3283, Revised Statutes.

      Mr. Charles J. Hunt and Mr. Jesse Lowman, city solicitors; Mr. Albert H. Morrill and Mr. Walter A. DeCamp, assistant city solicitors; Mr. J. W. Warrington and Mr. E. W. Kittredge, for defendants in error, cited and commented upon the following authorities:

      Dartmouth College v. Woodward, 4 Wheat. (Pa.), 518; City of Cincinnati v. Cameron, 33 Ohio St., 336; Western College, etc., v. City of Cleveland, 12 Ohio St., 375; City of Cleveland v. Clements Bros. Construction Co., 67 Ohio St., 216; New Orleans, etc., Railroad Co. v. New Orleans et al., 26 La. Ann., 41; Atkins & Co. v. Town of Randolph, 31 Vt., 237; Horstman v. Cincinnati Street Ry. Co., 1 N. P., N. S., 25; 72 Ohio St., 93; Cincinnati Street Ry. Co. v. Smith et al., 29 Ohio St., 291; Zanesville v. Zanesville Telegraph & Telephone Co., 64 Ohio St., 67; Kansas v. Vindquest, 36 Mo. App., 588; State v. Dayton Traction Co. et al., 18 C. C., 490; State, ex rel., v. C. & H. Elec. St. Ry. Co., 19 C. C., 79; City of Hamilton v. C. & H. Elec. St. Ry. Co., 5 N. P., 457; People v. Kerr et al., 27 N. Y., 188; Milbridge & Cherryfield Electric R. R. Co., Appellant, 96 Me., 110; Millvale Borough v. Evergreen Ry. Co., 131 Pa, St., 1; Savannah & T. R. R. Co. v. Mayor, 45 Ga., 602; Atlanta v. Gate City Gas Light Co., 71 Ga., 123; C., N. & S. R. R. Co. v. Mayor, 36 Iowa, 299; Cincinnati, etc., Electric Street Railway Co. v. Lohe, Admr., 68 Ohio St., 101; Wabash Railroad Co. v. Defiance, 52 Ohio St., 263; Appleby v. St. Paul City St. Ry. Co., 54 Minn., 169; Percy v. Metropolitan Street Ry. Co., 58 Mo. App., 75; Union Pacific Ry. Co. v. Chicago, etc., R. R. Co., 51 Fed. Rep., 309; Hamilton, etc., Traction Co. v. Parish, 67 Ohio St., 190; Kumler v. Silsbee, 38 Ohio St., 445; State, ex rel., v. Toledo Home Telephone Co., 72 Ohio St., 60; Chicago, R. I. & P. Ry. Co. v. Union Pac. Ry. Co. et al., 47 Fed. Rep., 15; Ingersoll v. Nassau Electric R. R. Co., 157 N. Y., 453; State v. Dayton Traction Co. et al., 64 Ohio St., 272; Street R. R. Co. v. Street R. R. Co., 50 Ohio St., 603; Toledo, etc., Ry. Co. v. Toledo Elec. St. Ry. Co., 6 O. C. C. R., 362; Sections 1536-188, 2501, 2502, 2505a, 2505b, 2505c, 2505d, 3310-1, 3437, 3438, 3440, 3443-8 to 3443-15, inclusive, Revised Statutes.
   Summers, J.

On April 22, 1896, an act was passed, commonly known as the Rogers law, entitled “An act to amend and supplement Sections 2505a and 2505& of the Revised Statutes of Ohio, as enacted May 1, 1891, and amended April 18, 1892” (92 O. L., 277). This act provided for the consolidation of street railroad corporations, and that a company organized for street railroad purposes might purchase or lease street railroads, and that whenever it was proposed to bring any two or more lines of road within the control or ownership of one corporation or company under the provisions of the act, “which roads are held and operated under grants providing different terms and conditions,” it shall be competent for the city to extend the term of each of said grants or franchises, provided the company should agree “to such changes and modifications in the existing terms and conditions of said grants or franchises, including motive power, extensions, changes and revision of routes, and including also the above-mentioned rates of fare for children, and transfer system, and such other changes as to rates of fare and transfers as will make the terms and conditions applicable to all said roads or lines satisfactory to áaid boards of administration or legislative body.”

On August 13, 1896, the board of administration of Cincinnati passed a resolution, entitled “A resolution granting an extension of time -to the Cincinnati Street Railway Company for the various lines of road, routes and franchises owned by it, and brought under its control and ownership by uniting its lines of road, routes and franchises with the lines of road, routes and franchises of the Mt. Adams & Eden Park Inclined Railway and the Mt. Auburn Cable Railway, under the provisions of the act of the General Assembly of Ohio, passed April 22, 1896, commonly known as the ‘Rogers Law,’ and entitled ‘An act to amend and supplement Sections 2505a and 2505& of the Revised Statutes of Ohio, as enacted May 1, 1891, and amended April 18, 1892,’ and revising the terms and conditions of all said grants and franchises.”

The scope of the resolution is sufficiently indicated by its title. The resolution was accepted by the company and thereby was established a street railway system comprising thirty-four distinct routes and by the terms of the resolution the company was required to give to its passengers, who have paid fare at the cash rates, transfers to its various routes.

The Cincinnati Traction Company, as lessee of the Cincinnati Street Railway Company, operates the system.

The Rapid Railway Company is an interurban street railway company organized for the purpose of constructing and operating an interurban street railroad from Lebanon, Warren county, to the city of Cincinnati. The Cincinnati & Eastern Railway Company is an interurban street railway company organized for the purpose of constructing and operating an interurban street railway from Richmond in Clermont county to the city of Cincinnati.

These two interurban street railway companies were subsequently consolidated under the name of The Interurban Railway & Terminal Company. Prior to the consolidation, in March, 1902, each of these companies entered into a traffic arrangement or agreement with the Cincinnati Traction Company, for the purpose of enabling each of said companies to .enter into the city of Cincinnati and to reach its station or depot on Sycamore street between Fourth and Fifth streets.

The Interurban Company refused to give to its passengers transfers to the cars of the urban road and refused to accept transfers given by' the urban company to its passengers good upon the cars of that company passing OArer routes which are in part traversed by the cars of the Interurban Company.

In September, 1903, the city of Cincinnati, by its solicitor, coriimenced an action in the superior court of that city against these street railway companies to obtain the giving and acceptance of such transfers.

The petition contains the following averments and prayer:

“Plaintiff further' says that by Adrtue of certain traffic agreements entered into by the Cincinnati Traction Company with the Cincinnati & Eastern Railway Company and the Rapid Railway Company and the assignment or lease thereof of such rights by said Rapid Raihvay Company and said Cincinnati & Eastern Railway Company to the Interurban Railway & Terminal Company, said Interurban Railwáy & Terminal -Company, defendants herein, is operating a line of traction cars carrying passengers and freight from its depot on Sycamore street, between Fourth and Fifth streets, and New Richmond, Ohio, using and occupying by virtue of such traffic arrangements from the east corporation line of Cincinnati to said depot, the said East End route, or a substantial part of said East End route and its extensions, using said East End route and .tracks thereof from its depot eastwardly to a point about five miles therefrom.

“Said Interurban Railway & Terminal Company, defendant herein, is also operating a line of traction cars from said depot to a point in Warren county, Ohio, and by virtue of said traffic arrangement above mentioned and the assignment or lease thereof in the city of Cincinnati, is using almost all the length of the tracks of the Walnut Hills Cable route and a small portion of those of the Mb Auburn Cable route, using all the tracks of said Walnut Hills Cable route from the loop to the corner of Court and Broadway and the extension of said route from Court and Broadway to Court and Sycamore, a total length of about three miles, and thence from said Sycamore and Court using the tracks of the Mt. Auburn Cable route from Court and Sycamore to the depot above mentioned on Sycamore street. *

“Plaintiff further says that said Cincinnati Traction Company gives to its passengers paying a five-cent (5c) fare upon the cars of said traction companies transfers as provided in said resolution and said the Interurban Railway & Terminal Company refuse to accept in payment of fares of passengers upon its cars transfers issued by said the Cincinnati Traction Company, which transfers except for the alleged difference in ownership of the cars would, by the terms of said resolution, be good for passage over the routes traversed by said cars of the Interurban Railway & Terminal Company, and said the Interurban Railway & Terminal Company in the running of its cars over said Walnut Hills Cable route, East End route and Mt. Auburn Cable route refuse to give passengers paying a cash fare of five cents the transfers provided in said resolution of August 13, 1896, to be given to passengers upon cars operated over said routes, claiming that the difference in ownership of said cars, to-wit; That said cars are owned by the Interurban Railway & Terminal Company and not by the Cincinnati Traction Company exempts said company from so accepting and giving transfers.

“Wherefore, plaintiff prays that said defendants be required to specifically perform the conditions of said resolution of August 13, 1896, in the giving and acceptance of transfers upon any and all of the cars of any of said companies running-over the tracks of the routes herein set forth, and over any route described in said resolution of August 13, 1896, or any extension of said routes without regard to the ownership of said cars so run, and that said defendants and each of them be enjoined from operating or running any cars over any of said routes described herein and in said resolution, or any parts of said routes or extensions thereof without complying with the terms of said resolution in the matter of giving and accepting transfers, and for all other and proper relief.”

The defendants each filed demurrers.. The special term of the superior court reserved the cause for the decision of the court in general term-. The general term overruled the demurrers, and, having refused leave to the defendants to file answers, which it was of opinion did not state a good defense, it decreed that:

“It is therefore considered and decreed that said defendants perform the conditions of said resolur tion of August 13, 1896, set forth in the petition, in the giving and acceptance of transfers upon any and all of the cars of said companies- running over the tracks of the routes set forth in the petition, and over any route described in said resolution or any extension of said routes without regard to whether said cars so run are owned by one or the other of said defendants, and that said defendants provide, within the corporate limits of the city of Cincinnati, a system for transferring passengers from line to line going in the same general direction without regard to by which of said defendants the cars operated over said lines may be owned or operated, and further, that said transfers provided for in said resolution- of August 13, 1896, and set forth' in the petition, be given and accepted by the defendants in the operation of the cars over said lines, without regard to 'by which of said defendants said cars are so operated are owned.

“And it is further ordered that, upon the failure of the defendants for ninety days to so transfer passengers or ■ to so give and accept transfers, as herein provided, said defendants be enjoined from operating or running any cars over any of said routes or extensions thereof, and be further enjoined from charging any passenger, within the limits of the city of Cincinnati, a greater fare than five cents for a continuous ride in the same general direction oyer any of the lines of the defendant without regard to by which of said defendants said cars may be owned or operated.”

The resolution of August 13, 1896, provides that the company “shall be required to operate each of said routes by runnings cars continuously (or by transfers) in each direction between both termini,” and shall issue and accept transfers over its various routes.

The reasonable construction of this resolution would be that the grantee is required to issue and accept transfers good on the cars it uses in operating these routes, so that in the absence of anything more the obligation sought to be imposed would not be apparent. However, the contention is that the obligation arises under the statutes by virtue of which the companies were authorized to contract.

On May 17, 1894,' was passed an act entitled “An act to authorize and regulate electric railroads” (91 O. L., 285; Sections 3443-8 to 13, inclusive, Revised Statutes). It authorized the construction of street railroads upon the highways outside of municipalities. Section 4 is as follows: “Such companies shall have power to lease, purchase or make traffic arrangements with any other street railroad company as to so much of its tracks and other property as may be necessary or desirable to enable them to enter or pass through any city or village, upon the same terms and conditions applicable to other street railroads. And any existing street railroad company owning or operating a street railroad shall receive the cars, freight, packagés or passengers of any other road, upon the same terms and conditions • as they carry for the general public.”

On May 21, 1894, was passed an act entitled “An act to supplement Section 2505 of the Revised Statutes of Ohio as heretofore supplemented by enacting Section 2505c.” 91 O. L., 379.

This act provided that whenever any railway company is organized for the purpose of building or accjuiring a railroad from one municipality or point to another municipality or point in the state, it and any street railway company owning a street railway in any such municipal corporation shall have “authority to make an arrangement or agreement with any street railway company or companies owning or operating any street railway or railways in any such municipal corporation or corporations, and said street railway company or companies shall haAre authority to make and enter into such arrangement or agreement with said railway company, whereby the passenger cars of such railway company may be run and propelled over and along the track or tracks of such railway company or companies, for such compensation and upon such terms as may be agreed upon in the same manner, upon the same conditions and for' the same length of time as the cars owned or operated by said street railway company or companies are operated in such municipal corporation or corporations.”

This agreement was required to be with the consent of two-thirds of the stockholders of each company, and it was provided that in case it used only the tracks of an existing street railway in any city that it would not be necessary for it to obtain any grant in addition to such agreement. And “provided, further, that the fare charged by street railway companies for transporting passengers within the municipal corporation or municipal corporations, shall not be greater than that fixed in the franchise or franchises held or owned by such street railway company or companies.”

The contention of counsel for the railroad companies is, that the interurban companies were organized under the first act, and that only Section 4 of that act applies, while the contention of counsel for the city is that both acts apply.

The occasion for both of these acts is not apparent, but they do not necessarily conflict. It may be that the one or the other applies accordingly as recourse has been had to its authority. However, if the latter act applies, there is nothing in it requiring transfers. The provision is that the fare charged for transporting passengers in the municipality shall not be greater than that fixed in the franchise of the street railway company. This is a limitation upon the fare the interurban company may charge for the service it is authorized to render and not a requirement that it shall provide or pay for additional transportation.

The giving of transfers is of recent origin and is the outgrowth of consolidation. It did not originate with legislation and had not been recognized in our statutes at the time of the passage of this act and not until the act of May 17, 1894.

Recurring to that act, the reasoning of the superior court is to the effect that the agreement is a lease and that therefore the lessee is bound by the terms of the resolution as to transfers. Without stopping to consider the soundness of this conclusion, it may be observed that the averments of the answers, which it was proposed to file, do not imply a lease and that the allegations of the petition do not support the conclusion that the interurban roads are lessees. The allegations of the petition are, that the interurban company is operating a line of cars from its depot in the city to New Richmond and to a point in Warren county and that in doing so it uses certain of the tracks of the defendant in the city.

Assuming that Section 4 authorizes an urban company to agree with an interurban company that the latter may use the tracks of the former providing they exchange transfers, there is no suggestion, in the absence of a lease, of any principle upon which a court may import such a stipulation into the contract and then decree its enforcement. It would seem that the extent of its power would be to enjoin the interurban company from using the tracks in the city until it had obtained the right to do so upon the terms prescribed by statute.

However, the principal contention is as to the meaning of Section 4 of the act of May 17, 1894, and since the case may be disposed of on its merits by the proper interpretation of that section, that question will now be noticed.

• Section 4 provides that interurban street railroad companies shall have power to lease, purchase, or make traffic arrangements with a municipal street railroad company as to so much of its tracks and other property as may be necessary or desirable to enable them to enter or pass into any city or village, upon the same terms and conditions applicable to other street railroads.

These companies have made an agreement that the interurban roads shall run their cars into the city to their station over certain of the tracks of the urban road, and the question is whether the stipulation in the contract between the urban road and the city as to transfers is one of the terms and conditions subject to which the urban and interurban companies are authorized to make such agreement'.

The words “terms and conditions” appear in many, if not all, of the statutes delegating to municipalities the authority to grant to street railroads the right to use the streets, and perhaps in all ordinances making the grant, and yet it can not be said that they are used with a definite legal signification. The first general law in this state relating to street railroads was passed April 10, 1861, entitled: “An act to provide for and regulate street railroad companies” (58 O. L., 66). It contains the words “terms and conditions,” but street railroad companies for a number of years prior, thereto had been organized under the laws authorizing the organization of railroad companies, and street railroads had been constructed and operated thereunder for a number of years, and many of the provisions of the law are the outgrowth of the business. The act of 1861 provided that no grant to occupy a street in Cincinnati should be made excepting in accordance with Sections 15 and 16 of an act passed in i860. Section 15 of the act of i860 (57 O. L., 16) provides that the city council shall not thereafter permit a street railroad to be constructed in the streets without the consent of a majority in interest of the owners of property upon the street. Section 16 is as follows: “Section 16. The said city council shall prescribe by ordinance the manner and the terms and conditions upon which the streets and avenues of said city may be used or occupied by street railroads, and the proper authority to grant permission for such purpose. But no such grants shall be made until public notice of the intention to make the same, and inviting proposals therefor, at a specified time and place, shall be published for ten days in one or more of the principal newspapers of said city; nor shall such grants be made except to such person or persons or company as will agree to carry passengers upon said railroad at the lowest rates of fare, and all reductions of the rates of fare shall inure to the benefit of the passengers carried.”

Section 17 of the act provided that Sections 15 and 16 should not be held to prevent the construction, extension or use of any street railroad which had already been in part constructed, or for which an agreement had already been made.

Turning to page 720 of the Laws and General Ordinances of the City of Cincinnati, published in 1866, we find an ordinance passed July 1, 1859, entitled “An ordinance prescribing the terms and conditions of street passenger railroads within the city of Cincinnati.” An examination of the ordinance discloses that most, if not all, of the provisions of the general street railroad law thereafter in 1861 enacted are copied from or evidently suggested by this ordinance. It provides that no track shall be laid without the consent of the city council, designates the companies or individuals to whom the privileges are granted and the streets through which said lines shall run, the gauge of the track, the kind of rail, the manner in which it shall be laid, how the streets shall be repaired, the kind of cars, how often they shall run, and other provisions not necessary to notice; and Section 14 prescribes twelve separate and distinct regulations.

Sections 7, 8, 13 and 15 of the ordinance are as follows:

“Section VII. [Advertisement to be made for bids.] Provided that the city auditor shall, when instructed by the city council, advertise for ten days in the official papers of this city, stating the routes which have been designated by council for street railroads, and ask for sealed proposals under this ordinance, to construct .the same, and the company or individual that will pay the highest amount of license per car per annum, and the highest amount for each passenger carried, and also to bid for the lowest price of commutation tickets, in packages of not less than twenty-five, shall be considered the successful bidder; provided, however, the city council shall be the judges of the bids.”

“Section VIII. [Not more than ñve cents to be charged for fare.] And provided any such company or individual shall not charge more than five cents for each passenger, on any of said roads.”

“Section XIII. [Track may be used by other companies.] The city council shall, at any future time, have the power, when the public good demands, to grant a second or third company or individual the right to occupy any track already laid down, provided the expense of laying and keeping in repair of said track, so far as used by different companies or individuals, shall be equally-borne by all those that use them; but the council shall not have the right to, grant permit to run upon any route already disposed of, for a greater distance than one-tenth of the whole route.”

“Section XV. This ordinance shall continue and be in force from and after its passage. All contracts made under the provisions of this ordinance shall be for the term and period of twenty years.”

Turning to page 732 of the same volume, it will be observed that on July 13, 1859, the council adopted five- routes over many -streets, and on pages 733 and 734/ that on July 28, 1859, route No. 1 was granted to Rufus King and others, and that on July 29, 1859, routes 2, 4 and 5 were granted to other individuals, and to the Cincinnati Street Railroad Company.

This ordinance of 1859 prescribed the terms and conditions of street railroads in the city generally, not of particular routes or grants. Section 16 of the act of i860 directs that the city council shall prescribe by ordinance the manner and the terms and conditions upon which the streets and avenues of a city may be used and occupied by street railroads. The ordinance limited the maximum fare to five cents, but, subject to that limitation, the fare that might be charged by the grantees was to be determined by bids.

Section 16 of. the act of i860 required the city council of the city of Cincinnati to give notice and invite proposals, and the general stteet railway act of 1861 was amended in 1866 (63 O. L., 55), by an act that required all municipalities to do so. And such ever since has been the requirement of the statutes. Section 4 of the act of May 17, 1894, provides that the agreement may be made upon the same terms and conditions applicable to other street railroads. Not upon the terms and conditions of the grant to the company owning the tracks, but upon the terms and conditions applicable to street railroads generally. So that, while the rate of fare to be charged by a street railway may be made one of the terms of the grant to it of the right to occupy the streets, it .could not be one of the terms and conditions applicable to street railroads generally.

If this conclusion is correct, then the question is answered, but a few other important considerations may be mentioned. At the time of the enactment of Section 4, in 1894, the construction of interurban roads was in its inception. Since then the business has developed wonderfully. Millions of dollars have been and are being invested, and these roads are relieving the congested condition of the cities and working important changes in the mode of life. That the Legislature recognized in them a public benefit and purposed to encourage their' construction is evidenced by the statute, and a construction that manifestly will tend to defeat that purpose ought not to be given to the statute unless plainly required.

It is averred in the answer of the interurban roads, and judicial notice might be taken that such would be the fact, that “the enforcement of a transfer system within the limits of Cincinnati, between the cars of the Cincinnati Traction Company and these defendants, would result in filling the cars of these defendants with urban and municipal passengers of the city of Cincinnati, to the exclusion of the interurban passengers going beyond Cincinnati, and would require these defendants, which were organized for the purpose of furnishing interurban transportation facilities, to forego said purpose and engage almost exclusively in municipal and urban business in the city of Cincinnati.”

It is not necessary in the present case to determine what the words “the same terms and conditions applicable to other street railroads” do mean, or whether Section 2505c, Revised Statutes, is applicable, and in view of the state of the art and the importance of these questions to the public and to the street railroad companies, it is inexpedient to do so. No ordinance requiring street railroads in the city generally to exchange transfers, is pleaded, and in the absence of such fact it is sufficient to say that neither Section 2505c, Revised Statutes (91 0.*L., 379), if applicable, nor Section 3443-11, Revised Statutes (91 O. L., 285), makes the power it confers upon urban and interurban street railroad companies to agree as to the use by the latter of so much of the tracks and other property of the former as may be necessary or desirable to enable it to enter or pass through the municipality conditional upon an exchange of transfers.

Judgment reversed and petition dismissed.

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


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Davis v. The Somers-Cambridge Company.

      Employe in position of danger — With respect to dynamite magazine —Can not recover damages, when — Employe held to have assumed risk — Negligence—Master and Servant.

    An employe who, knowing and appreciating the risk, voluntarily places himself in a position of danger with respect to a dynamite magazine located on the premises of his employer, can not recover for personal-injuries occasioned by the accidental explosion of said magazine without fault on the part of the employer, although such employe may not have known and realized all the possible consequences of the danger, or the precise extent and character of the injuries he would sustain in the event of an explosion. He will, under such circumstances, be held to have assumed the risk of all injury that might reasonably be expected to result to him as a consequence .of such accidental explosion.
    (No. 9822
    Decided October 30, 1906.)
    Error to the Circuit Court of Guernsey County.

      Suit was brought in the Court of Common Pleas of Guernsey County, Ohio, by Clinton Davis as plaintiff, against The Somers-Cambridge Company, defendant, to recover damages for injuries which he claimed to have sustained as the result of an explosion of dynamite upon the premises of the defendant company. The SomersCambridge Company was and is a coal-mining company, duly incorporated under the laws of Ohio, and at the time of the injuries complained of by plaintiff was the owner of certain real estate near the village of Senecaville in Guernsey county. On June 20, 1903, said coal company was engaged in sinking a vertical shaft on said premises to be used as the opening for a coal mine. The area of this shaft was twelve by twenty-four feet and the work of sinking' the same beg'an about the middle of February, 1903, and continued until June 20th of the same year, at which time the shaft had reached a depth of one hundred and sixty-five feet. In the sinking of this shaft at the depth of thirty-nine feet rock was encountered, and thereafter in the further prosecution of the work, for the purpose of loosening and getting out this rock, blasting was resorted to. The materials used by the company for blasting purposes were blasting powder, dynamite in cartridge form, and detonating caps. The dynamite used was of the kind ordinarily used in sinking such shafts and was what is familiarly known as “forty per cent, dynamite.” That is, dynamite forty per cent, of which is nitro-glycerine. This dynamite was received by the company in boxes containing one hundred sticks, each stick weighing one-half pound, and when received was, with the other explosives above mentioned, stored by the company in a frame structure set upon the level ground about one hundred and ninety feet distant from the mouth of the shaft. At the time of the accident there was in this storehouse a quantity of dynamite, the exact amount of which is in dispute by the evidence, the quantity being variously estimated by the witnesses, from a small amount, to about three thousand pounds. Contemporaneously with the sinking of such shaft, said coal company was also engaged in erecting upon said premises certain structures and buildings for use in connection with said shaft when the same should be fully completed. The plaintiff, Davis, prior to and at the time of the accident, was employed by the coal. company as a “helper” or “tender” to the stonemasons engaged in work on these buildings. He had then been in the employ of the coal company for a period of about four months, and he knew the location of this magazine or storehouse and the nature of its contents. On June 20th, I9°3 — day of the accident — the stonemasons were not at work, but Davis had come -upon the premises for the purpose of learning whether or not on that day there would be work for the masons and helpers including himself. While he was yet there a thunder-storm suddenly came up and he, with certain other of the workmen, took shelter in a blacksmith shop located about one hundred feet distant from the storehouse or magazine in which the company kept its supply of dynamite. During the storm by a bolt of lightning, or from other accidental cause, the contents of this magazine - was exploded. As a result of this explosion Davis was seriously injured. On the trial of this cause in the court of common pleas at the conclusion of the plaintiff's evidence, and again at the conclusion of all the evidence, the coal company moved the court to direct á verdict in its favor. These motions were each overruled and thereupon counsel for the company presented to the court certain requests to charge which they asked the court to give before the arguments. These also were refused. Exceptions were preserved by the company to the admission and exclusion of evidence during the trial and to the giving of certain instructions requested by the plaintiff. The jury returned a verdict in . favor of the plaintiff for $3,500 and judgment was entered thereon for that amount. The company duly filed its motion for new trial, which being overruled, it prosecuted error to the circuit court. The circuit court reversed the judgment of the court of common pleas and rendered a final judgment in favor of the coal company. To obtain a reversal of this judgment of the circuit court the present proceeding in error is prosecuted.

      Mr. Robert T. Scott and Mr. Fred. L. Rosemond, for plaintiff in error.
    In a case (Shackle v. Ohio River & Western Ry. Co., 75 Ohio St., infra), unreported, the law applicable to a record in this state was examined at some length and numerous decisions of this court, and some from other states, were cited and quoted from. Before this case is decided the matter will have been submitted to this court, if not disposed of, and hence it does not seem necessary here to do more than cite the authorities and state our claim.
    It was error for the circuit court to so adjudge unless “the verdict is so clearly unsupported by the weight' of the evidence as to indicate some misapprehension, or mistake, or bias, on the part of the jury, or a wilful desregard of duty”; unless “the preponderance against the finding be clear, obvious and decided”; unless it clearly appears that the finding was not sustained by the evidence given at the trial”; or “except upon clear and satisfactory showing that the judgment was wrong.” Cleveland, etc., R. R. v. Crawford, Admr., 24 Ohio St., 631; Marietta & Cincinnati R. R. v. Picksley, 24 Ohio St., 654; Ide v. Churchill et al., 14 Ohio St., 372; Williams v. Urmston et al., 35 Ohio St., 296; Reed v. Board of Education, 39 Ohio St., 635; Landis v. Kelly et al., 27 Ohio St., 567; 2 Labatt, Master & Servant, Section 330.
    That Davis was rightfully on the premises is, beyond doubt, both averred and proved. That a great quantity of a highly dangerous explosive was .stored within a short distance of his rightful position, endangering him, was averred and proved. 'Under such circumstances the company is liable for the injury due to the ensuing explosion irrespective of negligence, and without negligence being averred or proved. Bradford Glycerine Co. v. St. Mary’s Woolen Mfg. Co., 60 Ohio St., 560.
    When one collects on his own land an explosive in such manner that it is a nuisance per se, this is negligence per se; and he is liable as an insurer for damages proximately caused by its explosion, irrespective of the degree of care used concerning it. i Thompson, Comm. Negl., Section 758; 2 Shearman & Redfield, Negligence, Section 689; Heeg v. Licht (N. Y.), 36 Am. Rep., 654; Laflin & Rand Powder Co. v. Tearney (Ills.), 7 L. R. A., 262; Tissue v. Baltimore & Ohio R. R. Co. (Pa.), 56 Am. Rep., 310.
    And what is a nuisance per se, within this rule, is for the jury to .decide as a fact.
    Collecting upon one’s own land a substance subjecting others to constant danger is a nuisance per se. 1 Thompson Comm. Negl., Section 758, note 1.
    A powder magazine is such. 16 Am. & Éng. Ency. Law, page 937.
    A powder house in a populous neighborhood, outside corporate limits, was exploded by lightning, and the owner was held liable to those injured. Cheatham v. Shearon (Tenn.), 55 Am. Dec., 734.
    A building containing explosives was accidentally fired, and the ensuing explosion cast burning brands upon neighboring property, firing and destroying it, all without the fault or negligence of the owner of the explosives, but he .was nevertheless held liable. Rudder v. Koopman, et al. (Ala.), 37 L. R. A., 489; see note, 29 L. R. A., 718-21.
    But it is said that this rule is intended. to be confined to strictly parallel cases, and does not extend to injuries to person, or to injuries to a servant. We submit that other deliverances of this court show the error of that view.
    In a case of injury from an explosion, where the injured party could claim a right of position from nothing more than an implied, invitation, and
      arguendo upholding the . liability, this court quoted from an English case (Heaven v. Pender, 11 Q. B. D., 503), the general rule of liability in such cases. Harriman v. Pittsburgh, etc., Railway Co., 45 Ohio St., 11.
    The rule apparently puts the liability upon the score of negligence. It is not expressly adopted or approved by this court; and in the later case, Bradford Co. v. Manufacturing Co., above cited, the element of negligence is definitely rejected, yet the liability remained. Defiance Water Co. v. Olinger, 54 Ohio St., 532.
    In a still later case storage of crude oil was held not to come within the rule, and proof of negligence was held necessary, but the distinction between that substance and the explosive under consideration was unmistakably pointed out by the judge writing the opinion, in his reference to dynamite and like substances, thus: Langabaugh et al. v. Anderson, 68 Ohio St., 131.
    We submit that the employment of Davis is of no significance, except as showing the reason for his presence where he was injured, and that his presence there was rightful. In other words, that the master’s duty to him may properly be considered as arising, not directly from the employment, but from the rightful presence of Davis upon the land on which the explosives were stored.
    We believe the case undistinguishable in principle from the case of Ellsworth v. Metheney, 51 L. R. A., 389; 104 Fed., 119.
    In a suit for negligence where there are concurring ■ causes of injury, “In order to establish the right of action it is merely necessary to show that one of the co-operating causes was a culpable act or omission for which the master was responsible. This rule holds good whether the other cause were also defaults for which the master was responsible, or were due to some event or condition for which he was not required to answer.” 2 Labatt, Master & Servant, p. 2247; 1 Shearman & Redfield, Negligence, 5th Ed., Section 39; note also Sections 31-8.
    Not only do these 'texts broadly' declare the immateriality of the intervening cause, even though it be an “act of God,” but qn exactly illustrative case can be examined. Jackson v. Wisconsin Telephone Co., 88 Wis., 243; 60 N. W., 430.
    The cases more or less clearly illustrate the rule of the immateriality of an intervening cause in similar situations. Town v. Michigan Central R. R. Co., 84 Mich., 214; 47 N. W., 665; Wright, Admr., v. Southern Ry. Co., 122 N. C., 959; 30 S. E., 348; Pullman Palace Car Co. v. Laack, 143 Ill., 245; 18 L. R. A., 215.
    To attack a liability it is not required that the particular injury or the particular form of the event should have been foreseen; all that is required is that it be a natural and probable result of the negligence. Hill v. Winsor et al., 118 Mass., 251.
    This course of conduct, especially in view of Davis having nothing whatever to do with the storage or use of the explosives, and of his working-place as a laborer being only 100 feet away, is absolutely in the face of the settled law on the subject. Mathers v. Rillston, 156 U. S., 391; 39 L. Ed., 464; note, 29 L. R. A., 724-6; 1 Labatt, Master & Servant, Section 16; 1 Shearman & Redfield, Negligence, Section 189.
    Moreover, “the master owes the same duty in this respect to the servant that he owes to a stranger lawfully on the premises.” Wood’s Master and Servant, Section 334.
    Upon any theory it was the duty of the defendant to warn Davis of the storage of' this large and additional quantity of dynamite, so recently and secretly put there, and of the attendant circumstances increasing his danger and risk. 1 Labatt, Master & Servant, Sections 208-9, 242; 1 Shearman & Redfield, Negligence, Section 203; Ellsworth v. Metheney, 51 L. R. A., 389; 104 Fed. Rep., 119; Beach, Contributory Negligence, Section 367.
    A warning Is often held insufficient if it be not a “special warning in regard to the particular danger” and where no “explicit instruction as to the manner of avoiding it” was given. 1 Labatt, Sections 252-3; 4 Thompson, Comm. Negligence, Section 4107; Bradburn v. Wabash R. R. Co. et al. (Mich.), 96 N. W., 929; Wainwright, Admr., v. L. S. & M. S. Ry. Co., 11 Ohio Circ. Dec., 530.
    And the master must see that the warning “is actually given.” 1 Shearman & Redfield, Negligence, Section 203.
    In effect this was a secret and concealed danger, or trap, and the master’s liability therefor is plain. 1 Labatt, Master & Servant, Section 59, and note 1, p. 152; Wood v. Louisville & N. R. R., 88 Fed. Rep., 46.
    He had the right to rely upon the defendant to warn him, and, in the absence of warning, was under no duty to inspect or inquire, since he had no duty respecting the explosives. Wellston Coal Co. v. Smith, 65 Ohio St., 70; Davis v. Turner, 69 Ohio St., 101; 1 Shearman & Redfield, Negligence, Section 217; 4 Thompson, Comm. Negligence, Section 47921 Labatt, Master & Servant, Section 408.
    The claim, if made, that Davis had equal means of knowledge with the company can not apply here because, first, it is not true; and, second, if it were true < that he had equal means, he was not under equal duty to use them. 1 Shearman & Redfield, Negligence, Section 217, pp. 379-80.
    The principle applied in cases of confusion of goods, whereby the tort-feasor who has mingled another’s goods indistinguishably with his own must lose the whole, should control, and have the effect for which we contend. Jennings v. Johnson et al., 17 Ohio, 154.

      Mr. H. H.- McKeehan; Mr. Charles S. Turnbaugh and Mr. Davis ITawley, Jr., for defendant in error.
    In the case at bar, we submit that it was incumbent upon the plaintiff to prove, first, negligence on the part of the coal company; second, that this negligence was the proximate cause of the injuries to plaintiff; third, that the' consequences of this negligence ought to have been foreseen; and, fourth, the plaintiff must put himself in such position as to legally entitle him to claim the law’s rewards for the negligence.
    In the brief of opposing counsel this doctrine of proximate cause is almost entirely overlooked. No distinction is made between a concurring cause and the proximate cause. In their quotation from 1 Shearman & Redfield, Section 39, it will be noted that the negligence necessary to create a cause of action” where the act of God intervenes must nevertheless be a proximate cause of the damage. The law of proximate cause in Ohio is clearly laid down in the following cases. Daniels et al. v. Ballentine et al., 23 Ohio St., 532; First National Bank v. Western Union Telegraph Co., 30 Ohio St., 555; Pittsburgh, etc., Railway Co. v. Staley, 41 Ohio St., 118.
    The question is well discussed in the case of Goodlander Mill Co. v. Standard Oil Company, 63 Fed. Rep., 400.
    Counsel for plaintiff in error, in their brief, argue the proposition that lightning should have been foreseen, and anticipated, by the coal company, and apparently as residents of Guernsey county, advise the court, that thunder-storms are very frequent in that county in the month of June, and that a walnut-tree, such as that referred to in this record, is likely to be stricken by the lightning, on account of all of which the coal company should be held liable for what actually happened.
    Just why it was that God struck the dynamite house with Flis lig‘ tiling, rather than the blacksmith shop, itself, no one other than Fie, Himself, knows. If the contention of counsel, for plaintiff in error be a correct and logical contention, however, then it would seeni to follow necessarily that it was the duty of the coal company to build its blacksmith shop so strong that if lightning should, perchance, strike it, no damage could be done to the men within it. In the case of Pitts

      burgh, etc., Railway Company v. Brigham, 29 Ohio St., 374, this court has held that this is not the law.
    On the question of proximate >cause the following cases are instructive. Memphis & Charleston Railroad Co. v. Reeves, 10 Wall., 176; Morrison v. Davis & Co., 20 Pa. St., 171; Denny v. New York Central Railroad Co., 13 Gray, 481; Scott et al. v. Allegheny Railroad Co., 172 Pa. St., 646; South Side Pass. Railway Co. v. Trich, 117 Pa. St., 390.
    In tort cases we know of no greater liability than that which is placed upon common carriers of freight and passengers and yet in the case of American Express Co. v. Smith, 33 Ohio St., 511, this court held that a freshet of unusual violence, which prevented a delivery of the goods being transported, excused the common carrier.
    Complaint also seems to be made that the dynamite was kept in a wooden structure. The record nowhere suggests what structure would have been capable of resisting the force of this explosion. If the structure must at all times be so absolutely strong that it will safely retain the dynamite upon explosion, then it must necessarily follow that whoever has dynamite in his possession for a useful purpose, is an absolute insurer that it will not do damage, and this notwithstanding the fact that the explosion may be caused by the act of God.
    We do not claim that Davis was at fault. We only claim that in view of the knowledge which he had, he assumed whatever risks there were. As to the failure to warn, the record discloses that the only warning which the coal company could have given Davis to protect him against this accident was the warning that if lightning struck the dynamite house it would probably explode the dynamite, and that if the dynamite exploded, he would probably be injured if he should remain in the blacksmith shop. But clearly Davis knew this, and would have laughed at such warning being given to him.
    Counsel for defendant in error also cited and commented upon the following authorities:

      Baltimore & Ohio Railroad Co. v. Lockwood, 72 Ohio St., 586; Bradford Glycerine Co. v. St. Mary’s Woolen Mfg. Co., 60 Ohio St., 560; 2 Thompson on Negligence, 1008; Hazard Powder Co. v. Volger, 58 Fed., 152; Huff v. Austin et al., 46 Ohio St., 386; Tiffin v. McCormack, 34 Ohio St., 638; Gas Fuel Co. v. Andrews, 50 Ohio St., 695; Defiance Water Co. v. Olinger,. 54 Ohio St., 532; Cleveland, etc., Railroad Co. v. Marsh, 63 Ohio St., 236; Langabaugh et al. v. Anderson, 68 Ohio St., 131; Morris & Guild Co. v. Touvelle, 70 Ohio St., 439; Rylands v. Fletcher, L. R., H. L., 330; Pollock on Torts, 6th Ed., 472; Nichols v. Marsland, L. R., 10 Ex., 255; Smith v. Fletcher, L. R., 9 Ex., 64; Box v. Jubb, 27 Weekly Rep., 415; Hayes v. Smith, 62 Ohio St., 161; Town v. Railroad Co., 84 Mich., 214; Wright, Admr., v. Southern Railway Co., 122 N. C., 959; Jackson v. Wisconsin Telephone Co., 88 Wis., 243; Borchardt v. Wausau Boom Co., 54 Wis., 107; Section 4238-21, Revised Statutes.
   Crew, J.

While The Somers-Cambridge Company, in the circuit court, presented and relied upon the several exceptions noted by it during the trial of this case in the court of common pleas, the record informs us that the circuit court reversed the judgment of the court of common pleas for the reason only: “that the court of common pleas erred in not sustaining the motion of plaintiff in error, defendant below, to instruct the' jury at the conclusion of the evidence to return a verdict for defendant below, and erred in not instructing the jury as requested by defendant below, to return a verdict for defendant below,” and that having reversed said judgment upon this ground said .circuit court thereupon rendered final judgment in favor of The Somers-Cambridge Company, the plaintiff in error in that court. Upon this record, then, in view of the conclusion reached by this court, the only question of consequence presented here, material for our consideration, is: Was The Somers-Cambridge Company entitled to have judgment entered in its favor upon the undisputed facts, as they appear of record in this case? Whether it was so entitled, must be determined in the present case from a consideration of whether or not the injuries sustained by Davis in consequence of the explosion of the dynamite magazine or storehouse on the premises of The Somers-Cambridge Company, were sustained or received by him under such circumstances, that in lav/, he must be held to have assumed the risk or hazard which occasioned them. In considering this question it should be borne in mind that the only specifications of negligence or want of care alleged against the defendant coal company are, that the company collected and improperly stored' upon its premises large quantities of a highly dangerous explosive and neglected to inform or advise plaintiff — who was an employe of said company — of the amount or quantity so stored, and failed and neglected to warn and instruct plaintiff as to the dangers consequent upon the explosion of the same. It is not alleged or charged against the company that its negligence produced the explosion, nor is any cause for the explosion stated. It was shown on the trial: That on- and prior to June 30th, 1903, The Somers-Cambridge Company was engaged in sinking, on its own premises, a shaft to be used as the opening for a coal mine. On said premises and about one hundred and ninety feet from the mouth of said shaft there was located a magazine or storehouse in which the company kept a supply of dynamite to be used by it in prosecuting the work of putting down said shaft. About sixty-six feet south from the shaft, and about one hundred feet distant from this magazine or storehouse, was a blacksmith shop, in which,, on the day of the accident Davis, with other workmen, had taken shelter from the storm. At that time Davis had been in the employ of The Somers-Cambridge Company for about four months, and was familiar with the location and relative positions of the several buildings and structures on said premises, including said dynamite magazine. He knew the character of the latter structure, and of what it was built; the purposes for which it was used and the nature of its contents. Davis at the time of this accident was about fifty years of age and was not without experience in the handling and use of dynamite, he had handled and used it himself and had seen others handle and use it, and he was familiar with and knew its power and force upon being exploded, and while it is not shown that he had knowledge of the exact amount of dynamite in said magazine on the day and at the time it was exploded, confessedly he knew that it contained as much at least as two hundred pounds. And on the trial of this cause in the court of common pleas, at the instance and request of the counsel for Davis, the trial judge instructed the jury that: “No negligence is charged by the plaintiff as against the defendant concerning a quantity of dynamite equal to two hundred pounds, and caps to the number of two hundred, stored in' said dynamite house. So far as negligence in the matter of storage is concerned, such negligence is charged onfy as to the excess, if any, above these amounts.” Plainly, then, upon these facts, Davis must be held to have known and appreciated the danger, and to have assumed all risk of injury, that might reasonably be expected to result to one in his then position, voluntarily assumed, from the accidental explosion of two hundred pounds of dynamite in this magazine, only one hundred feet away. It is clear, we think, from the undisputed facts in this case that the defendant company was not negligent in failing to warn or instruct plaintiff as to the danger to be apprehended from an explosion of this magazine. Indeed, the only warning or instruction it could have' given him, that could be of any avail, was that if this dynamite magazine should be exploded, persons in the blacksmith shop at the time of such explosion would probably be injured thereby. But this he already knew, or must be held to have known, equally as well, whether said magazine contained only two hundred pounds of dynamite, or whether it contained more.

The position and claim of counsel for plaintiff in error would seem to be, that notwithstanding Davis knew the location of this magazine, its proximity to the blacksmith shop, and that it contained a quantity of dynamite which, if exploded, would probably result in injury to himself and those with him in the blacksmith shop, yet inasmuch as his employer had not informed him as to the amount of dynamite in said magazine in excess of two hundred pounds, that he, Davis, did not, and could not, know or appreciate the precise extent to which he might be injured in the event of an explosion, and therefore that the employer is liable for such injuries as he did actually sustain. Davis may not have realized, when he took shelter from the storm in this blacksmith shop, all the possible consequences of danger to himself from so doing, and probably he did not, but that he knew or should have known, he was in a place of danger, and was liable to be injured in the event of the explosion of the dynamite magazine, is obvious, and it does not matter that he did not know, and did not appreciate the precise extent or character of the injury he would sustain in the event of an explosion. To adopt such test would be to introduce into the doctrine of assumption df risk a wholly impracticable element and a rule of greatest uncertainty. The rule is, that one who exposes himself to an obvious and appreciated danger, even though he should not appreciate the full extent of the danger, assumes the risk of injury that may result to him therefrom. We are unable to find in the present case any ground for liability on the part of the Coal Company, or any such state of-facts as required the submission of this case to the jury. Upon the undisputed facts appearing on the record, we are of opinion that the injury sustained by plaintiff, if not due to pure accident for which no one was to blame, resulted from his own want of care in voluntarily placing himself in a position of danger, the risk of which he must be held to have assumed.

Judgment affirmed.

Shauck, C. J., Summers and Davis, JJ., concur. Price, J., not participating.


author: Price, J.

text:
    The State of Ohio v. Zurhorst.

      Disposing of obscene literature — Indictment for violation of Section 7027, Revised Statutes — Need not contain copy of alleged indecent matter, when — Criminal law.

    An indictment for a violation of Section 7027, Revised Statutes, which charges that the accused, at a certain time and in a certain county, “unlawfully did have in his possession two hundred and twenty-one copies of a certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled ‘Circular Number One — A Biographical Sketch of a Few Short Skate Politicians,’ for the' purpose nof giving away, exhibiting and publishing the said pamphlet, which said pamphlet is so indecent and immoral in its nature that the same would be offensive to the court and improper to be placed upon the records thereof,” is sufficient in law, without containing a copy of the alleged indecent and immoral pamphlet.
    (No. 9782
    Decided October 16, 1906.)

      Exceptions to the judgment of the Court of Common Pleas of Erie County.
    The grand jury-of Erie county, at the April term of the court of common pleas held in 1905, returned an indictment against Ed. H. Zurhorst for a violation of Section 7027, Revised Statutes, the first count of which charges: “That Ed. H. Zurhorst, late of said county, on the 16th day of March, in the year of our Lord one thousand nine hundred and five, at the county of Erie aforesaid, unlawfully did have in his possession two hundred and twenty-one copies of a_ certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled ‘Circular Number One — A Biographical Sketch of a Few Short Skate Politicians/ for the purpose of giving away, exhibiting and publishing the said pamphlet, which said pamphlet is so indecent and immoral in its nature that the same would be offensive to the court and improper to be placed upon the records thereof, wherefore the jurors aforesaid do not set forth the same in the indictment.” The other counts charge a violation- of the same section of the statute, but in different forms, neither of which contains a copy of the alleged libelous pamphlet.
    The accused filed a motion to quash the indictment on the following grounds:
    1. The said indictment does not contain a copy of the alleged libelous article, and no excuse or sufficient reason is assigned for omitting the same.
    2. The said indictment is not properly endorsed.
    3. Other defects in the form of the indictment and in the manner in which the said offense is charged, apparent upon the face of the record.
    The court sustained the motion and quashed the indictment. The prosecuting attorney in behalf of the state excepted, and prepared a bill of exceptions which was duly allowed and signed by the court of common pleas by whom the decision was rendered, and the same is, by leave taken, filed in this court for its decision on. the points involved.

      Mr. Roy H. Williams, prosecuting attorney, for the State of Ohio.
    The questions involved in this case are whether obscene matter must be set out in an indictment, and, if not, what .allegations therein will excuse such omission.
    Is it necessary to set forth obscene matter in an indictment ?
    The American doctrine is that it is not only not necessary to set forth obscene matter, but that decency demands that that which, by reason of its obscenity, would be offensive to the court, should not be spread upon the record. Bishop, New Criminal Procedure, Volume I, Section 496.
    Bishop, in Work on Directions and Forms, Section 626, gives a form for obscene libel which directs the omission of matter too obscene to be spread upon the record of the court. Clark’s Criminal Procedure, page 208; Hughes on Criminal Law and Procedure, Section 1272; McNair v. People, 89 Ill., 443; Commonwealth v. Holmes, 17 Mass., 336; Commonwealth v. Tarbox, 1 Cush., 66; Commonwealth v. Wright, 139 Mass., 382; People v. Girardin et al., 1 Mich., 90.
    What allegations will excuse such omission?
    Bishop says that “such a description of them must be given as decency permits, and it must be added that they are too obscene for recital.” 1 Bishop’s New Criminal Procedure, 496; Clark’s Criminal Procedure, 208; Hughes’ Criminal Law and Procedure, Section 2083.
    It has been repeatedly held that when the alleged obscene matter is a book or a pamphlet, it is sufficient to describe it by its title. State v. Hayward, 83 Mo., 299; State v. Brown, 27 Vt., 619; Thomas v. State, 103 Ind., 427; United States v. Clarke, 38 Fed. Rep., 500; State v. Smith, 808; Commonwealth v. Tarbox, 55 Mass., 66; Reyes v. State, 34 Fla., 181; 15 South, 875.

      °Mr. H. C. DeRan, for Zurhorst.
    The said indictment does not contain a copy of the alleged libelous article, and no excuse or sufficient reason is assigned for omitting the same. .
    The statute very broadly defines the function of a motion to quash as follows — Revised Statutes, Section 7249 (Laning Stat., 11003).
    The indictment is laid under Revised Statutes, Section 7027 (Laning Statutes, Section 10741).
    The indictment in question attempted to charge the defendant below with having in his possession “a pamphlet of an indecent and immoral nature,” “for the purpose of giving away, exhibiting and publishing the said pamphlet.”
    The rule sanctioned by the highest- authority and approved by the most eminent courts, is very clearly and succinctly stated in 2d McClain on Criminal Law, Volume II, 1158.
    For a general discussion of “obscenity and indecency” see Chapter 57, 2d McClain on Criminal Law. Thomas v. State, 103 Ind., 419; 2 N. E., 808; Commonwealth v. Tarbox, 55 Mass., 66; Ryes v. State, 34 Fla., 181; 15 South, 875.
    Under a statute similar to ours, the Illinois court held that the obscene matter must be either set out or sufficiently described to indicate. clearly its obscenity. McNair v. People, 89 Ill., 441; Commonwealth v. McCance, 164 Mass., 162; 41 N. E., 133; State v. Hayward, 83 Mo., 299; 37 Am. Digest, Col., 1759 to 1764; 14 Ency. Pleading and Practice, 1157; Hummel v. State, 8 Nisi Prius, 49; Ellars v. State, 25 Ohio St., 388; Lamberton v. State, 11 Ohio, 284; Adams v. State, 14 Decisions, 257.
    It will be observed that the offense attempted to be charged in the indictment is purely a statutory one. ■ Moreover, the statute creating the offense of having in possession obscene literature, does not define in any way the term “obscene literature.” The particular rules of pleading, which govern indictments charging offenses purely statutory, depend upon the character of the statute. Statutes are classified by text-writers into the following three distinct classes—
    1. Statutes which create an offense without defining it — as if it forbids a thing by its common law name, leaving the definition to the common law, the indictment when statutory is so only in its conclusion, the rest being framed as upon the common law. 1 Bishop’s New Criminal Procedure, page 360, Section 610.

      2. Statutes which partly define the offense which they create, and
    3. Statutes which create and wholly define an offense.
    Section 7027 clearly belongs to the first class of statutes indicated, and is not such a statute as comes within the rule permitting an indictment to charge the offense in the words of the statute.
    Again, it is for the court to determine what constitutes obscene literature. If there are no allegations in the indictment, either setting out the obscene matter in haec verba, or sufficiently describing it to enable the court to determine whether the pamphlet alleged to be obscene, is in fact and in contemplation of law, within the inhibition of the statute, the matter can not be brought to the attention of the court.
    It has been frequently held in Ohio that if the language of the statute does not sufficiently inform the accused of the facts concerning the crime with which he is charged to enable him to make a defense, it is riot sufficient to charge the crime in the words of the statute. Mitchell v. State, 21 Circuit Court, 24; s. c. affirmed, 65 Ohio St., 565.
    The Ohio rule is aptly stated in the case of Hogue v. State, 3 Circuit Court, N. S., 315; s. c., 13 Circuit D., 567; Sutcliffe v. State, 18 Ohio, 469; Sharp v. State, 19 Ohio, 379; Lougee v. State, 11 Ohio, 69; Lamberton v. State, 11 Ohio, 282; Poage v. State, 3 Ohio St., 229; Dillingham v. State, 5 Ohio St., 280.
    As suggested, the statute providing the offense of “having in possession obscene literature” does not define “obscene literature.”

      While the term “obscenity” can not be said to be a technical term of the law, and is not susceptible of exact definition in its jurisdictional uses, it may be defined generally as that which is offensive to decency or chastity, which is immodest, indelicate or impure, exciting lewd thoughts of an immoral tendency. 21 Am. & Eng. Ency. Law, 759; Wharton’s Crim. Law, Sections 1431 and 1432; 2 Bouvier’s Law Diet., 325.
   Price, J.

It is our opinion that the court of common pleas erred in sustaining the motion to quash the indictment, and some reasons will be given in support of that opinion.

Nothing is now claimed for the second ground of the motion, and the same is abandoned.

The accused is not charged with libel as defined in Section 6828, Revised Statutes, which is a crime against the person, but he is charged with violating Section 7027, Revised Statutes, which is part of Chapter 9, entitled: “Offenses against chastity and morality.” The part of the section here pertinent reads: “Every person who, within the state of Ohio, sells, or lends, or gives away, or in any manner exhibits, or offers to sell, or to lend, or to give away, or in any manner to exhibit, or otherwise publishes or offers to publish in any manner, or has in his possession for any such purpose, any obscene, lewd or lascivious book, pamphlet, paper, writing, advertisement, circular, print, picture, photograph, drawing or other representation, figure or image, or of paper or other material or any cast, instrument or other article of an indecent or immoral nature, or * * * shall, on conviction, be imprisoned,” etc.

While the title is not controlling in the construction of a statute, it sometimes throws light on the legislative purpose, and we find that the original section upon which the several subsequent amendments have been based, and the several amendments themselves, bear titles similar to that heading the present statute, to-wit: “Penalty for disposing of, exhibiting, advertising, manufacturing, etc., obscene literature, drugs intended for criminal purposes, etc.” See 91 O. L., 330. It is sought by this enactment to protect the public from the baneful effects and influence of obscene, lewd and lascivious books, pamphlets and other written or printed matter. These publications are made criminal in the same section which prohibits the advertisement of drugs, etc., intended for criminal purposes, and the entire section aims to prevent the contamination of our youth and the demoralization of the public mind. It forbids one to have in his possession such poisonous literature, advertisements, etc., for the purpose of selling, lending or giving away the same. It is Well enough and it is good practice, that an indictment under this statute should with reasonable certainty apprise the accused of what he is called upon to meet — such degree of certainty as will afford him protection in the exercise of his legal rights in making a defense, and also to furnish a record of conviction or acquittal, that could be interposed if indicted the second time for the same offense. But we doubt whether the strict rules of pleading- at common law in cases of criminal libel, should be enforced in a prosecution under this statute. As to some of the different offenses defined therein, the application of such rules might defeat the purpose of the Legislature, or otherwise render it impracticable.'

However this may be (and we do not decide it), if we look to this indictment, it is seen that all reasonable rules have been complied with, unless nothing short of an exact copy of the scurrilous pamphlet must be set out therein. The defendant is charged with having “in his possession two hundred and twenty-one copies of a certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled: 'Circular Number One — A Biographical Sketch of a Few Short Skate Politicians/ for the purpose of giving away, exhibiting and publishing the said pamphlet, which said pamphlet is so indecent and immoral in its nature that the same would be offensive to the court arid improper to be placed upon the records thereof, wherefore the jurors aforesaid do not set forth the same in the indictment.” The accused, according to the indictment, was in possession not only of one copy of the pamphlet, which might be by accident or inadvertence, but was in possession of over two hundred, and that, too, for the purpose of selling, giving away, exhibiting, etc. The title is bold, and it announces that it is only circular number one, indicating that other numbers will follow. It is alleged that the pamphlet — not a part of it — -is so indecent and immoral in its nature, that the same would be offensive to the court and improper to be placed on the records. If such allegation is true, we know that a copy of the offensive contents in the indictment would find a permanent place on the records of the court, a mode of publication greatly to be desired by the disseminators of such scandalous literature.

It was said by Parker, C. J., in Commonwealth v. Holmes, 17 Mass., 337, “It can never be required that an obscene book and picture should be displayed upon the records of the court, which must be done, if the description in these counts is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency in order to punish it.” The indictment in that case charged the accused with publishing a lewd and obscene print contained in a certain book entitled: “Memoirs of a woman of pleasure.” The indictment did not contain a copy of the alleged indecent and lewd matter, but alleged that the same would be offensive to the court and improper to appear upon the records of the same. It would seem that that allegation has been literally followed in the present indictment. The above case was cited with approval in Commonwealth v. Tarbox, 1 Cushing, 66-72. The court there states the general rule in that state to be that “in indictments for offenses of this description (printing and publishing obscene matter), it is not always necessary that the contents of the publication should be inserted; but whenever it is necessary to do so, or whenever the indictment undertakes to state the contents, whether necessary or not, the same rule prevails as in the case of a libel; that is to say, the alleged obscene publication must be set out in the very words of which it is composed, and the indictment must undertake or profess to do so by the use of appropriate language. The excepted cases occur whenever a publication of this character is so obscene as to render it improper that it should appear on record, and then the statement of the contents maybe omitted altogether, and a description thereof substituted; but in this case, a reason for the omission must appear in the indictment.” The doctrine of these cases is approved in People v. Girardin et al., 1 Mich., 90, and by many text-writers. See Bishop’s New Criminal Procedure, Volume I, Sections 496-7.

The same author in Section 790, Volume II, says that “it is the doctrine of the American courts that a libel too obscene to appear with decency on the record may be described in a more general way, and then an averment of the too great obscenity of its words will be accepted instead of their tenor.” In Criminal Law and Procedure by Plughes, Section 2182, it is said: “It is-necessary to set out the obscene publication in the indictment, unless it is in the-hands of the defendant or out of the power of the prosecution, or the matter is too gross and obscene to be spread on the records of the court, either of which facts, if existing, should be averred, in the indictment.”

To the same effect is Section, 1064 of McLain on Criminal Law. See also Price v. United States, 165 U. S., 311, where the same questions are discussed and decided.

While the English courts generally have held to a more stringent rule of criminal pleading in such cases, we think the American courts maintain the better and more reasonable practice.

The indictment before us complies with all the requirements of the foregoing and many other authorities. The accused is charged with being in possession of the obscene pamphlets for the purpose of selling and giving away, in order that their contents might be sown upon the public. He had given the document what he regarded as a distinct and appropriate title, and he is supposed to know the contents of what he had in his possession. The indictment says the pamphlet is so obscene and immoral in its nature that to copy it in the indictment would be offensive to the court and improper to appear on the records, of the same. Surely the state alleged enough to apprise him of what he had to meet at the trial, even if we apply the common law rules of pleading in criminal libel. To gratify his claim against this indictment would aid him in disseminating the evil contents of his own work. But courts will never allow their records to be polluted by obscene and indecent matter. To do this, would be to require a court of justice to perpetuate and give notoriety to an indecent publication.

But it is said that, without a copy of the objectionable matter in the indictment, the defendant might, on a second indictment for the same offense, be embarrassed or defeated in his plea of former conviction or acquittal. . We see no ground for such fearful anticipation. According to the indictment, th'e accused has prepared certain earmarks of his pamphlet. It has a certain name and number. The title is somewhat spectacular, and if there is any shortcoming in these, on pleading to a second indictment for the same offense, if such an event should unfortunately ever occur, he can give proper parol evidence to support the identity of the charge. See Bainbridge v. State,. 30 Ohio St., 264, where it is held: “On plea of. former conviction or acquittal, the defendant must prove the identity of the two offenses. He may show this by parol evidence.” That entire case supports our proposition.

We are unanimous in sustaining the exceptions.

Exceptions sustained.

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


author: Shauck, C. J.

text:
    The Board of County Commissioners of Morgan County, Ohio, v. The Marietta Transfer & Storage Co.

      County commissioners — General powers and duties — Liability for damages — Section 845, Revised Statutes — Operation of a free ferry — Interpretation of statutes — Public oMcers.

    Consistently with the rule that statutes in derogation of the common law should not be extended beyond the plain meaning of their terms, the amendment of Section 84s, Revised Statutes, providing that county commissioners shall be liable for negligence “in keeping any such road or bridge in proper repair” can not be interpreted as creating a liability for negligence in the operation of a free ferry.
    (No. 9410
    Decided October 30, 1906.)
    Error to the Circuit Court of Morgan County.
    The Marietta Transfer & Storage Company, a corporation, brought suit in the Court of Common Pleas of Morgan County against the board of commissioners of that county to recover the value of a team of horses alleged to have been drowned in the Muskingum river at Roxbury in that county as the result of the negligence of the commissioners in operating a free ferry across the Muskingum river at that point. It was alleged in the petition that the commissioners were maintaining and operating said ferry as a part of a public highway and in lieu of a bridge over said stream. It also alleged facts which, if true, show the negligent mooring of said boat to the shore of the stream, in consequence of which the plaintiffs team was drowned. In the court of common pleas a general demurrer to the petition was sustained, and the plaintiff not desiring to plead further, the petition was dismissed. On petition in error to the circuit court that judgment was reversed.

      Mr. Charles H. Fonts and Mr. Alfred H. Mercer, for plaintiff in error,
    cited and commented upon the following authorities: Commissioners v. Mighels, 7 Ohio St., 110; Shearman and Redfield on Negligence, Volume I, Section 256; Finch v. Board of Education, 30 Ohio St., 37; Dunn v. The Agricultural Society, 46 Ohio St., 93; Jones, Auditor, v. Commissioners, 57 Ohio St., 189; Robert and Grimwood v. Commissioners, 23 Ohio St., 600; Section 845, Revised Statutes.

      Mr. J. A. Ivers and Messrs. Ellenwood, Smith & Leeper, for defendant in error,
    cited and commented upon the following authorities: Commissioners of Hamilton County v. Mighels, 7 Ohio St., 110; Robert and Grimwood v. Commissioners, 23 Ohio St., 600; Webster’s International Dictionary, Ed. of 1905, definition of “road”; Am. & Eng. Ency. Law, Volume VII, 951; Dillon on Municipal Corporations, Volume II, 728; People v. Rensselaer & S. R. R. Co., 15 Wend. (N. Y.), 133; Thompson’s Commentaries, Volume V, Section 6363; Billings v. Dressler et al., Commissioners, 5 O. N. P., 114; Dillon on Municipal Corporations (4th Ed.), Sections 1023, 1023a., 1023b and 1024; Sections 845 and 4924, Revised Statutes.
   Shauck, C. J.

It is not doubted that the allegations of. the petition sufficiently charge negligence by the defendants in the mode of operating the ferry. The question is as to their liability for negligence. While the question remained unaffected by statute it was established as the common law of the state that county commissioners were not liable in their quasi-corporate capacity to an action for dámages for injury resulting to a private party from their negligence in the discharge of their official duties. It was so decided in 1857 in The Commissioners of Hamilton County v. Mighels,. 7 Ohio St., 110, where the reasons for the distinction in that regard between mere political subdivisions and municipal corporations are stated at length. In Finch v. The Board of Education, 30 Ohio St., 37, a like course of reasoning led to the conclusion that such a liability could not be successfully asserted against a board of education, and these decisions have been adverted to with approval in later cases. That such was the law of the state is admitted by counsel for the. defendant in error, and was doubtless known by the judges of the circuit court. It is said, however, that the common law upon the subject has been changed by later legislation. The effect of legislation upon the asserted liability of the commissioners is the point of difference between the courts below as it is between counsel here.

Prior to April 13, 1894, one section of the statute, defining generally the powers and liabilities of county commissioners, conferred upon them all the authority which they now have with respect to roads and bridges, and it charged them with all the liability with which they are now charged except that provided by an amendment of that date, At the same time another section of the statute authorized them, whenever in their opinion the public good might require it, to establish and maintain a free ferry across a stream of water. On that day the section firstly referred to was amended by inserting therein the following provision: “And any such board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence or carelessness of such commissioners in keeping any such road or bridge in repair.” The view urged by counsel for the plaintiff is that we should regard the phrase of the amendment “any such road or bridge” as including a free ferry which the commissioners might see fit to establish and maintain. Since ferries are not mentioned in either the amendment or the amended section, it is obvious that the suggested interpretation would extend the section beyond the natural meaning of its terms. If, in contemplation of the Legislature, bridges and ferries are synonyms, it would scarcely have regarded a special section as necessary to authorize the establishment and maintenance of the latter. We need not consider the suggestion that ferries, as well as bridges, are within the reason of the amendment; for interpretation requires that the meaning of the Legislature be ascertained from what it has enacted. We can not assume that the provision authorizing the establishment of free ferries was absent from the minds of the members of the Legislature when they enacted the amendment because it was in a different section of the statute, nor are we permitted to indulge in conjecture respecting their action if the provision had been in their minds. Nor is it a case in which a statute should be construed liberally for the purpose of accomplishing a clearly indicated purpose and to prevent the failure of the statute. If the suggested interpretation is rejected the statute will still operate, and its operation will be as broad as the appropriately indicated purposes of the Legislature. The argument does not really tend to show that the Legislature has provided for a liability of the commissioners because of their negligence in operating ferries, but rather it is a legislative, argument that ferries, as well as bridges, might have been included. To adjudge a liability on that view would be to legislate rather than to adjudicate. These and other like considerations have led to the formulation of the elementary and oft-repeated rule that statutes in derogation of the common law should not by interpretation be extended beyond their terms. Propriety will be observed, and certainty of interpretation will be promoted, if we assume that .the Legislature acts in view of all legislation relating to the subjects in hand and with a comprehension of the established rules by which their intention will be ascertained.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Price, Summers, Spear and Davis, JJ., concur. Crew, J., not participating.


author: Davis, J.

text:
    The Pennsylvania Company v. Shearer.

      Common carrier and shipper — May agree that carrier not liable —Unless shipper claims damages in reasonable time — Law of contracts.

    A common carrier and a shipper may, in the absence of fraud, imposition or deception, enter into a valid and enforceable special agreement requiring the shipper, in case of loss or damage, to make a verified claim for damages in writing, within a specified time, and in default thereof, that the carrier shall not be liable, provided that the period of time within which such claim shall be made is, under all the circumstances of each case, a reasonable one.
    (No. 9340
    Decided November 20, 1906.)
    Error to the Circuit Court of Stark County.
    This action was commenced by the defendant in error in the Court of Common Pleas of Stark County to recover damages alleged to have been sustained by a shipment of cattle from Roberts-ville, Stark county, Ohio, to East Liberty, Pennsylvania. The shipment originated on the Wheeling & Lake Erie Railroad and was delivered to the Pennsylvania Company’s lines at Canton, Ohio, and carried by it to Allegheny, Pennsylvania. The damages claimed are alleged to have been the result of delay between these points, causing loss of weight, et cetera. No other claim is made. The cattle were shipped under a special contract, which was signed by the initial company, the owner, and also the man placed in charge and who accompanied them. The contract contained this clause: “That no claim for damages which may accrue to the shipper under this contract shall be allowed or paid by said carrier, or sued for in any court by said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the W. & L. E. R. R. Co. agent of said carrier at his office in Robertsville within five days from the time said stock is removed from said car or cars, and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner, and delivered in like time to some proper officer or agent of the carrier on whose line the loss or injury occurs.” A verdict was rendered in favor of the plaintiff below in the court of common pleas and judgment was entered thereon, which judgment was affirmed by the circuit court.

      Messrs. Carey & Mullins and Mr. C. C. Bcnv, for plaintiff in error.

      Mr. W. 0. WerntSj for defendant in error.
   Davis, J.

The court of common pleas was requested to instruct the jury that if they should find that the requirement in the shipping contract to the effect that the shipper should, within five days from the unloading of the stock, give to the carrier written notice, verified by affidavit, of any loss or damage claimed to have been sustained, is under the circumstances of the case a reasonable requirement, then that the plaintiff .could not recover in this action; because it is admitted that no such notice was given. This instruction the court refused to give to the jury; but did instruct as follows: “If the damages occasioned by delay, if you find the plaintiff was damaged by delay, was occasioned by the fault or negligence of the defendant, then notwithstanding the contract, the plaintiff would not be required to make a verified claim for damages within five days to enable him to maintain this suit.” The action of the court in thus refusing to charge the jury as requested and in thus charging the jury was, as we think it very clearly appears, a prejudicial error.

It has long been settled law in this state that a common carrier may, by special contract, limit his common law liability; but that for reasons of public policy a carrier can not by contract exempt himself from liability for damages resulting from his own negligence. This statement of the law is not disputed in this case; for the question now before us is not whether a carrier may by contract relieve himself, in whole or in part, of a liability resulting from his want of due care, but rather whether a carrier may stipulate for a compliance with a reasonable condition relating to his common law liability. The foundation of the rule that the carrier may not contract for exemption from liability for negligence is, that a contract for immunity from a liability which results from the carrier’s neglect to perform a legal duty, would tend to encourage and protect negligence, to the great detriment of commerce and the public interests (Davidson v. Graham et al., 2 Ohio St., 131, 137). If, therefore, the carrier and the shipper, without fraud, imposition or deception, enter into an agreement which does not come within the reason of the rule against exemption from liability for damage resulting from negligence, and is fair and reasonable in itself, it should be enforced as the parties have made it.

It was upon this distinction that this court recently held that in consideration of a reduced rate of carriage a carrier might lawfully contract to be responsible for no more than the valuation agreed upon at the time of shipment (B. & O. Railroad Co. v. Hubbard et al., 72 Ohio St., 302). In such a case the stipulation is not a stipulation for exemption as to the whole or any part of the damage which might occur; but is a liquidation of the damages by the parties, in consideration of the carriage at the reduced freight rate. The shipper has the option to pay the higher price of carriage and recover, in case of loss, the real value of the property carried. He chooses to pay the lower rate and accept the lower valuation. There is nothing unreasonable or contrary to public policy in such a special agreement.

This case calls for the application of the same principle. The contract provides that no claim for loss or damages shall be allowed or sued for, unless the claim shall be made in writing, verified by the affidavit of the shipper or his agent, and delivered to the agent of the carrier at the shipping point within five days from the time the stock should be removed from the- car or cars. Whether such an agreement is a reasonable one or not, must depend on the circumstances of each case. In Railroad v. Hubbard, supra, it was held that it was not proper to charge the jury, under the facts of that case, to the effect that a failure to file a claim within five days from the time the stock was removed from the car in which it was shipped would defeat a recovery, because in that case the extent of the damage could not be known until the fifth day; but the court was not then called upon to decide whether such a stipulation in the contract was binding or not, nor whether a recovery could be had if a verified claim were made within five days after the extent of damage was ascertained.

The question, then, is still an open one, unless we are concluded by what was said in Pittsburgh, etc., Railway Co. v. Sheppard, 56 Ohio St., 68. In the report of that case it is declared that a common carrier can not, by special agreement, relieve himself from responsibility for his own negligence', nor limit his liability for losses resulting therefrom. The questions raised in this case and in Railroad v. Hubbard, supra, do not appear in Railway Co. v. Sheppard, and we are not disposed to extend the latter case beyond the facts stated. However', it must be apparent that what is said as to the right of a carrier to “limit” his liability must be interpreted by the facts in the case; and the only limitation of liability claimed in that case, or the reported cases preceding it, was as to the amount; that is, the right to contract for exemption from liability as to part of the loss or damage.

• Here the controversy is not as to the amount; but wholly in regard to notice of the claim. If the shipper should' comply with his agreement in that regard, nothing short of the statute of limitations could bar his recovery to the full amount of his loss or damage, if he has a good cause of action. The five-day clause is therefore not an exemption from liability to any extent, but is merely in the nature of a condition precedent, which, if the shipper performs, his right of recovery- remains unimpaired, and if he fails to perform, he incurs the penalty of losing his right to sue. Ordinarily it would all lie within the realm of his own volition. It is not therefore the contract of the carrier which exempts or. limits the liability, but the act of the shipper himself. As it was said by the Supreme Court of the United States, in Southern Express Co. v. Caldwell, 21 Wallace, 264, such an agreement contravenes no rule of public policy, it is consistent with holding the carrier to the fullest measure of good faith and diligence which the strictest rules of the common law ever required, and it is intrinsically jüst and reasonable. It only gives to the carrier an opportunity to ascertain the actual facts, or to trace- and recover lost property, before it has become impossible to do so by lapse of time.

The judgments of the circuit court and the court of common pleas are

Reversed.

'■ Shauck, C. J., Price, Crew and Summers. JJ., concur.