author: Summers, J.

text:
    Railroad Company v. Harvey. Swarts v. The Akron Water Works Company.

      Duty of occupier of land — To intruding children — Railroad company not liable, when — Water works company not liable — For drowning child, when — Doctrine of turntable cases disapproved — Law of damages.

    1. It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance.
    2. A railroad company is not liable to an infant who comes upon its premises without invitation and who is injured there while playing, without its knowledge, with a turntable. The doctrine of the turntable cases is disapproved. Harriman v. Railroad Co., 45 Ohio St., 11, distinguished.
    3. A water works company is not liable for the death by drowning of an infant who comes upon its land without invitation and there falls into a reservoir or basin of water while playing about it without the knowledge of the company.
    (No. 9830 and No. 10114
    Decided December 3, 1907.)
    Error to the Circuit Court of Portage County.
    Error to the Circuit Court of Summit County.
    In the village of Kent, The Wheeling & Lake Erie Railroad Company has a railroad yard in the outskirts of the village. The right of way at that point is unenclosed and is one hundred and forty feet in width; the tracks are located in a cut ten or twelve feet in depth, and the lan.d on both sides is that much higher than the right way. There are four tracks, and between the center tracks is a sixty foot turntable. About eight hundred feet east and the same distance west from the turntable, the right of way is crossed by pub-lie streets. The turntable was not locked, but was fastened by an iron brake shoe, weighing not less than ten pounds, that was laid in a slot and that could be lifted out, and the turntable then could be revolved. Just before the fourth of July in the year 1904, two boys, one aged thirteen and the other ten, while on their way to a car repairer’s shanty located on the railroads right of way, to get a piece of iron to make “something,” for the fourth of July, met the defendant’s infant, a boy between five and six years of age, who wished to go with them, and although not invited to do so he yielded to his childish instincts and followed them down one of the streets to the right of way and along the tracks, past the turntable, to the repair man’s shanty. .The repair man was not at the shanty, but the boys found what they thought would answer their purpose and started to return to the village, over the same course they had covered in going to the shanty. When they reached the place where the turntable was they stopped to play with it. One of the older boys removed the fastening and revolved the turntable and the little boy, who was sitting upon the turntable with his left leg hanging' down over • one end, was caught between the end of the table and the head block and lost his leg. It appears from the testimony f of quite a number of boys that they had at different times played with the turntable and also that they were driven away from the turntable whenever they were seen by any of the employes of the railroad company while so engaged. And it seems to have been generally known by the boys that they were not at liberty to play with the turntable. The only evidence tending to prove knowledge on the part of the railroad company, if it does so tend, that boys were playing with the turntable, is the the testimony of the boys that they did play with it; that they had been driven away by employes of the company; and the testimony of the yard clerk, at one time in the employ of the company, that he had on several occasions stopped boys from playing with the turntable and that on one occasion he had reported the fact to the station agent.
    In the petition it is averred that the turntable was located in the village and at a place that was unenclosed and easily accessible to children and that it was peculiarly attractive to children and calculated to entice them to play with it, and that when set in motion, which could easily be done even by children, was a source of latent danger to them, and that it was left ungarded, unfastened and unlocked, although at slight expense and trouble it could have been made fast while not in use; that the railroad company knew that the children were wont to play with the turntable, and that it knew or ought to have known of the danger to them.
    At the qlose of plaintiffs evidence and again at the close of all of the evidence, the defendant requested the court to direct á verdict in its favor:
    The plaintiff recovered a judgment for six thousand dollars, which on error was affirmed by the circuit court.
    In the second case, briefly stated, the facts are:
    On Sherbondy Hill, in the city of Akron, the defendant company maintained a reservoir about fifteen feet in depth. The banks on the inside were precipitous and the water about eight feet in depth. When constructed, about twenty-five years ago, it was located on a tract of about ten acres outside of the corporate limits of the city, but by. the extension of the corporate limits, in the year 1900, about one-half of it was comprised within the limits of the city. This ten acre tract was not converted into a park but it was covered with trees and bushes, and excepting the reservoir was left very much in its natural state. The basin was about two hundred and fifty feet from the nearest, public road. From this public road the company had constructed a rough road or driveway to and around the reservoir for its own use. It also had enclosed the basin with a picket fence about three feet high. The evidence tends to prove that people, including children, resorted to these premises for the view from the hill, or for their, own pleasure, as is not unusual on unimproved tracts of land so near a city. Late in May, in the year 1903, plaintiff’s decedent, Calibel Georgia Bush, a child nine years of age, together. with her sister aged eleven and another girl aged about twelve, were permitted by their parents to take their luncheon and to go to the woods in the vicinity of these premises to picnic. After arriving at the woods and having spent several hours there in strolling' about, they discovered the reservoir. Two pickets were off of the fence, leaving an opening eight and one-half inches in width. Through this opening they crawled and stood and sat upon the bank for a few minutes, when the youngest fell into the reservoir and was drowned. It appears that a few weeks before this the gate in the picket fence was down and a little boy, a son of one of the defendant’s employes, fell into the reservoir and that this accident had, been brought to the notice of the company, and that prior to the accident in the present case the gate had been nailed up.
    Plaintiff recovered a judgment for eleven hundred dollars, on the ground of the defendant’s negligence, and the circuit court reversed for error in overruling the motion of the defendant to direct a verdict at the close of the plaintiff’s testimony, and entered a judgment dismissing the petition.
    No. 9830. Messrs. Squire, Sanders & Dempsey and Mr. R. F. Denison, for plaintiff in error.

      Mr. W. J. Beckley, for defendant in error.
    No. 10114. Messrs. Musser, Kohler & Mottinger; and Messrs. Grant & Sieber, for plaintiff in error.

      Messrs. Allen, Waters & Andress, for defendant in error.
   Summers, J.

The Railroad Company is not answerable in damages for the loss of the little boy’s leg unless his injury was caused by the neglect by the railroad company of some duty it owed to the boy, and the Water Works Company is not answerable in damages for the death of the little girl unless she lost her life because the employes of the company neglected to observe some duty that it owed to her.

Whether any and what duty rested upon the defendant is a question of law, whether the defendant performed or observed that duty, or neglected to do so, and plaintiff in consequence was injured, is a question of fact.

The duty of the owner or occupier of land to persons coming upon it depends somewhat upon whether they are there by his invitation or permission. To invited persons it is his duty to exercise reasonable care for their safety; to licensees it is his duty to give notice of hidden dangers or traps, while trespassers, that is,- persons entering without permission, assume the risk of injury from the condition of the premises and the duty of the occupier to them is only to be careful not to injure them by bringing force to bear upon them.

The only exception to his non-liability to persons entering without his permission, was where he made a change in the condition of his land, adjacent to a public highway, so as to endanger the safety of travellers who might, without fault on their part, accidentally stray from the highway.

So the law stood until the decision in The Sioux City & Pac. R. R. Co. v. Stout, reported in 17 Wallace, 657, decided in 1874. In that case a little boy, about six years of age, lost his foot while playing with a turntable, on the unenclosed lands of the railroad company, in company with two other boys, and a judgment for $7,500 was sustained. This case was tried before Dillon, circuit judge, and Dundy, district judge. The circuit judge charged the jury as follows: “This action rests, and rests alone, upon the alleged negligence of the defendant, and this negligence consists, as alleged, in not keeping the turntable guarded or locked. Negligence is the omission to do something which a reasonable prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent or reasonable man would not do, under all the circumstances surrounding the particular transaction under judicial investigation.

“If the turntable, in the manner it was constructed and left, was not dangerous in its nature, then of course the defendants would not be guilty of any negligence in not locking or guarding it. But even if it was dangerous in its nature in some situations, you áre further to consider whether, situated as it was on the defendant’s property, in a small town, and distant or somewhat remote from habitations, the defendants are guilty of negligence in not anticipating or foreseeing, if left unlocked or unguarded, that injuries to the children of the place would be likely to or would probably ensue.

“The machine in question is part of the defendant’s road, and was lawfully constructed where it was. If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there, they would be likely to get injured thereby, then you cannot find a verdict against them.

“But if the defendant did know, or had good reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence.”

This charge, in the supreme court, was held to be a correct statement of the law. In many of the states the courts have followed the lead of the Supreme Court of the United States and a multitude of cases has arisen seeking to make the owners of property liable for injuries to children from accidents happening upon their premises, on the ground that the owner was negligent in not anticipating that children would be likely to be attracted to the place and to be injured. The multitude of circumstances under which the owner of property would be liable for injuries to children, and the very serious burden that was, in consequence, being placed on the owners of property, were very probably not for-seen in the Stout case. But the cases became so numerous as to occasion very careful examination of the principles laid down in that case. In many jurisdictions the correctness of the conclusion there reached is denied, and in some of the states where that decision was followed the courts have repudiated the doctrine, in others they have limited it, and in still others they have declined to follow the doctrine in any case excepting a turntable case.

To even enumerate the cases in which the so-called turntable doctrine has been applied or denied, would require so much space as to preclude its attempt.

The following are turntable cases in which the doctrine is applied.

United States. — Sioux City & Pac. R. R. Co. v. Stout, 17 Wall., 657.

Minnesota. — Keffe v. Milwaukee & St. P. Ry. Co., 21 Minn., 207; O’Malley, Admx., v. St. P., Minneapolis & Manitoba Ry. Co., 43 Minn., 289.

Nebraska. — A. & N. R. R. Co. v. Bailey, Admr., 11 Neb., 332.

Missouri. — Koons v. St. Louis & Iron Mountain R. R. Co., 65 Mo., 592; Nagel v. Missouri Pac. Ry. Co., 75 Mo., 653.

Kansas. — Kansas Central Ry. Co. v. Fitzsimmons, 22 Kan., 686; Union Pacific Ry. Co. v. Dunden, 37 Kan., 1.

Iowa. — Edgington v. Burlington C. R. & N. Ry. Co., 116 Ia., 410.

California. — Barrett v. Southern Pacific Co., 91 Cal., 296.

Washington. — Ilwaco Ry. & Navigation Co. v. Hedrick, Admr., 1 Wash., 446.

Tennessee. — Bates v. Railway Co., 90 Tenn., 36. But railway company is not required to fasten the turntable any more securely than necessary to keep it securely in place.

Illinois. — St. Louis, V. & T. H. R. R. Co. v. Bell, 81 Ill., 76. Reversed judgment on the sole ground that the company was not negligent in view of the' isolated position of the turntable.

South Carolina. — Bridger v. A. & S. R. R. Co., 25 S. Car., 24.

Georgia. — Ferguson v. Columbus & Rome Ry., 75 Ga., 637.

Texas. — Evansich v. G. C. & S. F. Ry. Co., 57 Tex., 126; G. C. & S. F. Ry. Co. v. McWhirter, 77 Tex., 356; Ft. Worth & Denver City Ry. Co. v. Measles, 81 Tex., 474.

To these should be added Union Pacific Ry. Co. v. McDonald, 152 U. S., 262. This was not a turntable case, but a case in which a boy was injured in a slack pit of the railroad company. However, the doctrine of the turntable cases was re-examined and approved.

In the following cases, in which the injuries were received at a turntable, the doctrine of the turntable cases is denied.

New Hampshire. — Frost v. Eastern R. R. Co., 64 N. H., 220.

Massachusetts. — Daniels v. N. Y. & N. E. R. R. Co., 154 Mass., 349.

New York. — Walsh v. Fitchburg R. R. Co., 145 N. Y., 301.

New Jersey. — Turess v. N. Y., Susq. & West. R. Co., 61 N. J. L., 314; D. L. & W. R. R. Co. v. Reich, 61 N. J. L., 635.

Virginia. — Walker v. Potomac, etc., R. Co., 105 Va., 226.

In the following cases, where the injuries were not sustained at a turntable, the doctrine of the turntable cases is denied.

New Jersey. — Friedman v. Snare & Triest Co., 71 N. J. L., 605.

Michigan. — Ryan v. Towar, 128 Mich., 463.

Rhode Island. — Paolino v. McKendall, 24 R. I., 432.

W. Virginia. — Ritz v. City of Wheeling, 45 W. Va. 262; Uthermohler v. Bogg’s Run Co., 50 W. Va., 457.

In the following cases, in which children were injured, but not while • playing with a turntable, liability is denied in courts that have adopted the turntable doctrine in cases where the injuries were received at a turntable.

Minnesota. — Emerson v. Peteler, 35 Minn., 481; Twist v. Railroad Co., 39 Minn., 164; Haesley, Admr., v. Railroad Co., 46 Minn., 233; Dehanitz v. City of St. Paul, 73 Minn., 385; Ratte v. Dawson, 50 Minn., 450; Stendal v. Boyd, 67 Minn., 279; Stendal v. Boyd, 73 Minn., 53; Erickson v. Grt. Northern Ry. Co., 82 Minn., 60.

Georgia. — Savannah, F. & W. R. Co. v. Beavers, 113 Ga. 398; O’Connor v. Brucker, 117 Ga., 451.

Nebraska. — Richards, Admx., v. Connell, 45 Neb., 467; City of Omaha v. Bowman, Admx., 52 Neb., 293.

California. — Peters v. Bowman, 115 Cal., 345.

Missouri. — Overholt v. Vieths, 93 Mo., 422; Barney v. Railroad Co., 126 Mo., 372; Witte v. Stifel, 126 Mo., 295; Arnold v. City of St. Louis, 152 Mo., 173.

Kansas. — Railroad Co. v. Bockoven, Admr., 53 Kan., 279.

Texas. — Dobbins v. M. K. & T. Ry. Co., 91 Tex. 60.

Tennessee. — Stone Co. v. Pugh, 115 Tenn., 688.

Washington. — Clark v. Northern Pac. Ry. Co., 29 Wash., 139; Curtis v. Tenino Stone Quarries, 37 Wash., 355; Harris v. Cowles, 38 Wash., 331.

The principles involved have been carefully considered in so many cases that it would be fruitless as well as presumptious to undertake to add anything to the discussion.

Tn the recent case, Friedman v. Snare & Triest Co., 71 N. J. L., 605, where the court denied liability for injuries to a little girl, between four and five years of age, who had been injured while playing upon some iron girders, that fell upon her while playing upon them in the street, where they had been placed by an abutting property owner for use in the construction of a building, the English cases that are cited as supporting the decision in Railroad Company v. Stout, supra, are reviewed. And in Ryan v. Towar, 128 Mich., 463, many of the cases, both English and American are examined, and the doctrine of the turntable cases is expressly disapproved. In that case, the defendant owned a small pump-house located upon ground owned by a railroad company. In the house was a small, overshot water-wheel. The plaintiff, a girl about twelve or thirteen years of age, was in the habit of passing this pump-house on the way to school with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident, a hole existed in the stone wall of the house enclosing the 'wheel, through which children went to play on the wheel. On the day in question, the brothers of plaintiff, on the way from school, crawled through this hole, and, mounting the wheel, were able by their weight to turn the wheel part way round and back. A younger sister, aged eight years, got caught between the wheel and the wheel pit. The plaintiff heard her screams, and went through the hole to her succor, and aided in rescuing her, and was herself injured. In the opinion, Hooker, J., after reviewing a number of turntable cases says: “Here we have the doctrine of the turntable cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a lawnmower or a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the. ground or leaning against a fence; a bed of mortar prepared for use in his new house; a wagon in his barn-yard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with calf,- — does so at the risk of having the question of his negligence left to a sympathetic jury. How far does the rule go? Must his barn door, and the usual apertures through which the accumulations of the stables are thrown, be kept locked and fastened, lest twelve-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? May a man keep a ladder, or a grindstone, or a scythe, or a plough, or a reaper, without danger of being called upon to reward trespassing children, whose parents owe and may be presumed to perform the duty of restraint? Does the new rule go .still further, and make it. necessary for a man to fence his gravel-pit or quarry? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish-pond? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than thirty years after the decision of Railroad Co. v. Stout, when, with due deference, we think ■ some of the courts left the solid ground of the rule that trespassers cannot recover for injuries received, and due merely to negligence of the persons trespassed upon.”

Of the case of Powers v. Harlow, 53 Mich., 507, in which the opinion is by Judge Cooley, and which is quoted from at some length in Union Pac. Ry. Co. v. McDonald, 152 U. S., 262, as approving the turntable doctrine, he says: “Clearly, this does not adopt the rule of Railroad Co. v. Stout.”

And in conclusion he says: “That a landowner is under no obligation to use care to protect a trespasser is a broad and until recently, undisputed rule, without exception; liability for injuries sustained by such being limited to cases of intentional or wanton injuries. The rule, with this limitation, is sustained today by the' great weight of authority. It is contended by some law writers, and has been held in some cases, that an exception exists in favor of -children of tender years. The varying reasons given should lead us to doubt the solidity of the foundations upon which these cases rest, especially when none of the reasons are of recognized authority. The law has never before denied the liability of children for trespass because of tender years. On the contrary, it was intimated in Mangan v. Atterton, L. R., Exch., 239, that a four-year-old boy was a trespasser, under the circumstances of that case; and there are numerous cases cited in this opinion where liability is denied upon that, and no other, ground. The assertion that the weight of authority supports the plaintiff’s contention in this case seems to us incorrect. It may be true that, in cases involving turntables, a majority of the cases, which are necessarily few, have followed the case of Railroad Co. v. Stout, supra; but there should be a legal principle underlying the rule laid down in that case, and that principle has been assiduously sought for by some of the courts, without success, as we have seen. Others have asserted different reasons for following it. One gives us to understand that a child is licensed to go wherever he can find that which attracts him; a Texas court has held that children of tender years cannot be trespassers; while other authorities are content to rest their approbation of and adherence to the alleged rule upon the inhumanity of the doctrine that a landowner must not be held responsible for injuries suffered by trespassing children, when by ordinary thoughtfulness and care he could have anticipated and prevented it, and the generic term ‘attractive nuisances’ is applied to the great variety of things which may naturally be expected to allure young children upon private premises. The term ‘attractive nuisance,’ as applied is a new one in the books, and the plausible application of the well-known principle that one must so occupy his own as not to do harm to the rights of others should not be construed to so restrict the use of private lands as to make it necessary to guard and protect trespassers. A man’s home has always been considered his castle, — a domain where, secure from intrusion, he might lawfully do as he would, so long as he did not interfere with the legal rights of others. It has been his duty to guard those licensed to enter, but beyond that he has not been required to go. In our anxiety to prevent personal injuries, we should not go so far as to overturn private rights.”

In Gillespie v. McGowan, 100 Pa. St., 144, Paxson, J., says that the principle upon which it is sought to fasten liability on property owners would, if carried to its logical conclusion, “charge the duty of protection of children upon every member of a community except their parents.” In a very able article on the liability, of landowners to children entering without permission, by Judge Jeremiah Smith, in 11 Harvard Law Review, 349-372, he says: “If those who brought the child into the world are unable by reason of poverty, to provide him a playground, that may afford an argument for the passage of a statute imposing that duty upon the municipality, in which case every land-owner would have to contribute his proportion of the expense. But this is quite another thing from assessing upon a single unfortunate land-owner the entire damages arising from the want of such a playground.”

In some of the cases it is said that Lynch v. Nurdin, 1 Adol. & El., 29, has been overruled or at least disapproved; but in Union Pac. R. Co. v. McDonald, 152 U. S., 262, Mr. Justice Harlan, doubts the correctness of this statement, and refers to an English case in which it has been approved, and we may add that since then it has been followed in Harrold v. Watney (1898), 2 Q. B., 320; and in McDowall v. G. W. Ry. Co. (1902), 1 K. B., 618. However, we do not consider the case of Lynch v. Nurdin, as authority for the decision in Railroad Co. v. Stout. In Lynch v. Nurdin, the defendant left his horse, and cart unattended in a public street. The plaintiff, a child seven years of age, got upon the cart in play, and another child led the horse on and the plaintiff was thereby thrown down and hurt. The plaintiff recovered. It is to be observed that the horse and cart were left in the street. It was the duty of defendant to use care. The child was rightfully in the street, and the fact that he meddled with the cart was not contributory negligence in one of his age, and it is not properly a case of trespass. In the turntable cases there is neither invitation nor permission, and to ground them on cases like Townsend v. Wathen, 9 East, 277, where dogs were lured to their death by tainted meat, or like Bird v. Holbrook, 4 Bring., 628, where a spring gun was set to shoot trespassers, is to lose sight of the difference between negligence and intentional wrongdoing. The distinction is pointed out in Pointing v. Noakes (1894), 2 Q. B., 281, where the defendant was held not liable for the death of plaintiff's horse, due to the latter's eating from a yew tree, that was wholly on defendant’s land.

In Buch v. Amory Manufacturing Co., 69 N. H., 257, where a boy, eight years of age, unable to speak or understand English, was injured by machinery, in a very able opinion, Carpenter, C. J., says: “Actionable negligence is the neglect of a legal duty. The defendants are not liable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad, sees a two-year-old babe on the track and a car approaching. Fie can easily rescue the child with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child’s injury, or indictable under the statute for its death. P. S., c. 278, -s. 8.

“ Tn dealing with cáses which involve injuries to children, courts * * * have sometimes strangely confounded legal obligation with sentiments that are independent of law.’ Indianapolis v. Emmelman, 108 Ind., 530. Tt is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is sometimes strangely lost sight of, viz., that no action arises without a breach of duty.’ 2 Thomp. Neg., 1183, note 3. ‘No action will lie against a spiteful man, who, seeing another running into danger, merely omits to warn him. To bring the case within the category of actionable negligence some wrongful act must be shown, or a breach of some positive duty; otherwise, a man who allows strangers to roam over his property would be held answerable for not protecting them against any danger they might encounter whilst using the license.’ Gautret, Admx., v. Egerton, L. R. 2 C. P., 371, 375.

“What duties do the owners owe to a trespasser upon their premises? They may eject him, using such force and such only as is necessary for the purpose. They are bound to abstain from any other or further intentional or negligent acts of personal violence, — bound to inflict upon him by means of their own active intervention no injury which by due care they can avoid. They are not bound to warn him against hidden or secret dangers arising from the condition of the premises (Redigan v. Railroad, 135 Mass., 44, 47, 48), or to protect him against any injury that may arise from his own acts or those of other persons. In short, if they do nothing, let him entirely alone, in no manner interfere with him, he can have no cause of action against them for any injury that he may receive. On the contrary, he is liable to them for any damage that he by his unlawful meddling may cause them or their property. What greater or other legal obligation was cast upon these defendants by the circumstance that the plaintiff was (as is assumed) an irresponsible infant ?

“If landowners are not bound to warn an adult trespasser of hidden dangers, — dangers which he by ordinary care cannot discover and, therefore, cannot avoid, — on what ground can it be claimed that they must warn an infant of open and visible dangers which he is unable to appreciate? No legal distinction is perceived between the duties of the owners in one case and the other. The situation of the adult in front of secret dan-' gers which by no degree of care he can discover, and that of the infant incapable of comprehending danger, is in a legal aspect exactly the same. There is no apparent reason for holding that any greater or other duty rests upon the owners in one case than in the other.

“There is a wide difference — a broad gulf— both in reason and' in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one’s neighbor, and preventing him from injuring himself; between protecting him against injury by another and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an intelligent man or an unintelligent infant running into danger and does not warn or forcibly restrain him ? What difference does it make whether the' danger is on another’s land, or upon his own, in case the man or infant is not there by his express or implied invitation? If A sees an eight-year-old boy beginning to climb into his garden over a wall stuck with spikes and does not warn him or drive him off, is he liable in damages if the boy meets with injury from the spikes? Degg, Admx., v. Railway Co., 1 H. & N., 773, 777. I see my neighbor’s two-year-old babe in dangerous proximity to the machinery of his windmill in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by the common law or under the statute (P. S. c. 278, s. 8), because the child and I are strangers, and I am under no legal duty to protect him. Now suppose I see the same child trespassing in my own yard and meddling in like manner with the dangerous machinery of my own windmill. What additional obligation is cast upon me by reason of the child’s trespass? The mere fact that the child is unable to take care of himself does not impose on me the legal duty of protecting him in one case more than in the other. Upon what principle of law can an infant by coming unlawfully upon my premises impose upon me the legal duty of a guardian? None has been suggested, and we know of none.” The real reason for implying invitation, or declaring a turntable to be a lure, is to escape the imputation of making the law, rather than declaring it. Railroad companies do lock their switches, because unlocked they endanger the property of the company and the lives of its passengers; but, assuming that there is no reason why a switch should be kept locked for safety when not in use, and a turntable should be left unlocked when not in use, endangering the lives of little children, excepting that in the one case there is a pecuniary liability and in the other not, that does not vest the courts with the legislative function to impose the duty upon railroad companies. It is much better that the duty should be. prescribed by the legislature rather than be declared by the courts, for then it may be known in advance of liability, and the courts will be saved the expense and difficulty of explaining to disappointed litigants, in cases based upon a different state of facts but logically requiring the same result, why they are mistaken. Thus, in Ryan v. Towar, 128 Mich., 463, the cases are cited in which it is held that a railroad company does not owe to children the duty to see that they do not jump upon its cars, or to keep its cars in good repair, or the doors shut, or to guard them so that children cannot be injured by loosening the brakes, or not to leave a hand-car near the track, or to keep a lookout for them when trespassing. To which may be added Dicken v. Coal Co., 41 W. Va., 511, in which a recovery was denied for the injury of a little child crippled by a car while on a tram road of a salt company; Clark, Admr., v. Manchester, 62 N. H., 577, where a child of four years was drowned in a reservoir that had once been used by the city, but had been abandoned, the fence removed, though a portion of it yet had water in it, and there was a field nearby where ball playing and other games went on and children were accustomed to play; the child, while passing along a path at the reservoir, fell into it; Grindley, Jr., Admr., v. McKechnie, 163 Mass., 494, where a child went through an opening in a fence, along a path, and fell into a sewer owned by the city; Gay, Admr., v. Railway Co., 159 Mass., 238, where liability was denied to a boy ten years old, who went on a car unlawfully standing in a street and was injured by a recoiling brake not properly fastened; Talty, Admr., v. City of Atlantic, 92 Ia., 135, where a child was injured, while digging sand, a bank caving in upon him; Ratte v. Dawson, 50 Minn., 450, where a child of three years, playing in a pit, in an unguarded vacant lot, was killed by the caving of the bank; and in this case children were attracted by the bank and were accustomed .to play there; Barney v. Railroad Co., 126 Mo., 372, where children went to play in an unfenced railroad yard and one of them, six years of age, was.injured in jumping on a train; Vanderbeck v. Hendry, 34 N. J. L., 467, where defendant owned a lumber yard in a populous part of the city, frequented by children, and a child was injured by the falling of a pile of lumber not in a safe condition; Clark v. City of Richmond, 83 Va., 355, where a child six years of age walked on a wall along the street and fell into a pit; Uthermohlen v. Bogg’s Run Co., 50 W. Va., 457, where a boy seven years of age trespassed upon the property of a coal company and was injured by a pulley and cable used by the company to haul cars from its mines to the tipple; Harbina v. Twin City General Electric Co., 113 N. W. Rep., 586, where a little girl nine years of age, while crossing the unenclosed lands of the defendant, fell into a ditch filled with hot water.

But it is said that the case of Harriman v. Railroad Co., 45 Ohio St., 11, applies the doctrine of the turntable cases and that ever since, for twenty years, the decision in that case has been considered by the profession as committing this court to that doctrine. If true, that would not make the doctrine a rule of property, but would entitle the case only to the same consideration that is given any other considered judgment of the court. The decision in that case did not require the application of the doctrine of the turntable cases, but rests upon long settled principles of law. There, some boys, walking along the tracks of a railroad, found an unexploded torpedo, and when trying to open it, in ignorance of its dangerous character, it exploded and seriously injured one of their number. -The case was disposed of on a demurrer to the petition. The boys were held to be licensees, and being licensees, it was the duty of the company to warn them of the hidden peril, or to use care that they were not injured thereby. In the opinion (31) Williams, J. says: “Hence, where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road, at a given point, without objection or hindrance, it should in the operation of its trains, and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care accordingly, having due regard to such probable use, and proportioned to the probable danger to persons so using its road; and it is negligence for the servants of such company to knowingly interpose any new danger without reasonable precaution against injury therefromIn' the present case, unlike Harriman v. Railroad Company, the facts do not make a case, if not of implied invitation at least one in which the defendant may be said to be estopped to deny permission. Assuming then, but not deciding, that the plaintiff was a licensee, the turntable was not a hidden peril or trap, as those terms are understood in law. The turntable was- not visible from the streets and the boys were not by it attracted or lured onto the railroad company’s property, and the company legally is no more responsible for the injuries received by the boy in meddling with the turntable than it would have been had they been sustained by him in meddling with any other of its appliances.

In the case of Harriman v. Railroad Company, it was not necessary to a determination of the questions presented to determine whether the boy was on the railroad company’s property by 'implied invitation, or by license. It may be, as intimated in the opinion, that the conduct of the company estopped it to deny liability or to assert that the boy was a trespasser; but it was not necessary to go further, for in either case it was the duty of the company not to interpose a trap or pitfall, or a new danger, without notice or the exercise of due care. Upon this ground the judgment in that case may be vindicated, but we are not satisfied that what is there said upon the subject of invitation and license can be.

In Sturgis v. Railway Co., 72 Mich., 619, Campbell, J., says: “It is impracticable to keep off trespassers from an open track, and all who go upon it do so at their own risk of such dangers as are incidént directly to such use.” And in Hargreaves v. Deacon, Admr., 25 Mich., 1, a case in which a boy was drowned in an uncovered cistern on private premises, he says: “Cases are quite numerous in which the same questions have arisen in this case, and we have found none which hold that an accident from negligence, on private premises, can be made the ground of damages, unless the party injured has been .induced to come by personal invitation, or by employment which brings him there, or by resorting there as to a place of business or of general resort held out as open to customers or others whose lawful occasions may lead them to visit there. We have found no support for any rule which would protect those who go where .they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant.” And in Ryan v. Towar, 128 Mich., 463, it is expressly ruled that: “An invitation or a license to cross the premises of another cannot be predicated on the mere fact that no steps have been taken to interfere with such practice.” And that: “There is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another’s premises.”

In Turess v. N. Y. S. & W. R. R. Co., 61 N. J. L., 314, Magie, C. J., says: “Invitation which creates such a relation may be express, as when the owner or occupier of land, by words, invites another to come on it or make use of it or something thereon; or it may be implied, as when such owner or occupier, by acts or conduct, leads another to believe that the land or something thereon was intended to be used as he uses them, and that such use is not only acquiesced in by the owner or occupier, but is in accordance with the intention or design for which the way or place or thing was adapted and prepared or allowed to be used. This definition, originally given in Sweeny v. Old Colony & Newport R. R. Co., 10 Allen, 368, was approved and adopted by our court of errors. Phillips v. Library Co., ubi supra.

“It will be observed that, in the case of an implied invitation, the relation is imposed upon the owner or occupier of land only when he has done something which justifies one who enters upon the land and makes use of it or something upon it in believing that he intended such use to be made; and he who makes such use can claim the relation only when he is justified by the acts or conduct of the owner or occupier in believing that such use was intended. And entry and use by such invitation are thus distinguished from entry and use by mere permission.” And in D. L. & W. R. R. Co. v. Reich, 61 N. J. L., 635, in the court of errors and appeals, Gummere, J., says: “The viciousness of the reasoning which fixes liability upon the landowner because the child is attracted, lies in the assumption that what operates as a temptation to a person of immature mind, is, in effect, an invitation. Such an assumption is not warranted. As was said by Mr. Justice Holmes, in Holbrook v. Aldrich, 168 Mass., 16, ‘temptation is not always invitation; as the common law is understood by the most competent authorities, it does not excuse a trespass because there is a temptation to commit it, or hold property owners bound to contemplate the infraction of property rights because the temptation to untrained minds to infringe them might have been foreseen.' ”

Swarts v. The Akron Water Works Co.

This case owes its existence to the doctrine of the turntable cases and might be disposed of without further consideration rtpon the ruling in the preceding case, but, since it is illustrative of the consequences of adopting the turntable doctrine, it may excuse an extention of this already too lengthy opinion. Counsel for plaintiff say: “A great deal was said in the argument below, and doubtless will be said here, in regard to the so-called 'turntable cases’; the insistence that the doctrine of that so-called class of cases shall not be extended has at last reached the point of demanding that a real turntable shall be shown in any case as the best and only evidence that the principle is to be applied.

''We are contending not for a name but for a principle. We cannot produce at the bar a turntable, but if the evidence in this record tends to show that the defendant maintained an 'attractive danger,’ a corresponding obligation arose to reasonably safeguard it against the consequences to be apprehended from it to children who might be attracted by and to it.

. “The doctrine thus allowed and recognized by this court as applicable in a proper case, we expect will be adhered to in any case falling within the principle, whether the instrument of danger be a turntable or a reservoir of water.” And again, “It must be confessed here that the case from which the above quotation is made is a 'turntable’ case, and that we are unable to make profert of a turntable in.open court; nor can we produce a torpedo to make our position square with Harriman v. Railroad Co.; but our controversy is careless of names and deals with principles alone. The particular principle for which we are quarreling,— and we venture to restate it at the risk of being thought tedious, father than leave any room for doubt as to where we stand, — is this: ‘Where the owner of dangerous premises knows or should know that children so young as to be ignorant of the danger will resort to such premises, he is bound to take all reasonable precautions to keep them from the premises, or to protect them from the dangerous condition of the premises/ and this equally whether the danger lurks in a machine or invites approach to a body of water; and that the question of whether the duty thus cast upon the owner has been discharged is one of fact in this case.”

In the very able article in 11 Harvard Law Review, 349, 434, Judge Jeremiah Smith, reviews all of the cases, and reaches the conclusion that the doctrine of the turntable cases is not sound. He regards the opinion in Keffe v. Milwaukee, etc., Ry. Co., 21 Minn., 207, as the ablest in support of that doctrine, and it may be, therefore, interesting to note, that in the subsequent case, Stendal v. Boyd, 73 Minn., 53, that court, by its chief justice, in a case where liability is denied' for the drowning of a little boy in a dangerous excavation filled with water, on a city lot, saj^s: “The doctrine of the turntable cases is an exception to the rule of non-liability of a landowner for accidents from visible causes to trespassers on his premises. If the exception is to be extended to this case, then the rule of non-liability as to trespassers must be abrogated as to children, and every owner of property must at his peril make his premises child-proof. If the owner must guard an artificial pond on his premises, so as to prevent injury to children who may be attracted to. it, he must, on the same principle^ guard a natural pond; and, if the latter, why not a brook or creek, for all water is equally alluring to children? If he must fence in. his stone quarry after it fills with water, so that children cannot reach it,— a well-nigh impossible task, — why should he not be required to do it before, for a stone quarry, with its steep and irregular sides, might well be an attractive and dangerous place to children? It would seem that there is no middle ground, and that the doctrine of the turntable cases ought to be limited to cases of attractive and dangerous machinery.” And in conclusion he says: “Upon the undisputed facts in this case, we hold that plaintiff cannot recover, for the reason and upon the ground that a landowner is not bound to fence or otherwise guard an open excavation or pond, natural or artificial, on his land, so as to prevent injury to children coming thereon without right or invitation, express or implied, although they are induced so to do by the alluring attractiveness of such excavation or pond.” In Erickson v. Grt. Northern Ry. Co,, 82 Minn., 60, liability was denied in a case where a child four years of age was attracted by a fire on the unfenced right of way of the railway company near the public street, and while playing about the fire was burned so that she died. Start, C. J., in that case, says: “The manifest trend of all the decisions of this court is to limit its application to. attractive and dangerous machinery, and to other similar cases where the danger is latent. We are not prepared to say that cases may not arise outside of this classification to which the doctrine ought to be’extended, but we do hold that as a general rule the doctrine of the turntable cases must be limited to cases of attractive and dangerous machinery, and to other similar cases where the danger is latent. This rule may not be strictly logical, but it is a necessary one, unless landowners are to be made insurers of the safety of children when trespassing upon their premises.” In Mattson v. Minnesota, etc., R. R. Co., 95 Minn., 477, the doctrine was extended to a case in which the defendant had left exposed and unguarded on its premises a large quantity of dynamite which was found by the plaintiff’s children, and in an explosion of which one of them was killed and the other permanently injured. In Moran v. Pullman Palace Car Co., 134 Mo., 641, liability is denied for the death by drowning of a boy nine years of age in a pond which was created by excavations in quarrying rock. Liability is also denied in Overhott v. Vieths, 93 Mo., 422, where a boy eight years of age was drowned in a pond on a lot in the city of St. Louis. In Peters v. Bowman, 115 Cal., 345, liability is denied for the drowning of a boy eleven years of age, in a pond on a city lot. In Richards, Admx., v. Connell, 45 Neb., 467, liability is denied in the case of the drowning of an infant child in a pond on land in the vicinity of a public school. In Hargreaves v. Deacon, 25 Mich., 1, where a child fell into an. uncovered cistern, and was drowned, liability was denied. In Klix, Admr., v. Nieman, 68 Wis., 271, liability is denied in a case where a child nine years of age was drowned in an unfenced pond on a lot in the city of Milwaukee. In Gillespie v. McGowan, 100 Pa. St., 144, liability was denied in a case where a child eight years of age fell into an abandoned and unguarded cistern or well. And in Ritz v. City of Wheeling, 45 W. Va., 262, liability was denied in a case where a child less than five years of age was drowned in a reservoir maintained by the city to furnish water for public use. In the opinion, Brannon, C. J., says: “There can be no negligence charged upon a person unless he rests under a duty to the person complaining of damage at his hands; for if there is no duty violated, though there may be grave damage befalling the complaining party, he has no ground of action. It is a case denominated in law as cdamnum absque injuria,’ — damage done, but without violation of a right in the injured party; a misfortune unaccompanied • by a breach of duty by the party inflicting the injury. Sherm. & R. Neg., sec. 8. The reservoir and the land containing it were the private property of the city, used, not as a park or place of public resort or common, but only, for reservoir purposes. The child was a trespasser, if you can say a child can be a trespasser. It was a trespasser in legal sense; that is, it was on this property without right. The city was not bound to watch it. It could be liable to it only for willful or wanton injury.”

In this court, in Ann Arbor Railroad Co. v. Kinz, 68 Ohio St., 210, the company' owned an unfenced common in the city of Toledo. The plaintiff, a boy eleven years of age, was attracted to the common by a game of ball, and while there engaged with some other boys in playing about a bank ten feet in height, he was injured by the falling of the bank, and it was held that the railroad company was not liable. In L. S. & M. S. Ry. Co. v. Liidtke, 69 Ohio St., 384, liability was denied where a boy, six years of age, strayed onto the right of way of the railroad company in the city of Sandusky, and was injured by a passing train, by which he was attracted, and when trying to touch a passing car. It was held that the company was not liable. In The C. H. & D. Ry. Co. v. Alter, 64 Ohio St., 183, footmen with the knowledge of the company used its station platform ánd tracks as a route to the village, and the plaintiff intending so to use the platform and tracks set out for the. village about a half mile distant, but he did not, as was the custom, leave the platform before reaching the end of it and walk along the track, but continued along the platform, and in the dark, stepped off the end of it and was injured. It was held, that he was not invited by the company to use its premises, but that its use was merely permissive and that he assumed the risk. In Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Bingham, Admx., 29 Ohio St., 364, it is held: “A railroad company is not liable for an injury to a person resulting from its failure to exercise ordinary skill and care in the erection or maintenance of its station-house, where, at the time of receiving the injury, such person was at such station-house by mere permission and sufferance, and not for the puropse of transacting any business with the company or its agents, or on any business connected with the operation of the road.”

We may very appropriately conclude in the words of Allen, J., in Clark, Admr., v. Manchester, 62 N. H., 577: “The excavation for a reservoir was not made and filled with water for a trap, but for a lawful use by the defendants on their own land. The averment of license and invitation to the child to go there is one of argument by inference from the facts stated, and the facts positively averred do not warrant and support the inference. The fact that children went to the reservoir pit from curiosity or for pleasure, without objection of the defendants, was not an invitation or license to go there. The child was not upon the land by invitation, nor under circumstances which made it the duty of the defendants to protect him. ITe was there to gratify his curiosity, or for mere pleasure, and the defendants owed him no special duty. It was not a case of setting a trap for the children, nor one of wantonly and knowingly leading them into danger and this one into destruction. It was the ordinary case of a landowner managing, within the bounds of his own land, his own property in his own way for his own use and benefit, and though in doing this he might find occasion to construct reservoirs, provide fish-ponds, plant and cultivate fruit-trees, erect and maintain useful structures, instruments, and machinery, all of which are alluring, attractive, and dangerous to children, yet it could not be claimed that he must constantly guard these things against the approach of persons coming without license or invitation, or suffer in damages for any injury they might receive. The rule that the owner of land may manage it in his own way for his own benefit, and owes no duty to those who come upon it for no business purpose, but without license express or implied, it too well established to need further comment, or to Warrant a departure from it.”

In the case of Railroad Company v. Harvey,. the judgments of the circuit court and of the court of common pleas are reversed and the petition is dismissed; and in the case of Swarts v. The Akron Water Works Company, the judgment of the circuit court is affirmed.

Judgment in No. p8po reversed.

Judgment in No. 10114 affirmed.

Shauck, C. J., Crew and Davis, JJ., concur in No. 9830.

Shauck, C. J., Price, Crew, Spear and Davis, JJ., concur in No. 10114.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Moormann v. Voss.

      Certain sureties may require creditors to sue• — Section 5833, Revised Statutes — Must be strict compliance with statute — Notice to ' husband of creditor is insufficient.

    A person bound as surety in a written instrument for the payment of money, who would avail himself of the defense of having given notice to sue, under Section 5833, Revised Statutes, must show a strict compliance with the requirements of said section. And where the creditor is a married woman, a notice by the surety directed to and served upon her husband, demanding that he bring suit thereon forthwith is insufficient, although such, notice be communicated and exhibited by the husband to his wife.
    (No. 10131
    Decided December 3, 1907.)
    Error to the Superior Court of Cincinnati in general term.
    On May 23, 1901, the plaintiff in error, Rose F. Moormann, commenced an action in the Superior Court of Cincinnati against the defendants in error, John FI. Voss and Robert A. Moormann, to recover a balance of $2,161.18, which she alleged was due her from said Voss and Moormann, on a certain promissory note of which, omitting the indorsements thereon, the following is a copy:
    “$2,950.90. Cincinnati, May 11, 1896.
    “Six months after date we, or either of us, promise to pay to the order of William D. Grote, two thousand, nine hundred and fifty dollars, at S. Kuhn & Sons’ Bank. Value received. Interest at the rate of six per cent, per annum.
    “Robert A. Moormann,
    “J. H. Voss.”

      Her petition, which was in the short form authorized by Section 5086, Revised Statutes, contained the averment that she was the owner and holder of said note, and became such, for value, before maturity. To this petition the defendant/ John H. Voss, filed an answer in which he admitted the making and execution of the-note sued on, but denied each and every other allegation in plaintiff’s petition contained. And by way of further and affirmative defense alleged “that if it be true that the plaintiff is the owner and holder of said note, and was such owner and holder at the times stated in plaintiff’s petition, then Frank J. Moormann, husband of the plaintiff, acted as agent for the plaintiff, and as such received payment thereon at divers times, which payments were credited by said Frank J. Moormann upon said note as set out in the plaintiff’s petition.
    “Defendant further states that he signed said note merely for the accommodation of his comaker, Robert A. Moormann, and as surety for Robert A.-Moormann, and that on the 24th day of November, 1900, he deposited in the mail addressed to Frank J. Moormann, Esq., at his place of residence, which is also the place of residence of the plaintiff herein, the following notice, to-wit:
    “Cincinnati, November 17, 1900.
    “Frank J. Moormann, Esq.,
    “Moormann Avenue, Walnut Hills,
    “Cincinnati, Ohio.
    “Dear Sir: — You are the holder of a certain promissory note dated on or about the-day of June, 1896, and due in six months after date, payable to the order of William D. Grote, for the sum of about twenty-six hundred dollars ($2,600), signed by Robert A. Moormann and John H. Voss. Robert A. Moormann is the principal debtor on said note and I am merely as surety.
    “You are, therefore, hereby notified to commence an action on said note forthwith against Robert A. Moormann, the principal debtor, and unless you do commence such action within reasonable time and proceed with due diligence in the ordinary course of law to recover a judgment against Robert A. Moormann for the amount due on said note and to make by execution the amount thereof, you shall thereby forfeit any right which you would otherwise have to demand and receive of me the amount due thereon.
    “Yours very truly,
    “John H. Voss.”
    That said notice was received by said Frank J. Moormann in the regular course' of mail and its contents communicated to the plaintiff herein.
    Defendant further says that notwithstanding the requirements of said notice, plaintiff neglected to bring an action upon said note as required by said notice until the 23d day of May, 1901.
    To this answer Rose F. Moormann filed the following reply:
    “Now comes the plaintiff, and for reply to the answer of the defendant, John H. Voss, says that she denies that Frank J. Moormann, her husband, acted as her agent or had authority to act as her agent generally or in receiving the notice set forth in the answer.
    “Plaintiff further says that she has no knowledge and therefore denies that the defendant, John H. Voss, signed the note merely for the accommodation of his co-maker, Robert A. Moormann, and as surety for Robert A. Moormann. She further says that at the time when she purchased said note she had no knowledge or notice of any claim on the part of the defendant, John H. Voss, that he was a surety upon said note or had signed the same for the accommodation of the said Robert A. Moormann, and that she purchased the note as the joint note of both the makers thereof and looking for payment of the note to both and each of them. Plaintiff admits that the contents of the note set forth in the answer were communicated to her by her husband sometime after the receipt thereof but says that she paid no attention to same because it was not addressed to her and she understood and was advised that it was not a legal notice requiring her to act. Plaintiff further denies every other allegation in said answer not herein or in her original petition admitted and prays as in her original petition.”
    Thereafter, to-wit on January 20, 1904, John H. Voss, by leave of court, filed what is denominated in the record an “Additional Answer,” pleading payment of said note in full. Rose F. Moormann, by “Additional Reply,” denied such payment. The defendant, Robert A. Moormann, filed no answer and made no defense. Upon the trial of the cause in special term, the superior court refused to permit the defendant, John H. Voss, to give in evidence to the jury the notice of November 17, 1900, directed and mailed to Frank J. Moormann, for the reason, as stated by the court, that the same was not a notice to Rose F. Moormann, the creditor. And in the charge, the court instructed the jury touching this matter as follows: “Since there is no evidence that notice as required by law was given to her as principal creditor, I charge you that even were you to find defendant, Voss, to be a surety — one who signed for accommodation merely — he would under the circumstances in this case, still be liable, provided you find plaintiff purchased said note for value without notice and before maturity.” The jury returned a general verdict in favor of the plaintiff and against both defendants for the full amount claimed. A motion for a new trial was filed by John H. Voss, assigning as grounds therefor: 1. “The verdict is contrary to law and is against the law.” 2. “The verdict is against the weight of the evidence.” 3. “The court erred in the admission of evidence offered by the plaintiff and objected to by the defendant.” 4. “The court erred in the rejection of evidence offered by the defendant, to which the defendant duly excepted.” 5. “The court erred in its charge to the jury.” This motion was overruled by the court, and judgment was thereupon entered on the verdict. Proper exceptions were saved throughout. On petition in error to the general term of the superior court, the judgment against John H. Voss was, by that court, reversed, and the following entry was made in said cause:
    “This cause came on to be heard upon the petition in error, the original papers and pleadings from the Superior Court of Cincinnati in special term, was argued by counsel and submitted to the court. On consideration whereof the court finds that there is error apparent on the record, in the proceedings of said court to the prejudice of the plaintiff in error, in this, to-wit: In holding and deciding that the written notice mailed to Frank J. Moormann, requiring him to sue upon .the note described in the petition, was not a sufficient notice to the defendant in error, Rose F. Moormann, under Section 5833, Revised Statutes of Ohioj although the said Frank J. Moormann was the husband and had been acting as the agent of the said Rose F. Moormann, and showed said notice to the said Rose F. Moormann within a short time after its receipt; and in the rulings of the court upon the evidence, and the charge of the court to the jury involving this proposition.”
    The court further finds that it is unnecessary to consider the other errors assigned in the petition in error and does not consider them.
    Wherefore, it is considered by the court that the judgment rendered by the court in special term, in so far as the same purports to be a judgment against the plaintiff in error, be, and the same is hereby reversed and held for naught. To all of which the defendant in error, Rose F. Moormann, excepts.
    And the court further finding that the facts as to said notice are shown by undisputed testimony, and proceeding to render such judgment as such court in special term should have rendered, it is considered that the defendant in error, Rose F. Moormann, is not entitled to recover anything from the plaintiff in error, John H. Voss; that the petition of said Rose F. Moormann, plaintiff below, be dismissed as to the plaintiff in error, John H. Voss, defendant below; and that the said plaintiff in error recover from the defendant in error, Rose F. Moormann, his costs herein and in the court below expended. To all of which the said Rose F. Moormann now excepts.
    Rose F. Moormann now prosecutes error in this court, asking that the judgment of the general term of the superior court be reversed, and that of the special term be affirmed.

      Messrs. Stephens, Lincoln & Stephens and Frank J. Moormann, for plaintiff in error.
    We are restricted to an interpretation of Section 5833, Revised Statutes. Its language would seem to be clear and unambiguous. It requires a written notice to the creditor, requiring him to commence an action forthwith against the principal debtor. A notice to anyone else than the creditor is not sufficient. The notice, in this case, was addressed’ to Frank J. Moormann, not as agent or attorney, but personally, and required him, as the holder of the note in suit, to bring an action. There is not one word in it of request, warning or command intended for or addressed to the plaintiff.
    It has been universally held that such statutes as Section 5833 should be strictly construed. Clark v. Osborn, 41 Ohio St., 28; Baker et al., Admrs. v. Kellogg et al., 29 Ohio St., 663.
    A notice to an agent or a husband, requiring him to sue, is not a compliance with the statute, though communicated to the real party in interest. This has been repeatedly held by the courts of sister states under similar statutes. Cummins v. Garretson, 15 Ark., 132; Driskill v. Commission

      ers, 53 Ind., 533; Davis, Admr., v. Snead et al., 33 Grattan, 705; Shimer v. Jones, 47 Pa. St., 268; Bartlett v. Cunningham, 85 Ill., 22; Sapington v. Jeffries, 15 Mo., 628; Coykendall v. Constable, 48 Hun, 360; Pingrey on Suretyship, Section 145; 2 Brandt on Suretyship, Section 773; 27 Am. & Eng. Ency. Law, 513.
    The following have been held to be insufficient: A notice addressed to the trustees of a bank, delivered. to their clerk and communicated by him to one or more of the parties in interest. Adams et al. v. Roane et al., 7 Ark., 360.
    A notice addressed to and served upon one of two administrator’s obligees. Kelley v. Matthews, 5 Ark., 223.
    A notice addressed to the treasurer of the trustees of schools, where the loan was made by the' treasurer for the trustees, and the note made to them. Trustees v. Southard et al., 31 Ill. App., 359.
    Under a statute providing for a notice to the creditor to sue or permit the surety to do so, a notice simply requiring the creditor to sue is not sufficient. Hill v. Sherman et al., 15 Ia., 365.

      Mr. Denis F. Cash, for defendant in error.
    We take it to be well established, both at law and equity, that notice to the agent in relation to the business for which he is employed, is notice to the corporation, the principal. Bank v. Mumford, 6 Ga., 44; Plate Co. v. Flory, 44 Ohio St., 430.
    There is no reason why this rule should not apply to a natural person as well as to a corporation. More particularly so in a case where the principal and the fact of agency is undisclosed and where one who is really an agent, acts as principal with the knowledge and approval of the real principal. Wetzel v. Sponsler’s Exrs., 18 Pa. St., 460; Thomas v. Mann, 28 Pa. St., 520; McCoy v. Lockwood, 71 Ind., 319; McCrary v. King et al., 27 Ga., 26.
    Counsel seem to base their whole argument upon the theory that Section 5833, Revised Statutes, is to be strictly construed. This is contrary to the express provision of Section 4948, Revised Statutes, which applies to the whole of Part 3 of the Revised Statutes, of which Section 5833 is a part.
    While this provision of our statutes has not been adverted to by our supreme court, in cases of this kind, an examination of the cases decided will show that the court was mindful of its provisions in holding that substantial compliance is sufficient. Plumley v. Bellard, 36 W. L. B., 330; Baker et al., Admrs., v. Kellogg et al., 29 Ohio St., 663; Iliff v. Meymouth, 40 Ohio St., 101.
   Crew, J.

It clearly and affirmatively appearing from the record herein, that the only matter considered or adjudicated in this case by the superior court in general term, was that of the sufficiency of the notice given by John PT. Voss as surety, it follows that our present' inquiry must be limited to a consideration of the propriety and correctness of the judgment of the superior court in that behalf. John H. Voss, as surety, claimed to be discharged and released from all liability upon the note in suit, by reason of the delay of Rose F. Moormann to commence an action thereon within a reasonable time after the service of notice upon her husband, Frank J. Moormann, requesting him to bring suit thereon, forthwith, against Robert A. Moormann, the principal debtor. There is no dispute in this case as to the form of the notice, and no claim is made that it was intended for, or addressed to, Rose F. Moormann, the creditor, although it is'admitted that the contents of said notice were communicated to her by her husband. Section 5833, Revised Statutes, provides as follows: “A person bound as surety in a written instrument for the payment of money, or other valuable thing, may, if a right of action accrue thereon, require his. creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor; and unless the creditor commence such action' within a reasonable time thereafter, and proceed with due diligence, in the ordinary course of law, to recover judgment against the principal debtor for the money or other valuable thing due thereby, and to make, by execution, the amount thereof, the creditor, or the assignee of such instrument, so failing to comply with the requisition of such surety, shall thereby forfeit the right which he would otherwise have to demand and receive of such surety the amount due-thereon.” Inasmuch as this statute is clearly in derogation of the common law, and in terms provides a forfeiture of the right of action against the surety where the creditor disregards the notice to sue; in accordance with established rules of interpretation, the statute should not be extended beyond its plain terms, and the remedy thereby afforded should be strictly pursued. In Baker v. Kellogg, 29 Ohio St., 665, this court said: “In view of the fact that the statute provides for the release of a party from a fixed legal liability-— from the payment of a debt which he justly ow.es— its' requirements should be at least substantially, if not strictly and literally complied with.” In Clark v. Osborn, 41 Ohio St., 36, the court, speaking of this statute, says: “The statute,' in a sense, is a part of the contract. The suretyship is accepted with knowledge of its terms. It gives rights to both parties. The right of the creditor is to disregard with impunity any notice not in strict conformity to its terms. This is his privilege, and concerns him alone, and is unaffected by considerations of public policy.” These authorities alone, upon the conceded or undisputed facts, are, we think, decisive of the present case. However, as examination discloses that like holdings have been made under similar statutes, by courts of last resort in other states, we call attention briefly to the following additional decisions: In Driskill v. Board of Commissioners, 53 Ind., 532, the appellee, as creditor and obligee, •had sued the appellant and one Daniel B. Driskill, as obligors on a penal bond. As a defense appellant pleaded in the second paragraph of his answer, that after said bond became due he notified Fred L. Prow, the attorney of the appellee, in writing, that he was only surety for the co-defendant, Daniel B. Driskill, and directed said attorney to institute proceedings at once upon said bond for its collection, and that he would stand responsible no longer. To this answer the appellee demurred, and his demurrer was sustained by the lower court. Upon appeal to the supreme court, that court, in considering and commenting upon the sufficiency of this answer, said:

“It is evident that the appellant, in this second paragraph of his answer, has attempted to frame a defense to the action which would be good under the requirements of Sections 672 and 673, of our practice act.
“Section 672 provides as follows: ‘Any person bound as surety upon any contract in writing for the payment of money, or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute an action upon the contract.’ 2 Revised Statutes, 1876, p. 276.
“In the paragraph of appellant’s answer now under consideration, the written notice did not require the creditor or obligee in the bond sued on to institute an action upon the contract; but instead thereof, the notice mentioned in this paragraph was to Fred L. Prow, who is described as the appellee’s attorney, and directed him, and not the appellee, to institute proceedings on the bond. It is clear, we think, that the written notice described in this paragraph of the answer is not such a notice as the section quoted requires to be given. The remedy given by Sections 672 and 673 of our code of practice to sureties upon written contracts is purely a statutory remedy, and has never been regarded, in this state, as a part of the common law. Halstead v. Brown, 17 Ind., 202. The surety who desires to avail himself of this remedy must do just what Section 672, in plain terms, requires him to do; he must, by written notice, require the creditor or obligee to institute an action upon the contract. In our opinion, the notice in this case was clearly insufficient, and, therefore, the demurrer to the second paragraph of the answer was properly sustained.”

In Davis, Admr., v. Snead et al., 33 Grattan, 705, the Supreme Court of Appeals of Virginia, reviewing the statute of that state relating to sureties, passed in 1873 — which statute, in its provisions, is substantially the same as Section 5833 of the Ohio Statutes — says: “This statute is substantially the same as that of 1794 found in the Revised Code, 1819, page 461.” * * * “This statute of 1794 was the first enactment ever adopted in Virginia, authorizing notice by a surety to a creditor to sue, and imposing upon the latter a forfeiture of all claims against the surety as a consequence of his failure to comply with the requisition. * ' * *

“It will be observed that both by the act of 1794, and the present statute, the notice must be given to the creditor himself, and in the event of his death, to his personal representative. Under various provisions contained in the code, proceedings may be instituted against a creditor or other persons by notice to his agent or attorney. But under the statute we are now considering, no such indulgence is allowed. The reason is obvious. The statute is very stringent in its operation. The effect of the failure to sue after notice is an absolute forfeiture of all claims against every surety upon the bond, or other instrument. It is to such surety an absolute extinguishment of the debt. It was therefore wisely provided, that the notice should be given to the creditor himself, and him only; and the release of the surety should be the result of the creditor’s act and his only.” In Bartlett v. Cunningham, 85 Ill., 22, the third clause of the syllabus is as follows: “To release a surety under the statute, proof must be made of a notice in writing by him to the holder of the obligation, to put the same in suit, and a refusal or neglect to do so. Proof of the delivery ■ of such notice to an agent of the holder,’ and that the agent told the holder of the fact, is not sufr ficient.” In Hill v. Sherman et al., 15 Ia., 365, we find the following syllabus: “A surety seeking to discharge himself from liability on a promissory note, in the method provided by chapter 75 of the revision of i860, must comply fully with the requirements of the statute.” Like holdings are made, and a like principle and rule announced, in the following cases: Cummins & Fenno v. Garretson, 15 Ark., 132; England v. McKamey, 4 Sneed, 75; Gillian v. Luddington, 6 W. Va., 128; Coykendall v. Constable, 48 Hun, 360; Sapington v. Jeffries, 15 Mo., 628; Hunt v. Purdy et al., 82 N. Y., 486; Shimer v. Jones, 47 Pa. St., 268. Not a single authority was cited by the superior court in general term in support of its finding, that the notice in question was, under the statute, because communicated to her, a sufficient notice to Rose F. Moormann. And none of the authorities cited here by counsel for defendant in error support that proposition. The plain requirement of the statute is, that the notice shall be given to the creditor, that is, to the person to whom the debt is owing, and who has the present right to institute suit on the instrument, to recover the amount due. As no one else can forgive or release the debt, so also, no one else can, without his consent, involve the creditor in a forfeiture of his right of action against the surety. In the present case it is neither averred nor proved, that Frank J. Moormann was constituted the agent of Rose F. Moormann, the creditor, to accept and receive for her, this notice and it is not claimed that he was constituted the agent of John H. Voss, to deliver said notice to her. As we have seen, the name of Rose F. Moormann, does not appear in said notice. The notice was addressed to, and was intended for Frank J. Moormann, her husband, who was treated by Voss, the surety, as the real owner of said note. The notice — which was sufficient in form — was therefore, simply given to, and served on, the wrong party; and the mere fact that Frank J. Moormann thereafter communicated or exhibited such notice to his wife, would not affect, much less extinguish, her right of action against the surety. And especially should this be so where, as in the present case, at the time of exhibiting the notice to her he, being an attorney at law, then advised her that the same was not a notice to her, and that she need pay no attention to it whatever. For the reasons above stated, and upon the principles established by the foregoing authorities, we think it clear, that the notice to Frank J. Moormann was not binding upon Rose F. Moormann, the creditor, but that as to her, such notice was a mere nullity. It follows that the judgment of the superior court in general term, finding that said notice was sufficient, and was effective to release and discharge the surety, John H. Voss, from all liability on the note in suit, was erroneous, and must be reversed. And it affirmatively appearing from the record in this case that the superior court in general term did not consider or pass upon all the assignments of error in the petition in error in that court, one of which was that the judgment of the trial court was against the weight of the evidence, the cause will be remanded to said superior court in general term, with instructions to consider and pass- upon all the errors assigned.

Judgment reversed and cause remanded.

Shauck, C. J., Price, Summers and Spear, JJ-, concur.


author: Price, J.

text:
    Atley v. The Commissioners of Clinton County et al.

      County ditches — Supervision of work and payment for construction— Commissioners to fix compensation for damages — Sections 4447 and 4461, Revised Statutes — Determination of necessity for ditch — Appeal from finding of commissioners premature, vahen— ' Ditch construction proceedings.

    1. In proceedings to establish a county ditch by virtue of Section 4447, Revised Statutes, and subsequent cognate sections, the-final order or judgment of the county commissioners contemplated by the last clause of Section 4461, from which an appeal may be taken by an aggrieved party, is the order or judgment finally determining that the proposed ditch is' necessary and will be conducive to the public health, convenience or welfare and that it is the best route, and also determining all claims for compensation and damages, if any are made.
    2. An appeal taken from the finding of the county commissioners that the ditch is necessary, in advance of the time set for the hearing of such claims for compensation and damages and before they are heard and determined, is premature and may be dismissed by the probate court for that reason.
    (No. 10136
    Decided December 3, 1907.)
    Error to the Circuit Court of Clinton County.
    The history of the case is in the opinion

      Messrs. Hayes & Swaim and Mr. J. M. Morton, for plaintiff in error.
    We maintain that when the day for hearing preliminary motions under Section 4464, Revised Statutes, has passed, the power of the court to dismiss the appeal ceased. On the day the jury appeared, the court’s power was limited to impanneling and swearing the jury, and presiding at the trial. ,
    The court had jurisdiction of the parties and of the subject-matter, and having passed the day fixed by law for determining the questions without raising it, the parties submitted to the jurisdiction of said probate court to hear and determine said cause, and having done so, they could not thereafter be heard to complain.
    The principle involved resembles those presented and decided in the following cases: Hallam v. Jacks, 11 Ohio St., 692; Jones v. Booth, 38 Ohio St., 408; In re Estate of Crawford, 68 Ohio St., 59.
    We maintain that the order of the commissioners establishing the ditch is a final order from which appeal could be taken. Sections 4447, 4454, 4463 and 4469, Revised Statutes; Bowersox et al. v. Watson et al., 20 Ohio St., 507.

      A final decree is one which determines and dis-' poses of the whole merits of the cause before the court, or a branch of the cause which is separate and distinct from the other parts of the case, reserving no other question, or direction for future determination, so that it will not be necessary to bring the cause again before the court for further decision. Teaff v. Hewitt, 1 Ohio St., 520; Evans v. Dunn & Witt, 26 Ohio St., 444; Kelley et al. v. Stanbery et al., 13 Ohio, 422.

      Mr. J. T. Doan, prosecuting attorney, and Messrs. Smith & Clevenger, for defendants in error.
    We claim that the order is in no sense a final order from which appeal will lie. That the whole matter is still under the control of the commissioners, and that all the relief sought by the appellant may yet be obtained through the commissioners.
    The hearing provided for in Section 4452, Revised Statutes, is in the nature of a preliminary hearing.
    Section 4462 further provides for the hearing of testimony and the compulsory attendance of witnesses. The appeal in this case is taken in the face of the plain provision of Section 4462, Revised Statutes, wherein the exact questions appealed from may be heard before the commissioners or all' relief sought may be obtained in that tribunal.
    No appeal is to be taken until the whole matter has been determined by the commissioners. Sections 4463 and 4468, Revised Statutes.
   Price, J.

On or about the 21st day of January, 1905, William Haley et al. filed with the auditor of Clinton county their petition for the location and construction of a ditch, along a route and through the lands therein described. Bond was filed and notice given to parties interested, as prescribed by statute. This petition was delivered to the commissioners of that county by the auditor, who had fixed the 21st day of February, 1905, as the day of hearings, and on that day, the record says, the commissioners met “at the place of the beginning of the ditch, and adjourned from time to time, and heard all proof offered by any of the parties affected by said improvement * * * and we went over and along the line of said improvement, and by actual view of the said ditch and the premises along and adjacent thereto and to be drained or benefited thereby, determined the necessity thereof. And we do hereby find that said improvement is necessary, and will be conducive to the public health, convenience and welfare, and a benefit to the lots and lands along the line thereof by furnishing drainage thereto. And we further find that the route described is the best.”

A part of the ditch was ordered to be tiled.

A recital of the foregoing proceedings appears on the journal of the commissioners, under date of June 27, 1905. The auditor was ordered to place the proceedings on the journal, and the county surveyor was ordered to go upon the line, to make survey, level, etc., as required by the statute, to make and return a schedule of all lots and lands, corporate roads or railroads that would be benefited, and an apportionment of the estimated cost of locating and constructing said improvement, according to the benefits which would result to each, and to file his report on or before the time fixed for the hearing of the same. It was then ordered that the 10th day of August, 1905, at ten o’clock a. m., at the auditor’s office, be fixed “for the hearing of applications for any appropriations of land taken for said improvement and damages said parties affected by said improvement, or any of them, may sustain thereby, and for the approval of the report of the surveyor.”

On the same day that these proceedings were spread upon the journal of the commissioners, to-wit, June 27, 1905, the plaintiff in error gave the following notice of appeal: “Now comes Eva-line Atley and gives notice of her intention to appeal from the decision and finding of the commissioners herein that said ditch is necessary and will be conducive to the public health, convenience and welfare, and that said route is practicable, and also from the order of the commissioners to tile the same, and to each and every part of said order.

“June 27, 1905. Evaline Atley.”

This notice of appeal was filed with the auditor on the same day and the appeal bond was fixed at $700, which bond was given, and the appeal filed in the probate court of Clinton county on -the 15th day of July, 1905, accompanied with a transcript of the proceedings of the commissioners and the original papers, and that court fixed July 19, 1905, at nine o’clock a. m., as the day and hour for the hearing of all preliminary motions and the examination of all the papers so filed.

On that day, the record recites, that “the parties appeared, and the court having examined the papers, do find that said appeal is perfected in due form. And thereupon the court fixes the 27th day of July, 1905, at eight o’clock a. m., as the time for trial of said case to a jury. And it is ordered that a notice issue to the clerk of the court of common pleas, and the sheriff of the county, to draw sixteen names from the jury.box to serve as a jury herein, as provided by law * * * until which time this cause stands adjourned.” A venire for the jury was issued, returnable July 27, 1905, at eight o’clock A. m. The jury responded accordingly, and before the beginning of the trial, and on the same day, the commissioners of the county and the petitioners for the ditch moved the court to dismiss said appeal on the ground that, “the same was prematurely taken pending and before the final hearing of said matter by the county commissioners.” On consideration of said motion, the probate court found that the appeal had been prematurely taken and had not been perfected according to law, and dismissed the same at the costs of the appellant. Thereupon the jury was discharged. The plaintiff in error excepted to the order of dismissal and judgment for "costs, and prosecuted error in the court of common pleas, which court reversed the order and judgment of the probate court for error in sustaining the motion to dismiss the said appeal. The commissioners and petitioners for the ditch prosecuted error in the circuit court to reverse said judgment of the court of common pleas, and, on hearing, the circuit court reversed the judgment of the court of common pleas for error “in reversing the judgment of the probate court, and in holding said appeal was properly and legally taken.”

The case is here on error for us to determine which of the lower courts committed error.

Mrs. Atley, plaintiff in error, owns certain lands on the line of ditch in question, and through which it would be constructed, and therefore belonged to that class of land-owners who might file claims for compensation and damages; and when the commissioners, on the 27th of June, 1905, found in favor of the improvement — -that it was necessary and would be conducive to the public health, convenience and welfare — they fixed the 10th day of August, 1905, for the hearing of applications for compensation and damages. The plaintiff in error did not wait the arrival of that day, but immediately took an appeal, and it ran its course and was dismissed by the probate court on the 27th day of July. The commissioners followed the law —Section 4452, Revised Statutes — by meeting at the beginning of the ditch on the day appointed for the purpose, and there all interested parties were privileged to be heard, and, after hearing the par-dies and any other competent testimony, they viewed the route of the proposed ditch, and found in favor of the improvement, as before stated. We presume the county surveyor performed his' duty under the order of the commissioners and as defined by Sections 4454 and 4455, Revised Statutes. But Mrs. Atley did not wait for the result of the surveyor’s work.

Section 4460 provides that at any time on or before the day set for hearing as provided in Section 4452, Revised Statutes — August 10th, in this case — “any person or corporation whose lands are taken or affected in any way by such improvement may make application to said commissioners in writing for compensation or damages, and they, or-any of them, may make an application in writing for a change or alteration of the line of the ditch through their premises, and a failure to make such application shall be deemed and held to be a waiver of all rights thereto.”

Section 4461 provides the procedure in fixing the compensation alid damages, and the making. of a change or alteration in the line, if such change should be made; also the manner of apportioning the expense of such change or alteration. The last clause of the section reads: “Provided, however, that if any person or corporation aggrieved by any final order or judgment of the commissioners, shall at the final hearing before them, or within such time as may be provided by law, file a written notice of an intention to appeal therefrom, no further proceedings shall be had and no payments shall be made as herein provided, until said proceedings on appeal shall be finally disposed of and determined.”

The payments referred to in the foregoing language are the payments of expenses of location, change or alteration, if any, and the compensation and damages allowed to the land-owners who may have applied for the same. When the notice of intention to appeal is legally given, all further proceedings on 'the ditch are suspended, and no payments of expenses or compensation for damages shall be made until matters appealed are finally disposed of.

It is clearly indicated by this provision that a final order has not been reached until all applications for compensation and damages have been decided, as well as all applications for a change or alteration of the route of the ditch have been determined. If otherwise, why provide that no payments of expenses, compensation or damages shall be paid until the appeal shall be finally disposed of? If the claims for compensation and damages are fixed and allowed, and there are no changes or alterations requested or made in the line, the questions as to location of the improvement, compensation and damages, are final as to the county commissioners. In this case, the 10th day of August, 1905, was set to hear the claims for compensation and damages, and by virtue of Sections 4460 and 4461, written applications for a change or alteration of the line of the ditch were to be heard on the same day. Hence, until that day’s proceedings were over, it could not be said that the ditch petitioned for had been certainly located on the line described in the petition, inasmuch as the several land-owners had the right to ask changes and alterations of the route through their respective premises. Moreover, the amount allowed as compensation and damages, and the changes and alterations, if any, would largely affect the desire to appeal, and enable the dissatisfied party to determine from what order or part of the proceedings he desired to appeal. None of these matters had been passed on when the plaintiff in error took her appeal, for the day set for that hearing had not arrived. When her appeal was taken and filed the ditch proceeding was yet in its initial stage. The line or route, on written application by one or more land-owners, was subject to subsequent material changes, which could have been heard only on the 10th of August, or an adjourned day, when all claims for changes or alterations, compensation and damages would be finally settled. Until then, we think there was no final order from which appeal would lie. We do not mean by this statement that any appeal is allowed from the apportionment of the expenses and costs of construction.

There is another event provided for in Section 4462: “A person or corporation, party to the proceeding, may file exceptions to the finding of the commissioners that the improvement is necessary or will be conducive to the public health, convenience or welfare, and that the line described is the best route, or to the apportionment, or to any claim for compensation or damages, at any time before the time set for the final hearing of the report and apportionment. The commissioners may hear testimony and examine witnesses upon all questions made by the exceptions, and for that purpose may compel the attendance of the witnesses by subpoena,” etc. These exceptions are in the nature of a second challenge of the orders theretofore made as to location of the ditch, and again raises the question whether it will be conducive to the public health, convenience or welfare, and whether the line described is the best route. The exceptions may be taken to the apportionment, or to any claim for compensation or damages. These exceptions, raising one or more of the above questions, may be filed “at any time before the time set for the final hearing of the report and apportionment.” The final order we have been considering under the last clause of Section 4461 may be held in abeyance by the filing of the exceptions referred to until they are determined. If the commissioners sustain the exceptions to the finding of the commissioners that the improvement is necessary, or will be conducive to the public health, convenience or welfare, and that the line described is the best route, then the improvement fails on that petition, and no appeal for any reason is necessary. Or, the commissioners may overrule the exceptions as to the above points, and sustain them as to claims for compensation or damages. Or, these exceptions may be also overruled, and, in such event or events, the parties will know from what decision they may desire to appeal.

If no such exceptions are filed as to the necessity of the ditch, and that it will be conducive to the public health, convenience and welfare, the final order as above considered under the last clause of Section 4461, is the final order from which appeals will lie. On the other hand, if the effect of such final order is suspended by the timely filing of exceptions to points decided therein, the decision of such exceptions becomes the final order as to the ground of such exception from which appeal may be taken within the statutory period, if the subject of appeal is within Section 4463. We so construe these sections, believing it the duty of dissatisfied parties to exhaust their efforts to have redress before the commissioners by use of exceptions so provided for, before resorting by appeal to another tribunal.

Section 4463, Revised Statutes, provides: “Any person or corporation aggrieved thereby (the decisions of the commissioners) may appeal from any final order or judgment of the commissioners made in the proceeding and entered upon their journal, determining either of the following matters, viz.: (1) Whether said ditch will be conducive to the public health, convenience or welfare. (2) Whether the route thereof is practicable. (3) The com-1 pensation for land appropriated. (4) The damage claimed to property affected by the improvement.”

The section proceeds: “And the appellant shall file with the commissioners, at the final hearing before them, a notice in writing of an intention so to do, and specifying therein the matter appealed from.” * * * Here again we have the final hearing referred to, and the notice of*'intention to appeal must specify the matter appealed from. If the appeal may be taken from the original order locating the improvement, in advance of the determination of any changes or alterations, and also in advance of the fixing of the amounts of compensation and damages, why was it necessary to provide that the notice for the appeal shall specify therein “the matter appealed from”? In such a condition there would be but one matter passed on, and there would be nothing to specify.

In this case, the appeal was taken on the day the proceedings locating the ditch were entered in the journal, which was June 27,. 1905. We think it was premature. It would be very confusing and mischievous in results, if an appeal can be thus taken from the initial proceedings, and when compensation and damages are subsequently allowed or refused, another appeal may be taken, so that the probate court would have separate appeals, to be heard, maybe, at different times by different juries. Such a straggling practice is not within the policy of our ditching statutes, however obscure certain of their provisions may be.

But it is argued that the motion to dismiss the appeal came too late, the day set for hearing the preliminary questions having passed without any attack upon it. The record from the probate court is silent as to what, if anything, was said on that occasion. It is recited in the entry that “the court, having examined the papers, do find that said appeal is perfected in d%ie formThis is all; and then the court fixed the 27th day of July for a trial by jury.

It seems that the question of jurisdiction by appeal was not raised, and the court might find that the appeal had been perfected “in due form,” without passing on the question raised subsequently by the motion to dismiss. It is unfortunate that the motion was not filed before the costs incident to procuring a jury had accrued; but we think the right to file the motion was not waived or lost.

Judgment affirmed.

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