author: Johnson, J.

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

      Street railways — Rates of fare — Franchise provisions control, when —Annexation of village.

    An ordinance passed by a village council, granting a franchise to an interurban railway company to construct its line through the village, contained the following provision: “Should the village of Pleasant Ridge be annexed to the city of Cincinnati, the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus shall not exceed five cents.” The company thereafter duly accepted the franchise and constructed, maintained and operated its line thereunder. Subsequently the village was annexed . to the city. Held: The acceptance of the grant by the company constituted a binding contract between the parties. As long as the company retains the franchise and operates its road thereunder its terms must control.
    (No. 14792
    Decided November 19, 1915.)

      Error to the Court of Appeals of Hamilton county.
    The city of Cincinnati brought' a proceeding in the common pleas of Hamilton county to enjoin The Interurban Railway & Terminal Company and others from charging passengers on their cars rates of fare in excess of that provided in an ordinance passed by the council of the village of Pleasant Ridge in November, 1901, the village having been subsequently and prior to the commencement of the action annexed to the city of Cincinnati. The Interurban Railway & Terminal Company is a consolidation of other interurban companies, including The Rapid Railway Company.
    The petition sets out the ordinance passed by the village. It avers that the ordinance was, within a short time after its passage in November, 1901, duly accepted by The Rapid Railway Company. The consolidation of the latter company with the interurban company is alleged and that the latter is bound by all of the obligations of the former under and by virtue of the ordinance. From the terms of the ordinance it appears that The Rapid Railway Company had made the lowest bid for carrying passengers within the corporate limits of-the village after public notice pursuant to statute. The ordinance fixed a rate of fare for carrying passengers within the corporate limits of the village. It also provided that passengers should be carried from any point on said road within the village of Pleasant Ridge to a terminus at or near Fountain Square in the city of Cincinnati, for continuous ride in either direction, adults seven cents, and contained other provisions as to children and the sale of tickets in larger quantities. The ordinance also contained a provision as follows: “Should the village of Pleasant Ridge be annexed to the city of Cincinnati the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus shall not exceed five cents and transfers.”
    It is further averred in the petition that since the annexation of the village to the city, the defendant companies have been and are now charging passengers on their railways a fare of seven cents for a ride in either direction between points in said territory formerly constituting the village and the Cincinnati terminus, as well as between any point in said territory and any other point in the city located outside of the territory formerly constituting" the village.
    The Interurban Railway & Terminal Company filed its answer, in which it admitted that it is a consolidation of other companies, among which was The Rapid Railway Company, and that by virtue thereof it has been and now is maintaining and operating the interurban railway formerly belonging to The Rapid Railway Company, including the railway along and upon the streets of the village of Pleasant Ridge; that said railway on the streets named in the ordinance set forth in the petition was constructed under and by virtue of said grant and franchise and is now maintained and supported by this defendant thereunder.

      The defendant admits that its Cincinnati terminus is on Sycamore street between Fourth and Fifth streets of the city of Cincinnati, and that it is operating passenger cars between said terminus and the territory formerly constituting the village of Pleasant Ridge, but that its line of railway terminates at the south corporation line of the said village of Pleasant Ridge, which is also the north corporation line of the city of Norwood, and that through the city of Norwood and the city of Cincinnati it is not the owner of any line of railway, but operates its cars over the tracks of The Cincinnati Street Railway Company, now under lease to The Cincinnati Traction Company, under and by virtue of a certain traffic agreement whereby, among other charges which said defendant is required to pay to. said companies, it pays three cents for every passenger carried on its cars over any portion of the tracks of said company in the city .of Norwood or the city of Cincinnati.
    It admits that it has been and is now charging persons on said railway a fare of seven cents for a ride in either direction between points in the village of Pleasant Ridge and the Cincinnati terminus or any other point in the city of Cincinnati.
    The answer further alleges that the provision in said ordinance to the effect that if the village of Pleasant Ridge should be annexed to the city of Cincinnati the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus should not exceed five cents, is invalid, and the said village had no authority to insert said provision in said ordinance; that at the time the said village established a street-railway route in said village there was no provision in said resolution or ordinance providing for any rate of fare in the event of the annexation of the village to the city; that after.application by The Rapid Railway Company to the village to establish a street-railway route and for the right to construct and operate a street railway on and over the Montgomery road from the east to the west corporation line of the village, to be operated by electricity or power other. than steam, the village advertised for bids for the construction and operation of said street railway over said road and in said advertisement stated that the bid should state the rate of fare for passengers on said route; that in none of said proceedings was there any provision respecting the fare to be charged beyond the limits of the village; that on October 15, 1901, it submitted a bid to the village of Pleasant Ridge in response to the advertisement, but said bid did.not contain any such provision.
    Defendant further says that the village took no action at any time respecting the rate of fare to be charged in the event of annexation to the city of Cincinnati except in said ordinance of November 19, 1901, and that it had no power to insert said provision in said ordinance. Defendant says that said provision is unreasonable, that a fare of five cents from the corporation line of the village of Pleasant Ridge to the Cincinnati terminus, three cents of which the defendant is required to pay to The Cincinnati Traction Company, will not be sufficient to produce an income to pay operating expenses of this defendant and will destroy its existence.
    The plaintiff in its reply denied that the defendant's line terminated at the south corporation line of the village of Pleasant Ridge, which is also the north corporation line of the city of Norwood, and that through the city of Norwood defendant is not the owner of any line of railroad, and alleges that the line of the defendant extends beyond the village of Pleasant Ridge through, a portion of Norwood. It admits the allegations of the answer with reference to the operation of cars over the tracks of The Cincinnati Street Railway Company, and admits that at the time the village established the route there was no provision for any rate of fare in the event of annexation of said village to the city of Cincinnati, and denies the other allegations in the answer with reference thereto.
    The minute book of the village of date of October 15, 1901, which was introduced by the defendant, showed that a communication was received from The Rapid Railway Company submitting bids for rates of fare for passengers over the Montgomery road, through the village and to other points, naming them.
    The court of common pleas found the issues in favor of the city and entered a decree enjoining the defendants in accordance with the prayer of the petition. On appeal in the court of appeals, the Interurban Company sought leave to file ah amendment to its answer, alleging the ordinance was unfair, unreasonable and confiscatory; that the two-cent net fare for the district involved did not produce sufficient income to pay the operating expense of the company, would destroy its existence and prevent it from operating any cars whatever on the line, and had already, since the execution of the decree of the common pleas court, been largely instrumental in forcing the company into the hands of receivers, who now have charge of the property. It was further alleged that the property was thereby confiscated and rendered valueless and taken without due process of law, contrary to the provisions of both federal and state constitutions.
    The court of appeals refused leave to file this amended answer, and on the final hearing of the case found the issues in favor of the plaintiff and likewise entered a decree enjoining the defendants as prayed for in the petition. This proceeding is brought to reverse the judgments below.

      Messrs. Dinsmore & Shohl, for plaintiffs in error.

      Mr. Walter M. Schoenle, city solicitor, and Mr. Constant Southworth, assistant city solicitor, for defendant in error.
   Johnson, J.

From the above statement it will be seen that the controversy grew out of the provision contained in the ordinance granting the franchise passed by the village in November, 1901, as follows: “Should the village of Pleasant Ridge be annexed to the city of Cincinnati the rate of fare charged for a ride in either direction between any point in said village and the Cincinnati terminus shall not exceed five cents and transfers.”

It is shown by the record that in September, 1901, The Rapid Railway Company mhde application to the council of the village for the right to construct and operate a street railway on and over the Montgomery road within the villáge, and that on the 23 d of that month the village advertised for bids for the construction and operation of the road, asking that the bids should state the rates of fare for passengers on that route. The Rapid Railway Company submitted its bid on October 15 and the clause above quoted was inserted by agreement of the parties at the time the franchise ordinance was passed, and the ordinance was thereafter duly accepted by the company.

The attack upon the judgments below is based upon the claim that the provision of the franchise quoted is without any validity or binding force.

The position of the Interurban Company substantially is that the village was wholly without authority to prescribe or contract for fares beyond the municipal limits, and that notwithstanding that clause was, by agreement of the parties, included in the ordinance as adopted, which was thereafter accepted by the grantee, and, although the line was constructed and operated under and by virtue of the franchise .and is now maintained and operated thereunder, nevertheless it is entitled to disregard and eliminate the provision objected to, and yet retain and enforce the rights and privileges granted to it by the other terms of the franchise,

For a great many years, by consistent statutory provisions, the plan of constructing street railways by grants of the municipalities in which they were constructed has been fixed. The procedure has consisted of the establishment of the route by the municipality and the granting of the privilege to the bidder who, after public advertisement, agrees to carry passengers upon the proposed railroad at the lowest rates of fare. It is not contended that any municipality has the power to grant a franchise for a street railway to be constructed and operated entirely within the corporate limits, except in the manner indicated. Street railroads originally used’ animal power for the movement of their cars. They were designed almost exclusively to furnish facilities for passenger traffic within the limits of the particular municipality. When electric power was applied in street-railway operation, it resulted in the extension of street-railway lines into suburban districts and between cities and towns. In view of this condition, and in response to the general demand for increased traffic facilities between cities and districts around and about them, the act of May 17, 1894 (91 O. L., 285), now included in Sections 9117 to 9122, General Code, was passed. By the terms of this act authority is given for the construction and operation of electric street railroads upon highways outside of municipalities or in private rights of way. By Section 4 of the act authority is given such companies to lease, purchase or make traffic arrangements with any other street railway company as to so much of its track and other property as is necessary or desirable to enable them to enter or pass through a city or village, upon the terms and conditions applicable to other street railroads; and by Section 6 it is provided that such companies -shall be subject to regulations provided for street railroads and have all powers,- so far as they are applicable, that other street-railway companies possess.

It will be seen that the provisions of the act referred to relate to the construction, maintenance and operation of electric railroads on highways outside of municipalities. Of course the legislature must have contemplated that interurban roads would be projected through municipalities and that it would be impracticable to construct such a road without some means of passing through cities and villages that might be along the route. The statute, therefore, authorized- the - making of the traffic arrangements referred to with other street-railway companies operated within the municipalities. In the event that there was no street railway in the city or village through which the interurban company desired to operate, there was no special provision. Section 6 (Section 9122, General Code), however, as pointed out, provided that such company shall be subject to the regulations provided for street railroads and have all powers, in so far as they are applicable, that other street-railway companies possess. Therefore, the right of an interurban company, to extend its line into and through municipal corporations, was fixed by the statutes in force prior to the passage of the interurban law referred to. By Section 3437, Revised Statutes, now Section 9100, General. Code, it was .provided that “Street railways * * * may be constructed or extended within or without, or partly within and partly without, any municipal corporation,” and Section 3438, Revised Statutes, as in force when the ordinance in question was passed, provided that the right to construct or extend such line within or beyond the limits of a municipal corporation could be granted only by the council thereof, by ordinance, and the right to construct such railway within or beyond the limits of an unincorporated village could be granted only by the county commissioners. The last clauses of the section are “except, however, in granting permission to extend existing routes in cities of the first, second and third grade of the first class, and first grade, second class, such cities, and the companies owning such route, shall have the same rights and powers they have under the laws and contracts now existing; and that no extension of any street railroad located wholly without any such city, or of any street railroad wherever located, which has been or shall be built in pursuance of a right obtained from any source or authority other than a municipal corporation, shall be. made within the limits of such city, except as a new route, and subject to the provisions of sections two thousand five hundred and one and two thousand five hundred and two,” Revised Statutes, which provide for bids, etc.; and Section 3439, Revised Statutes, provided for the filing of written consent of the owners of Jnore than one-half of the abutting property. Section 3443, Revised Statutes, now Section 9113, General Code, provided that the “Council, or the commissioners, as the case may "be, shall have the power to fix the terms and conditions upon which such railways may be constructed, operated, extended, and consolidated.”

The foregoing is substantially a statement of the statutory provisions on the subject at the time of the granting of the franchise involved in this suit.

It will be observed that the provisions of Section 3438, Revised Statutes, part of which is now Section 9104, General Code, relate to the extension of a street railway to be made “within the limits of such city.” It is well known that as a general proposition street railways are not constructed in villages except for the purpose of interurban traffic, and that the people in the great majority of villages throughout the state have almost no need for a street railway operated entirely within the limits of their own village. For instance, it is very apparent from this record that the paramount purpose of the village of Pleasant Ridge was to provide interurban service for its residents, as well as that the railroad company entered into the transaction solely to carryout its general interurban plan.

It admits in its answer that it is an interurban electric railway corporation; that the village of Pleasant Ridge is one of the municipal corporations into and through which The Rapid Railway Company constructed, maintained and operated its interurban electric railway from Cincinnati to the village of Lebanon, and that “its railway on1 the streets named in the ordinance set forth in th¿ petition was constructed under and by virtue of said grant and franchise and is now maintained and operated by this defendant thereunder.”

It appears from the record that The Rapid Railway Company had submitted bids, for rates of fare through the village over Montgomery road and other points, naming rates and places, including Fountain Square, Cincinnati.

Circumstances and situations of this nature were so general that the legislature contemplated them when it adopted the provisions of the law, including Section 9122, General Code, which we have pointed out. The provision is plain that no extension of ¿ street railway located wholly outside of such city, or of one wherever located, which is built in pursuance of a right obtained from authority other than that of a municipal corporation, shall be made within the limits “of such city,” except as a new route, but there is no such provision with reference to the extension of a street railway through the limits of a village. It was recognized that such a road might pass for a very short distance through the limits of villages and yet be necessary to the carrying out of the purpose to furnish interurban passenger service to people living in rural districts of the state or in suburban villages in the neighborhood of large centers. It follows that as to villages the construction or extension of an interurban road was then controlled by the general terms of Sections 3437 tq 3443, Revised Statutes, and that the village council was empowered to grant the right to construct or extend the line within or beyond the limits of the village, and by Section 3443 to fix the terms and conditions thereof.

In The Citizens’ Electric Rd. Co. v. County Commissioners, 56 Ohio St., 1, it was held that an ordinance adopted by a city council under Section 3438, Revised Statutes, simply confers on a street railroad company the corporate power to extend its road over a state or county road. In the exercise of the power the right to so extend its road can only be acquired by agreement with the commissioners or by condemnation. The court say: “Without such ordinance a company could not extend its road within or without the municipality. As a corporation it has, without the ordinance, no such power.”

By the first section of the interurban act of 1894, above referred to, the corporate power is conferred upon companies to construct electric street railroads upon highways outside of municipalities, but the ‘right to extend within or without the municipality must still be secured from the municipality itself.

In the absence of statutory provision to the contrary the village was empowered to stipulate as one of the “terms and conditions” which it was authorized to fix by the provisions of Section 3443, Revised' Statutes, for a certain rate of fare for a road from any point in its limits to a point outside of its limits. It would not be disputed- that the rate of fare, to -be charged to and from points in the village to points outside is a matter of interest to the municipality and its residents and a proper subject of negotiation with the company in connection with the grant. It was a matter for mutual consideration and agreement between the parties. Therefore, when the grant was made and accepted with the provision as to the fare included, it became one of the considerations of the grant and one of the elements in the making of the binding contract between the parties, it is familiar law that when the terms of a valid ordinance are accepted by a grantee, such action constitutes a contract, and the rights of the parties are to be determined by the terms of the contract itself. City of Columbus v. Street Rd. Co., 45 Ohio St., 98; The Cincinnati & Springfield Ry. Co. v. Village of Carthage, 36 Ohio St., 631; The East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33; City of Cleveland v. Cleveland City Ry. Co., 194 U. S., 517.

It will be observed that the clause which is here attacked is limited in its application. It is not an attempt to fix fares generally for passengers, except in the specific cases provided for. It only affects a ride in either direction between any point in the village and the Cincinnati terminus, and was not to be effective unless and until the village should be annexed to the city of Cincinnati.. The provision does not attempt to fix fares between points in the former village of Pleasant Ridge and Norwood, or between any intervening points and Cincinnati or elsewhere.

In other jurisdictions this view of the case has been sustained. In Rice v. Detroit, Y. & A. A. Ry. Co., 122 Mich., 677, the court said: “It is contended that the franchise is in force only within the territorial limits of the village, and does not cover territory in other townships. We do not think this contention can be sustained. The franchise is in the nature of a contract, and imposes obligations upon the company which those having occasion to ride from Dearborn to Detroit have a right to enforce. * * * The defendant saw fit to contract with the village of Dearborn for a rate outside of the limits of the village. * * * This contract it cannot repudiate.”

Like views have been held in People v. Suburban Rd. Co., 178 Ill., 594; Vining v. Detroit, Y., A. A. & J. Ry. Co., 133 Mich., 539; Selectmen of Westwood v. Dedham & F. St. Ry. Co., 209 Mass., 213; Public Service Comm. v. Westchester St. Rd. Co., 206 N. Y., 209.

It is insisted that the enforcement of the terms of the franchise under inquiry here will work hardship and irreparable injury to the company; and cases are cited in support of the accepted proposition that neither the state nor any of its agencies can, by regulation or legislation, withhold from the owners of the railroad just compensation for its services. But in this case we are dealing with the subject of contract. It implies a meeting of minds. It is much to be regretted if the amount which the interurban company is required to pay to the Cincinnati company for the use of its tracks is too large a proportion of the fares received, and it is equally to be regretted if the fare provided by the contract itself does not furnish a compensatory return to the company. The presumption is that it was to the interest of the village and to every municipality to provide such a compensation for the services to be rendered by the public utility as will induce the investment of the capital necessary to the furnishing of the service. In fact, it may be said that it is the duty of the municipal and other authorities to provide sufficient compensation. It is equally the duty of the company not to contract to perform a service for less compensation than is proper.

But we are not able to see how the court can alter the terms of the contract in this case as the parties made it. The only thing the court can do is to enforce the contract as it finds it, and to hold that as long- as the company continues to operate under the franchise it must submit to the terms thereof.

The judgment will be affirmed.

Judgment affirmed.

Donai-iue, Wanamaker, Jones and Matthias, JJ., concur.

Nichols, C. J., not participating.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Ohio Electric Railway Co. v. Weingertner, Etc.

      Negligence — Automobile and street car collision — Directed verdict —Absence of evidence — Contributory negligence and exercise of care, jury questions.

    (No. 14822
    Decided November 19, 1915.)
    Error to the Court of Appeals of Hamilton county.

      Mr. W. C. Shepherd; Mr. George H. Warrington and Mr. Robert S. Marx, for plaintiff in error.

      Messrs. Healy, Ferris & McAvoy and Messrs. Kelley & Hauck, for defendant in error.
   By the Court.

This was an action brought in the court of common pleas of Hamilton county by Harry Weingertner, by his next friend, to recover damages for personal injuries claimed to have been sustained ’ through the negligence of The Ohio Electric Railway Company. Weingertner, a boy about eighteen years of age, was injured when an automobile he was driving east over the Van Zant road and across the railroad tracks of the defendant was struck by a southbound interurban car. The negligence charged was that the defendant ran its car at an excessive rate of speed, without keeping a proper lookout, without having the car under control and without sounding any warning. The defendant denied it was guilty of negligence, pleaded that the injuries were due to the sole negligence of plaintiff, and further that if it be found that it was guilty of negligence plaintiff contributed directly to causing the injuries in attempting to cross its tracks so close in front of an approaching car that the car could not be stopped in time to avoid a collision. The reply denied negligence on the part of the plaintiff. The case was tried to a jury and at the conclusion of plaintiff’s evidence, upon the motion of the defendant, a verdict was directed in its favor and judgment was rendered on the verdict. Error was prosecuted to the court of appeals and the judgment of the court of common pleas was reversed on the ground that the court of common pleas had erred in directing a verdict in favor of the defendant. Plaintiff in error is here asking for a reversal of the judgment of the court of appeals and for an affirmance of that of the court of common pleas.

Although there was a conflict in the evidence, as shown by the record, as to the speed of the car and as to the failure of the motorman to sound a warning, yet it cannot be said that there was no evidence tending to prove the negligent operation of the car. But it is insisted that the court of common pleas was correct in holding that upon the undisputed evidence, as a matter of law, plaintiff was guilty of contributory negligence, and that therefore the motion for a directed verdict was properly sustained.

The evidence discloses that the Van Zant road, running east and west, crosses at right angles the Hamilton pike and the tracks of the defendant company, which are laid over its own right of way immediately west of the Hamilton pike. Plaintiff was driving an automobile east on the Van Zant road. He was a licensed chauffeur, had driven an automobile on the Van Zant road and had crossed the tracks four or five times prior to the day of the collision. On the Van Zant road, about five hundred feet west of the crossing, is a bridge. From this point continuously, until he- reached a point about two hundred and fifty feet west of the crossing, plaintiff had a view of a portion of the railroad track north of the Van Zant road. From this latter point to a point within approximately five or ten feet of the crossing, plaintiff’s view of the tracks and of the approach of a southbound car was wholly obscured by a cemetery situated at the northwest corner of the Van Zant road and the Hamilton pike, the cemetery being at an elevation of some seven or ten feet from the level of -the road. When plaintiff was at the bridge he looked to the north and continued to look in that direction as long as his view was unobstructed and he saw no car coining. When he was at a point about twelve or fifteen feet west of the railroad tracks he stopped the automobile. He looked and listened and did not hear any bell or gong or whistle. He looked toward the north, but he knew his view at that point was obstructed by the cemetery on account of its elevation and he could not see a car coming from that direction. When the automobile was stopped the engine was running and was making some noise. After stopping for three or four seconds he put on low gear and started ahead. He testified that he still looked and listened. When the front wheels of the automobile were between the two tracks he looked up and saw a car ten or fifteen feet away. The automobile was struck and he sustained the injuries complained of in the petition.

We think the court of common pleas erred in holding that as a matter of law plaintiff was guilty of contributory negligence. Whether or not plaintiff exercised ordinary care ■ and caution in crossing the tracks was a question which should have been submitted to the jury under the proper instructions of the court.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaicer, Newman; Jones and Matthias, JJ., concur.


author: Jones, J.

text:
    The K-W Ignition Co. v. The Unit Coil Co.

      Contracts — License granted under letters patent — Termination and surrender — Payment of royalties and giving notice — Jurisdiction — State and federal courts — Invalidity of patent — Infringement — Accounting—Equity.
    1. Where a licensee under a contract obtained the right to manufacture and sell'Master Vibrators covered by letters patent, which contract provided 'for an accounting on or before the tenth day of each calendar month, for the number of vibrators sold by it during the preceding calendar month,' and which further contained the following clause for its termination: “It is mutually understood and agreed that the licensee may at any time surrender this license and terminate this agreement upon giving thirty days’ notice in writing sent by registered mail to the Unit Coil Company, provided that at the time of said surrender- and termination there are no suits or actions at law or in equity pending which have been instituted by the licensee in the name of the licensor, and provided, further, that at the time of such surrender and termination, all royalties due under this agreement shall be paid”— such license is not terminated by the giving of notice thereunder, unless the accrued royalties at the time of such surrender are fully paid, and the time of such surrender culminates at the end of the thirty-day period after the giving of such notice.
    2. Where the chief issue in a case is whether the licensee has terminated the agreement to pay royalties, a state court has jurisdiction, and the jurisdiction is not ousted by an answer pleading the invalidity of the patent.
    3. Where the licensee in such case pleads the invalidity of the patent and the giving of notice of termination of the license contract, if such issue of termination is proved at the trial, a state court loses its jurisdiction for an accounting for royalties accruing after such notice and the case becomes one for infringement, cognizable in the federal court.
    4. However, where such invalidity is pleaded in defense and notice of such termination is in issue, if the licensee continues to use the patent marks and dates of the patentee licensor, it presents strong evidence of operation under the license, requiring the licensee to account for the. royalties due upon the license contract; and in such case the licensor may have his remedy in equity.
    (No. 14752
    Decided December 7, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    The Unit Coil Company was the owner of two separate letters patent, one for an electric igniter and another for an induction coil.
    The Ignition Company, desiring to acquire rights under such patents, on February 20, 1912, entered into a license agreement with the Coil Company. This license agreement recited that, subject to three outstanding licenses granted to other corporations, it was the owner of said patents, and granted the right of manufacture, use and sale to the Ignition Company. The licensee was given the right to prosecute suits for infringement in the name of the licensor. The licensee was to pay fifty cents for each Master Vibrator made and sold by it, and was to mark all such vibrators with consecutive serial numbers and with the word “Patented,” together with dates of said letters patent. It also agreed to furnish to the licensor on or before the tenth day of each calendar month an accounting of the number of Master Vibrators sold by it during the preceding calendar month.
    The license agreement contained the following stipulation:
    “It is mutually understood and agreed that the licensee may at any time surrender this license and terminate this agreement upon giving thirty days’ notice in writing sent by registered mail to the Unit Coil Company, provided that at the time of said surrender and termination there are no suits or actions at law or in equity pending which have been instituted by the licensee in the name of the licensor, and provided, further, that at the time of such surrender and termination, all royalties due under this agreement shall be paid.”
    In the court of common pleas The Unit Coil Company brought an action for royalties under the license agreement against the Ignition Company and, in addition to the facts stated, alleged that the defendant, on March 9, 1912, had paid the royalties during the period from the date of the license agreement to March 1, 1912, but refused to make further payments, although it had continued to manufacture and sell thousands of Master Vibrators, the exact number thereof being unknown; that such vibrators were widely distributed to persons unknown to the plaintiff; that such Master Vibrators had been and were still being manufactured and sold, marked with the word “Patented” thereon. The plaintiff asked for an account of the number of vibrators sold, for an injunction from further manufacture and sale until licensee should account and pay for royalties on Master Vibrators sold since March 1, 1912, and that it be enjoined from using plaintiff’s patent dates, together with the word “Patented,” upon said vibrators.
    The Ignition Company answered, alleging that on March 28, 1912, it surrendered and terminated the license agreement by giving thirty days’ notice in writing to the Coil Company; that notice was as follows:
    “Cleveland, Ohio, March 28, 1912.
    “Ti-ie Unit Coil Co.,

      “Jersey City, N. J.

    “Gentlemen: — We hereby notify you that on this date we surrender the license granted us on Feb. 20th of this year by your company to manufacture Master Vibrators. We desire to terminate this agreement inasmuch as it does not in any way protect us against the infringements of Master Vibrator patents by our competitors, and we cannot afford to bring suit under this agreement, and at the same time pay you royalties when we are getting no protection.
    “Yours sincerely,
    “The K-W Ignition Co.,
    JAW-H “J. A. Williams, Pres.”

    The answer further alleges that from March 1, 1912, to March 28, 1912, .it manufactured and sold 776 vibrators, upon which it owed $388 royalties, which it was willing to pay; that from March 28, 1912, to April 28, 1912, it had manufactured and sold 1,514 vibrators.
    As a second defense the Ignition Company pleaded the invalidity of the two patents in question, alleging in detail the reasons for such invalidity and alleging that other makers and vendors of vibrators had notoriously and continuously made and sold vibrators of the same character in large numbers and in the same territory, and that by reason of such invalidity it was without protection against such manufacture and sale by its competitors. There is no allegation that the patent was annulled by a decree of any competent tribunal.
    The third defense alleged facts which it claimed created a monopoly and combination in restraint of trade.
    In the court of common pleas an injunction and an accounting were granted. In the court of 'appeals, on appeal, the court refused any evidence offered by the defendant in support of its second and third defenses, and on final hearing it enjoined the defendant from the manufacture and sale of Master Vibrators and from the use of the patent dates and marks until it should comply with the license agreement by the payment of royalties due thereunder. If also appointed a referee for the purpose of making a proper accounting of the Master Vibrators manufactured and sold since March 1, 1912. The referee reported that from March 1, 1912, to August 1, 1914* 100,969 Master Vibrators had been manufactured and shipped by ■ the defendant and that there was due the plaintiff from the Ignition Company, with interest, the sum of $53,030.12.

      Messrs. White, Crosser & Curtiss and Messrs. Westenhaver, Boyd & Brooks, for plaintiff in error.

      Messrs. Stearns, Chamberlain & Roy on, for defendant in error.
   Jones, J.

In this court the chief reliance of the plaintiff in error is that the court of appeals committed error in refusing to admit testimony in support of the second- and third defenses in the defendant’s answer, and further that, upon the conceded facts in the case, the judgment should be in its favor for the reason that, by the notice of March 28, 1912, the license contract was at an end under the provisions thereof, and that it is thereby relieved from any further obligation to pay royalties according to its terms.

The license agreement provided that the licensee was to furnish an accounting on or before the tenth day of each calendar month of the number of Master Vibrators sold by it during the preceding calendar month. Prior to March 10, 1912, the Ignition Company had paid the royalties due for vibrators manufactured between February 20, the date of the contract, and March 1, 1912. On March 28, 1912, the Ignition Company, pursuant to the provisions of the license agreement, gave the Coil Company notice by registered mail of its intention to surrender and terminate the contract. This notice was received by registered mail in due time by The Unit Coil Company. Other than the royalty payments accruing on March 1, 1912, no further payments of royalty were made by the Ignition Company.

The plaintiff in error claims that the license agreement was terminated by the giving of the notice on March 28, 1912. On the other hand it is contended by The Unit Coil Company that under the provisions of that agreement the surrender and termination did not Occur until thirty days after such notice. It is urged by the plaintiff in error that the clause of the agreement relating to the payment of royalties was an independent covenant, entirely dissociated from the clause of surrender and termination, thus leaving the plaintiff in error, under the terms of that agreement, the right to terminate it upon the giving of notice and permitting action for royalties thereon to be brought' as a condition subsequent to the surrender.

We are unable to concur in this view. The parties to this agreement provided as a condition precedent that the surrender and termination depended upon two things: First, that no suits at law or in equity were pending which had been instituted by the licensee in the name of the licensor, and, second, that’at the time of such surrender and termination all royalties due under the agreement should be paid. Under the provisions of this agreement the notice did not have the effect so instanti of terminating the agreement, for the licensee still had the right of manufacture and sale of Master Vibrators for thirty days thereafter, and all of the obligations of the licensor and licensee continued under that agreement until the expiration of the thirty-day period. Not only was this purpose expressed in the agreement itself but that was the manifest intention of the parties thereto, as evidenced from other portions of the license agreement. The number of Master Vibrators manufactured and sold were known only to the Ignition Company until an accounting was had under the provisions of the contract, and it was evidently the intention of the parties that all obligations under the license contract, including the full payment of royalties, should cease at the time of the surrender of the license. That the period of termination was thirty days after notice and not at the time of giving notice is manifested by a provision elsewhere in the license agreement providing' that the termination of the license should not “release the licensee for its obligation to pay royalties for the periods prior to such termination.” This clause was evidently intended to cover all royalties due, including royalties between the time of notice and final surrender.

We are, therefore, constrained to hold that under the provisions of the contract the surfender and termination did not occur until thirty days after the giving of notice and upon the payment of all royalties accruing to the Coil Company at the time of final surrender.

The record discloses that the trial court refused to hear evidence in support of the second and third defenses of the answer, the former raising the question of the invalidity of the patent and the latter alleging that the agreement created a monopoly and was an illegal combination in restraint of trade. While the second defense pleads the invalidity of the patent and claims that it was covered by other patents issued by the government, the defense does not plead an eviction of the licensee by a decision of any competent tribunal. The claim of the defendant is that by reason of his answer alleging this invalidity the case became one subject for federal and not state jurisdiction. State courts have no jurisdiction to try the question of the validity of a patent. Where such invalidity arises, incidentally involved as a question in the case, it does not necessarily divest the state court of jurisdiction. If the case is one arising 'out of a contract relating to a patented invention, and where, especially as in this case, the main issue to be decided is whether the relation of licensor and licensee subsists under such contract, the case is one for state- jurisdiction, where both parties reside in the same state.

If upon the record of this case the Coil Company conceded that it did acquiesce in the termination of a license agreement between it and the licensee, the case, of course, would become one for federal jurisdiction, and the licensee would be compelled to sue in that jurisdiction for infringement, for cases of that character are not cognizable in the state courts. But The Unit Coil Company, the licensor, plants its case upon the issue that the relation of licensor and licensee still subsisted and that the license contract was not terminated. If that issue should be found in its favor the state court had jurisdiction in the case. If that issue should be found against The Unit Coil Company, or if the latter company had conceded abandonment of the contract, in either event the. Cuyahoga county court could not retain jurisdiction to try the question of the invalidity of the patent or to take an accounting for royalties thereafter due under the license, for after termination the licensee would become an infringer and jurisdiction -would be lodged in the federal forum. For discussion of-this principle see Victor Talking Machine Co. v. The Fair, 123 Fed. Rep., 424; Dale Tile Mfg. Co. v. Hyatt, 125 U. S., 46; Excelsior Wooden-Pipe Co. v. Pacific Bridge Co., 185 U. S., 282; Blakeney v. Goode et al., 30 Ohio St., 350.

But it is insisted that while the notice in question may not have been sufficient to terminate the license agreement in accordance with its terms, still, where the invalidity of a patent is plead as a defense, together with the fact that notice has been given to the licensors renouncing the patent agreement, this of itself furnishes a complete defense to an action upon the contract, and the licensee thereafter can become liable, if at all, only in an action for infringement in a federal court. The decided cases hold that where a licensee does claim and plead the invalidity of a license under which he manufactures and sells; and alleges further that under such claim he has served notice upon the licensor, he repudiates the license, the contractural relation is thereby ended, and he becomes liable thereafter for damages as an infringer and not for the stipulated royalties agreed upon in the license contract; or, in the event that no notice has been given by the licensee, he may refuse to carry out the stipulations of the license agreement in case of eviction by an adjudication of a proper tribunal, invalidating the patent. Marston v. Swett et al., 82 N. Y., 526; Mudgett et al. v. Thomas et al., 55 Fed. Rep., 645; The Macon Knit ting Co. v. The Leicester Mills Co. et al., 65 N. J. Eq., 138.

While the second defense pleads the invalidity of the patent in question, the notice served on March 28, 1912, does not complain of any invalidity, but seeks to terminate the license because of the fact that the licensee was not protected against infringements of the patent by its competitors. The license agreement provided that the licensee had the right to bring and prosecute suits in the name of the licensor against any infringer of the letters patent, and the complaint made by the licensee in said notice was based upon the contractural right given the licensee for its protection under that contract; but there is still a stronger reason why the licensee, under the conceded facts, should be held as operating under the license. An examination of the license agreement shows that the licensee agreed “to mark all of its said Master Vibrators with consecutive numbers and also with the word ‘Patented,’ and the dates of said letters patent.” It develops from the record that after the notice of March 28, 1912, the licensee continued to utilize the patent marks of the licensor. On the trial the attorney for the Ignition Company admitted that the “defendant had manufactured and sold Master Vibrators such as are described in the license contract of February 20, 1912, subsequent to April 28, 1912, and that defendant had engaged in the manufacture and sale of said Master Vibrators continuously since March 1, 1912.”

And the record further develops that the president of the Ignition Company in August, 1914, testified that these patent dates on the name plates had been utilized until about three months of the time he testified. It would indeed be anomalous to hold that the licensee could obtain the advantage he seeks by giving notice of his repudiation and yet withhold the advantage he gained under the license agreement by the use of the patent marks of this patentee. He could not be permitted to hold the fruits of his contract and at the same time repudiate it. This furnishes strong presumptive evidence that the licensee continued to operate under the license, and the court of appeals may have so found.

The gravamen of the third defense is that the purpose of this license agreement was to create a monopoly and that it was an illegal combination in restraint of trade. From the allegations of this defense it is not clear how this was brought about. There are not facts specifically stated which, in law, constitute either a monopoly or restraint of trade. The allegations are general and-are mere legal conclusions. There is no combination by which the price of patented articles is fixed for sale or resale, nor does there appear to be any indication in the defense that there should' be any suppression of the patent or any limitation in the manufacture and sale of Master Vibrators except by the- withdrawal of the Connecticut Telephone and Electric Company and other licensees of the defendant in error from such manufacture and sale during the period that the license agreement should be in force. Even if these allegations were true they would be merely tantamount to the revocation of the licenses theretofore granted by The Unit Coil Company, and thus would convey the exclusive right of manufacture and sale to the licensee, The K-W Ignition Company. This the licensor had the right to do in the first instance, and we see no reason why it cannot do the same as indicated in that defense. The allegation that all this was done in relation to an invalid patent does not aid the Ignition Company, for as. to it the patent is presumptively valid and was so recognized by it by acquiring its fruits as licensee.

We are unable, therefore, to conclude that the third defense is sufficient in law or that the trial court erred in refusing to admit testimony in its support.

The remaining ground of error is that The Unit Coil Company had an adequate remedy at law, and that it was not entitled to injunctive relief in this action.

The plaintiff had averred .by its petition that since March 1, 1912, many thousands of Master Vibrators, as plaintiff believed, had been manufactured and sold; that their number was unknown to the plaintiff by reason of the failtire and refusal of the defendant to render an accounting; that the sales thereof were widely distributed to persons unknown to plaintiff; that although the license agreement provided for monthly statements by the licensee and an inspection of its books, the licensee had refused to make such statements or permit its books to be examined. The petition also alleged that “the defendant marked, or caused to be marked the said Master Vibrator sold as aforesaid with the word ‘Patented’ and the dates of the letters patent set forth in said written contract; and that defendant is now continuing to sell in such manner the said Master Vibrators.” Under this statement of the case the plaintiff below had no adequate remedy at law. Even upon the theory under which The K-W Ignition Company defended, if it were not operating under the license agreement then it" had no right to the continued use of the patent marks of the patentee and it should be enjoined. .For cases of this character see Stimpson Computing Scale Co. v. W. F. Stimpson Co. et al., 104 Fed. Rep., 893; Washburn & Moen Mfg. Co. v. Haish, 9 Biss., 141.

On the other hand, if it should be conceded that the licensee was still operating under the license agreement, the following cases hold as proper a decree similar to the one made by the trial court in the case at bar enjoining the further manufacture and sale until the payment of royalties under the license agreement: Eureka Clothes Wringing Co. v. Bailey Washing & Wringing Machine Co., 11 Wall., 488; McKay v. Smith et al., 29 Fed. Rep., 295; Ball Glove Fastening Co. v. Ball & Socket Fastener Co., 36 Fed. Rep., 309; Hat Sweat Mfg. Co. v. Porter et al., 34 Fed. Rep., 745.

It is often difficult to determine, from the adjudicated cases, any exact rule determining the right to invoke equitable jurisdiction; and in patent cases the federal decisions seem to be in considerable confusion. Some courts accord the equitable remedy in order to avoid multiplicity of suits; others, as above noted, to protect the special patent monopoly by injunctive relief to prevent a licensee from operating in hostility to his contract. But there can be no controversy over the principle that where equitable jurisdiction once attaches, full relief, including an accounting, may be had in that action.

Since the abolishment by our code of the forms and distinction between actions at law and in equity, the trial courts have had full jurisdiction whether the case stated falls within either class. However, it is now too late for the plaintiff in error to question in this court the character of the relief. The record fails to disclose that the question was made in either of the lower courts. The Ignition Company answered to the merits, failed either to demur or demand a jury and thereby consented to trial by the nisi prius court. Losing there, it, by its appeal, confessedly recognized the equitable character of the case by invoking a trial de novo in the appellate court; and, failing twice on the merits, it now for the first time, and in this court, questions the equitable jurisdiction of the court which awarded judgment against it. This it cannot do. Culver v. Rodgers, 33 Ohio St., 537; Nicholson v. Pim et al., 5 Ohio St., 25.

The judgment of the court of appeals of Cuyahoga county is affirmed.

Judgment affirmed.

Wanamaker, 'Newman and Matthias, JJ., concur.


author: Newman, J.

text:
    Swift & Co. v. The Hocking Valley Railway Co.

      Railroads — Demurrage mies — Findings by interstate commerce commission final, when.

    Where a demurrage rule, named in the tariff filed by an interstate railroad with the interstate commerce commission and published according to law, has been passed upon and approved by the commission, acting within the scope of its authority, the decision of that tribunal is binding upon the state courts, and the question of the validity of the rule is not open for consideration in an action brought by the railroad company to recover the charges assessed under the rule as to cars engaged in interstate commerce.
    (No. 14901
    Decided December 7, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    The action out of which this error proceeding arises was brought by defendant in error against plaintiff in error in the court of common pleas of Cuyahoga county to recover demurrage. The amended petition was challenged by demurrer for the reason that it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and plaintiff in error not desiring to plead further, judgment was rendered in favor of defendant in error in the amount claimed in the amended petition, and this judgment was affirmed by the court of appeals.
    The averments of the amended petition are in substance as follows:
    Plaintiff is a railroad company, engaged in interstate commerce,.and is subject to and is obliged to comply with what is known as the interstate commerce act of the United States. In compliance with this act, on February 26, 1910, it issued and filed with the interstate commerce commission and duly posted as required by law its local freight tariff containing car-demurrage rules and charges. These demurrage rules and charges had theretofore been prepared and adopted by the National Association of Railway Commissioners and were approved by the interstate commerce commission on November 14, 1910, in the case of Procter & Gamble Co. v. The C., IT. & D. Ry. Co., in the 19th volume of the interstate commerce- commission’s report, page 556. According to the terms and provisions of the tariff filed by plaintiff, the car-demurrage rules and charges were applicable at all stations and sidings, public and private, on its line of railway and to all interstate traffic on its line.
    These demurrage rules provided in part as follows :
    “Forty-eight hours’ (two days) free time will be allowed for loading or unloading on all commodities.
    “After all the expiration of the free time allowed, a charge of one dollar per car per day, or fraction of a day, will be made until car is released.
    “Private cars in railroad service, whether on carrier’s or private tracks, are subject to these demurrage rules to the same extent as cars of railroad ownership.
    “Empty private cars are in railroad service from the time they are placed by the carrier for loading, or tendered for loading on the orders of a shipper. Private cars under lading are in railroad service until the lading is removed and cars are regularly released. Cars which belong to an industry performing its own switching service, are in railroad service from the time they are placed by the industry upon designated interchange tracks, and thereby tendered to the carrier for movement. If such cars are subsequently returned empty, they are out of service when withdrawn 'by the industry from the interchange; if returned under load, railroad service is not at end until the lading is duly removed.”
    The above rules were binding upon all shippers who delivered to plaintiff, for transportation, goods consigned from points outside of the state to points within the state. Defendant occupied a certain railroad switch or track at Athens, Ohio, under and by virtue of an agreement entered into by plaintiff and defendant March 22, 1911. During the period beginning April 1, 1910, and until August 21, 191.2, defendant entered into certain contracts to carry with plaintiff, whereby the latter agreed to receive, transport and deliver to the defendant at Athens certain consignments of defendant’s products, in consideration of which the defendant agreed to pay to plaintiff the charges arising out of and connected with the transportation by plaintiff of said consignments, as provided in its lawful published tariff and lawful car-demurrage rules and charges. During the period referred to, and according to and in pursuance of said contracts of carriage, plaintiff received from the defendant from time to time a large number of loaded cars consigned from points outside of the state to the defendant at Athens. All of these cars were received by plaintiff and transported and delivered to the defendant on the track occupied by the defendant under the agreement of March 22, 1911. Defendant at all said times was the owner of all the cars so transported by plaintiff and delivered by it to the defendant at Athens. Defendant paid to plaintiff the lawful tariff rate of freight for transportation of the commodities with which said cars were loaded, and plaintiff, in accordance with its lawful published tariff, paid defendant for the use of its refrigerator and tank cars the sum of three-fourths cent per car per mile and for the use of its other equipment the sum of three-fifths cent per mile.
    Plaintiff placed upon the sidetrack referred to various cars at the times shown by a statement marked Exhibit C. The lading was not removed from these, cars by the defendant within the free time allowed for unloading according to said demurrage rules, but it allowed and permitted the cars to remain upon the sidetrack under lading for the time shown by said statement. The demurrage charges assessed under said rules aggregated the sum of $656, which defendant has neglected and refused to pay.
    A copy of the local freight tariff, naming the demurrage rules and charges, is attached to the amended petition, as are also Exhibit C and the agreement of March 22, 1911.

      For the purpose of reviewing the judgment of the court of common pleas on defendant’s demurrer to the amended petition,- it was stipulated by the parties that the track on which the cars in question were placed was the private track of the defendant, Swift & Company.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Mr. W. D. Wilkin and Mr. C. M. Horn, for defendant in error.
   Newman, J.

The rule under which the demur-rage was charged and upon which plaintiff predicated its right of recovery provides .for the collection of demurrage for the detention of private cars while under lading on private tracks. It is averred in the petition and admitted by the demurrer that the plaintiff, engaged in interstate commerce, was obliged to and did, in compliance with the interstate commerce act, file with the interstate commerce commission its tariff or schedule, in which were published certain demurrage rules, including the one in question. It is claimed, however, that, within the meaning of the interstate commerce act, tariff is a schedule of charges “for transportation” and that transportation, as defined by the act, includes cars and services in connection with the receipt and delivery of property transported when provided and furnished by the carrier. We cannot agree with counsel that the term is used in this narrow sense. In Section 8563, U. S. Comp. Stat., 1913, which is a part of the interstate commerce act, the term “transportation” is defined. It includes cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation and transfer, in transit, ventilation, refrigeration or icing, storage and handling of property transported. It is to be observed that it includes cars and all instrumentalities and facilities of shipment or carriage, irrespective of ownership. In these schedules the carrier, under the provisions of Section 8569, is required to state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require. It was held in Lehigh Valley Ry. Co. v. United States, 188 Fed. Rep., 879, that the demur-rage charged for the detention of cars in loading or unloading is a terminal charge required to be shown by the schedule of rates filed and published by an interstate railway company.

We do not think there can be any question but that, under the plain provisions of the interstate commerce act, demurrage rules relating to private cars employed in interstate commerce and the charges assessable thereunder are matters properly included in the tariff or schedule required to be filed and published. This tariff containing the demurrage, rule having been filed and published according to law, was binding alike on carrier and shipper, and so long as it was in force was to be treated as though it were a statute. Pennsylvania Railroad Co. v. International Coal Mining Co., 230 U. S., 184. The freight rate charged for transportation by the carrier was the one fixed by the tariff, and the amount prescribed therein for the use of private cars was the 'one paid to plaintiff in error. But it is claimed that the demurrage rule in question is unlawful and therefore unenforceable. The matter under consideration has to do with interstate commerce. It was held in the Minnesota Rate Cases, 230 U. S., 352, that the authority of congress extends to every part of interstate commerce and to every instrumentality by which it is carried on, and a full control by congress over the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations.

In the case of Procter & Gamble Co. v. C., H. & D. Ry. Co., 19 I. C. C. R., 556, the identical rulé here in question was passed upon by the interstate commerce commission. The contentions made by counsel here were made by complainant there, yet that tribunal held that the railway company was within its lawful rights in establishing and maintaining the rule complained of. But it is insisted that the commission had no authority to decide the question it did decide and that it had no power to approve such a rule. We shall review briefly the proceedings had in that case.

Relief having been denied it by the commission, The Procter & Gamble Company filed a petition in the commerce court of the United States, in which it was charged that the order of the commission dismissing the complaint was null and void and beyond its powers in that it sustained the validity of the demurrage rules. The jurisdiction of the commerce court was challenged by the United States, the interstate commerce commission appearing for that purpose, and the commerce court, in disposing of the case, held that it had jurisdiction and on the merits decided that the commission had rightly refused to grant relief and that there was no foundation for the contention that the property of the company in its private cars was taken without due process of law by the demurrage regulation. The case was taken on appeal to the supreme court of the United States by The Procter & Gamble Company, and that court held that the commerce court erred in taking jurisdiction of the matter, upon the ground that the act creating the commerce court, giving it jurisdiction of cases brought to enjoin, set aside, annul or suspend orders of the interstate commerce commission, conferred on that court jurisdiction only to entertain complaints as to affirmative orders of the commission and therefore it had no jurisdiction to redress "complaints based exclusively, as in the case under consideration, on the ground that .the commission had refused the relief on the ground that it could not award it. Mr. Justice White, in the opinion, 225 U. S., 282, refers to the interstate commerce commission as an administrative body endowed with what may be in some respects qualified as quasi-judicial attributes, and he says, on page 292: “The question to be decided is this: Does the authority with which the commerce court is clothed in virtue of these provisions invest that body with jurisdiction to redress complaints based exclusively upon the conception that the interstate commerce commission, in a matter submitted to its judgment and within its competency to consider, has mistakenly refused * * * ?” It seems clear to us from the language used by the learned jurist — “in a matter submitted to its judgment and within its competency to consider” — that the question presented was one which the commission had the lawful right to decide and that it did not exceed its authority when it acted in the matter.

Counsel assert that they are making no claim that the rule complained of is unreasonable, but insist that it is unlawful and invalid. But the distinction, if there be one, is not material. The rule was assailed in The Procter & Gamble case before , the commission upon the same grounds urged against its validity here, and received the sanction and approval of the commission, and its validity was within its competency to consider. It called for the exercise of the powers and discretion conferred by congress upon the commission. Morrisdale Coal Co. v. Pennsylvania Railroad Co., 230 U. S., 304.

Under the provisions of the interstate commerce act, it was the positive duty of the carrier to collect the charges provided for in the tariff, and this is the purpose of the present action. The- demurrage rule upon which plaintiff relies relates to interstate commerce. It was passed upon by a federal tribunal having full authority to act and was approved. If the power existed in the courts of the states to question its rulings, it would result, most likely, in diverging opinions and conflicting decisions in matters of interstate commerce, and would be' destructive of the uniformity of regulation which the interstate commerce act was designed to secure. It is admitted by the demurrer that the transportation of the cars in question was subject to the demurrage rule set out in the tariff, which was binding upon the shipper. This rule having been approved by a federal tribunal, acting within the scope of its authority, its decision must be followed by the courts of this state arid be given full force and effect.

Judgment affirmed.

Johnson, Donahue, Jones and Matthias, JJ., concur.


author: Donahue, J.

text:
    The Chicago Ornamental Iron Co. v. Rook, Admr.

      Courts -of appeals — Reversals by two judges — Where no evidence sustains judgment — Section 6, Article IV, Constitution, 1912— Supreme court — Questions to be determined — Negligence.
    1. The provision of Section 6 of Article IV of the Constitution, as amended September 3, 1912, requiring all the judges of a court of appeals to concur in a judgment reversing a judgment of a court of common pleas, superior court or other court of record upon the weight of the evidence, has no application to a case where two of the judges of that court find thát the judgment of the common pleas court is not sustained by any evidence.
    2. A cause properly in this court is here for the determination of all questions presented by the record.
    (No. 14830
    Decided December 7, 1915.)

      Error to the Court of Appeals of Mahoning county.
    The defendant in error brought an action in the court of common pleas of Mahoning county to recover damages from the plaintiff in error for negligently causing the death of his decedent, Abraham Cable, on the 16th day of September, A. D. 1913.
    At the time of receiving the injuries resulting in his death Abraham Cable was employed by The Chicago Ornamental Iron Company in putting on new devices for opening and closing the doors leading to an elevator shaft. The Otis-Hough Company was installing these elevators, and in doing this work had constructed a platform in the elevator shaft. The platform is fully described and the manner of its construction explained by the evidence.
    Cable had been assisting Anderson, his foreman, in putting these devices on the elevator door and had just finished the work. In doing this work it was necessary to step inside the elevator shaft onto the platform erected by The Otis-Hough Company. When Anderson and Cable had finished their work Anderson stepped into the corridor. He heard a noise, turned and saw Cable falling through the open space between the platform and the wall of the elevator shaft.
    The petition averred negligence on the part of Cable’s employer in not using ordinary care in furnishing to Cable a reasonably safe place to work.

      The Chicago Ornamental Iron Company denied negligence on its part and averred that the death of Cable was due entirely to his own negligence.
    Upon the issue joined by the pleadings the cause was submitted to a jury, resulting in a verdict for the administrator in the sum of $8,000.
    A motion for a new trial was made and overruled and judgment entered upon the verdict.
    Error was prosecuted to this judgment in the court of appeals. That court affirmed the judgment of the common pleas and caused the following entry of affirmance to be entered upon its journal:
    “Upon consideration whereof, two of the judges of said court of appeals, to-wit: The Honorable John Pollock and the Honorable William H. Spence find that in the record and proceedings aforesaid, substantial justice has not been, done to the party complaining, and that there is error manifest upon the face of the record to the prejudice of the plaintiff in error in this, to-wit: that there is no evidence of any negligence upon the part of said plaintiff in error, as claimed in the amended petition, and that therefore, the verdict and judgment rendered in the court of common pleas is against the weight of the evidence.
    “To this finding one of the judges of said court of appeals, to-wit: the Hon. W. S. Metcalfe dissents, and finds that said verdict and said judgment is not against .the weight of the evidence. Said court not fully concurring in its said findings, it is therefore considered, ordered and adjudged that the judgment and proceeding's of the court of common pleas in said action be, and the same hereby are, affirmed.”
    A petition in error was filed in this court to reverse the judgment of the court of appeals, averring, among other things, that the case involves a question arising under the constitution of the state of Ohio.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error.

      Mr. W. J. Kenealy and Mr. E. H. Moore, for defendant in error.
   Donahue, J.

The particular constitutional question presented by the record in this case arises upon the construction of that portion of Section 6 of Article IV of the Constitution, as amended September 3, 1912, which reads as follows: “No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence, and by a majority of such court of appeals upon other questions.”

It is contended on behalf of the plaintiff in error that when two of the judges of the court of appeals found and determined that “there is no evidence of any negligence upon the part of said plaintiff in error, as claimed in the amended petition,” that court should have entered a judgment of reversal.

The weight of the evidence involves a considera-' tion of conflicting evidence or the probative force of evidence where there is no conflict.

Where no evidence whatever is offered to maintain a material averment in a pleading upon which issue is joined, then the party upon whom the burden rests must fail. If there is some direct evidence or evidence of facts and circumstances from which the truth of the averment might naturally be inferred, then there is some evidence for the consideration of a jury and the record in such case would present the question of the weight of the evidence.

The constitutional provision above quoted relates solely to the weight of the evidence. Where a court of appeals finds that the verdict is against the weight of the evidence all the judges of that court must concur before a judgment of reversal can be entered. But this provision has no application whatever to a case in which one or more of the material averments of a pleading is not sustained by any evidence. This is a question of law for the court, and where two of the judges of a court of appeals find and declare that “there is no evidence of any negligence upon the part of said plaintiff in error, as claimed in the amended petition,” a judgment of reversal should be entered.

This case being properly in this court, it is here for the determination of all questions, presented by the record, except the weight of the evidence. Whether there is any evidence to support the verdict and judgment in the common pleas court, is a question that must be answered by this court before it can determine whether the judgment of affirmance in the court of appeals is erroneous, notwithstanding it is inconsistent with the conclusion reached by the judges of that court upon this question, for if that conclusion is wrong, the judgment of affirmance is right, regardless of the reasons given by the court.

There was but one witness to the accident which resulted in the death of Cable. His evidence establishes the fact that Cable fell through the space between the platform and the sides of the elevator shaft.

While there is no conflict in the evidence regarding the plan of construction of this platform, yet there is a conflict, at least in the opinion of the witnesses, touching the sizé of the holes between the planks.

Upon this question the jury was not bound by the opinion of either of the witnesses. Nor was it a question that required for its (determination any special knowledge or training in any particular line of business.

The open space in the elevator shaft was seven feet one inch east and west, and six feet eight inches north and south. Four 2 by 10 planks were placed on edges across this opening, and two other planks, 2 by 10, were laid flat, two inches apart, across it in the other direction. The evidence does not fully disclose how these four planks, placed on edges across the opening in the shaft, were spaced, but conceding that they were evenly spaced, which would be the more favorable view for the defendant, the jury could readily determine from this undisputed evidence the size of the holes in the platform.

Of course, if they were not evenly spaced, some ■ of the holes would be larger and some would be smaller.

In connection with this evidence, it appears beyond dispute that Cable did fall to his death through one of these holes, so that there can be no reasonable question but that at least one of them was large enough to permit a man’s body to pass through.

It was a question for the jury to determine, from this evidence, whether the platform upon which Cable was required to work was a reasonably safe place, and if it was not a safe place, whether the employer had exercised reasonable care in providing a safe place.

One of the witnesses testified that it is not customary to cover the whole elevator shaft with boards, yet he does not testify that this platform was built in the manner customary in that particular line of business. Even if he had so testified, it is apparent from his evidence that he thought there were no holes in this platform large enough for a man’s body to fall through, and his testimony would therefore have been based upon that hypothesis. If he were mistaken about this, then his evidence in that regard would be worthless.

He also testified that Cable fell through the opening feet first, and “fell apparently like a man unconscious.” He had his back to Cable at the time. He heard a noise and turned immediately. Cable’s body was then half way through the opening. At best he could have had only a momentary glance of the falling body, but even if that glance were sufficient for him to form a correct opinion in reference to the condition of Cable, his testimony is not inconsistent with the claim that Cable fell by accident. -The noise the witness heard when the man started to fall was not an exclamation or a cry from Cable. It must have been a noise caused by some portion of Cable’s body coming in contact either with the walls of the shaft or the timbers in the opening. If Cable fell from the planks on which he was standing, he certainly did not fall straight down feet foremost. When he started to fall, his head in all probability would have struck the wall of the .elevator shaft with sufficient force to render him unconscious and check the fall of the upper part of his body, thereby causing him to fall feet first and “like a man unconscious.”

Yet these considerations are of very little importance except as showing circumstances from which the jury might draw the more natural inference. (L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 Ohio St., 426.) Negligence is never presumed. The jury must find from the evidence, first, that the platform was not a safe place to work; second, that the employer had not exercised reasonable care to provide a safe place. On the other hand, the presumption obtains that Cable exercised reasonable care for his own safety. There is evidence in this record from which the jury could reasonably find that there were holes .left in this platform large enough for a man’s body to fall through. The addition of even one plank, and certainly not more than two, would have made this platform safe beyond all question. It was for the jury to say from this evidence whether the defendant exercised reasonable care in not providing other planks. There are some theories presented in the argument suggesting how Cable might have negligently or purposely caused his own death, but there is absolutely no evidence of a substantial character in this record tending to rebut the presumption that he exercised reasonable care for his own safety.

It is clear, therefore, that there was some evidence upon all the issues joined by the pleadings. The jury found in favor of the plaintiff. One of the judges of the court of appeals having reached the conclusion that this verdict was not against the manifest weight of the evidence, therefore, under the provisions of our constitution, that court could not reverse for this reason. This court having found that there is some evidence to sustain the verdict and judgment of the common pleas court, it will not inquire into the weight of the evidence.

The judgment of the court of appeals affirming the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur.