author: Williams, J.

text:
    City of Circleville v. Sohn.

      Municipal corporation — Nature of duty as to public ways, etc. — Liability for defect in street— When alleged defect conforms to plans of municipal authorities.

    1. The duty enjoined by statute on municipal corporations to keep their public ways open, in repair, and free from nuisance, is ministerial and mandatory, and requires the removal from such ways of all dangerous defects and obstructions, from whatever cause arising, when brought to the notice of the corporation.
    2. The corporation is liable for injuries caused by a d angerous defect or obstruction in a street or sidewalk under its control, after reasonable notice of its unsafe condition, though it arose from the construction or alteration of the street or sidewalk in conformity with a plan adopted by the municipal authorities.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Pickaway county.
    The action helow was brought in the court of common pleas of Pickaway county, by Ella M. Sohn against the City of Circleville, to recover damages for an injury alleged to have resulted from a defective sidewalk in the city. The petition alleges:
    “That the defendant, the City of Circleville, Ohio, is a municipal corporation of the fourth grade of the second class, duly organized under the laws of the state of Ohio. That there is a certain street in said city called Court street, with sidewalks on both sides of the same, which have been constructed and maintained, upon grades established by said defendant for the use of public travel by pedestrians having occasion to travel thereon; that the said street is, and was at the date hereinafter mentioned, one of the most public streets in the said city, and that the said sidewalk, at the points hereinafter named, was a greatly frequented place and much traveled by the general public, being within two squares of the business center of said city; that on the west side of said street, between Mound and Union streets, there is an alley called South Area alley, extending from Canal street and intersecting’ said Court street at a point between the lots of G. F. Wittich and Dorothea Turney, that from a point near St. Philip’s Episcopal Church to the said Court street, said alley descends and slopes rapidly, and where the same crosses said sidewalk it has a slope of at least two feet in sixteen feet, thereby making said slope dangerous for persons traveling thereon, in times when the same is covered with ice and snow; that said sidewalk at said point, crossing said alley, is constructed in a dangerous and defective manner, by reason of said unusual and abrupt slope, and having rough and uneven stones thereon, and between which there are large fissures; that the same is so constructed at said point as to have a depression or gutter in the middle, for the purpose of permitting and allowing drainage on and through said alley, from said Episcopal church, and from lots adjoining on said alley, and over said sidewalk, and emptying into a gutter running along the said Court street, between the said sidewalk and the street proper; that in times of rainfall there is a large flow of water over and through said alley at said point; and in times of freezing, the said sidewalk, at said point, becomes covered with ice from said drainage, and also from the drainage from lots adjoining on both sides of said alley, thereby making said sidewalk from all said causes aforesaid unusally dangerous to persons walking thereon;, that said alley and said sidewalk have remained in said condition, as to the construction thereof, for a great many years, to-wit: for at least ten years, with the full knowledge of the defendant of all the conditions aforesaid; that accidents have frequently happened at said point to persons walking on said sidewalk, by said persons slipping and falling, when the same was covered with ice and snow; that the said G. F. Wittich and the said Dorothea Turney have, with the knowledge and consent of said defendant, for a ■long time prior to the injury hereinafter alleged, to-wit: for at least ten years prior thereto, and at the time said injury occurred, used said alley way as a means of drainage for their slops and surplus water, coming from their said premises, and the same has been allowed and permitted by the defendant to flow over and across said sidewalk, and into said gutter, continuously, for the said period of time aforesaid; that on or about the sixteenth day of March, A. D. 1895, and for more than a month next preceding, said defendant, with full knowledge of all the facts heretofore stated, had carelessly and negligently suffered ice, frozen snow and sleet to accumulate on said sidewalk, at said point, and the same was, at said date, dangerous to persons passing along the same, by reason of its slippery condition, and the defective condition of said sidewalk, as hereinbefore stated;' that at said date aforesaid, about eight o’clock in the evening, this plaintiff was passing along the sidewalk, in the usual way, using all due care, and ignorant of its defective and dangerous and slippery condition, and while so walking she fell, and broke, fractured and sprained her right limb near the ankle joint, and ruptured the ligaments, and otherwise injured her said limb. That by reason of the injury aforesaid, she was laid up and confined to her bed, for the period of five days, and has suffered great bodily pain and mental anguish, and was prevented for the last three months from attending to her business, and incurred about $125 expense for medical attendance and nursing, in attempting to be cured of said injuries ; and this plaintiff further avers that she is still lame and crippled from said injuries, and is only able to attend to her business by the use of her crutches; that the said injuries still exist, and that she will, as she verily believes, be and remain permanently lame, crippled and disabled from said injuries.”
    By an amendment the following allegations were added to the petition:
    “That in consequence of the defective condition of the said alley, where the same crossed the said sidewalk, as it was at the time of her said injury, as described in her petition, and of the said unusual, abrupt and dangerous slope thereof at said point, and of the accumulation and flow of the water over and through said alley and across said sidewalk, from the sources and causes as averred and described in her petition, and the freezing of the said ice and snow thereon, in the defective condition of the said sidewalk at said point, at the time qf said injury so caused and brought about by the negligence of said defendant, and by the negligence of the said defendant in permitting the same to be and remain in said condition, the said plaintiff became and was injured, as described in her petition. ”
    The defendant answered, denying, sustantially, the alleged defective condition of the sidewalk, and all negligence on its part, and charging ihe plaintiff with contributory neglig-ence.

      The plaintiff controverted the allegations of contributory negligence, and upon a trial of the issues thus joined the defendant prevailed. The judgment in its favor was reversed by the circuit court, for error in the charge and in refusing to give instructions requested by the plaintiff. The charges so held erroneous are as follows:
    “If you find from the evidence that the plaintiff’s fall was caused by the plan or design of the sidewalk, then the defendant cannot be held liable.”
    “If you find from the evidence that the plaintiff’s fall was caused by the plan or design of the sidewalk, and not by any failure to repair the same, or a defect in its construction after the plan was adopted, then the defendant cannot be held liable.”
    “The city had a right to open out the alley, and to construct said sidewalk, and the alley crossing which intersects it at that point, and if you find from the testimony that the alley crossing- complained of was constructed in a reasonably safe manner, according to a plan enacted by the city council of the city of Circleville, and that it has remained substantially 'in that condition since, and was so at the time of the injury complained of took place, and that the defect, if any, was in the plan and not in its construction, or the want of repair on the part of the city, but that the injury complaind of occurred and was caused by the adoption of a plan which I have stated before was reasonably carried out and substantially built according to the plan, then and in that case the plaintiff cannot recover.”
    The instructions requested and refused are as follows:
    “If you find from the evidence that the accumulation of ice on, the pavement where the same crossed over South Boundary Alley, combined with the defective condition of said alley at said point, and that the municipal authorities knew or should have known of its defective condition, then and in such case I charge you that the city is liable, unless you find that the plaintiff was guilty of contributory negligence in going upon said pavement at this point.”
    “The duties of the municipal authorities of this state to keep the streets, alleys and sidewalks of the municipality for which they act, in repair, are ministerial, and not legislative, and although they may exercise their discretion as to whether such improvements shall be made, yet, when they do decide to make them, the law requires that they shall be made in a reasonably safe condition for public travel, and in their acts in constructing the streets, alleys and sidewalks in such a manned as to be reasonably safe for public travel, the municipality for which they act, may be held liable.”
    “The law of this state imposes upon the municipal authorities the duty of making and keeping the sidewalks of the municipality in reasonably safe condition for persons walking along and over them, and in the performance of this duty the authorities act in a ministerial capacity, and for their negligence in the performance of their duty, the municipality for which they act may be held liable.”
    “The same duty was imposed upon the defendant through its municipal authorities to make and keep in a reasonably safe condition the sidewalk where it crossed over South Boundary Alley, as the other parts of said pavement.”
    The case is brought here on error by the city.

      Chris. A. Weldon, City Solicitor, for plaintiff: in error.
    The place on which the plaintiff fell was a gentle slope, having a fall of about six inches in 8J feet in one direction and eight inches in 15 feet in another. On this slope new ice had formed, the same existing all over the city as disclosed by the testimony of Judge Courtright, where he testifies that on the date on which the accident occurred, “we had a sleet and that the streets and sidewalks were a glare of ice. ’ ’
    The facts in this case are similar to the facts in the case of Taylor v. City of Yonkers, 59 American Rep., p.492; 101 N. Y., 661.
    Precedents for these decisions are to be found in the reported cases of Maine and Massachusetts, which hold that if besides the defects in the way, there is also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. Moore v. Abbott, 32 Me., 46; Moulton v. Sanford, 51 Me., 127; Marble v. Worcester, 4 Grays, 395; Chicago v. Bixley, 84 Ill., 82; Detroit v. Blakely, 21 Mich., 84; Village of Groveport v. Julia Bradfield, 2 O. C. C. Rep., 145; 1 Cir. Dec., 411; Urquhart v. City of Ogdensburg, decided by the N. Y. Court of Appeals, January, 1883; Lansing v. Toolan, 37 Mich., 152; Johnson v. District of Columbia, 118 U. S., 19; Child v. Boston, 4 Allen, 51; Hubbell v. Yonkers, 104 N. Y., 271; Springfield v. Spence, 39 Ohio St., 669.
    .We think the testimony clearly proves that the cause of the accident was the snow and ice which was common to all parts of the city on that night and this being the proximate cause, no liability attaches to the city for negligence in not removing it. The Village of Conneaut v. Naef, 54 Ohio St., 529; Chase v. Cleveland, 44 Ohio St., 505 and Shaefler v. Sandusky, 33 Ohio St., 246; Village v. Kallagher, 52 Ohio St., 183; 19 Ohio St., 22; Robinson v. City of Cedar Rapids, 1 Vol. American Neg. Rep., 43.
    ■ Clarence Curtain, for plaintiff in error.
    The plaintiff in framing her cause of action evidently undertook to so frame it that it would not fall within the rule laid down by this court in the case of Chase v. City of Cleveland, 44 Ohio St., 505; In order to do so she was compelled to predicate the acts of negligence complained of as being in the plan or design upon which the sidewalk, where she fell, was constructed. Her petition in effect charges the city with having been negligent in adopting the particular grade of the sidewalk that it did at that point where she fell. She has no cause of action unless this averment m her petition states one. Carr v. Northern Liberties, 35 Pa. St., 324; Springfield v. Spence, 39 Ohio St., 669; Railroad Co. v. Dayton, 23 Ohio St., 510.
    ' It would appear that so far as the plan and construction of sidewalks and alleys are concerned, that the power conferred upon the council is discretionary, but that when once constructed, a duty is imposed upon the council to keep the same open and in repair and free from nuisance. Hines v. Loeckport, 50 N. Y.,. 238; Mills v. Brooklyn, 32 N. Y., 489; 36 N. Y., 54; 1 Den., 595; 9 N. Y., 109; 45 N. Y., 129; 46 N. Y., 194; 37 N. Y., 568; Lansing v. Toolan, 37 Mich., 152; Toolgn v. Lansing, 38 Mich., 315; McKeller v. Detroit, 37 Mich., 158 (58 Am. R., 358). The cases are fully collected in 2 Eng. and Am. Oorp. Cases, 565, 571, 572, 579, 588; 4 Eng. and Am. Corp. Cases, 626, 627. They agree that there is no responsibility unless there has been such an accumulation as will amount to an obstruction of the way which is dangerous, and they also agree that a city is not liable for the manner in which its walks and other structures and ways are planned. Detroit v. Beckman, 34 Mich., 125 (22 Am. R., 507); Urquhart v. The City of Ogdensburg, 91 N. Y., 67; Mr. Dillon, Municipal Corporations, section 1051.
    The plaintiff alleged in her petition that there was a defective condition of the sidewalk or alley •crossing. There was no evidence offered by her to show that there was any such defect whatever, unless the court should consider the grade or slope which has been testified to as a defect. Bretsh v. The City of Toledo, 33 Bul., 1 Dec., 96.
    It is apparent, therefore, that if the defendant in error failed to establish any direct and proximate connection between her injury and a defect in the sidewalk or crossing,, if such defect existed, that she could not have been prejudiced by the matters which we have been considering.
    Mr. Rowe was a surveyor, and, as the evidence shows, an expert in the establishing of grades for street and alley crossings, and his testimony shows that the plan of the alley crossing complained of was a reasonable and proper plan to adopt and maintain, taking into consideration all of the purposes for which the same was to be and is used. If the special charge had been properly con-
    structed it would not have availed the defendant in error unless the evidence showed that her injury was caused by the defect and not by the ice. 105 N. Y., 202; 54 Am., 492; 16 Eng., 431; Sherman and Redfield on Neg., section 26.,

      This case falls directly within the rule announced in the case of Chase v. The City of Cleveland, 44 Ohio St., 505; Villager. Kallagher, 52 Ohio St., 183; Mauch Chunk v. Klyne, 100 Penn. St., 119.
    We claim that the defendant in error was guilty of such contributory negligence, as shown by the evidence, as to preclude her from recovering. Her testimony, in substance, was that she had, as a usual thing, been passing along that side of the street and over that crossing once a day for about four years. We submit that in view of that fact that if there had been such a defect in the crossing as is claimed, one that was apparent to many others who testified in her behalf, that it must have been apparent to her; that is, if it be assumed that the grade or slope of the walk which was testified to by her witnesses is a defect. Even if it be claimed that it was only dangerous when covered with snow and ice, and its dangerous condition was open, apparent, and obvious to others, it must have been so as to her, and it was her duty to have avoided the crossing. Shaefler v. The City of Sandusky, 33 Ohio St., 246; Village of Conneaut v. Louis Naef, 54 Ohio St., 529; Hartman v. The City of Muscatine, 30 N. W. Rep., 859.

      Abernethy <& Folsom and Schleyer da Qerha/rt, for defendant in error.
    The several instructions given, and excepted to by the plaintiff, as well as the instructions asked by plaintiff and refused by the court, make the cleaneut question whether a municipal corporation can be held liable under the law of this state, for negligence, if the negligence consists in the plan or design adopted for the particular improvement which caused the injury, either in whole or in part, however defective the plan may be, or however dangerous the improvement, if constructed according to the plan or design. The gravamen of the plaintiff’s complaint was the unusual and dangerous slope of this sidewalk, and the manner in which it was constructed, where the plaintiff received her injury; and whether this defective condition was caused in its original construction according to some plan or established grade, or from subsequent failure of the city to keep it in proper repair, we maintain that in either ease the city was guilty of negligence.
    From the case of Rhodes v. Cleveland, 10 Ohio, 159, to Zanesville v. Fannan, 53 Ohio St., 605, the current of judicial decisions has been in the direction of holding municipal corporations liable for injuries resulting from their neglect in the performance of the duties imposed upon them by law. Mc Combs v. Akron, 15 Ohio, 475; Akron v. Mc Comb, 18 Ohio, 229; Dayton v. Pease, 4 Ohio St., 80; Crawford v. Delaware, 7 Ohio St., 460; Western College v. Cleveland, 12 Ohio St., 375; Cincinnati v. Penny, 21 Ohio St., 499; Youngstown v. Moore, 30 Ohio St., 133; Keating v. Cincinnati, 38 Ohio St., 141; Toledo v. Cone 41 Ohio St., 149; Cohen v. Cleveland, 43 Ohio St., 190; Johns v. Cincinnati, 45 Ohio St., 279; R. R. Co. v. Defiance, 52 Ohio St., 9; Cardington v. Fredericks, 46 Ohio St., 442; Zanesville v. Fannan, 53 Ohio St., 605.
    There is a line of decisions in which the municipal authority is recognized as in its nature legislative, and governmental, and a clear distinction is pointed out between these cases and those which are purely ministerial in their character.
    Such are the cases of Western College v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; Cincinnati v. Cameron, 33 Ohio St., 336; Robinson v. Greenville, 42 Ohio St., 625.
    The “care, supervision and control” of all public highways, etc., section 2640 is vested exclusively in the council. Their duties to the public and to each individual member thereof, commence as soon as they have once resolved to make the improvement, and have started upon its construction. No dividing line of reponsibility is drawn between the character or method of their action in devising the plan or design of the improvement, and in the -execution of the plan or design. The maxim respondeat superior applies, and from start to finish it is charged with the duty of exercising reasonable care and skill in the discharge of its duties to the public. It must make its streets and sidewalks safe, and it must keep them safe for public travel. This is the polar star of its duties to the public.
    If the rule of exemption applied by the court’s charge in this case, were to prevail, we submit that it would strike down the principle of law which the Supreme Court, for more than a half a century, has held to be the policy of this state, with regard to municipal corporations.
    The corporation resolves to make or repair some needed improvements.
    It makes no difference how defective the plan, how unskillful! y or negligently it was prepared, no matter how negligent the council was in failing to examine the plan itself, or in ascertaining whether the construction if made according to the plan would be safe or not; “it is our plan, we adopted it, and we acted judicially, we were judges when we did so, and we laugh at your injuries.”
    And so long as the sidewalk or street, as the case may be, does not actually become out of repair, and thereby show negligence, the corporation is absolutely safe.
    The overwhelming weight of authority in other states sustained the principle that municipal corporations are liable for injuries to person or property, where such injury arises from negligence on the part of the corporation in maintaining and keeping its streets, avenues, sidewalks, alleys, public grounds and bridges within the corporation, in a reasonably safe condition-for public travel. Blyhl v. Waterville, 57 Minn., 115, 47 Am. St. Rep., 596; Sutton v. Snohomish, 11 Wash., 24; 48 Am. St. Rep., 847; Russell v. Town of Monroe, 116 N. C., 720; 47 Am. St. Rep., 823; Gould v. Topeka, 4 Pacific Reports, 822; City of North Vernon v. Voegler, 103 Ind., 314; Furguson v. Davis, 57 Ia., 601; Powers v. Council Bluffs, 50 Ia., 197; Wilson v. Atlanta, 60 Ga., 473; City of Chicago v. Gallagher, 44 Ill., 295; Prideaux v. Mineral Point, 43 Wis., 313; City of Indianapolis v. Huffer, 30 Ind., 233; City of Evansville v. Decker, 84 Ind., 325; 43 Am. Rep., 86; Weis v. Madison, 75 Ind., 241; 39 Am. Rep., 135; Rice v. Evansville, 108 Ind., 7; 58 Am. Rep., 22 ; City of Ft. Wayne v. Combs, 107 Ind., 75; Weightman v. Washington, 1 Black, 39; Seifert v. Brooklyn, 101 N. Y., 106; Hardy v. Brooklyn, 90 N. Y., 435; Van Pelt v. City of Davenport, 42 Ia., 308; 2 Dillon, section 1016 et seq; Gould v. Topeka, 32 Kan., 485; Jones on Negligence of Municipal Corporations, Chap. 4; Denver v. Dunsmore, 7 Col., 328; Shearman & Redfield on Negligence, 4th edition, section 289 ; 2 Dillon on Municipal Corporations, 4th edition, section 1017 ; Elliott on Roads and Streets, 446; Jones on Negligence of Municipal Corporations, section 92, and note,also, section 141 ; Cooley on Torts, 2d edition, 746;
      Barnes v. District of Columbia, 91 U. S., 540; District of Columbia v. Woodbury, 136 U. S., 450; Beach on Public Corporations, vol. 1, p. 772.
    It will be seen that there is a great deal of difference between the states of Michigan and Ohio, in reference to the law of liability for failure to keep streets and sidewalks in repair. Detroit v. Osborne, 135 U. S., 492.
    If the court will take the trouble to turn to page 551, of the Barnes v. District of Columbia case, 91 U. S., it will find among the long list of authorities, three Ohio cases, to wit: Western College v. Cleveland, 12 Ohio St., 377; Mc Comb v. Akron, 15 Ohio Rep., 476; Rhodes v. Cleveland, 10 Ohio Rep., 159.
    Judge Cooley delivered a dissenting, opinion, in Detroit v. Blackeby, 21 Mich., 84, and if the judge can be relied upon, evidently the Michigan doctrine was odious to him.
    From the foregoing it will be seen that the United States Supreme Court, as well as Judge Cooley, repudiates the Michigan doctrine.
    Our own Supreme Court have approved the doctrine laid down in Barnes v. District of Columbia; Spence v. Springfield, 39 Ohio St., 665; Johnson v. District of Columbia, 118 U. S., 19; Johns v. City of Cincinnati, 45 Ohio St., 278; Cleveland v. King, 132 U. S., 295; Cardington v. Fredericks, 46 Ohio St., 442.
    We desire to call the court’s attention to the distinctive character of municipal corporations, as made by text writers and by the Supremé Court of this state; we deem it necessary for the reason that both counsel for plaintiff in error have indiscriminately used sewer doctrine for street doctrine, and almost every case cited by them in their briefs were sewer cases.

      As to the distinctive characters of municipal corporations: Cincinnati v. Cameron, 33 Ohio St., 336; Dillon on Municipal Corporations, Vol. II, section 1023 and 1046; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St., 110; Harris on Damages by Corporations, vol. 1, p. 165; Crawfordsville v. Bond, 96 Ind., 236; Evansville v. Decker, 84 lnd., 325; Ferguson v. Davis Co., 57 Iowa, 601; Indianapolis v. Huffer, 30 Ind., 235; Van Pelt v. Davenport, 42 Iowa, 308; Weis v. Madison, 75 Ind., 241; Powers v. Council Bluffs, 50 Iowa, 197; Cummins v. Seymour, 79 Ind., 491; Indianapolis v. Tate, 39 Ind., 282; Indianapolis v. Sawyer, 38 Ind., 348 ; Indianapolis v. Huffer, 30 Ind., 235 ; Detroit v. Beckman, 34 Mich., 125; Thurston v. St. Joseph, 51 Mo., 510; Hooker v. New Haven Co., 14 Conn., 146; Ashley v. Port Huron, 35 Mich., 296; Siefert v. Brooklyn, 2 Cent. Rep., 135; 101 N. J., 136; Book 17, L. C. P. Co., 52; Nebraska City v. Campbell, 2 Black, 590; Book 17, L. C. P. Co., 271; Circleville v. Neuding, 41 Ohio St., 465; Drains and Sewers, in 6 Am. & Eng. Ency. of Law, 26.
    The effort of counsel apparently, is to show that the plaintiff below slipped on a smooth surface caused by the ice, and that this was the proximate cause of her injury. Our answer is, in the first place the evidence shows that there was no smooth surface across this alley way. It was rough, ragged and uneven, as well as slippery, as the testimony of twenty witnesses will disclose if the court will take the time to read the testimony. And secondly, her own testimony discloses the fact that she was below the flagging, where the cobble stones were placed, and slipped and fell on the cobble stones. And they were a part of this pavement.'

      And yet, in the face of this testimony, counsel insist that she knew the sidewalk at this point was dangerous and that she voluntarily walked into the danger, and that this case is like the one reported in 54 Ohio St., 529.
    Her testimony shows that the first intimation she had of its dangerous condition, was when she stepped into the alley way and began to slip, and her first impulse then was, to try to g’et out into the street, but it was too late.
    There were also other alley crossings which she passed over on her way down, and she did not slip and fall, because they were safe. It was because the defective condition of the sidewalk at this point, having ice on it, rendered it unsafe.
    This testimony was competent, and was admitted. Brewing Company v. Bauer, 50 Ohio St., 550; Ashtabula v. Bartram, 3 C. C., 640 ; 2 Circ. Dec., 372 ; R. R. Co. v. Kelly, 6 C. C., 155, 3 Circ. Dec., 393.
    It is competent to permit one who is giving testimony as to the condition of a sidewalk to testify that he had fallen himself. It tends to show how he came to know the condition of the walk. Pomprey v. Saratoga Springs, 104 N. Y., 459.
    The question whether negligence of a municipal corporation is the proximate cause of the injury, is for the jury to decide, if the facts are in dispute, or if the inferences from the facts are not clear and indisputable. Jones on Neg. Munic. Corp., section 24; R. R. Co. v. Kellog, 94 U. S., 469; Bowes v. Boston, 29 N. E. Rep., 633; Bunting v. Hogsett, 23 Am. St., Rep., 192.
    Misdirection on a controlling question is not cured by the weight of evidence. Ins. Co. v. Sherlock, 25 Ohio St., 50. And prejudice is presumed from an erroneous charge. R. R. Co. v.
      Stallman, 22 Ohio St., 1. Or, if the charge is calculated to confuse or mislead the jury as to the law of the case, there is error for which the judgment may be reversed. Ins. Co. v. Ins. Co., 5 Ohio St., 450; Brick Co. v. Pond, 38 Do., 75; White v. Thomas, 12 Do., 312.
    If the question depends on a variety of circumstances from which different minds would draw different conclusions, it must be submitted to the jury. R. R. Co. v. Picksley, 24 Ohio St., 654; Pray v. R. R. Co., 48 Am. St. Rep., 717.
    If different minds might differ as to the inferences to be drawn from the evidence, as to contributory negligence, the jury must decide, for the inferences are not legal but logical. R. R. Co. v. Murphy, 50 Ohio St., 135; Kelly v. Howell, 41 Ohio St., 438.
    In the case at bar, the plaintiff’s cause of action is predicated in part upon the defective condition of the sidewalk, not only as to the slope, but also as to its being rough and uneven, and containing fissures or openings between the cobble stones, which presents a very different case from a smooth surface for ice to accumulate on. It was its structural defects which caused it to become dangerous when covered with ice and snow. Shaeffer v. Sandusky, 33 Ohio St., 246; Village v. Kallagher, 52 Ohio St., 183; Village v. Naef, 54 Ohio St., 529.
    Where a plaintiff’s injury was caused partly by a fall on the ice with which the road was covered,' and partly by a defect in the road itself, the city was liable for its negligence in not repairing the defect, which was the cause of the injury, even though the ice as a condition contributed to it. Tiedeman on Munic. Corp., section 351; Wharton on Negligence, section 86; Shearman & Redfield on Negligence, section 346.
    Where two causes combine to produce injuries, defendant is not relieved from liability because it is responsible for one only of such causes. Board of Com'rs of Boone County v. Muchtler (Ind.), 36 N. E. Rep., 534; Union St. Railway et al v. Stone (Kans.), 37 Pac. Rep., 1012; Onverson v. City of Grafton, (N. D.), 65 N. W., 676, Ring v. Cohoes, 77 N. Y., 83; Lowery v. Railway Co., 99 N. Y., 158 (I. N. E., 608).
    Suppose the sidewalk where the alley comes down to it had been constructed at an angle of forty-five degrees, could the corporation successfully demur to a cause of action by one who is injured in consequence of such a slope? The position of counsel and the charge of the court would indicate that it could, if that was its “plan.” Railroads Dayton, 23 Ohio St., 510.
   Williams, J.

The instructions given and refused by the court of common pleas for which its judgment was reversed by the circuit court, raise the question whether a municipal corporation is exonerated from liability for injuries caused by an unsafe condition of a public way under its control which it has suffered to remain after notice, when the defect arose in the execution of a plan adopted by the corporation for a local improvement. Its immunity from liability is defended here on the ground that, in the adoption of plans for local improvements, municipal bodies are in the exercise either of a legislative power, which is discretionary and not subject to judicial control, or of a judicial power, and not responsible for errors of judgement. Cases are cited in support of the proposition, some of which place the exemption from liability on one of these grounds and some on the other; but none on both. It is said in Detroit v. Beckman, 34 Mich., 125, that ‘ ‘when complaint is made that the original plan of a public work is so defective as to render the work dangerous when completed, it is apparent that the fault is with legislative action.” And in Urquharty. Ogdensburg, 91 N. Y., 67, it is declared that the exercise of the power to make local improvements is quasi judicial. The courts of these states, in numerous decisions, maintain respectively these divergent views of the grounds on which municipal corporations are not liable in such cases, but concur in holding their non-liability; and on that question they are at variance with a large number of reported cases, especially of those decided by the courts of the middle and western states. In Blyhl v. Waterville, 57 Minn., 115, it is held that; “a municipal corporation is liable for an injury caused by having an unsafe sidewalk, the condition of which is due to the plan adopted for its construction, when the city could have remedied the defect, but did not do so.” And in Gould v. Topeka, 32 Kas., 845, the court hold that a “city has no more-right to plan or create an unsafe and dangerous condition of one of its streets than it has to plan or create a public or common nuisance.” The same doctrine is maintained in Indiana, Iowa, and other states. We will not attempt a review or discussion of the cases on this subject. In their briefs, which show diligent research, counsel have collected the cases on both sides, and ably presented their different views.

Text writers on the subject, lean to the side of municipal liability in such cases. In Dillon on Municipal Corporations, vol. 2, page 1294, under section 1024, it is said: “Does the principle that actionable negligence cannot be predica!ed of the plan itself, (post section 1046), go so far as to exempt from liability if that plan leaves the streets in an unsafe and dangerous condition for public use? In the author’s opinion this question ought to be answered in the negative.” And in Harris on Damages by Corporations, (vol. 1, page 165), that author says: “As to the liability of a city for damages for an injury resulting from a defective plan, the decisions are not all harmonious, but the weight of authority is now perhaps in favor of holding the city liable for defects in the plan a!s well as in the execution of the work.” And see Elliott on Roads and Streets, Chap. 20; and Jones on Neg. Mun. Corp. Chap. 4, page 67.

It has been held in this state, in a number of reported cases, that municipal corporations are liable for injuries caused to property abutting on streets, by changes in their grades, notwithstanding the establishment of the grade was a lawful exercise of municipal authority, and the work was done in conformity with the plan so adopted. The court recognizes that in this class of cases it has taken ground in advance of some adjudications elsewhere, and its position is maintained on principle. The doctrine established by them has since been adopted and followed in several other states. In Dayton v. Pease, 4 Ohio St., 80, the city of Dayton was held liable in damages for injuries to property resulting from the fall of a bridge forming part of one of its streets over a canal, where the fall was owing entirely to defects in the-plan of the bridge which had been approved by the council, and the bridge was constructed under its direction and in accordance with the plan. While the question here is not precisely the same as in that case, it is nearly so, and involves an application of the same principle. And, in view of the irreconcilable conflict of decisions elsewhere, on this question, we are at liberty to adopt such rule as will best harmonize with those of this court, and our legislation on the subject, and as to us seem most reasonable and practicable. Our statute, in express terms, places the public ways of each municipality, in its control, coupled with a positive command to keep them open, in repair, and free from nuisances. In the performance of that duty, the municipal authorities are required to remove, and keep removed from its streets, all dangerous defects, obstructions and nuisances of every kind, as they may arise, from time to time, from any cause. There is no exception from the requirement, in favor of defects, obstructions or nuisances which are placed, or caused to be placed, in a street, by the corporation or by its officers or agents; nor, is there any the less reason for holding the corporation liable for a disregard of its duty to remove such obstacles from its streets when placed there by its own act or the act of its officers, than there is for making it answerable for its negligence in permitting similar obstacles to remain when placed in the street by other persons. The statutory duty is ministerial in its nature, and mandatory in terms; and was imposed for the benefit of those having occasion to use the streets, so that they might use them with safety, and not for the benefit of the corporation; and ample means for its prompt and efficient performance are placed in the control of the corporation. While municipal legislation may be necessary in providing means and measures for the performance of the duty, as it is with respect to many strictly ministerial duties, its performance, or the omission to perform it, is not the exercise of legislative or judicial power, nor is it discretionary.

We are of opinion, therefore, that a municipal corporation should be held liable for injuries caused by a dangerous defect or obstruction in a street or sidewalk which it suffers to remain after reasonable notice of its existence, though it arose in the construction or alteration of the street or sidewalk in accordance with a plan adopted by the municipal authorities.

We express no opinion in regard to the weight of the evidence. There was not a total lack of evidence tending to support the issues for the plaintiff, and its sufficiency is for the jury under proper instructions, and for the lower courts.

Judgment affirmed.

Shauck, J., dissents.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Ohio Oil Co. v. Lane.

      Oil and gas contract — Lease by land owner to operating company— Question of payment for well not used — Construction of contract.

    A contract between the owner of. lands and a company operating in oil and gas, whereby such minerals are granted in place to the operating company upon the stipulation that if gas only is found it will pay a fixed sum per year fo.r each well “while the saméis being used off the premises,” and containing no stipulation inconsistent therewith, should not be so construed as to require it to pay such sum for a gas well, whose product is not used, even though the jury should be of the opinion that it might have been so used off the premises without financial loss to the company.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Auglaize county.
    The controversy arises out of the second cause of action in - the petition filed in the court of common pleas by Lane against the oil company. That cause of action as alleged by him is, in substance, that on the fifth of May, 1890, being the owner of 120 acres of land lying in Mercer county, %he entered into a contract with the oil company, a copy of which is in the record, its material stipula- ■ tions being as follows:
    “In consideration of the sum of $420 dollars, the receipt of which is hereby acknowledged, Thomas A. Lane of Transit, Hamilton county, Ohio, first party hereby grant unto The Ohio Oil Company, an Ohio corporation, second party, its successors and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas or water, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil, gas or water from said premises. Excepting and reserving, however, to first party the one-sixth (1-6) part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect its wells, namely: * * *
    If gas only is found, second party agrees to pay three hundred dollars ($300) each year, in advance, for the product of each well while the same is being used off the premises, and first party to have gas free of cost to heat six stoves in dwelling house during the same time. * * *
    The second party shall have the right to use sufficient gas, oil or water, to run all necessary machinery for operating said wells, and also the right to remove all its property at any time. ’ ’
    Said second cause of action contains the following allegations:
    “That under, said agreement, said defendant drilled and constructed upon said land, one well which produces in paying- quantities gas only; the said well being drilled and completed about the fifteenth day of February, A. D. 1891; and plaintiff says that said defendant has never made any payment for gas from said well.
    Plaintiff avers that said defendant agreed to use the gas produced on said premises within a reasonable time pff said premises and thereupon to pay for same, and that said gas from said well was, or reasonably should have been, used off said premises on or before the sixth day of May, A. D. 1891, continually, and that any delay since that time is unreasonable, and thereby defendant became indebted to plaintiff on the sixth day of May, A. D. 1891, in the sum of three hundred dollars ($300) for the gas from said first well.
    And plaintiff says that said last mentioned sum has never been paid but that the whole amount thereof together with interest thereon from the sixth day of May A. D. 1891, is, and remains due and owing to the plaintiff from said defendant.” The company filed the following answer:
    “For answer to the second cause of action in the second amended petition, defendant says: It admits that it has not made any payment for gas, under said contract of lease, and it denies each and every other allegation in said second cause of action contained.”
    On the trial, the drilling of a gas well on the premises by the company being admitted, the plaintiff was permitted against the objection of the company to introduce evidence tending to prove that the well yielded gas in paying quantities which was explained to mean quantities that would make the well worth tubing if a market for the gas could be had, and that pipe lines were in operation at points from three to five miles from the well for the purpose of conveying gas to various municipalities in the western portion of the state. It was admitted that the oil company did not use the gas or sell it. There was also conflicting evidence as to whether the company could or not have laid pipe to existing lines and thus without loss have sold the gas, the evidence offered by the plaintiff in that regard being objected to by the defendant. Counsel for the defendant requested the court to give the following instructions to the jury:
    1. There being no evidence to show that defendant used the gas off the premises from the well upon which rental is claimed in this case, I charge you that your verdict must he for the defendant.
    2. I charge you that under the terms of the lease, it was left to the discretion of the defendant, to determine whether it could use or market the gas from this well off from the premises without loss to itself; and there being no evidence that the defendant did not exercise this discretion in good faith, your verdict must be for defendant.
    These were refused and the defendant excepted. The court instructed the jury that the defendant admitted that it “did enter into a contract with the plaintiff of the nature and character set forth in the petition a copy of which you will find in the petition.” And, further, that if the well drilled upon the premises was a paying gas well and the defendant could by reasonable diligence have found a market for the gas prior to November 27, 1891 (the date of the commencement of the action), then the three hundred dollars would be due. “It was the duty of the defendant if gas was found in the well in paying quantities, and there is no serious controversy on that question, it was the duty of the defendant to make a reasonable effort to find a purchaser for the gas — utilize the gas or find a purchaser so that it could have been utilized off the premises.” In various forms the jury were directed to inquire whether the defendant could have placed the gas in market without loss and that if it could the sum of three hundred dollars was actually due with interest.
    To the several parts of the charge as given the defendant excepted, and a verdict was returned in favor of the plaintiff for$379.50. The defendant’s motion for a new trial was overruled and a judgment was entered on the verdict. The judgment was affirmed by the circuit court. This is a petition in error to reverse both judgments.

      Layton <& Stueve and Wheeler & Brice, for plaintiff in error.
    The whole case depends upon the meaning of the clause in the contracts which reads as follows:
    “If gas only is found, second party agrees to pay $300 each year in advance, for the product of each well while the same is being used off the premises, and first party to have gas free of cost to heat six stoves in dwelling house during the same time.”
    In the consideration of the case, it should constantly be borne in mind that no gas was used out of this well either on or off the premises.
    Plaintiff in error contends, that the language of the gas clause, above quoted, is clear and unambiguous, and means exactly what it says; and that no liability could arise, unless gas was used off the premises.
    We submit that the above proposition is the recognized law, as laid down by text writers and adjudications on contract law.
    Where language is plain and unequivocal there is no room for construction. Strohecker v. Farmers Bank, 6 Barr., 41; Benjamin v. McConnell, 4 Gilm., 536; Chitty on Contracts, page 105; Wilson v. Bevan, 7 C. B., 673; Ford v. Beech, 11-2 B., 842; Lawler v. Burt, 7 Ohio St., 341; Cobb v. Fontaine, 3 Rand (Va.), 487; Parsons on Contracts, 2 Yol. star page, 500; Beach on Contracts, sections 703, 707; 1 Greenleaf on Evidence, section 277; Aspdin v. Austin, 5 Q. B., 671; Anson on Contracts, section 252.
    Now we maintain that in the case at bar the court below has done just what the foregoing authorities, and a multitude of others, hold a court cannot do, namely, made a new contract for the parties to this contract. The court has held that a recovery can be had upon the gas clause in this contract when the gas was not used off the premises, which is in direct contradiction of-the plain and unequivocal meaning of the words of the contract.
    We submit that the construction placed on this clause by the court below does not give any effect to the words of the contract. If at the time of making’ this contract the parties intended that the gas should be paid for if found at all, or if found in paying quantities, or if found in quantities sufficient to utilize and there was a market for it, it would have been the simplest matter in the world for them to say so in the contract. The fact that they did not say so, is we think upon reason and authority, conclusive presumption that they did not intend to make such a contract. Am. & Eng. Ency. Law, Vol. 12, page 1012, and authorities there cited.

      Goeke ds Gulliton, for defendant in error.
    We maintain that in this case the language of the contract in respect to the clause in the controversy is not plain and unambiguous; in fact, that it is very obscure and does not in any manner express the real intention of the parties to this contract.
    We claim that, if there ever was a contract since litigation began, that needs construction, this is the one. If this contract needs construction, then it became the duty of the trial court to construe the contract when the case was submitted to the jury. Beach on the Modern Law of Contracts, Volume 1, sections 702 and 743; Wason v. Rowe, 16 Vermont, 525; Emery v. Owings, 16 Gill., 191.

      The intention of the parties is to be derived from the terms and subject matter and not from the statements of one party as to what might have been the understanding. 22 Florida, 279; Beach on Contracts, section 708; Little v. Banks, 77 Hum., 511; Russell v. Allerton, 108 N. Y., 20; Jugla v. Trouttet, 120 N. Y., 21; Wright v. Rensens, 133 N. Y., 298.
    A clause or a word may be rejected which is irreconcilable with the language of the contract or the general design of the parties. Buck v. Burke, 18 N. Y., 337; 45 Iowa, 166.
    The general rule is that the contract should if possible be so construed as to render it binding on both parties and not so as to render it inequitable as to either party. Nute v. American Glucose Co., 55 Kansas, 225; 40 Pacific Reporter, 297; Beach on the Modern Law of Contract, at sections 711, 712 and 719; Beach on Contracts, section 723; Mintier v. Mintier, 28 Ohio St., 307; Vol. 14, American State Reports, 668; 2 American State Reports, 362; 24 American-State Reports, 283.
   Shauck, J.

The numerous questions raised by the objections to the evidence offered by the plaintiff in the trial court and the exceptions to the refusal of the court to give the instructions requested by the defendant depend upon the meaning of the stipulations in the contract of May 6, 1890. ' That is true, also, of the questions raised by the exceptions to the instructions given, unless it is the exception to the portion of the charge advising the jury respecting the admissions of the defendant. Although a contract of this character should not be copied into the petition either in lieu of, or in addition to, allegations of its terms, the written agreement in this case was treated throughout the trial as though it had been put in evidence, and the defendant did upon the trial practically admit its execution. It does not contest it now. In its answer it denied all of the allegations of the second cause of action except that of non-payment. Nor did it admit upon the trial, as is alleged against it in the petition, that “it agreed to use the gas produced on said premises within a reasonable time off said premises and thereupon to pay for the same.” On the contrary its consistent contention has been that the instrument whose execution it admits does not support the controverted allegation of the petition as to that promise. By the terms of the instrument executed the company promised to pay a stipulated price for the gas “while the same is being used off the premises.” It did not in terms undertake to use the gas off the premises within a reasonable time as alleged in the petition, nor to use it off the premises if it could do so without loss as is stated in the charge. But in support of the charge it is said that upon construction of the instrument the obligations stated in the charge should be inferred and that the phrase “ ‘while the same is being used off the premises’ only determines how long the payments are to be kept up.” That view of the phrase is not helpful, for it fixes the beginning of the term of payment as well as its close. It is further said that “inconsistent claims must be construed according to the rsubject matter and the motive and intention of the parties as gathered from the whole instrument.” This is a familiar and established rule of interpretation. Its terms pre-suppose the presence of clauses that are inconsistent or not clearly expressed.

The company was engaged in prospecting in the vicinity for oil, and in producing it when found. It was known to both parties that in drilling for oil, gas might be found. For the purpose of fixing their rights in the mineral which might be discovered they entered into a contract containing stipulations familiar to operators and owners having similar motives. Indianapolis Gas Co. v. Teters, 44 N. E. R., 549; Bryan on Oil and Gas, 97.

If oil, the principal object of search, should be found, the owner was to receive one-sixth of it delivered in the pipe line. But‘ ‘if gas only’ ’ should be found, the operating company was expressly granted the right to use it on the premises in driving machinery for drilling other wells, to use it for that purpose on other premises, or to place it in the market, but without incurring any obligation to pay therefor unless it should be taken from the premises of the plaintiff. The recovery was upon the theory that if gas should be found in such a quantity the plaintiff was entitled to recover at all events if the jury were of the opinion that the gas could have been sold without loss. That view is not only without warrant in the terms of the instrument, but it is distinctly refuted by the stipulation that the company might, without making compensation, use the entire quantity in further operations upon the premises of the plaintiff.

From a consideration of all the terms of the contract and from the purposes of the parties at the time of its execution it is obvious that the operating company’s obligation to pay for the gas only in case it should be “used off the premises” was deliberately inserted as expressive of the intention of the parties. There is, therefore, no occasion for the application to this contract of any rule relating to the interpretation of contracts whose terms are ambiguous or inconsistent. In view of the terms of the contract, the plaintiff’s admission that gas had not been used off the premises was equivalent to the admission that he had no cause of action.

Judgments of the circuit cowt and the court of common pleas reversed and judgment for the plaintiff in error.


author: Minshall, J.

text:
    First National Bank of Chicago et al. v. Trebein Company et al.

      Corporation a legal entity — Limits of this fiction — Effect of fraucRFormation of corporation by failing debtor — Transfer of property for stock — Fraudulent nature of such transaction — Rights of creditors.

    1. In. contemplation of law a corporation is a legal entity, an ideal person, separate from the real persons who compose it.' This fiction, however, is limited to the uses and purposes for which it was adopted — convenience in the transaction of business and in suing and being sued in its corporate name, and the continuance of its .rights and liabilities, unaffected by changes in its corporate members. But the fiction can not be abused ; a corporation can not be formed for the purpose of accomplishing a fraud or other illegal act under the disguise of the fiction; and when this is made to appear, the fiction will be disregarded by the courts and the acts of the real parties dealt with, as though no such corporation had been formed, on the ground that fraud vitiates everything into which it enters, including the most solemn acts of men.
    2. Where a failing debtor forms a corporation, composed of himself and certain members of his family, he taking substantially all the stock, and at once conveys all his property to the corporation in exchange for the stock by him taken and for no other consideration; and immediately places all his stock, except one share, with certain of his creditors who have knowledge of the facts, as collateral security to their claims; and, as president and general manager, retains control of the property and manages it for his own use and benefit, such a conveyance is a fraud on his other creditors, and may be set aside by a court at their suit, and the property administered for the benefit of all his creditors under the insolvent laws of the state.
    3. The good faith of the parties to such a transaction must be determined by its legal effect on the rights of others. If its ' legal effect works a fraud on their rights, the finding of a court that the parties acted in good faith is simply an erroneous conclusion of law from the facts.
    (Decided November 29, 1898.)
    Error to the Circuit Court of Greene county.
    The First National Bank of Chicago, and The Rock Island National Bank, both of the state of Illinois, having recovered judgments, aggregating $30,000 against F. C. Trebein in the common pleas court of Greene county, filed their petition in that court against F. C. Trebein and “The F. C. Trebein Co.” ostensibly a corporation under the layrs of Ohio, to set aside a certain conveyance of real estate made by F. C. Trebein to the company, on the ground that it was made to hinder, delay and defraud them. Upon issue joined as to these allegations the court found in favor of the defendants and dismissed the action. An appeal was taken by the plaintiffs to the circuit court. In that court an amendment to the petition was filed, alleging that the object and purpose of the formation of “The F. C. Trebein Company” and the conveyance to it of the real estate and about $20,000 of personal property was, while securing certain creditors to the exclusion of others, to enable F. C. Trebein to retain for himself a beneficial interest in the property, real and personal, and asking that the conveyance of said property, real and personal, be declared to be a deed of assignment and held in trust for the benefit of ereditprs. Issue was taken on these averments. On the trial the court found for the defendants, and dismissed the action of the plaintiffs. The judgment was, however, rendered on a finding of facts made at the request of the plaintiffs, and an exception taken to the judgment on the findings. The findings are as follows:
    “First — We find that for many years prior to the formation of the corporation known as The F. C. Trebein Company, the defendant F. C. Trebein carried on the business of buying, selling and milling grain in Greene county, Ohio, under the business name of F. C. Trebein & Company; that his property connected with this business consisted of The Excelsior Mills at Trebeins, Ohio, including valuable water rights and real estate near by; also the Shawnee Mill in Xenia, Ohio, and the Jamestown Elevator, at Jamestown, Ohio, with the personal property used in the business.
    Second — We find that Mr. Trebein also owned, prior to December and January, 1895, a large amount of real estate and personal property, including common and preferred stock of The Columbia Straw Paper Company.
    Third — We find that F. C. Trebein was on, and had been for several years prior to January 22, 1895, an endorser, with six other directors of The Columbia Straw Paper Company, of the notes of that company to the extent of about $85,000, which sum includes notes to Th'e City National Bank of Dayton, Ohio, for $18,000; to the Xenia National Bank of Xenia, Ohio, for $10,000; also $25,000 to the First National Bank of Chicago, Illinois, and for $5,000 to The Rock Island National Bank of Rock Island, Illinois.
    Fourth — We find that not later than November, 1894, that F. C. Trebein knew that The Columbia Straw Paper Company was then and soon would be financially embarrassed, and not later than January, 1895, knew that said company would not further he able to take up or renew its obligations as they became due, and knew that upon January 19, 1895, there was a meeting of the directors, including F. C. Trebein, of said company; that the officers were authorized by a resolution, to take such steps as might be necessary to put all of said company’s property into the hands of a receiver; and that pursuant thereto, a receiver was appointed by the circuit court of the United States, on the twenty-fourth day of January, 1895, to take charge of the property of the said company.
    Fifth — We find that Mr. Trebein, in December, 1894, and January, 1895, conveyed and assigned in payment in part, of an alleged prior indebtedness to his wife, real and personal property to the value of $40,900, and to his daughter, real estate to the value of $2,100, which he had promised to her as a wedding gift in June, 1894, and that he pledged a large amount of stocks, probably valueless, to his wife, as collateral for an alleged balance of about $8,700 due her.
    But for the reason that.the validity of a number of these transactions is questioned in another ac tion now pending a hearing in the common pleas court in this county, and because there is not sufficient evidence before us on which to predicate a finding of an intent to defraud in these contemporaneous acts, we do not so find, and therefore have not considered them in the determination of this action.
    Sixth — We find that when the directors of the said Straw Paper Company determined to borrow from the banks, upon their endorsements, they ag-reed together, among themselves, that in case of necessity each would protect the banks from which they obtained their loans upon The Columbia Straw Paper Company’s notes, with the endorsements of the directors, and that Mr. Trebein had stated to the three banks in his vicinity when he made loans for The Columbia Straw Paper Company, with the endorsements of the directors, that he would protect them, but counsel for the defendants do not claim, for the purposes of this suit, that the plaintiffs knew of such agreement.
    Seventh — We.find that on the twenty-eighth day of August, 1895, by the consideration of the court of common pleas of Greene county, Ohio, The First National Bank of Chicago, Illinois, recovered a judgment against the said F. C. Trebein for the sum of $25,362.50; and that the Rock Island National Bank, of Rock Island, Illinois, by the consideration of the said court, recovered a judgment against F. C. Trebein for 'the sum of $5,145.82; that executions were issued upon the said judgments, and levies were made upon the real estate described in the petition.
    Eighth — We find that upon January 22, 1895, all the residue of the property owned and held by F. C. Trebein, remaining after the said conveyance to his wife and daughter, consisted of the real estate described in the petition, and the personal property, accounts and merchandise connected with his milling business, and thereafter conveyed and transferred to The F. C. Trebein Company, and which was believed at the time by Mr. Trebein to be , worth $60,000, and this his attorney then thought to be too high a valuation.
    Ninth — We find that upon January 22, 1895, F. C. Trebein had not sufficient property to pay his outstanding obligations, including his liability as indorser for The Columbia Straw Paper Company, and thereupon, for the purpose and with thé intent in good faith to secure The City National Bank of Dayton, Ohio, The Xenia National Bank of Xenia, Ohio, and The Farmers’ and Traders’ Bank of Jamestown, Ohio, upon their claims against him as endorser and otherwise, did, with his wife, Joan Trebein, his daughter, Elizabeth T. Flynn, his son-in-law, P. H. Flynn, and his brother-in-law, Horace Ankeney, who acted with him for his accommodation, at his request and to carry out the purposes and object of the said F. C. Trebein, form and organize “The F. C. Trebein Company,” with a capital stock of '$60,000, divided into 600 shares of $100 each; that pursuant to said intention, said corporation purchased all of the property of said F. C. Trebein connected with his said business, the same being all the property he then possessed, on the said twenty-second day of January, 1895, and on the same day the said Trebein conveyed and transferred said property to said corporation; that on the same day, in the further pursuance of said purpose, there were regularly issued certificates for 596 shares of stock in said corporation to said F. C. Trebein in payment therefor, which said stock, except one share, pursuant to said purpose said Trebein placed as a general collateral with said three banks, as security upon their claims against him as endorser and otherwise; and in pursuance of the further intention of the said Trebein in the formation of the said corporation, the said F. C. Trebein remained in the charge of the affairs of the said corporation as president, treasurer and general manager, and continued the business theretofore conducted by him, and the remaining four shares of stock were taken by the said Joan Trebein, P. H. Flynn, Elizabeth Flynn and Horace Ankeney respectively, and paying $90.00 a share therefor.
    Tenth — We find that upon January 23d, that the stockholders of The F. C. Trebein Company, authorized, in writing, the president of the company to issue, without said company being liable therefor before said authority, its notes to The City National Bank of Dayton, Ohio, for $23,000; to the Xenia National Bank of Xenia, Ohio, $20,000; and to the Farmers’ and Traders’ Bank of Jamestown, Ohio, $5,000, in lieu of notes held by them on which F. C. Trebein and the firm of F. C. Trebein and Company were liable as makers and indorsers; and on January 23, 1895, The F. C. Trebein Company had a meeting and gave this authority to the president of the company; we find $12,000 of notes made by F. C. Trebein and Company were in pursuance to the resolution, taken up and replaced by the notes of The F. C. Trebein Company as .they respectively became due; we find that said action did not form a part of the intention of Mr. Trebein, or those acting with him, at the time of the formation of the corporation or at the time of the conveyance of the property by Mr. Trebein to the corporation, but was the result of an after thought.
    Eleventh — We End that none of said indebtedness or the said City National Bank of Dayton, The Xenia National Bank of Xenia, and The Farmers’ and Traders’ Bank of Jamestown has been paid, and said banks still hold said stock as collateral.
    Twelfth — We find that the directors of the said F. C. Trebein Company, since January 24, 1895, have held only one meeting, on March 10, 1896, and heard the report of the president, who reported that the profits to that date were $1,062,’ and had been passed to the profit and loss account; that F. C. Trebein has had possession of all of the property since the organization of The F. G. Trebein Company; that none of the directors other than the said F. C. Trebein have taken any active part in the management of the affairs of the company, except to attend said meeting.
    Thirteenth — We find due and legal notice has been given of the pendency and object of this action, as provided by section 6344, that no creditors have intervened or come into this action. To which finding of fact the plaintiffs except.
    On consideration whereof the court finds that the equities in said action are with the defendants, and that they are entitled to be dismissed with their costs.”
    A bill of exceptions was also taken setting forth all the evidence and a motion made for a new trial, which was overruled and exception taken.
    The plaintiffs ask a reversal of the judgment on the findings; and that judgment be rendered in their favor.

      Ghmies II. Kyle and Charles Darlington, for plaintiffs in error.

      John Little and F. FT. Shaffer, for defendants in error.
   Minshall, J.

We are unable to see how, as against his creditors, the transaction by which F. C. Trebein with his wife, his daughter, his son-in-law and his brother-in-law,0 formed “The F. C. Trebein Company” and then conveyed to it every vestige of property he had not before conveyed, either to his wife or to his daughter, can be sustained, against the justice of their demand to have the property so transferred administered for the benefit of all his creditors under the insolvent laws of this state. He was at the time liable in a large sum of money on indorsements he had made for the accommodation of the Straw Paper Company of which he was a member and one of its directors. He knew it was about to fail and that he would have to respond to these indorsements. This fact induced the conveyances he had before made to his wife and to his daughter, whether for a valid consideration or not, was not considered by the court for the reasons stated in its finding, that there were suits then pending to set them aside. The capital of The F. C. Trebein Company was fixed at $60,000, divided into 600 shares of $100 each, Trebein taking 596 of the shares and each of the other persons named taking one share. It was formed on January 22, 1895, Trebein being made the president, treasurer and general manager, and conveyed to the company the property in question, estimated to be worth $60,000 and received therefor the shares above stated, and at once placed all of them, except one, in pursuance of his original purpose, with three of the banks who held his indorsements of the paper of the Straw Paper Company, for the purpose of securing them on his indorsements ; and be continued in the control and management of the milling and grain business as he had before the corporation was formed and the conveyance made. The court found that this was all done in good faith. But, in view of the facts, we are unable to see how the court could have meant more than that he meant no wrong by it. Good faith in law, however, is not to be measured always by a man’s own standard of right, but by that which it has adopted and prescribed as a standard for the observance of all men in their dealings with each other. When one conveys all his property to another with the intention of hindering and delaying his creditors, or a part of them, in pursuing their legal remedies against him and his property, his conduct in law is deemed fraudulent however honestly he may have intended to deal with all his creditors, in the future. Trimble v. Doty, 16 Ohio St., 118. The good faith of a party under such circumstances must be determined by the legal effect of what he deliberately does. Brinkerhoff v. Tracy, 55 Ohio St., 558; Lee v. Hennick, 52 Ohio St., 177; Gashe v. Young, 51 Ohio St., 376, 389. The formation of the corporation and the conveyance to it by Trebein of all the property he then had, necessarily hindered and delayed all his creditors in the pursuit of their claims against him. The formation of the corporation in no way facilitated the transaction of his milling business and that connected with it. Nothing was added to his capital, unless we regard the few hundred dollars that may have been paid for the four shares of stock taken by the other members of his family, such an addition. Evidently an addition to capital was not the controling object. The transaction cannot be likened to a conveyance to a third person for a valuable consideration — considered in the light of the facts, it was no more than a conveyance from himself to himself. The corporation was in substance another F. C. Trebein. His identity as owner of the property was no more changed by his conveyance to the company than it would have been by taking off one coat and putting on another. He was as much the substantial owner of the property after the conveyance as before; and had substantially the same use of it as if the conveyance had not been made. The only purpose the creation of the corpoxation and the conveyance to it subserved, was to hinder creditors in levying upon the property and selling it on execution at law; and it is this hinderance the law will not permit, and, when ascertained in a proper proceeding, requires the conveyance to be set aside and the property administered for the benefit of all the creditors of the fraudulent grantor.

It is suggested that the px-operty may be levied on. This is true, but it cannot be sold on execution until the conveyance is set asid.e; for it is not the policy of the law to sell a law suit. It is also suggested that the stock of Trebein may be reached by a proceeding provided by statute. This is true, but it is not the simple proceeding of an execution at law; besides few persons, at this day, would care to take stock in a manufacturing or any similar company, with its statutory liability attached, as a substitute for tangible px-operty.

The fiction by which an ideal legal entity is attributed to a duly formed incorporated company, existing separate and apart from the individuals composing it, is of such general utility and application, as frequently to induce the belief that it must be universal, and -be, in all cases adhered to, although the greatest frauds may thereby be perpetrated under the fiction as a shield. But modern cases, sustained by the best text writers, confine the fiction to the purposes for which it was adopted— convenience in the transaction of business and in suing and being sued in its corporate name, and the continuance of its rights and liabilities, un- ■ affected by changes in its corporate members; and have repudiated it in all cases where it has been insisted on as a protection to fraud or any other illegal transaction. Thus in Brundred v. Rice, 49 Ohio St., 640, where an incorporation had been formed for the purpose of giving effect to an illegal agreement between it and a railroad company for a discrimination in freig’hts between it and other shippers, the fiction was disregarded, and a recovery allowed against the promoters by one who had been thus discriminated against, in like manner as if the corporation had no existence. See also the following citations: Morawetz on Corporations, sections 1 and 227; Railway Co. v. Miller, 51 N. W., 981; Gas Company v. West, 50 Iowa, 16; Booth v. Bunce, 33 N. Y., 139; State ex rel. Atty. Gen. v. Standard Oil Co., 49 Ohio St., 137; Bennett v. Minott, 28 Oregon, 339, 348.

A like attempt has frequently been made of late to use this fiction in connection with a conveyance to the legal entity, as a means of defrauding- creditors; but seems to have uniformly failed.

In Montgomery Web Co. v. Dienelt, 133 Pa. St., 585, which was a suit by a creditor of one company to set aside a conveyance by it to another, as in fraud of his rights, it appeared that the latter was formed substantially by the stockholders of the former, who relinquished their stock in it for stock in the latter; this being substantially all the consideration given by the purchasing company. This was held to be a fraud on the creditors of the former company, called the Aronia. The case does not differ in principle from the one before us. Here the conveyance was by an individual, and in consideration of stock taken in the corporation formed. The judge, delivering the opinion, said: “Is the Montgomery Company so completely a new and different company from the Aronia Company that the law must close its eyes to the fact that the difference is a mere jungle of names? We do not think there is any compulsion to such legal blindness. Settled general principles, and the analogies of the law, are against such a contention. If the corporation had merely changed its name, there could have been no doubt of the continued liability of the property. ” As to the creditors of the old company who had taken stock for their claims in the new one, they were held bound to know the nature of the transaction, and that the property conveyed could be followed by the creditors of the old company for the satisfaction of their claims. The Hibernia Ins. Co. v. Transportation Co., 13 Fed. Rep., 516, is a case of like character and was decided in the same way. In Bennett v. Minott, 28 Oregon, 337, a case quite similar to the one before us, in all its facts, the court held that: “When a debtor, for the purpose of hindering and delaying creditors, organizes a corporation and transfers to it all his assets, he himself being the owner of practically all the corporate stock, and continuing the business the same after as before the incorporation, using the proceeds for his own benefit, equity will set aside such transfer at the instance of creditors, notwithstanding the incorporation is valid, and the corporate stock subscribed by the debtor is subject to sale under execution. Under such circumstances a court of equity will look beyond the legal forms, and decide the case on the rights of the parties.” Terhune v. Savings Bank, 45 N. J. Eq., 344, is another case, where an insolvent debtor, with the members of his family, formed a corporation, a manufacturing company, and conveyed to it his property, real and personal, much as in the ease under review. The conveyanee was set aside, at the suit of a creditor. It was there said that in conveying his property to the corporation so formed, he simply “changed his habiliments. ’ ’ The fiction in regard to a corporation being a legal entity was not allowed to avail him. And Kellogg v. Douglas County Bank, 58 Kan., 43, is a recent case of similar character. It was there held, that, “A fraud may be perpetrated by an insolvent merchant through the instrumentality of a corporation organized and controlled by himself, to which he transfers the bulk of his property, as well as by a transfer to an individual; and where it appears that this has been done for the purpose of hindering and delaying’ creditors and enabling the debtor to retain the management and control of his property, and of depriving his creditors of an opportunity to collect their dues, and when such insolvent retains substantially all the stock in the corporation, and no innocent person contributes any substantial sum to its assets, the court in sustaining attachments levied on the property, and directing the sale thereof to satisfy the claims of creditors, is warranted in treating the whole transaction as a sham.”

We are so clearly satisfied that the conveyance by Trebein of his property to the corporation, was made to hinder and delay creditors, and should have been so declared by the court, and ordei'ed administered for the benefit of all his creditors under the provisions of section 6344, Revised Statutes, that we think it unnecessary to consider whether, upon the facts, it did not also constitute an assigment in trhst, in contemplation of insolvency, to secure one or more creditors, within the meaning of section 6343, Revised Statutes, and, for such reason, should • be ordered administered as before stated.

There is no doubt that an insolvent debtor when he acts in good faith may prefer one or more of his creditors. Cross v. Carstens, 49 Ohio St., 548. But the way in which this may be done has been very clearly defined. He may pay any of his creditors in money, or may convey property in satisfaction of his claim, or may give him a mortgage on property to secure it. But he must deal simply with the creditor preferred, and the latter must deal with an eye single to himself; and when property is conveyed it must be no more than a fair satisfaction of the debt. Jamison v. McNally, 21 Ohio St., 295. If the conveyance or mortgage is to secure others than the particular creditor to whom the property was conveyed or mortgaged, and was made in contemplation of insolvency, it becomes in law an assignment within the meaning of section 6343, Revised Statutes, and inures to the benefit of all the creditors of the grantor. Pendery v. Allen, 50 Ohio St., 121; Cashe v. Young, 51 id., 376. If thei'efore we regard a corporation capable of taking such an assignment, and holding the property for the benefit of one or more creditors of the assignor, it would seem to follow that, in this ease, the conveyance of Trebein to The F. C. Trebein Co., must be regarded as an assignment in trust for the creditors with whom he placed the most of his stock as “a general security” to their claims against him; and therefore, under the section just referred to, may be held to be an assignment for the benefit of all his creditors. The primary object was, as stated by the attorney who conducted the matter, to give security to the three banks; and the plan of a corporation was adopted in preference to a mortgage, that Trebein might remain in control of the business, and make money enough to pay their claims. Hence if this be true, the corporation took the legal title in trust for the benefit of these three creditors and the grantor; and the ease would, in principle, differ but little, if any, from that of Loudenbach v. Foster, 39 Ohio St., 203. The law of Hoffman v. Mackall, 5 Ohio St., 124 and Conkling v. Coonrod, 6 Ohio St., 611, may be regarded as abrogated by the act regulating assignments for the benefit of creditors adopted in 1859, and carried into the revision of 1880. By this law all conveyances in trust for creditors are, by sections 6335-36, required to be administered in the probate court, irrespective of fraud; and all conveyances, transfers and assignments made to hinder, delay or defraud creditors, when set aside at the suit of any creditor; and all' assignments in contemplation of insolvency in trust to prefer one or more creditors are declared to be for the equal benefit of all creditors and are required to be administered in the same court.

The decision, however, is placed on the ground that the conveyance by Trebein to the company was fraudulent as to his other creditors, and should be set aside, and the property administered for the benefit of all his creditors.

The judgment is reversed, and cause remanded to the court of common pleas for further proceedings under section 6344, Revised Statutes.


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    Travelers Insurance Co. v. Myers et al.

      Supreme Court jurisdiction in error proceedings — Review of judgment in lower court — Act of April ZB, 1898.

    Section 6710, R. S., as amended April 25, 3898 (93 Laws, 255), does not affect the jurisdiction of this court to review a judgment of a lower court, where the right to prosecute error in this court existed at the time the amendment took effect. Curry v. Homer, 40 Bul., 303, overruled.
    (Decided December 13, 1898.)
    Motion to dismiss for want of jurisdiction.

      Day, Lynch hDay, for plaintiff.

      II. A. Mykrantz, for defendant.
   Minshall, J.

It is manifest that the third section of the act amending section 6710, Revised Statutes, was inserted with reference to the provisions of section 79; and the only question that arises on this motion is whether the legislature intended the amendment to apply to proceedings in error that were then pending and also to existing causes of such proceedings, or in other words to existing rights to prosecute error. It is evident that if section 3 had been omitted, the act, being one relating to the remedy, would not have applied to this case; for by section 79, no amendment or repeal relating to the remedy, applies to an existing cause of action, prosecution or proceeding, unless otherwise expressly provided in the amending or repealing act.

This section of the statutes was adopted for the reason that, though the legislature is denied by the constitution the power to pass retroactive laws, it had been held, that this did not include laws relating to the remedy; and so to prevent abuses, of which there were many and somewhat discreditable instances, it was provided that where laws relating. to the remedy were adopted they should not affect pending actions, prosecution or proceedings, nor existing causes of action, prosecution, or proceedings unless otherwise expressly made so in the amending or repealing act. The policy of the section sug’gests that it should receive a liberal construction to the end that its policy be not subverted; and that an act within its provisions should by clear language express that it was intended to apply to each classification of section 79 — cause of action, prosecution and proceeding; and if it fails to apply to all, it should be applied no further than the language employed requires. State ex rel., Construction Co. v. Rabbitts, 46 Ohio St., 178.

It will be noticed that the section desigmates existing causes of action, prosecution or proceeding. “It is a general presumption that every word in a statute was inserted for some purpose. Mere idle and useless repetitions of meaning are not to be supposed, if it can be fairly avoided. ’ ’ Per Thurman, J., in Bloom v. Richards, 2 Ohio St., 387. The term used in this statute are not indentical. They have a well understood and defined signification in the law and practice of the state. A cause of action embraces the facts that entitle a party to relief in an original action; the facts ordinarily stated in a petition; a prosecution relates to criminal proceedings. A cause of action does not embrace within its signification a proceeding’in error; the latter usually grows out of the proceedings had in a cause of action, and is distinguished from it by the name adopted. Hobbs v. Beckwith, 6 Ohio St., 252; Bode v. Welch, 29 id., 19; Lafferty v. Shinn, 38 id., 46; O'Donnell v. Dowling, 43 id., 62. So that the legislature in providing that the amendment of section 6710, Revised Statutes, should simply apply to existing and pending causes of action, cannot be held to have intended more than it expressed; and so the amendment does not apply to a pending proceeding in error, nor to an existing right to prosecute error. If they had so intended, we are bound to presume that, with section 79 before them, they would have so expressly provided.

The limitation of the section as amended to existing and pending causes of action, is, in the construction of the statute, very significant; and suggests that the limitation as made, was purposely done to avoid objection, that would otherwise most likely have been made, to the adoption of the amendment, if intended to apply to any existing right to prosecute error. As adopted the act applies to proceedings in error that may grow out of pending as well as out of existing causes of action; but does not apply to existing causes of proceeding in error, nor to such proceedings pending at the time the amendment took effect. There could be no objection under the constitution to making it apply to proceedings in error arising out of future causes of action. Such an amendment could in no sense be said to be a retroactive law; but as to causes of proceeding that may arise out of pending actions, or even existing causes of action, an amendment affecting such proceedings, might be regarded as falling within the provisions of section 79, and not apply in such cases, without an express provision to that effect; and hence the reason the amendment is expressly made applicable to pending as well as existing causes of action, out of which proceedings in error may arise. The majority of the legislature may have been willing to go this far, and no further; and, presuming this [to have been the fact, they have clearly expressed their intention to that effect in the amending act, by limiting the retroactive operation of the amendment to proceedings in error that may arise out of causes of action, existing or pending, at the time it took effect.

The dismissal of Curry v. Homer, heretofore made on the motion of the defendant, will De vacated and the cause restored to its place oa the general docket. The per curiam announced in that case, 40 Bul., 303, is overruled, and will not appear in the volume of reports.

Motion overruled.


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    Draper et al. v. Clark. Caldwell et al. v. Heintz.

      Appellate jurisdiction of Supreme Court — Limitation of — Review of judgments involving more than three hundred dollars — Effect of claim for more but recovery of less than that amount in lower cozirt — Act of April 25, 1898, — Supreme Court praxtice.

    1/ Under Section 6710, Revised. Statutes as amended April 25,1898 ■ (93 Laws, 255), limiting- the appellate jurisdiction oí this court, except as therein expressly provided to the review of judgment in which is involved the sum or value of more than three hundred dollars, the effect of the judgment complained of on the claim of the plaintiff in error must be considered in determining the amount involved.
    2. Where a plaintiff in the court of common pleas claims more than three hundred dollars, but recovers less, and is content with the judgment, this court has no jurisdiction in a proceeding in error prosecuted in this court by the defendant below; for the amount involved as to Mm is less than three hundred dollars.
    3. Where, however, the plaintiff claims more than three hundred dollars, but recovers less, and prosecutes error to the circuit . court, where the judg-ment is reversed and cause remanded fora new trial, in such cases, as to the defendant, the judgment oí reversal involves the full amount of the plaintiff’s : claim; and he may prosecute error to this court for the . reversal of the judgment of the circuit court.
    (Decided December 13, 1898.)

      Motion to dismiss for want of jurisdiction.

      Frank M. Sala, for Draper et al.

      Byron F. Ritchie, for Clark.

      Johnson da Levy, for Caldwall et al.

      Mortimer Matthews, for Heintz.
   Minshall, J.

Both these cases are before the court on a like motion, and will be considered in their order.

And first as to the case of Draper v. Clark: By the amendment of section 6710, Revised Statutes which was adopted and took effect April 25, 1898, the jurisdiction of this court to review a judgment of a lower court, except in certain specified cases of which this is not one, is limited to a judgment or final order, “in which is involved exclusive of interest and costs, the sum or value of more than three hundred dollars.” In the action below Joseph Clark recovered of the defendants, the sum of $225, damages, for injuries received by him' while in the employment of the defendants, caused by their negligence and for which he claimed $2,000 damages. The defendants prosecuted error in the circuit court where the judgment was affirmed;, and error is prosecuted in this court to reverse the’ judgments of both the lower courts; and the defendant in error, Clark, how moves to dismiss the petition on the ground that this court has no jurisdiction. We are of the opinion that the motion should be sustained. ;

The question is, jphat is involved in the judgment complained of. To determine this question the statute must be construed with reference to the party complaining of the judgment. Either party has the right to prosecute error- in- this court for-the reversal of a judgment against him, when, as to him, a greater sum than $300 is involved in the judgment. It can make no difference to the defendant after judgment, that in the lower court a greater sum than $300, was claimed against him, if the recovery was for a less sum, and the plaintiff is content therewith; for in such case, the recovery of any greater sum is precluded by the judgment; hence no greater sum than the amount recovered is involved in the judgment so far as he is concerned; and, by reason of the amendment, this court has no jurisdiction to review the judgment at his suit. The case may be different, however, where the plaintiff below prosecutes error in this court for the reversal of a judgment for a sum less than $300 on a claim for more, affirmed by the circuit court. As to him the whole amount of his claim in the lower court is, in such case, in dispute; for if he can have the judgment of the circuit court and common pleas reversed, he may recover on a new trial a greater sum than on the former trial, if not the whole of his claim; and therefore as to him a greater sum than $300 is involved in the judgment complained of, where the amount recovered is $300 less than the amount claimed.

.. This is the construction that has been placed on the provision in the judiciary act of Congress, limiting the appellate jurisdiction of the Supreme Court of the United States, and adhered to with great uniformity from an early day. That provision is in substance much the same as the provision now limiting the appellate jurisdiction of this court, except as to the amount adopted as the limit;

In Gordon v. Ogden, 3 Pet., (U. S.), 34, it is said by Marshall, C. J;, “The jurisdiction of the court has been supposed to depend on the sum or value of the matter in dispute in this court, not on that which was in dispute in the circuit court. If the writ of error be brought by the plaintiff below, then the sum which his declaration shows to be due may still be recovered, should the judgment for a smaller sum be reversed; and consequently the whole sum claimed is still in dispute. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit court, and consequently the matter in dispute cannot exceed the amount of that judgment. Nothing but that judgment is in dispute between the parties.” He further observes that ‘ ‘the reason of the limitation is, that the expense of litigation in this court ought not to be incurred, unless the matter in dispute in the circuit court exceeds two thousand dollars. The reason applies only to the matter in dispute in this court.” And the same may be said with as much, if not more, propriety of the language used in our own statute, where it is the sum or value “involved” in the judgment complained of that determines jurisdiction.

This case has been uniformly followed by the Supreme Court of the United States, as will appear from the following cases: Smith v. Honey, 3 Pet., 469; Knapp v. Banks, 2 How., 73; Pacific Express Co. v. Malin, 131 U. S., 394; Walker v. United States, 4 Wall., 163. A like construction has been given to similar statutes by the courts of the other states: Williams v. Wilson, 5 Dana (Ky.), 596; Tipton v. Chambers, 1 Met., (Ky.), 565; Winship v. Block, 96 Ind., 446; Railway Co. v. McDade, 111 Ind., 23. See also, 1 Myers Federal Decisions, from section 541 to section 614, where the decisions on the question are collected.

! The Ohio cases cited by counsel do not conflict With the view here taken. The court of common' pleas has jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace, which is one hundred dollars; and it has been uniformly held that the amount claimed, and not the amount recovered, determines the jurisdiction of the common pleas. If it were otherwise, the absurd result would follow, that the court would be compelled to hear and determine a case on its merits, in order to •determine its jurisdiction. So here, under the amendment, this court determines its juridiction by considering the sum or value involved in the judgment complained of.

■' The result is, that where the plaintiff in error Will, according to his claim, from the judgment cbmplained of, sustain the loss of a sum or value greater than $300, the court has jurisdiction to review it; and as the only loss the defendant below can sustain, is the amount of the judgment against him, where this is less than $300, he cannot prosecute error to this court.

‘ We have said that our statute and that of the United States are substantially alike. There is, however,.one important difference in the language of' the two statutes, that may, so far as a plaintiff is- concerned, require a different construction. By the United States' statute the jurisdiction is determined by the amount of “the matter in dispute,”'' iff ours it is determined by the amount “involved” iff the “judgment” sought to be reviewed. Thé Federal Supreme'Couft has held, as will appear from the'cases cited, that the right of the plaintiff' to a review, depends upon the amount claimed in-his declaration. If this should • be held to be so¡ under our statute, then, should a plaintiff sue fpr $301 dollars and recover $300 he might prosecute error to this court, although the amount, as to him, involved in the judgment complained of, is bqt one dollar. A more rational construction might be, that where a plaintiff sues for a sum greater than three hundred dollars, and recovers less than that sum, he may prosecute error to this court, where the difference between the sum recovered and the sum claimed, is greater than three hundred. The difference between his claim and the sum recovered, would seem to be the only sum involved in the judg-ment, and for which he could ask to have it reversed. Cases in which the plaintiff may desire to prosecute error from a judgment in his favor, that is but three hundred dollars less than his claim, will probably seldom arise; and it is possible that no case of this kind has come before the Supreme Court of the United States for its decision.

The question, however, here mooted in no way affects either of the motions before us, and is left for determination when it arises.

Hence the motion to dismiss in this case must be and is sustained.

As to the motion to dismiss for want of jurisdiction in the case of Caldwell v. Heintz, the action in the common pleas was brought by Catharine Heintz to recover of the defendants the sum of $5,000. She recovered a judgment for only $100. From this she prosecuted error in the circuit, court where the judgment was reversed and a new trial granted. The defendants prosecute error .in this court to obtain a reversal of that judgment. The motion must, we think, on the principles above stated, be overruled. By the reversal of the judgment of the court of common pleas the defendants below become again liable to a recovery for the full amount of the plaintiff’s claim. Hence the sum involved in the judgment of reversal is greater than three hundred dollars, and may be reviewed by this court.

Motion overruled.