author: Shauck, J.

text:
    Sage v. Commissioners of Vinton County.

      County commissioners without authority — To allow auditor compensation for blanks — Section 1029, Revised Statutes.

    County commissioners are without authority to allow the auditor of their county compensation for his services in furnishing blanks • to assessors pursuant to the requirement of Section 1029, Revised Statutes.
    (No. 11723
    Decided May 3, 1910.)
    Error to the Circuit Court of Vinton county.
    Sage,'as auditor, presented to the commissioners an account for services rendered for the years 1897 to 1902, inclusive, for furnishing blanks and giving instructions to the assessors of the county for those years. His claim was rejected by the commissioners and he appealed to the court of common pleas where the facts were found as follows:

      “1. That said Harvey B. Sage was auditor of Vinton county, Ohio, during the years 1897 to 1902, inclusive, and during the time covered by the services for which compensation was asked for in said account disallowed 'by said commissioners. -

      “2. That the said Harvey B. Sage, as auditor, during his said incumbency of said office, furnished to the assessors of Vinton county, the blanks necessary for the performance of their duties, as required of him by Sections 1029 and 1528 of the Revised Statutes of Ohio; that said blanks were printed by and procured from business houses engaged in the printing business, and were paid for, on the allowance of the board of commissioners, out of the Vinton county treasury; that no changes were made in said printed blanks, by said auditor. Except that he furnished to said assessors blanks showing the yearly changes of titles to real estate where lands had been divided, to enable said assessors to place valuations ori the parts sold.

      “3. That the said auditor apportioned said blanks to said several assessors, during said several years, according to the number required by each, in the performance of his duties, and delivered them to said assessors at their yearly meetings in April with said auditor — or shortly thereafter — as required by Section 2749, Revised Statutes of Ohio; that .at the time of said deliveries said auditor gave said assessors instructions as to their duties as prescribed by said Section 2749; that thereafter said auditor from time to time upon the request of said assessors, gave them further instructions by mail, concerning their said duties.
    . “4- That no part of said account, disallowed by said board of commissioners, was for any money expended by said auditor; but said account was for the foregoing enumerated services as such auditor.
    “5. That the foregoing services and duties’ performed by said auditor were reasonably worth the several amounts charged in said account, so as aforesaid disallowed by said commissioners of said Vinton county.”
    Upon the facts so found the court of common pleas rejected the claim. Its judgment was affirmed by the circuit court.

      Mr. George W. 'Holland, for plaintiff in error.

      Mr. James TV. Darby, prosecuting attorney, for defendant in error.
   Shauck, J.

From -the finding of facts it is entirely dear that the claim of the auditor is not for any disbursement made by him, but solely for compensation for his services in furnishing blanks to assessors and instructing them in their duties. The claim for compensation is ■ made, notwithstanding the rule long established in this state, and recognized in the brief of counsel for the plaintiff, and in the several opinions of the judges of the circuit court who have reached different conclusions upon the question presented, that if a statute imposes a duty upon a public officer it is presumed to .be performed by him in consideration of the general emoluments of his office unless the legislature has clearly indicated the intention that compensation shall be paid for the performance of the duty so imposed. The view urged by counsel is, that the requirement of this rule is met by Section 1029, Revised Statutes (Bates’ Statutes of 1904), which provides that, “The auditor shall furnish the several assessors all blanks necessary for their use in the discharge of the duties enjoined on them, by law, and all reasonable charges therefor shall be allowed by the county commissioners, and paid out of the county treasury.” Certainly here is no express provision for the compensation of the auditor. The terms employed }n the...statute: do'not require more than the allowance by the commissioners of such reasonable sums as may be paid to printers or stationers who furnish the blanks to the county. In its primary signification the word “charge” in the connection does not exceed this, for a charge is a load, a weight, or a burden. It does not in any primary sense embrace compensation. The view that the auditor and commissioners may, by agreement, include compensation to the auditor and fix the rate thereof is not only unauthorized by the statute, but it is in conflict with the express provisions of Sections 1077 and 1078, which relate directly and exclusively to the auditor’s compensation. The former section provides that, “All claims for serv1 ices of the county auditors, which are payable from the county treasury, shall be made out in detail according to the rates named in the foregoing sections, and shall be presented to the county commissioners who after being satisfied that the labor has been performed, shall allow said bill. * * *.” The latter section provides: “The fees and compensation provided for by the foregoing sections shall be in full for all services lawfully required to be done by the auditors of such counties; and it shall be unlawful for any county auditor to charge or receive any other or further fees or compensation, either as clerk of any board, or for any other services rendered by him.”

The obvious effect of these provisions is to prevent agreements between the auditor and commissioners as to the rate of any compensation which he is to receive, the legislature having itself by the sections referred to fixed the rates of all compensation which he is to be entitled to receive from the county treasury. In the' “foregoing sections” referred to no rate whatever is fixed for the compensation which the auditor claims in the present case. It may, therefore, be regarded as prohibited by the express terms of the statute. These conclusions are in accordance with the views expressed in Jones, Auditor, v. Commissioners of Lucas County, 57 Ohio St., 189, where the related sections of the statute are analyzed and the principles involved are stated with clearness.

Judgment affirmed.

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


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Kroll v. Close, Administrator.

      Burden of proof on party relying on estoppel — Reasonableness a mixed question of law and facts — Duty of probate judge as to executor’s account — Funeral expenses according to amount of estate.

    1. The burden is upon the party who relies upon estoppel, to prove clearly and unequivocally every fact essential to the estoppel.
    2. -Ordinarily an issue as to the reasonableness or unreasonableness of anything, is a mixed question of law and fact; but where the facts are clear and undisputed it is purely a question of law.
    3. It is the duty of the probate judge, upon the hearing of an administrator’s or executor’s account, whether exceptions have been filed thereto or not, to scan closely the amounts claimed to have been paid for funeral expenses; and in the absence of statutory or testamentary provisions, the allowance for such expenses must be reasonable, having regard to the amount of the estate, the station in life of the deceased and the customs of the people in the same station, and if unreasonable and extravagant should be disallowed, even as against legatees and next of kin.
    (No. 11560
    Decided May 3, 1910.)
    Error to the Circuit Court of Erie county.

      The plaintiff in error is the sole legatee under the last will and testament of John Ka’ercher, deceased. The defendant in error is the administrator with the will annexed of such estate. Exceptions were filed by the plaintiff in error to the account of the administrator. The probate court held that the charge for the coffin of the deceased was excessive and reduced it from $150 to>$100. ’In other respects the account was approved and confirmed. The administrator appealed to the court of common pleas and upon hearing that court overruled the exceptions and approved and confirmed the account. Plaintiff in error prepared, filed and had allowed her bill of exceptions and prosecuted proceedings in error in the circuit court. A motion was made to strike the bill of exceptions from the files, which motion was overruled and the case heard upon its merits. The circuit court dismissed the petition in error and gave judgment for the defendant in error. In this proceeding the plaintiff in error seeks to reverse the judgments of the circuit court and court of common pleas.

      Mr. H. L. Peeke, for plaintiff in error.
    The only question is, was this expenditure reasonable? The assets of an estate should not be squandered in ostentatious display for the gratification of the weakest of all vanities. Bradley’s Estate, 11 Phila., 87; 2 Woerner on Administration (2 ed.), 759; Schouler on Executors (3 ed.), Section 421; In re Rooney, 3 Redf. (N. Y.), 15.
    Burial expenses amounting to $127.00 are not unreasonable where the decedent left an estate of $700. Kittle v. Huntley, 67 Hun, 617; In re Kaercher, 52 W. L. B., 109; Raff’s Guide, 102; Willard on Executors, 272; 3 Redfield on Wills, *243; 18 Cyc., 269; Detwiller v. Hartman, 37 N. J. Eq., 349; Personette v. Johnson, 40 N. J. Eq., 174; Wilson v. Staats, 33 N. J. Eq., 524; Martin v. Cullen, 30 N. J. Eq., 426; Curtis v. Bank, 39 Ohio St., 579; In re Primmer’s Estate, 99 N. Y. Supp., 830, 49 Misc. Rep., 413; Foley v. Brocksmit, 119 Ia., 547, 92 N. W. Rep., 344, 60 L. R. A., 571, 97 Am. St. Rep., 324.

      Messrs. Williams & Steinemann, for defendant in error.
    The plaintiff in error was present at the time the casket was purchased and according to some of the evidence expressly agreed to its purchase and there is also a great deal of evidence tending to prove that she approved of the choice made. 22 Cent. Dig., 3062; Succession of Ross, 1 La. An., 129; Succession of Brownlee, 44 La. An., 917; In re Dolph’s Estate, 3 Luz. Leg. Reg., 146; Truesdaile v. Ward, 24 Mich., 117; Pierson v. Canal Co., 2 Disney, 100; Bank v. McConica, 8 C. C., 442; Hathaway v. Payne, 34 N. Y., 92; Railway Co. v. Williams, 53 Ohio St., 268.
    It is of the essence of estoppel that the party having authority to act in the matter has knowingly influenced the conduct of another who has acted on the faith of such acts. Columbus v. Railway, 45 Ohio St., 98; Ensel v. Levy, 46 Ohio St., 255; White v. Brocaw, 14 Ohio St., 339; Corry v. Gaynor, 22 Ohio St., 584; Tone v. Columbus, 39 Ohio St., 281.

      We call the court’s attention to the fact that there was no finding of facts in this case.
   Davis, J.

It is objected that the circuit court erred in refusing to strike off the bill of exceptions taken in the court of common pleas by the plaintiff in error, for the reason that the defendant in error did not have the ten days provided by Section 5301, .Revised Statutes, in which to file his objections and amendments to the bill of* exceptions. The presumption is that notice was given to counsel and that they had an opportunity to inspect and object to the bill, although the record is- silent as to that fact. It does not appear that counsel did not waive the right to object to the bill within ten days after notice that it had been filed with the clerk. State v. Wirick, 81 Ohio St., 343.

There, is scarcely any room for debate, and none is attempted here, as to the rule which governs in making an allowance out. of an estate for funeral expenses. “’The amount which will be allowed for funeral expenses in the absence of statutory or testamentary provisions, is governed by the value of the decedent’s estate, his station in life, and the customs of people in the same station; but the expenditure must in all cases be reasonable, and if extravagant will be disallowed even as against the legatees and next of kin.” 11 Am. & Eng. Ency. of Law (2 ed.), 1263; 18 Cyc., 438; Schouler on Executors (3 ed.), Section 421; 2 Woerner Am. Law of Administration (2 ed.), Section 360; 1 Rockel Ohio Probate Prac., Section 650; Giauque Settlement of Estates (7 ed.), 615-617. But it-.is insisted here: 1, that the plaintiff in error is estopped; 2, that this court is concluded by the findings o£ the court below; and 3, that the amount paid by the administrator for funeral expenses was reasonable.

If we may admit that the liability^ of the administrator may be limited and the conscience of the court circumscribed by the assent of the sole beneficiary of the decedent’s will, grudgingly given and almost’extorted, still it does not appear to us that the defendant in error has made out a case of estoppel against the plaintiff in error. While it is true that one who, having a right, induces another to act on the belief that the right will not be asserted, will not be afterwards allowed to exercise it, and while it is also true that'one may estop himself by acquiescence or by silence when he ought to speak, nevertheless it is true that the burden is upon the party who relies on the estoppel, to prove clearly and unequivocally every fact essential to the estoppel. 11 Am. & Eng. Ency. of Law (2 ed.), 424; 16 Cyc., 811, 812. Now, in this case the defendant in error, who is claiming an estoppel against the plaintiff in error, was the superior in knowledge and experience of the duties of an administrator. He testifies that when the plaintiff in error came to the undertaker’s the Odd Fellows had already practically purchased the casket; and he and other witnesses testify that the plaintiff in error consented to, or at least silently acquiesced in, the purchase. Yet they all admit that she objected on the ground that the deceased never believed in expensive funerals and she wanted a cheaper casket, sáy, from sixty to ninety dollars. The plaintiff in error explicitly and circumstantially denies that she assented to the purchase which was made, and her denial and the circumstances surrounding the transaction raise such a sharp conflict of evidence that we are unable to say that the facts which are claimed to amount to estoppel are clearly and satisfactorily proven. The estoppel therefore fails.

Next it is claimed that the general finding of the circuit court is a finding of fact and therefore conclusive upon us.

Ordinarily an issue as tb the reasonableness or unreasonableness of anything, is regarded as. a mixed question of law and fact; but where the facts are clear and undisputed it is to be regarded as purely á question of law. For example, in Tindal et al. v. Brown, 1 T. R., 167, it was held that what is reasonable notice of non-payment to an indorser is a question of law; and Lord Mansfield said: “What is reasonable notice is partly a question of fact and partly a question of law. It may depend in some measure on facts; such as the distance at which the parties live from each other, the course of the posts, etc. But wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to by every one for the sake of certainty.” And in the same case Buller, J., remarked: “Whether the post goes out this or that day, at what time, etc., are matters of fact; but when those facts are established, it then becomes a question of law on those facts, what notice shall be Reasonable.”

The same principle has been recognized .in determining whether a rule of a railway company was ' a reasonable regulation. In Railway v. Adcock, 52 Ark., 406, it was said per curiam: “The facts being uncontroverted, it was the province of the court to declare the regulations reasonable. To submit the question to the jury for determination, under such circumstances, was simply to leave the matter to their discretion, which was error.” See also Railway Co. v. Hammond, 58 Ark., 324; Illinois Cen. R. R. Co. v. Whittemore, 43 Ill., 420; Redder v. Fellows, 20 N. Y., 126; Hoffbauer v. The D. & N. W. R. Co., 52 Iowa, 342; P. C. & St. L. Ry. Co. v. Lyon, 123 Pa. St., 140.

A similar rule was announced as to deviation in a marine insurance case. L. & I. Riggin v. Patapsco Ins. Co., 7 Harris & Johnson (Md.), 279.

“What is a reasonable time within which an act must be done may be a question of law. Where the facts are clearly established, or are undisputed or admitted, the reasonable time is a question of law.” Hill y. Hobart, 16 Me., 164.

Where a statute imposed a penalty for issuing a marriage license without reasonable inquiry, it was held that the question as to what is reasonable inquiry, under a known state of facts, is one of law for the court. Trolinger v. Boroughs, 133 N. Car., 312.

Further statements of the rule and illustrations of its application by this court will be found in Walker v. Stetson, 14 Ohio St., 89; Bassenhorst v. Wilby, 45 Ohio St., 333; and The Travelers’ Insurance Co. v. Myers & Company, 62 Ohio St., 529.

We therefore hold that, upon the conceded and clearly proven facts disclosed in this record, it is within the proper province of this court to review the finding of the court below as to the reasonableness of the amount expended by the administrator for burial of the decedent.

The whole amount realized from the decedent’s estate was $798.32 and the administrator claims credit for $201.40 paid for funeral expenses, of which the following item is most seriously contested, viz.: “One cloth casket, copper lined, with silver handles, engraved name plate and use of car, $150.00.” The deceased was an old man, with no immediate family surviving, and in his later years, with no stated income or occupation. He had been a sailor on the lakes and an engineer in small steamers. His tastes and habits were simple and his expenditures modest and economical. A short time before his death he had been an inmate of the Odd Fellows’ Home at Springfield, Ohio, and at the time of his death, by suicide, he was living at a place called the Kunzman Flotel. For reasons satisfactory to himself, and which afterwards seemed sufficient to a court, he made a will making the plaintiff in error his sole legatee, and excluding' his collateral relatives. A com'mittee of Odd Fellows assumed charge of the funeral, and this committee and some of the disappointed relatives proceeded to order the funeral and select the casket, although they had been previously apprised of the fact that the deceased had left a will and that the plaintiff in error was

the sole legatee. The administrator called in the plaintiff in error, and, while it is a disputed question whether she consented to the purchase of this' casket or not, it is not denied that she did object to it as inappropriate and unnecessarily expensive. The administrator appears to have been a person having knowledge of the usual duties of an administrator, for he had been a clerk in the office of the probate judge. He was there as a trustee for creditors and the legatee. He was not bound to listen to the desires and importunities of persons who desired to be liberal with money which was not theirs to spend. He is presumed to have known the law, and that, no matter who desired it or who assented to it, his act in purchasing that casket was liable to be reviewed, either with or without exceptions, by the probate court when he should account for the assets of the estate. According to the testimony of the undertaker himself, a decent and respectable burial, with broadcloth covered casket, mounted with silver handles and name plate, may be had for seventy-five dollars and even less. In view of all of these circumstances, and especially of the fact that the cost of this funeral was made to be one-fourth of the entire estate, we think that the amount allowed by the court of common pleas and affirmed by the circuit court should be reduced to one hundred dollars, the amount allowed by the pro-' bate court.

Judgment accordingly.

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


author: Spear, J.

text:
    The Buffalo Forge Company v. The Cleveland Steam Fitting & Supply Company.

      Action to recover judgment on accomit — Compliance with section 5086, Revised Statutes — Sufficient requirement to attach to petition, what — Copy of account, etc.

    In an action to recover judgment on an account it is a sufficient compliance with the requirements of section 5086, Revised Statutes, to attach to the petition a copy of the account by proper reference and make the same by distinct averment in the petition a part thereof, but it is not a sufficient compliance with that section to merely allege that there is due a specified amount, “upon an account, a copy of which is hereto attached and marked ‘Exhibit A.’ ”
    (No. 11757
    Decided May 3, 1910.)
    Error to the Circuit Court of Cuyahoga county.
    In the common pleas of Cuyahoga the Buffalo Forge Company, plaintiff in error, brought action against The Cleveland Steam Fitting & Supply Company, defendant in error, by the. filing of a petition of which the following, omitting heading and verification, is a copy:
    “Petition. For cause of action the plaintiff says there is due it from the defendant the sum of Six Plundred Forty-two Dollars and Thirty-nine Cents ($642.39,), with interest from the 1st day of June, 1908, at the rate of six (6%) per cent, per annum, upon an account, a copy of which said account is hereto attached and marked ‘Exhibit A.’

    “Wherefore, plaintiff prays judgment against said defendant in the sum of Six Plundred Forty-two Dollars and Thirty-nine Cents ($642.39), with interest from -the 1st day of June, 1908, at the rate of six (6%) per cent, per annum..
    “Carr, Stearns, Chamberlain & Royqn,

      “Attorneys for Plaintiff.”

    Attached to the petition, as “Exhibit A,” was a copy of account purporting to show an indebtedness from the defendant to the plaintiff of $642.39.
    To the petition defendant interposed a general demurrer. On hearing the demurrer was overruled and judgment, rendered in favor of plaintiff for thé amount claimed. On error to the circuit court that judgment was reversed for error in overruling the demurrer. To obtain a reversal of this judgment and an affirmance of that of the common pleas this proceeding in error was brought.

      Messrs. Carr, Stearns, Chamberlain & Royon, for plaintiff in error, cited and commented upon the following authorities: Swan’s Pleading & Precedents, 188, 192, 193; 1 Kinkead’s Code Pleading, 64; Ives v. Strickland, 4 W. L. B., 852; section 5086, Revised Statutes.

      Messrs. White, Johnson, McCaslin & Cannon, for defendant in error, cited and commented upon the following authorities:

      Ives v. Strickland, 4 W. L. B., 852, 6 O. D. Re., 810, 8 Am. Law Record, 309; Crawford v. Satterfield, 27 Ohio St., 421; Olney v. Watts, 43 Ohio St., 499; Medical College v. Newton, 2 Handy, 163; Nathan v. Lewis, 1 Handy, 239; Lynd v. Caylor, 1 Handy, 576; Gwynne v. Jones, 5 C. C., 298; Bowling Green v. Railroad Co., 10 C. C., 63; section 5086, ‘ Revised Statutes.
   Spear, J.

The question presented by the record is whether or not, in an action on an account, it is sufficient to aver the indebtedness claimed, that b is founded on an account, and that a copy is attached marked in a specified way, or must the petition also state that the copy of the account is' thereby made a part of the petition? The answer to this question depends upon the proper construction of section 5086, Revised Statutes (2 Bates’, 2737), which reads as follows:

“Sec. 5086. In an action, counterclaim, or set-off, founded upon an account, or upon an instrument for the unconditional payment of money only, it shall be sufficient for a party to set forth a copy of the account or instrument, with all credits and the indorsements thereon, and to state that there is due . to him, on such account or instrument, from the adverse party, a specified sum,, which he claims, with interest; and when others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties, it shall be necessary to state the facts which fix their liability.”

What is a setting forth of a copy? It does not appear that the precise question has been passed upon by this court, at least not in any reported case, but the question has been the subject of comment by text-writers and has been somewhat considered by other courts of the state. Judge Swan in his work on Pleading and Precedents, 193, says that the better practice is to insert a copy in the pleading' of such money instruments as are described in section one hundred and twenty-two, (now embodied .in section 5086, supra), whenever a party states his cause of action in the manner allowed by that section, but that it is sufficient if the pleader attaches a copy of ' the instrument and refers to it, citing in support of the conclusion, O. L. I. & T. Co. v. Goodin, 1 Handy, 31, and Memphis Med. Col. v. Newton, 2 Handy, 165. It is proper to add, however, that the learned author in giving a form for a petition on an account, at page 275 of the same work, provides for the incorporation of the copy of account in the petition itself, and the same method of statement is shown in forms subsequently given for actions on promissor)'- notes and bills of exchange. Referring to the two cases cited from Handy we find that in the one first mentioned there is no specific reference, to the point involved in the case at bar, and while it is true that the petition, which the court holds sufficient, does not by specific averment make the copy of the. note which is filed a part of the petition, yet the mind of the court appears to have been directed wholly to whether or not it was necessary to aver in the petition that the defendants made, and that the plaintiff owned the note, the holding being that it was not. The other case was an action on a judgment. The point, we have was not pertinent, nor was it raised, though in the opinion the judge, arguendo, declares that, under section 122 of the code the instruments referred to in that section became incorporated in the petition by an express reference.

In its report to the general assembly in the year 1853, the code commission, in presenting by way of appendix, a number of forms for illustration, gives among others one upon an account which refers to the account by the words “a copy of which account is.hereto attached,” and without in terms making the same a part of the petition.

In Ives v. Strickland, 4 W. L. B., 852, decided in 1879, the district court of Hamilton county was called upon to review a judgment of the common pleas sustaining a'demurrer to a petition to recover on a promissory note where the allegation was “that there was due to the plaintiff from the defendant, on an instrument in writing, $597, with interest, a copy of which is attached,” no other statement being made with respect to the note. The court held that in regard to the “objection that the instrument was not made part of the petition, the usual practice where suits are brought on promissory notes is to give in the petition a copy of the instrument, or refer to it by some letter or figure and make it a part of the petition,” but that the petition, being in substantially the' form prescribed by the original code commission, and frequently used, the instrument is sufficiently made a part of the petition to enable the court to determine whether it was the instrument referred to in the petition. It will be observed that the court does not hold in this case that the attaching of the copv of the note really makes it a part of the petition but rests its conclusion solely on the authority of the code commission and on the ground that it is sufficiently so made to enable the court to determine whether it was the instrument referred to in the petition.

It seems to be conceded that the practice with respect to the question here involved has been diverse throughout the state, and there being no deliverance by this court determining the question, it has been thought best to report this case in order to establish the proper practice and make the same uniform, although it is not considered that the abstract question itself is of great importance. It is, however, important to have the rule understood and we proceed to state briefly the court's conclusion and some of the considerations moving to it.

The conclusions of the learned judges herein-before cited, and those of the learned text-writers, are persuasive, but we have not found them convincing. The pleader must “'set forth” a copy of the account. We suppose that the term “set forth” means placing or putting a copy of the account in the proper place. The items of such account constitute a part of the cause of action. They are in the nature of averments necessary in some form and in some way to be stated in the pleading; otherwise it would be clearly insufficient. Of this, at common law, there could be no sort of question, and it is conceded in all the cases that the equivalent of such statements must necessarily appear in the pleading. Unless that be so the averment as to the indebtedness is simply a legal conclusion and manifesly of no force. It is true that the statute (the section quoted) which authorizes what is termed the short form for declarations upon accounts, and upon instruments for the payment of money only, obviates the necessity of many statements in the pleading which at common law would be essential, but why assume that the intent was to render unnecessary that which is universally regarded as essential in pleadings, respecting causes of action generally, viz.: a statement of the facts essential to a showing of liability? The language of the section does not in terms justify that conclusion. We think.it does not justify it by inference. There is no reference in the section to the attaching of copies; the absolute requirement, however, is that the pleader must “set forth” the copy. This view would seem to be strengthened by a consideration of the preceding section. The word attached as applied to the copy is found in that section, and it has been held again and again (Olney v. Watts, 43 Ohio St., 499), and is the unnuestioned law, that a copy of an instrument required to be attached does not thereby become a part of the pleading, and cannot be resorted to in giving construction to it. Why should the term “hereto attached” be given a wider import in a pleading brought under section five thousand and eighty-six?

Another consideration is of importance. The affidavit to the petition was made by one of the attorneys for the plaintiff under favor of section 5109, Revised Statutes, the plaintiff being absent from the county. The affiant swears “that the facts and allegations therein contained are true as he verily believes.” This language doesn’t express that the affiant is making oath to the contents of the petition, but that is what it means. There is no attempt, however, to make oath to the items of the account or to its truthfulness or accuracy in any respect,' and so far as the amount due is concerned the affidavit is simply to a legal conclusion, thus leaving the real gist and foundation of the cause of action without support by any verification whatever. And when it is remembered that the general requirement of the code is that the pleader must state in the pleading the facts constituting his cause of action, that the same must be verified by affidavit, and that a proper pleading upon an account sworn to by sufficient affidavit is understood to authorize a judgment by default, it becomes entirely clear, as we think, that a petition on an account which neither incorporates the copy within the confines of the pleading, nor makes it by apt averment a part thereof, and where the purported copy of account is not reached by the verification, is not justified by either the spirit, purpose or letter' of the statute.

Attention is called by counsel for defendant in error to the case of Crawford v. Satterfield, 27 Ohio St., 421, and it is claimed that it rules the case at bar. The second paragraph of the syllabus in terms holds that “in actions founded upon written agreements, other than for the unconditional payment of money only, it is not good pleading to copy the written instrument into the pleading, nor to ■ attach a copy making it a part thereof.” But the action being based upon a contract other than one for the unconditional payment of money the precise question -we have was not involved in the case, and a decision of the case at bar could not safely be rested upon the case cited. Inferentially, however, the syllabus does indicate a recognition of the proposition that where the suit is on an instrument covered Isy section 5086, the pleader shall either copy the instrument into the pleading or attach a copy and make it a part thereof.

As conclusion we are of opinion that section 5086, Revised Statutes, permits the. pleader, in an action upon an account to attach to his petition a copy of the account by proper reference and make it b)r distinct averment in the petition a part thereof, but that it is not sufficient to merely allege; as in this case, that there is due a specified amount “upon an account a copy of which said account is hereto attached and marked 'Exhibit A,’ ” and that a demurrer to such s petition as not stating a cause of action should be sustained. The judgment of the circuit court reversing that of the common pleas will be

Affirmed.

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


author: Crew, J.

text:
    Filmore v. The Metropolitan Life Insurance Company

      Life insurance beneñciary — Cannot recover on policy — When death of insured caused by beneñciary — Question of intentional killing.

    1. The beneficiary in a life insurance policy cannot recover thereon where the death of the assured is caused by the intentional and felonious act of such beneficiary.
    2. In an action to recover upon a policy of life insurance brought by the person named therein as the beneficiary, an answer by the insurance company alleging that the plaintiff murdered the assured, states a defense, such an averment, in legal effect, being tantamount to the allegation that the killing charged was intentional and felonious.
    (No. 11793
    Decided May 3, 1910.)
    Error to the Circuit Court of Clark county.
    The facts are stated in the opinion.

      Mr. James Johnson, Jr., and Mr. C. O. Olinger, for plaintiff in error.
    We concede that a beneficiary in an insurance policy cannot recover where the death of the insured has been intentionally caused by his act.
    It is against public policy to permit a beneficiary who has intentionally killed the assured to recover the insurance. The law in such case presumes that he killed the assured with the purpose and intent of securing the insurance money.
    But the rule does not apply and the reason of the rule does not apply where the killing was not intentional. Schreiner v. High Court, etc., 35 Ill. App., 576; Insurance Co v. Armstrong, 117
      U. S., 599; Insurance Co. v. Miller, 12 Dec. Re., 165; Bank v. Insurance Co., 1 Cleve. L. Rep., 339; Mieritz v. Insurance Co., 110. Dec., 759.
    A contract of insurance or certificate like the one in the suit impliedly assumes the risk of all carelessness bv any person whether a possible beneficiary under the contract or mot, from which the death of the insured mav result, unless such acts of carelessness are especially excepted; therefore, a death, which is unintentional, though caused by some neglect or unlawful act of the beneficiary is within the contract and ought not to defeat the policy.
    It was held by the supreme court of the United States in Insurance Co. v. Armstrong, 117 U. S., 599, that the person who procured the policy upon the life of another payable at his death and then murdered assured to make the policy payable, could not recover. Schmidt v. Life Assn., 112 Ia., 41; Pracher v. Insurance Co., 19 Fed. Cases, 1244.
    All well considered cases show, when studied, that the killing or murdering of the assured must be intentionally done in order to deprive the beneficiary or his assigns of the benefit of the policy.
    The only case in Ohio that bears on this question of intention is the case of Mieritz v. Insurance Co., 11 O. Dec., 759.
    In the case of Collins v. Insurance Co., 232 Ill., 37, there is a full and instructive discussion of this question, and the proposition is laid down that the right of the parties under an insurance policy is a property right which cannot be forfeited for crime under our constitution and law. Holdom v. A. O. U. W., 159 Ill, 619, 51 Ill. App, 200.

      Messrs. Martin & Martin, for defendant in error.
    While the statutory definition of the crime “manslaughter”' excludes as essential, purpose, deliberation, premeditation and malice, yet the use of the word “unlawful” includes intent. If, therefore, under the crime of manslaughter, intention to kill may be an element of the crime and manslaughter or unlawful killing is averred, the charge of an intentional killing is sufficiently stated under this demurrer. Erwin v. State, 29 Ohio St., 186.
    The court will refer not only to the statutory definitions of the crime of manslaughter, but also as to what are prescribed as sufficient allegations in the indictment for same. Sections 6811 and 7217, Revised Statutes.
    The allegation that the plaintiff murdered his wife sufficiently meets the objection of counsel. Under the legal and the' dictionary definition of murder, “intent” is an essential element. Century Dictionary, “murder”; 1 Russell on Crimes (7 ed.), 655; Coke’s Inst, 47.
    The act by which the assured came to her death at the hands of this beneficiary was an unlawful one; it was a wrongful act; therefore, the plaintiff is presumed to have intended to kill his wife. United States v. Harper, 33 Fed. Rep., 471; Spies v. People, 122 Ill., 174; Lawrence v. State, 68 Ga., 289; State v. Heaton, 77 N. Car, 505; Norris v. State, 87 Ala, 88.

      Under this doctrine the accused has the burden of showing good faith and innocent purpose as soon as the commission of the wrongful acts has been proved. People v. Harris, 29 Cal., 681; Bradley v. People, 8 Colo., 599; Barcus v. State, 49 Miss., 17.
    From the fact of killing the presumption of law is that it was malicious and murder. Commonwealth v. York, 9 Met., 93.
    This principle has been approved in the following cases: Green v. State, 28 Miss., 698; Head v. State, 44 Miss., 753; Murphy v. People, 37 Ill., 457; State v. Bertrand, 3 Ore., 61; Jenkins v. State, 82 Ala., 25; People v. Bush, 71 Cal., 606; Vann v. State, 83 Ga., 44; Erwin v. State, 29 Ohio St., 191.
   Crew, J.

The plaintiff in error, Elmer G. Filmore, as the beneficiary under a policy of life insurance issued to Emma Filmore, his wife, by defendant in error, The Metropolitan Life Insurance Company, brought suit against said company in the court of common pleas of Clark county, Ohio, to recover the sum of two hundred and thirty-nine dollars with interest thereon from September 3, 1906, which sum he alleged in his petition was due him ms such beneficiary under the policy of insurance so issued by said company. For answer to plaintiff’s petition the insurance company pleaded two defenses, the first of which was a general denial, and the second was in the words and figures following, to-wit: “For a second cause of defense to the petition, this defendant says that on the 3d day of September, 1906, the said plaintiff murdered his said wife, Emma Filmore, in the city of Springfield, county of Clark, state of Ohio; that on the 25th day of October, 1906, he was indicted by the grand jury of said county for manslaughter on account of the killing .of his said wife, and on the 31st day of December, 1906, he was convicted of said crime, and on February 25, 1907, he was sentenced by the court of common pleas to six years’ hard labor in the Ohio Penitentiary, at Columbus, Ohio, where the said plaintiff is now confined. Defendant says that plaintiff having caused the death of the said assured, as herein set forth, he is estopped from asserting any ' claim as beneficiary under said policy. Defendant, having fully answered, prays to be hence dismissed with its costs.” To this defense a demurrer was interposed by the plaintiff, Elmer G. Filmore, on the ground that the facts therein stated were insufficient in law to constitute a defense. This demurrer was overruled by the court of common pleas, and the plaintiff not desiring to plead further judgment was entered dismissing his petition. This judgment of dismissal was subsequent!}' affirmed by the circuit court and the plaintiff in error now asks that this judgment of affirmance he reversed by this court. The sole question here presented is as to the legal sufficiency, against a general demurrer, of this second defense as pleaded in defendant’s answer. It is conceded by counsel for plaintiff in error to be the well settled and established rule of law that a beneficiary under a policv of life insurance is without right to recover thereon where the death of the insured has been intentionally caused •by the act of such beneficiary, but it is contended in the present case that the second defense of defendant’s answer is lacking in essential allegation, and is fatally defective, because it contains no direct or sufficient averment that the killing of the assured by Elmer G. Filmore, the beneficiary under said policy, was an intentional killing. That such objection is purely technical, and in the present case wholl)r wdthout merit, is apparent, we think, from a consideration of the character and legal effect of the matter pleaded and the allegations made in said second defense. One of the express averments found in this second defense is, that the plaintiff, Elmer G. Filmore, murdered his wife, Emma Filmore, who was the assured in the policy of insurance upon which he was seeking to recover, and while it is true that neither the circumstances of the killing nor the constituent elements of the crime thus charged are pleaded with the particularity that would be necessary in an indictment charging the same crime, it is equally true that in an answer in a civil action such particularity of statement is not required, but it is sufficient if, in such pleading, the matter constituting the defense be stated “in ordinary and concise language.” Section 5066, Revised Statutes. Murder, being specifically defined by statute in Ohio, is a term or word of' technical significance and .determinate legal meaning. Hence, the averment in an answer in a civil suit that the plaintiff therein murdered his wife, is not the averment of a mere conclusion., but is the. allega-' tion of a determinate and issuable fact which if denied could not be supported by proof merely of an unintentional or involuntary killing, for while in this state, under our criminal code, there are two degrees in the crime of murder, first and second, the purpose or intent to kill is made by statute an essential element of each, except only in the case of death caused from maliciously placing an obstruction upon a railroad track, etc. Section 6809, Revised Statutes. Wherefore it follows that the allegation in the second defense of defendant’s answer in this case, that the plaintiff, Elmer G. Filmore, murdered his wife, is tantamount to an allegation that he intentionally killed her, and the term murder employed therein by the pleader to designate and define the plaintiff’s act, itself necessarily imports that such killing was unlawful and felonious. And as said by Mr. Justice Field in N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S., 600: “It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life lie had feloniously taken.’ As well might he recover insurance inoney upon a building that .he had wilfully fired.” In the case of Schreiner v. High Court of Illinois Catholic Order of Foresters, 35 Ill. App., 576, cited and relied upon by counsel for plaintiff in error as supporting their contention in the present case, the court also clearly recognizes the principle applicable to all contracts of insurance, that the insured or beneficiary cannot under such contract receive indemnity for a loss that he himself has intentionally brought about, the second paragraph of the syllabus in that case being as follows: “There can be no recovery in an action founded upon intentional wrong. The beneficiary in an insurance policy cannot recover where- the death of assured has been intentionally caused by his act.” For the reasons hereinbefore stated we are of opinion that in the case at bar the allegation of defendant’s second defense that the plaintiff murdered his wife, should be construed as pleading an intentional killing, and, therefore, as sufficient against a general demurrer. The view we have taken as to the legal effect of this averment renders unnecessary a consideration of the other averments of said second defense.

Judgment affirmed.

Spear, Davis,' Siiauck and Price, JJ., concur.


author: Summers, C. J.

text:
    City of Mansfield v. The Humphreys Manufacturing Company.

      Municipal corporations in Ohio — Authorized to construct waterworks — And supply water to inhabitants — May make rules governing same — Regulation turning off water, when rent unpaid ■ — Reasonable and may be enforced — Consumer may apply to courts — For determination of amount due, when.

    1. Municipal corporations in Ohio are authorized to construct waterworks and to supply water to their inhabitants, and to collect money for water supplied, and to make such by-laws and regulations as they may deem necessary for the sale, economic and efficient management and protection of the water-works. Under this power a regulation providing that if. any party shall refuse or neglect to pay the water rent when due, the water shall be turned off and not turned on again until all back rent and damages shall be paid and the further sum of one dollar for turning on and off the water, is'-a -reasonable regulation and may be enforced.
    2. The determination by the proper city officials of the amount due for water supplied is not final, but the consumer who has good grounds for disputing the correctness of the charge made by the city may apply to the courts to determine the amount due and to restrain the enforcement of the rule pending such determination.
    (No. 11795
    Decided May 3, 1910.)
    Error to the Circuit Court of Richland county.
    The facts are stated in the opinion.

      Mr. Glenn M. Cummings and Mr. John H. Coss, for plaintiff in error.

      Mr. W. S. Kerr, for defendant in error.
   Summers, C. J.

The manufacturing company brought this action to enjoin the city and its board of public service from shutting off from plaintiffs factory the supply of water from the .city water-works. - The plaintiff in its petition filed December 3, 1907, avers that it is, and has been, using at its factory water supplied by the city, and that it has no other source or means of supply for a portion of its factory, and that if the city shuts off this supply it will stop a large portion of plaintiff’s manufacturing and cause it irreparable injury; that plaintiff has always paid the amount charged against it, and that it is now willing to pay the city for the. water consumed; that the city on the books of its water-works has charged against the plaintiff $610.13 for six months’ water rental, and has given plaintiff notice that unless the same is paid by December 5, the city will shut off the supply; that the charge is exorbitant, that the plaintiff has not during said time used two hundred dollars worth of water and that it has tendered to the city two hundred dollars which it refuses, and that it threatens to and will, unless enjoined, shut off the water.

The city in its answer admits that it has this amount charged on its books against the plaintiff and that it will, unless enjoined, cut off the supply of water. It then sets out a scale of meter rates established by the city, avers that the water supplied to the plaintiff during the period in controversy was measured by meters installed in the manufacturing plant of the plaintiff, and that the amount charged was due as determined by the quantity registered by the meters and at the established rates, and that the rates are reasonable. It is also averred that the following rule,- adopted by its board of public service, relating to the waterworks, was in force:

■ “Section 20. If any party shall refuse or neglect to pay the water rent when due, or permits any waste of water not authorized by the rules and regulations of the board of public service, the water shall be turned off and not turned on again until all back rent and damages shall be paid, and the further sum of $1.00 for turning on and off the water.”

The reply of plaintiff denies that it consumed the quantity of water stated in the answer and avers that if the meters registered that quantity then they were out of order and inaccurate, and that if the meters were not inaccurate that they were inaccurately read.

The court of common pleas dismissed the petition and the plaintiff appealed to the circuit court. The circuit court, among other things, found that the plaintiff is solvent and fully able to pay the charge, that it had paid' all previous charges, and that after the bill in controversy had been presented it bad tendered to the city the sum of two hundred dollars, “that there is a dispute over said bill for water between said plaintiff and said defendants, and that said dispute is not captious and dilatory but is maintained by,plaintiff in good faith; that the defendants have not resorted to an action at law to determine the amount of said bill for water, nor has the amount of said bill ever been adjudged in any civil action,” and that if the water was shut off it would cause irreparable injury, and it enjoined the city from shutting off or interfering with the water supplied to the plaintiff until such time as the amount due is determined by á court, and then provided • that if the amount so found is not then paid, the city may turn off the water under its said rule. Error is prosecuted in this court.

Whether the circuit court enjoined the city from shutting off the water on the ground that its rule respecting that matter is unreasonable, or on the ground that under the circumstances it was inequitable to enforce it, does not appear from its judgment. The implication is that it did not find the rule unreasonable. In that event the court ought not to have sent the city out of court without determining the amount due it from the plaintiff. It should have enjoined the cutting off of the supply of water pending the action only upon the plaintiff giving bond to pay the amount ascertained to be due, and should have ascertained in that action the amount due.

Section 7, Municipal Code, authorizes municipal corporations to provide for a supply of water by the construction of water-works and to collect money for water supplied. Section 1536-520 makes it the duty of the officers in charge of the water-works to furnish supplies of water and collect water rents. Section 1536-521 authorizes them to make such by-laws and regulations as they may deem necessary for the safe, economic and efficient management and protection of the water-works. Section 1536-522 authorizes them to assess and collect a water rent, “in such manner as it deems most equitable upon all tenements and premises supplied with water, and where more than One tenant or water taker is supplied with water from one hydrant, or off the same pipe, and when the assessments therefor shall not be paid when due, the board shall look directly to the owner of the property for the entire rent, or so much thereof as remains unpaid for water furnished said premises, to be collected in the same manner as other city taxes.” The water rent or charges for water supplied are here referred to as taxes, and it is provided that they may be assessed upon tenements and premises supplied with water and the 'statute seems to contemplate an assessment upon the premises supplied with water and not a personal charge for water supplied. These statutes are in the form they were when the matter was new and comparatively unimportant. Since then cities have multiplied and the number of their inhabitants increased many times, and this important public service is performed largely under rules and regulations adopted by the officials charged with its management. In Hennessey v. Volkening, 30 Abbott’s New Cases, 100, it is held “that water rents in New York City are chargeable only upon the property actually supplied with water, and arc not -a tax or assessment, but merely a charge for water furnished.” And in Silkman v. The Board of Water Commissioners of the City of Yonkers, 152 N. Y., 327, it is held: “Rents charged by a public corporation for water actually used by private consumers are not in any just sense taxes so that persons against whom they are charged are entitled to notice and an opportunity to be heard before they are established.” See also Merrimack River Savings Bank v. City of Lowell, 152 Mass., 556. We think the city may, under its authority to supply water and collect for the water supplied, establish rules and regulations for supplying water, and may establish rates and enforce its rules and regulations and the collection of its charges, and we are not in the present case, called upon to determine its power with respect to assessing rents upon the premises supplied with water. Rules, such as the one in controversy, with respect to water and gas are usual and reasonable, but the decisions are not in accord as to the reasonableness of the charge for turning on and off the water or gas, nor as to the right to enforce the rule where the charge is disputed. Section 3559, Revised Statutes, provides : “If any person so supplied with gas neglect or refuse to pay the amount due for the same, or for the rent of the meter, or other articles hired by him of the company, the company may stop the gas from entering the premises of such person.” Abbott on Municipal Corporations, Section 468, says: “Although water rentals or assessments are not regarded as-taxes, being simply the purchase price of a commodity sold by a public corporation, yet, so far as their collection is concerned, they are generally treated as taxes. The customary remedy given or provided for the enforcement of the payment of water rentals is the right to cut off the water supply from those who may be in arrears after a designated time.”

The statutes and decisions in other states cannot throw much light upon our own statute, but they may be helpful in determining the question of the reasonableness of the rule under consideration. In Shiras v. Ewing, 48 Kans., 170, it is held that the water compan}' may make reasonable rules for the government of its customers in the use of its water supply, and enforce such rules by shutting off the customer’s water as a penalty for the violation thereof, and that in such cases the company will not be put to an action for damages for infractions or violations of its rules. In the opinion it is said: “The plant of the water company was constructed to supply the city of Ottawa and the inhabitants thereof with water. It necessarily has a large number of patrons. We do not think it reasonable or practicable to hold that for all the Adolations of the use, by its patrons, of the water supplied under its contracts therewith, the company shall be put to an action for damages. To so- hold would be to depriA^e the company of any remedy, and leave it. subject to the whim of each individual patron, so far as the use of the Avater supply is concerned since it would be wholly impracticable for the company to bring an action for damages whenever the rules, or any of them which are a part of the contract, were violated by its patrons.” In McDaniel v. The Springfield Water-works Co., 48 Mo. App., 273, 280, Thompson, J., says: “We do not take the Ariew, pressed upon us by counsel for the plaintiffs, that, if the plaintiffs do not see fit. to pay this excessive charge, the only remedy of the defendants is an action at laiv to recover the same. The slightest reflection will show fhat a water company could' not do business, if its only remedy for the waste of its water ny its consumers consisted in actions at law against them severally. This would lead to an almost infinity of actions to collect very small bills against scattered consumers, many of them mere renters and insolvent.” In Sheward v. The Citizens Water Co., 90 Cal., 635, it is held that a water company has a right to shut off the water from its consumer when the consumer refuses, to pay for the water supplied. In McEntee v. Kingston Water Co., 165 N. Y., 27, it is held: “Where a company under contract with a citizen to supply him with water fails to do so and the latter refuses to pay a bill rendered, the former will be enjoined pendente lite from cutting off the customer from its water system, as the rights of the parties must be determined by the court.” We do not think the conclusion reached in that case is in conflict with the conclusion reached in the present case. And in the opinion Bartlett, J., says (32) : “The principles coptr oiling this case have frequently been decided in the lower courts, and the substance of these decisions is that if the company supplying water, gas, telegraphic information or any other commodity has fully performed its contract and the customer' refuses to pay his bills, it is entitled to cut off the supply of the latter under its rules and regulations.

“On the other hand, if the company is in default of its contract, express or implied, it would shock the sense of justice if it were to sit as a judge in its own case by cutting off the customer from his contract privilege. In such a situation the rights of the parties must be determined b.y the courts.”

Turner v. Revere Water Co., 171 Mass., 329, was a suit to compel the water company to supply the plaintiff with water, and to restrain it from preventing him from securing a suitable supply thereof. In the superior court a decree had been entered restraining the water company from refusing or neglecting to supply the plaintiff with a suitable supply of water so long as he continued to pay the regular water rates, and complied with all other reasonable and usual regulations of the company in the future, except those relating to the payment of the water rates remaining unpaid of previous owners or tenants. The decree was affirmed. In that case the plaintiff rented a dwelling-house, the owner of which was indebted to the company for water previously supplied and the court held that, in the absence of legislation, the company could not by its regulation impose a lien upon land, and it was upon that ground that the rule was held unreasonable. Quite a number of cases are referred to and discussed in the opinion, and it is for that reason referred to, and it is followed in Burke v. City of Water Valley, 87 Miss., 732.

In The People, ex rel., v. The Manhattan Gas Light Co., 45 Barb., 136, a mandamus was refused to compel the gas company to furnish gas to a person who was insolvent and against whom the company had a judgment for gas furnished at another place in the city. In McGregor v. Case, 80 Minn., 214, the plaintiff sued to enjoin the officials charged with the management o'f the water-works of the city of Duluth from cutting off the supply of water to a building in that city which the}'- were about to do because of the refusal to pay the sum of $8.77, which the plaintiff claimed was excessive. It is there said: “It may be admitted that in a controversy over the rate charged for water supply, where there is but one source of obtaining the same in a city, and a cut-off is threatened, an injunction may, upon proper showing, be had, to restrain the illegal duress to collect the improper charges,” and the court refused to hold that the trial court had abused its discretion in refusing the temporary injunction, saying: “In view of the small amount involved, the large interests of the city in operating its water system, the difficulties that might follow if it should transpire that the controversy were ill-advised or unfounded, in a suit to recover the small overcharge, we cannot say that there was an abuse of discretion by the learned trial court in denying the temporary writ.”

In The City of Atlanta v. Burton, 90 Ga., 486, it is held that that city, under its charter, might make the amount due for water supplied a charge on the property supplied \$ith it, and that it might enforce payment by a threat to cut off the supply, and that the amount so paid could not be recovered back on the ground that it was arrears of rent due from a former tenant and that it was paid under, duress. To the same effect is Girard Life Insurance Co. v. City of Philadelphia, 88 Pa. St., 393.

In Sheward v. The Citizens’ Water Co., 90 Cal., 635, an injunction was refused where the plaintiff refused to pay meter rates and tendered schedule rates for water supplied to his residence, the court holding that a water company has a right to shut off the water from its consumer when he refuses to pay for the water supplied.

In Brass v. Rathbone, 8 App. Div. N. Y., 78, it is held that, “Courts of equity will not sustain an action to restrain the collection of a water tax except under circumstances of great necessity and to prevent irreparable damages.”

On the other hand, it is held, in some cases, that a city cannot enforce the payment of old, overdue and disputed bills by shutting off the supply of water. In Wood v. The City of Auburn, 87 Me., 287, it is held: “The water taker may prevent such action by injunction in equity; nor can the court in such proceeding be required to investigate and determine the merits of the unpaid and disputed installment. The water company must resort to the court, if it would enforce its claim.” In the opinion it is said by Emery, J. (292): “The city, as a water company, cannot do as it will with its water. It owes a duty to each consumer. The consumer once taken on to the system, becomes dependent on that system for a prime necessity of business, comfort, health and even life. He must have the pure water daily and hourly. To suddenly deprive him of this water, in order to force him to pay an old bill claimed to be unjust, puts him at an enormous disadvantage. He cannot wait for the water. He must surrender and swallow his choking sense of injustice. Such a power in a water company or municipality places the consumer at its mercy. It can always claim that some old bill is unpaid. The receipt may have been lost, the collector may have embezzled the money; yet the consumer must pay it again and perhaps still again. He cannot resist lest he lose the water.

“It is said, however, that the consumer can apply to the courts to recover back any sum he is thus compelled to pay, if it was not justly due from him; or, if he can show affirmatively that it is not a just claim against him, he can by judicial process restrain the company or municipality from shutting off the -water. To oblige a person to follow such a course would be a violation of the fundamental juristic principle of procedure. That principle is, that the claimant, not the defendant, shall resort to judicial process — that he who asserts something to be due him, not he who denies a debt, shall have the burden of judicial action and proof. It is only in the case of dues to the state that this principle is suspended.”

In Crumley v. Watauga Water Co., 99 Tenn., 420, a suit to recover damages for refusing to furnish water, it was held that the water company could not justify its refusal by the fact of his failure to pay an old bill. It is said in the opinion: “Upon tender of the regular rates, he was entitled to the water like other persons, and without reference to his past due obligation.”

In Panton v. Duluth Gas & Water Co., 50 Minn., 175, it was held that an excessive charge for water paid under protest to prevent the company from shutting off the supply, was paid under-duress and that an action might be maintained to recover back the excess paid.

In American Water-works Co. v. State of' Nebraska, 46 Neb., 194, it is held that such a corporation is a quasi public corporation and that. it is its ‘duty to furnish water to all the inhabitants of the municipal corporation upon the same terms. That it has a right to adopt reasonable rules and to decline to furnish water to any inhabitant who refuses to comply with such reasonable rules. It held a rule, reasonable that required water rents to be paid in advance and the water to be turned off if the rental was not paid within thirty days after it fell due, but held that part of the rule unreasonable that required the payment of one dollar for turning water off and on.

In Shepard v. The Milwaukee Gas Light Co., 6 Wis., 539, it is held that the company is bound to furnish gas to a citizen upon his compliance with such reasonable terms as the company may rightfully impose, and that a rule of the company allowing the company to demand security for the gas consumed or a deposit of money to secure the pa)mient thereof, is just and necessary to guard against loss. It is said: “As the delivery of the gas is necessarily its consumption, and as the amount delivered is ascertained by the amount consumed, it would seem to be just and right that the company should not be compelled to furnish it without reasonable security for payment, in convenient amounts and at proper periods.” In Crumley v. Watauga Wafer Co., 99 Tenn., 420, already cited, it is held that such a company is a quasi public corporation and must, supply water to all upon the same terms. Smith v. Gold & Stock Telegraph Co., 42 Hun, 454, was a suit to enjoin the removal of a stock tiqker and it was there held, “That the defendant, being engaged in a •business , public in its nature, it must serve the public impartially and render equal service. to all those who complied with such reasonable regulations as might be prescribed by it.”

Edwards v. Milledgeville Water Co., 116 Ga., 201, was a suit to enjoin the water company from disconnecting its pipes in violation of a contract between the consumer and the company. It is said in the opinion by Fish, J. (205): “The plaintiff is without an adequate remedy at law. A court of law could neither prevent the defendant from depriving him of the use of the water, nor restore to him such use after he had been once deprived of it; and the damages which he would sustain in the future, during the long period covered by the contract, by being deprived of the use of a plentiful supply of pure water flowing through pipes upon his premises, and easily and conveniently accessible at all times for the varied necessities and even the luxuries of a household, would be’ very difficult to ascertain, and could not with any certainty, be estimated. Even if the plaintiff could, by erecting and maintaining a private system of water-works, supply his ' residence and premises with water in the same manner and to the same extent that the defendant now does under its contract with him, the damages which the plaintiff would sustain by being deprived of the use of the water, as now supplied to him, during the period of time required for him to complete his own water plant, would be practically impossible of ascertainment with any degree of certainty, to say nothing of the necessity, in order to arrive at the amount of his damages, of estimating the cost of constructing, keeping in repair ' and operating, from year to year,, such private works.” Sickles v. The Manhattan Gas Light Co., 64 How. (N. Y.), 33, was a suit by General .Sickles to restrain the defendant, from removing the meter and cutting off the supply of gas from his residence in the city of New York. He averred that an improper bill had been presented to him, covering- a period for a large portion of which he had been absent in Europe, his residence closed and the gas never lighted. lie averred that he offered to pay for the gas consumed, but that the company refused to accept and threatened to remove the meter and cut off his supply of gas. He asked, in his complaint, that the amount due the company be ascertained and the company be directed to accept the sum so ascertained, and restrained from removing' the meter. In the opinion by Lawrence, J., it is said: (40) “This evidence tends strongly to show that gas meters are not infallible. As I have before observed, I do not understand that the gas company is vested by statute with the power of positively determining as to the amount of the rent or remuneration due to it. I am, therefore, of the opinion that when a dispute arises between the company and the consumer, the latter is entitled to have his rights investigated by the court. In this case I am free to say that the preponderance of the evidence on the affidavits seems' to me to be with the plaintiff and as he expresses himself to be ready and willing to pay the amount actualfy due from him. I am inclined to continue the preliminary injunction until the cause can be tried. On the trial the amount which is due from him to the company can be ascertained and adjusted. * * * This seems to me to be a case in which, if the. plaintiff is right, it cannot be justly claimed that he can be fully compensated by an action for damages. * * * As I am desirous of fully protecting the rights of the company in case it should be eventually determined that the plaintiff is not entitled to an injunction I will require the plaintiff to increase the security given upon obtaining the preliminary prder if the defendant establishes that such security is not adequate to satisfy any damages which it may sustain by reason of the granting of the injunction.”

It seems to us that in this last case the proper practice was followed. In the territory the city undertakes to furnish a supply of water it is its duty to supply all of. its inhabitants without discrimination, at the same price, subject to the same rules and regulations and under the same or similar conditions. It is not a matter of bargain and sale, or of express contract. In its inception a schedule of rates was established, the sum to be paid could be determined in advance of the service and it was not unusual to exact it. But now meters have come into use, and when the quantity consumed is to be ascertained by that means the sum to be paid cannot be determined in advance and the door to contention is opened. It is like a sale on credit. The water is supplied upon faith that the consumer will pay at the meter rates for the quantity consumed as indicated by the meter, and there is an implied promise, by the consumer to pay the sum so determined. This is upon the-assumption that the meter is accurate, but the presumption is that it is, and that the charge is correct. The consumer may dispute the charge and refuse to pay it, but if he does he ought not to be permitted to require the city to continue the service. It is just as reasonable that the city should determine the amount due as that the consumer should, perhaps more, as the determination for the city is by officials without personal interest. If the charge is a lien upon the premises of the consumer and the city undertakes to collect in the manner taxes or assessments are collected, the consumer 'would have to apply to the courts for relief. Of what use are rules and regulations if the city can enforce them only through the courts? It has been held that the consumer may pay under protest and recover anv excess, or that he may sue for damages; but' it has been also held' that these remedies are inadequate and that he may, therefore, seek equitable relief. If he does he ought to do equity and accompany his prayer for an injunction against the cutting off of his supply with an offer to pay the sum the court may ascertain to be due. If he takes the matter into court, why should it also be necessary for the city to do so? The code of civil procedure has supplanted actions a.t law and suits in equity with a civil action in which the remedies of both may be applied. The circuit court ought only to have enjoined until the amount due could be ascertained and it should have been ascertained in that action, and the costs assessed against the party at fault.

Van Nest Land and Improvement Co. v. New York and Westchester Water Co., 7 App. Div., 295, was a suit to enjoin the defendant from cutting off the supply of water in violation of a contract between the parties. In the opinion by Ingraham.; J. (296), it is said: “The plaintiff alleges that it has tendered the amount actually due, and the sole question between the parties is as to the amount due under the contract. No doubt is presented as to the responsibility of either of the parties, the plaintiff expressly offering in the complaint to pay the amount that the court should find due to the defendant. It further appears that it will cause the plaintiff great injury if the water supply is cut off. Upon this state of facts the court below enjoined the defendant from cutting off the water during the pending of this action. * * * It is manifestly difficult to determine the question as to how much allowance should be made to the plaintiff under the contract, because of a failure by the defendant to comply with the contract on its part. That can only be done upon a more, extended examination than could be had upon a motion of this character where no cross-examination is possible and where the witnesses are not before the court. The plaintiff, however, does not appear to be liable to the defendant for the amount actually due under the contract, and we think that, before the defendant should be enjoined from discontinrhig its service, the plaintiff should give a bond conditioned for the payment of any amount found by the court to be due under the contract. The order below is, therefore, modified by providing that the injunction shall be continued upon the plaintiff filing with the clerk of this court a bond with two sureties to be approved upon justification in the penalty of $10,000, conditioned for the payment of any sum found due by the court, on the trial of this action, to the defendant under the contract alleged in the complaint; that in the event of the failure to give such bond within ten days after service of a copy of this order, the injunction be vacated.”

We think a similar modification should be made in this case, and it will be so ordered and the cause remanded to the circuit court for further proceedings.

Judgment modified.

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


author: By the Court.

text:
    The Joint Board of County Commissioners ET AL. V. Whisler et al.

      Appeal from county commissioners — To probate court by property owners — In ditch proceedings — Burden of proof on petitioners.

    Upon an appeal from the decision of the county commissioners to the probate court by the owners of property to be taken for a ditch, the burden continues to be upon, the petitioners to show that the proposed ditch will be conducive to the public health, convenience and welfare.
    (No. 11645
    Decided May 3, 1910.)
    Error to the Circuit Court of Putnam county.
    The facts are stated in the opinion.

      Mr. J. W. Smith and Mr. B. A. Unverferth, for' plaintiffs in error.

      Mr. G. W. Risser and Mr. W. H. Handy, for defendants in error.
   By the Court.

The plaintiffs in error are the joint board of commissioners of the counties of Putnam and., Allen, and the ' petitioners for the establishment and construction of a ditch. The defendants in error are persons whose property it was proposed to take for the construction of the ditch. The case having been determined by the commissioners in favor of the petitioners, the owners took an appeal under the statute to the probate court, the appeal involving the question whether the proposed ditch will be conducive to the public health, convenience and welfare. The owners of the property were called the plaintiffs and the probate judge instructed the jury that upon the question just stated the burden was upon them to prove that the ditch would not be so conducive. For giving that instruction the court of common pleas reversed the judgment of the probate court upon a petition in error there filed by the owners, and the judgment of reversal rendered by the court of common pleas was affirmed in the circuit court. For reasons which are elementary and obvious the instruction was erroneous. The general rule is that the burden is upon him who asserts the affirmative, and the affirmative proposition that the proposed ditch will be conducive to the public health, convenience and welfare was encountered at the threshold of the case. The rule that the burden of proof is upon him who asserts the affirmative applies with especial force in a case of this character because the question stated involved the constitutional right of the public to take the property 'of the defendants in error.

It is true, as suggested by counsel for plaintiff in error, that Section 4464, Revised Statutes, provides that in such a case the appellant shall be plaintiff and the commissioners and petitioners defendants. But the provision does not affect the question here presented, for while most frequently the burden of proof is upon the plaintiff that is, only because it most frequently happens that he is asserting the affirmative. But the obligation of the petitioners to show that a case was presented for the exercise of the right of eminent domain was upon the petitioners for the ditch at all stages of the inquiry respecting the facts involved, whether that inquiry was conducted before the commissioners or the probate judge.

Judgment affirmed. ■

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


author: By the. Court.

text:
    Miner v. Witt, City Clerk.

      Not duty of court — To answer moot questions, when.

    It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.
    (No. 11932
    Decided May 3, 1910.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are stated in the opinion.

      Mr. T. K. Dissctte and Messrs. Cook, McGowan & Foote, for plaintiff in error.

      Mr. Newton D. Baker, for defendant in error.
   By the. Court.

Pending proceedings, as provided by Sections 1536-49 to 1536-58, Revised Statutes, for the annexation of the village of Collingwood to the city of Cleveland, by the vote of the electors of each and by ordinance, proceedings, as provided by Section 1536-58, Revised Statutes, for detaching therefrom a portion of the territory of the village and annexing the same to the city of Cleveland by the county commissioners, were had, and this suit was commenced in the court of common pleas by the plaintiff in error, a taxpayer of the village, to enjoin the defendant from reporting to the council a transcript of the annexation proceedings of the county commissioners. In. the court of common pleas relief was refused; on error, in the circuit court, the judgment was affirmed and error is prosecuted in this court. Since the filing of the petition in error in this court the annexation proceedings have been completed and the entire village is now a part of the city. This fact is brought to our attention by an answer to the'petition in error, which has been filed and the facts therein stated admitted by the plaintiff in error to be true.

Counsel for plaintiff in error say that the solution of problems of great importance depends upon the construction of these statutes, and that the question presented is, whether a municipal corporation in Ohio may, without its consent, be substantially dissolved and disincorporated under the guise of the annexation of a part of its territory to an adjacent municipality. We concur in the opinion of counsel as to the importance of the construction to be placed upon these statutes and 'do not think we should express an opinion upon them in a case where the decision cannot be made effectual by a judgment. The whole village is now a part of. the city, and the determination of the questions presented by the record would, so far as this case is concerned, affect nothing but the question of costs. There is nothing left but a moot case. In Mills v. Green, 159 U. S., 651, 653, Mr. Justice Gray says: “The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot • affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence.” This is followed in Kimball v. Kimball, 174 U. S., 158. To the same effect is The People, ex rel. Kingsland et al., v. Clark et al., 70 N. Y., 518, where an injunction was sought to restrain proceedings to incorporate a village and pending the application the incorporation was accomplished.

The petition in error is

Dismissed.

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


author: Si-iauck, ■ J.

text:
    State of Ohio for the Use of Clark County v. Collins et al. State of Ohio for the Use of Clark County v. Hinkle et al. State of Ohio for the Use of Clark County v. Twitchell et al.

      Copies to be filed with pleading — Evidence of indebtedness — 6Vc-tions 5085 and 5086, Revised Statutes — Action upon official bond of county commissioner — To recover indemnity — On account of negligence of board of county commissioners.

    1. Sections 5085 and 5086, Revised Statutes, authorize a pleader to attach copies of accounts or of such instruments only as are evidence of indebtedness existing at the time of their execution, or are instruments for the unconditional payment of . money only.
    2. A11 ' action cannot be maintained upon the official bond of a county commissioner to recover indemnity to the county on ., , account of damages which it has been compelled to pay for injuries to persons and property resulting from the negligence of the board of county commissioiiers in maintaining a highway.
    (Nos. 11965, 11966, 11967
    Decided June 7, 1910.)
    Error to the Circuit Court of Clark county.
    ’ The defendants, Collins and Hinkle, and Twitch-ell, the testator of Virginia Twitchell, executrix, were the commissioners of Clark county. These suits were brought on their official bonds, other defendants being their several sureties, to recover indemnity to the county for a liability which it has been compelled to discharge on account of injuries1 to persons and property resulting to the occupants of an automobile, and to the car, by ■being precipitated into the bed of a stream from which a highway bridge had been removed by the commissioners and the space carelessly and negligently left unguarded. In the court of common pleas demurrers to the several petitions were sustained and final judgments rendered in favor of the defendants. In the circuit court the judgments were affirmed.

      Mr. Lawrence E. Laybourne and Mr. John B. McGrew, for plaintiff in error.
    Is a member of the board of county commissioners liable on his bond to the county for damages suffered by it because of the negligence and carelessness of said board in failing to keep a bridge or road in proper repair, said bond of said commissioner being conditioned “for the faithful discharge of his duties, and for the payment of any loss or damage that the county may sustain by reason of his failure therein ?”.
    One of the official duties of the board of county commissioners is to construct and keep in repair all necessary bridges and approaches thereto over streams on county roads. This duty is mandatory. Sections 860 and 861, Revised Statutes.
    The liability of the defendants is found in the provisions of Section 844, Revised Statutes, which provides the condition of the bond of a county commissioner.
    At common law county commissioners are not officially liable to parties injured by a negligent and careless discharge of their official duties.
      Commissioners v. Mighels, 7 Ohio St., 109; Finch v. Board, 30 Ohio St., 37; Overholzer v. National Home, 68 Ohio St., 236; Board v. Storage Co., 75 Ohio St., 244.
    In 1894 the legislature determined that for negligence and carelessness in the discharge of certain official duties, the commissioners should be officially liable, to-wit, for negligence and carelessness in failing to keep county roads and bridges in proper repair. This liability is provided for in Section 845.
    There is no liability for any other official negligence or carelessness. Ebert v. Commissioners, 75 Ohio St., 474; Commissioners v. Mighels, 7 Ohio St., 109.
    It is submitted that the legislature intended “to exact indemnity” from the commissioners when it required the condition in their bond provided for in Section 844.
    It is a cardinal rule in the interpretation of statutes that the intent of lawmakers is to be sougffit first of all. Slingluff v. Weaver, 66 Ohio St., 621.
    It is also the duty of the court to give effect to a statute when that can be done. The provision of Section 844 not only requires the faithful discharge of the official duty of the commissioners, but also that he pay any loss or damage that the county may sustain by reason of his failure therein.
    Did not the legislature intend that the commissioners’ should indemnify the county for damage suffered by it through their carelessness in the discharge of certain duties? If not, why was such a law passed, for such a provision is not found in any other statute providing for county official bonds. Carpenter v. Sloane, 20 Ohio, 327.
    It is submitted that Clark county had a right to rely upon the official acts of its county commissioners, to rely upon their official duties being faithfully and carefully, not “improperly or negligently” discharged. State v. Alden, 12 Ohio, 59. That a member of a board cannot shirk his official responsibilities by delegating the performance of his official duties to some other member of the board. To counties are delegated in a large measure the duties of local administration, and within their jurisdiction stand in the place of the state. Commissioners v. Church, 62 Ohio St., 318.

      Messrs. Hagan & Hagan and Mr. William M. Rockel, for Collins et al.

      Messrs. Keifer & Keifer, for Hinkle et al.

      Messrs. Martin & Martin, for Twitchell, Exrx., et al.
    The main claims presented in their respective briefs, by the counsel for defendants in error, county commissioners, are:
    An officer acting in an official capacity, under the common law, was not liable to any individual for negligence in the discharge of his official duty.
    Until the year 1894, the board of county commissioners was not liable for neglect in failure to keep roads,. etc., in repair. In 1894, Section 845, Revised Statutes, was amended and created a liability against the board “in their official capacity,” for damages received by reason of negligence of the commissioners in keeping roads or bridges in repair.
    ' Prior to this amendment, no action would lie against the county or board of county commissioners in their official capacity for two reasons.

      First: Because in a leading case, this court had held, that the board of county commissioners. is a quasi corporate body, and as such, could not be held liable for damages resulting to ,a private party, by the negligence of its officers in the discharge of their official functions. Commissioners v. Mighels, 7 Ohio St., 110; Finch v. Board, 30 Ohio St., 37.
    In neither 'of these cases was the injury the result of a defective bridg'e or highway.

      Second: The second reason, why the board prior to the amendment would not have been liable, is because no actionable wrong' had been committed, and it is proper here to say, that although the commissioners have had charge of the public highway since the organization of the state, there is no reported case of there ever having been a suit against them, for a liability, which resulted from a defective bridge or highway. But it is well settled, that at common law, there was no such liability. Dunlap v. Knapp, 14 Ohio St., 69; Smith v. Commissioners, 29 C. C., 611; McConnell v. Dewey, 5 Neb., 385; Young v. Commissioners, 2 Nott & McCord, 537; Nagel v. Wakey, 161 Ill., 387.
    In the absence of statute, expressly making the commissioners individually liable for a wrong resulting from a defective highway, their individual non-liability might rest upon either one of the following grounds:

      First: There was no actionable wrong committed.

      Second: The commissioners were not liable individually because if any right or duty in this respect had been recognized by statute, a delinquency in that respect was covered by the penalty prescribed by the statute for failure to perform the duties enjoined. Section 6915, Revised Statutes ; Dunlap v. Knapp, 14 Ohio St., 64.

      Third: The statute places no duty upon the commissioners, in their individual capacity to repair the bridges. Whatever was required to be done in the repair of bridges, as applicable to the present case, was required of the board, in its corporate capacity. Section 860, Revised Statutes; Commissioners v. Butt, 2 Ohio, 348.

      Fourth: That the commissioners are quasi judicial officers, and not liable individually in any case unless they act maliciously or from a corrupt motive. Thomas v. Wilton, 40 Ohio St., 516; Gregory v. Small, 39 Ohio St., 346; Stewart v. Southard, 17 Ohio, 402; Ramsey v. Riley, 13 Ohio, 157; State v. Bair, 71 Ohio St., 427; Board v. Commissioners, 113 N. Car., 379; Palmer v. Town, 24 N. H., 314; Waldron v. Berry, 51 N. H., 136; Boseker v. Commissioners, 88 Ind., 267; Daniels v. Hathaway, 65 Vt., 247; Hunter v. Mobley, 26 S. Car., 192.
    There is no reported case in Ohio, showing an action brought seeking to hold a commissioner individually liable, for an injury occurring on a highway, and after diligent search, and a challenge made to the opposition, no such case has been found or cited in the court of any other state.
    Since the passage of Section 845, Revised Statutes, which fixes a limited liability on the board of county commissioners for failure to keep roads in repair, there have been several decisions, all of which would tend to support the proposition for which we contend — that the statute did not create c. personal liability against county commissioners for negligence, and that no such action can be maintained in the absence of a claim that there was corrupt intent. Alexander v. Brady, 61 Ohio St., 177.
    If, then, they are liable only as the statute imposes, we must find some language there which authorizes that which did not exist theretofore.
    . When a new liability is created by statute which did not exist theretofore, the law will not be extended beyond its terms, as it would be in derogation of the common law. Ebert v. Commissioners, 75 Ohio St., 479; Board v. Storage Co., 75 Ohio St., 244.
    Section 845, Revised Statutes, relates entirely to the actions of the board of commissioners in their corporate capacity, and not what they might do, or what they might not do, as individuals.
    So, unless this statute is to be extended beyond its plain terms, no individual liabilitv can flow therefrom.
    Where a statute creates a new right, or imposes a new duty, or liability, unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive. Zanesville v. Fannan, 53 Ohio St., 605; Railway

      Co. v. Hine, 25 Ohio St., 629; Madden v. Lancaster, 65 Fed. Rep., 188; Hodges v. Tama Co., 91 Ia., 581; Cole v. Muscatine, 14 Ia., 296; Harrington v. Glidden, 179 Mass., 486; Abel v. Minneapolis, 68 Minn., 89; Rochester v. Campbell, 123 N. Y., 414; 2 Lewis’ Sutherland on Statutory Construction, Section 572.
    It follows, therefore, that in order to create a liability in favor of the county, the statute must specifically so state. White v. Inhabitants, 51 Mass., 108; First Parish v. Fiske, 62 Mass., 264.
    It is a well-settled doctrine that official bonds do not create a liability, nor cast upon the official any additional duty, responsibility, or liability which was not otherwise by law cast upon him. State v. Chadwick, 10 Ore., 465; Murfree on Official Bonds, Section 494; State v. Blake, 2 Ohio St., 147.
   Si-iauck, ■ J.

With respect to the obligatory terms of the official bonds upon which the petitions count, they allege only that the principal defendant in each case and his sureties who were joined with him gave bond to the state of Ohio in the sum of $5,000, conditioned for the faithful discharge by the principal obligor of his official duties as county commissioner of Clark county, and to pay any loss or damage that said county might sustain by reason of his failure therein during the term for which he was elected. In lieu of further allegations in that regard the petitions set out full copies of the bonds, including the approval by the prosecuting attorney of the terms of the bonds and by the probate judge of the sufficiency of the sureties and the official oath thereon endorsed. Not only is this mode of pleading instruments of this character unauthorized, but it is forbidden by the familiar rules that a petition should contain “a statement of the facts constituting the cause of action, in ordinary and concise language,” and that evidence should not be pleaded. These instruments, not being for the unconditional payment of money, nor evidence of indebtedness existing at the time of their execution, are not within the provisions of Sections 5085 or 5086, Revised Statutes. They unnecessarily encumber the record, and they do not make it the duty of the court to examine the evidence thus pleaded to see whether it would have sustained other allegations of obligation if they had been made. The rule upon the subject was precisely stated by Judge Gholson in Lynd & Morton v. Caylor, 1 Handy, 576: “Except in the cases specially authorized by the code, each petition should embody in itself, and without reference to any other paper or exhibit, the facts which constitute the cause of action.” Crawford & Morrison v. Satterfield, 27 Ohio St., 421.

The obligation of the defendants in the several cases is alleged to be that the principal and his co-defendants as sureties, “gave bond to the state of Ohio in the sum of $5,000, conditioned for the faithful discharge by the said [naming the principal] of his official duties as county commissioner of Clark county; Ohio, and to pay any loss or damages that the said Clark county, Ohio, might sustain by reason of his failure therein during the term for which he was elected aforesaid.” With respect to the breach of the obligation the petition alleges, in substance, that the board of county commissioners, of which the principal defendant was a member, caused a bridge which spanned a stream on a highway under the control of said board, to be removed and carelessly and negligently and willfully left the embankments and the open space between them unguarded, in consequence whereof injuries resulted to the persons and property of persons traveling upon the highway, for which the county was liable under the statute, and that in the discharge of that liability the county paid the sums for which a recovery is sought. The legal force of the word “willfully” will not be overestimated when it is remembered that it is used in an allegation of mere omission of duty. The question is, whether an individual member of a board of county commissioners is liable for negligence of the board of which he is a member which results in a liability to the county. The briefs are in entire accord upon the proposition that according to the accepted law of the state, counties were not liable on account of the negligence of the commissioners prior to the act of April 13, 1894 (91 O. L., 142), when Section 845, Revised Statutes, was so amended as to impose a limited liability by the provision that “any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in proper repair.” This statute should not by construction be extended beyond the plain meaning of its terms. Commissioners of Morgan County v. The Marietta Transfer & Storage Co., 75 Ohio St., 244; Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474. It is entirely clear that this statute does not, in any way, enlarge or change the terms of the bond, or enlarge the duties of the individual commissioners, although it adds a new consequence in the particular indicated to negligence in the performance of their duties. Not only the duties of the commissioners, but the terms and purposes of the bond which they individually give remain as they were before the amendment. By the express terms of the statute the consequence provided for attaches to the board “in its official capacity,” and not to its individual members. It is consistent with the allegations of the petition that the negligent course of the board, on account of which a liability is asserted upon the bond of the individual member, was taken without his concurrence. It seems to be decisive of the case that the negligence was that of the board, while the bond is for the faithful performance of the duty of the individual. If inquiry should be extended further, it might appear that the negligence alleged as the foundation of the actions is not unfaithfulness in the sense in which that word is used in official bonds. If doubt should remain it would be difficult' to resolve in favor of the conclusion that such a liability as is asserted in these petitions has been assumed by officers who serve for the compensation which the statute attaches to the office of county commissioner.

Judgments affirmed.

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