author: Price, J.

text:
    The Baltimore & Ohio Railroad Company v. Hubbard et al.

      Shipper of horses signs contract with railway company — At specified freight rates — Carrier to assume liability on the live stock at agreed valuation — Charge to jury — Not error for court to refuse to charge — That according to other conditions, claim, in writing should be filed with the carrier’s agent —Before any liability to exist on the part of the carrier, etc. — Law of contracts — Common carriers — Breach of contract — Estimate of damages.

      X. Where a shipper of horses signs a contract with a railroad company for their carriage, containing the following stipulation: “The said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of twenty-two cents per hundred weight, which is the lower published tariff rate based upon the express condition, that the carrier assumes liability on the live stock to the extent only of the following agreed valuation, upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation, neither the said carrier nor any connecting carrier shall be liable in any event whether the loss or damage occur through the negligence of said carrier or connecting carriers or their employes or otherwise; — if horses or mules, not exceeding one hundred dollars each;” and the contract is not induced by fraud, concealment or deception, but is fairly made, the same will be upheld as a just and reasonable method of fixing a'due proportion between the amount for which the carrier becomes responsible and the freight he receives, and also of protecting himself against extravagant valuations in case of loss; and recovery for loss or damage will be limited to the amount of valuation ^ named, even if the damage or loss occurs through the negligence of such carrier or his servants. To charge the jury to the contrary is error.
    2. On the facts disclosed in this case the court did not err in refusing to charge, that “if the jury finds from the evidence that the horse of plaintiffs was transported from Warren to Lodi, Ohio, under and by virtue of a contract; that said contract embodied all of the terms for the transportation of said horse, and that said contract provided among other things, that a claim in writing, verified by an affidavit of the agent or shipper should he filed with the agent at Wooster, Ohio, within five days from the time said stock is removed from the ear in which it was shipped, before any liability could exist on the part of the defendant for the loss or damage to said horse, or before the plaintiffs could sue for such loss or damage, then the filing of said claim verified by said affidavit is a condition precedent to the right of plaintiffs to recover in this case; and if the jury finds from the evidence that no such claim or affidavit was ever filed with the agent of defendant at Wooster, there can he no recovery in this case.”
    (No. 8903
    Decided April 11, 1905.)
    Error to the Circuit Court of Cuyahoga county.
    On and before the eighth day of September,' 1900, the defendants in error were the owners and in possession of a brown horse (gelding), called Fred S., and known as a race horse by that name, which the owners alleged was worth the sum of $1,200.
    On the day above named, the said owners delivered to the Pittsburg & Western Eailway Company, at its station at Warren, Trumbull county, Ohio, — said railway company being then and there a common carrier of passengers and freight, — the said horse with two others, which said company then and there agreed to safely convey over its own road, and that of the Baltimore & Ohio Eailroad, and safely deliver to C. F. Frazier, one of said owners, defendants in error, at Wooster, Ohio, for the freight charge of $22.00 which they prepaid to the Pittsburg & Western Eailway Company at-Warren, Ohio.
    It is further alleged, that the Baltimore & Ohio Eailroad Company for and in consideration of a part of the freight money so paid to the Pittsburg & Western Eailway Company, at the city of Akron, assumed and agreed with the owners of the horses to complete the performance of the contract originally made by the latter company for the transportation of said horses from the city of Warren, Ohio, to the city of Wooster, Ohio, and that the Baltimore & Ohio Railroad Company at the city of Akron undertook and entered upon the performance of said contract. The Pittsburg & Western Railway Company, using one of the cars of the Baltimore & Ohio Company, carried the horses over the line of the former to Akron and which arrived at that city the same day of the shipment, and there the car containing the three horses was taken charge of by the Baltimore & Ohio Company, and carried over one of its lines to Lodi, and afterwards conveyed two of said horses over another branch of its lines to the city of Wooster.
    It is alleged, that the Baltimore & Ohio Company did not complete the performance of the contract which it had agreed and undertaken to complete, and did not safely convey and deliver the horse Fred S., but on the contrary the latter company was guilty of negligence, in that, when the car containing said horses arrived at Lodi, the agents and servants of the Baltimore & Ohio Company, negligently caused and permitted an engine and cars to come in collision with the car containing said horses with great force and violence, thereby throwing said horse, Fred S., down to and upon the floor of the car, then and thereby inflicting such injuries upon him as to cause his death within a short time thereafter, to the damage of the owners in the sum of $1,200. The said horse was never delivered to its owners at Wooster or to C. F. Frazier, and they prayed for judgment-in said sum as the value of the horse so injured and killed.

      The plaintiff in error answered the petition containing the foregoing facts, and admitted its corporate capacity as a common carrier of passengers and freight, and that the plaintiffs below, at the time they alleged, delivered to the Pittsburg & Western Railway Company at Warren, Ohio, the three horses for shipment over its line to Akron, Ohio, and thence over branch lines of the Baltimore & Ohio Railroad to Wooster, there to be delivered to C. F. Frazier, and that the Baltimore & Ohio Company, when the car containing the horses reached Akron, took charge of the car and agreed to convey it over its lines to Wooster, and did convey it to Lodi, and afterwards transported two of the horses to Wooster.
    The answer then denies all other allegations of the petition.
    The answer pleads a special contract in writing for the shipment of the horses, entered into between the plaintiffs below and the Pittsburg & Western Railway Company, in entering into which contract, said railway company was acting for itself and also in behalf of any connecting carrier, by the terms-of which contract, in consideration of .a freight rate of twenty-two cents per hundred weight, which was a lower rate than usual and the published tariff rate for carriage of live stock, said plaintiffs agreed that the Pittsburg & Western Railway and any connecting carrier, should receive and transport said horses upon the express condition that they assumed a liability to the extent only of an agreed value of $100 for each horse, beyond which valuation neither of said carriers should be liable in any event, whether loss or damage should occur through the negligence of either of said carriers, their employes or otherwise.
    The answer sets out another provision of the contract to the effect, that no claim for damages which might accrue to plaintiffs under said contract should he allowed or paid by said carrier, or connecting carrier ; or be sued for by the plaintiffs, unless a claim for such loss or damage should be made in writing, verified by the affidavit of the shipper or his agent, and delivered within five days from the time said horses should be removed from the car; that if any loss or damage should occur upon the line of any connecting carrier, it should not be liable unless a claim should be made in like manner, and delivered in like time to some proper officer or agent of the carrier upon whose line the loss or injury should occur.
    The defendant below further avers that the owners of these horses had the option of shipping them at a higher rate of freight according to the official tariff classifications and rules of the Pitts-burg & Western Railway Company and connecting carriers, but the plaintiff voluntarily decided to ship the horses under the contract set out, on its conditions at sgid reduced rate of freight.
    It is further alleged in the answer, that the defendant unloaded the injured horse at Lodi, at request of the agent of plaintiffs, that it might be cared for, and that no claim in writing verified by affidavit, for any loss or damage, was made by plaintiffs or either of them or by any one in their behalf within the five days specified in said contract of shipment.
    The reply makes some admissions, but denies all other allegations of' the answer which are not admissions of the allegations of the petition. It denies the execution and delivery of the special contract set out in the answer, and it denies the right of the railway company to limit the time for the presentation of claims occasioned by its negligence to the period of five days.
    The reply further states that said horse, Fred S., was shipped by said C. F. Frazier, who was unable to read writing or printing, and unaccustomed to transact business requiring knowledge of reading and writing; that the alleged limitations and restrictions contained in the alleged contract were obscurely printed in very fine type, together with a large number of other limitations, and that said Frazier could not read “the same and his attention was not called thereto, and the limitations were entirely unknown to him, and said limitations were unknown to his co-plaintiff, Hubbard, and that neither of them ever assented to the terms of limitations contained in the alleged,contract.
    On the issues joined the cause was tried to a jury. At the close of the evidence introduced by the plaintiffs, the defendant. company moved the court to direct a verdict in its favor, which was overruled and exception noted. At the close of all the evidence the motion was renewed and overruled.
    The defendant company requested thirteen special charges, those being here material are 1, 2, 3 and 4. The others will be sufficiently and generally noticed in the opinion.
    “1. If the jury finds from the evidence that plaintiffs’ horse was shipped under contract known in this case as defendant’s exhibit 1, then no recovery can be had in this case for more than $100, even though, the jury finds from the evidence that said horse was injured through the negligence of the defendant.
    “2. If the jury finds from the evidence that the horse of plaintiffs was shipped under special contract known in this case as defendant’s exhibit 1, and it is provided in said contract that no claim for damages, which may accrue to shipper under said contract, shall be allowed, be paid or sued for in any court by the shipper, unless a claim for said loss or damage shall be made in writing, verified by affidavit of the shipper or his agent, and delivered to the agent of the defendant at his office in Wooster, Ohio, within five days from the time said stock was removed from the car in which it was shipped; and the jury finds from the evidence that no claim for loss or damage to the horse of plaintiffs was ever filed with said agent at Wooster, together with an affidavit by said shipper or his agent, then there can not be any recovery in this case.
    “3. If the jury finds from the evidence that the horse of plaintiffs was transported from Warren to Lodi, Ohio, under and by virtue of a written contract, that said contract embodied all the terms for the transportation of said horse, and that said contract provided among other things that a claim in writing verified by an affidavit of the agent or shipper should be filed with the agent at Wooster, Ohio, before any liability could exist on the part of defendant for the loss or damage to said horse, or before the plaintiffs could sue for such loss or damage, then the filing of said claim verified by said affidavit is a condition precedent to the right of plaintiffs to recover in this case; and if the jury finds from the evidence that no such claim or affidavit was ever filed with the agent of defendant at Wooster, there can he no recovery-in this case.

      “á. If the jury finds from the evidence that plaintiffs’ horse was transported from Warren to Lodi, Ohio, under and by virtue of a written contract between defendant and plaintiffs, and that it was agreed in said contract that the value of plaintiffs’ horse was $100, .and that defendant should, not be liable in any event for more than said sum in ease of loss or damage to said horse, whether said loss' occurred through the negligence of defendant or not, then plaintiffs can not recover in this case more than $100, even though the jury finds from the evidence that defendant negligently caused the death of said horse.”
    These charges were refused and exception taken. The fifth request was given. Exception was taken to the general charge.
    The jury returned a verdict for the sum of $1,200 in favor of the plaintiffs. A motion for new trial was overruled and judgment entered on the verdict. This judgment was affirmed by the circuit court, and the railroad company prosecutes error to reverse both judgments.

      Messrs. Kline, Tolies & Goff, attorneys for plaintiff in error,
    cited and commented upon the following authorities:

      The Cincinnati, etc., Electric Street Railroad Co. v. Lohe, Admr., 68 Ohio St., 101; Hart v. Railroad Co., 112 U. S., 331; Judge Elliott on Railroads, par. 1510; TJllman v; Railway Co., 112 Wis., 150; O’Malley v. Railway Co., 86 Minn., 380; Nelson v. Railway

      Co., 28 Mont., 297; Bowring v. Railway Co., 90 Mo., App., 324; Normile v. Railway & Navigation Co., 41 Ore., 177; Metropolitan Trust Co. v. Railway Co., 107 Fed. Rep., 628; Jennings v. Smith, 106 Fed. Rep., 139; United States Express Co. v. Bachman, 28 Ohio St., 144; Railway Co. v. Sheppard, 56 Ohio St., 68; Railway Co. v. Simon, 8 Circ. Dec., 540; 15 C. C. R., 123 (affirmed 63 Ohio St., 598); Pennsylvania Co. v. Yoder & Sullivan, 25 O. C. C., 32; Railroad Co. v. Ross, 105 Ill. App., 54; Anderson v. Railway Co., 59 N. E. Rep., 396; Railway Co. v. Adams, 115 Ga., 705; Dawson v. Railroad Co., 76 Mo., 514; Pavitt v. Railroad Co., 153 Pa. St., 302; Black v. Railroad Co., 111 Ill., 351; Railroad Co. v. Simms, 18 Ill. App., 68; Southern Express Co. v. Caldwell, 21 Wall., 264; Railroad Co. v. Widman, 10 Ind. App., 92; Southern Express Co. v. Hunnicutt, 54 Miss., 568; Wier v. Adams Express Co., 5 Phila., 355; Jennings v. Railway Co., 127 N. Y., 438; Armstrong v. Railroad Co., 53 Minn., 183; Rice v. Railroad Co., 63 Mo., 314; Selby v. Railroad Co., 113 N. C., 588.

      Mr. E. J. Pinney and Messrs. Hoyt, Munsell & Hall, attorneys for defendants in error,
    cited and commented upon the following authorities:

      Railway Co. v. Sheppard, 56 Ohio St., 68; Stevenson v. Wells, Fargo & Co., 1 O. S. C. D., 312; 33 W. L. B., 247; Gaines v. Transportation Co., 28 Ohio St., 418; Davidson v. Graham et al., 2 Ohio St., 131; Graham & Co. v. Davis & Co., 4 Ohio St., 362; Railroad Co. v. Derby, 14 How., 468; Welsh v. Railroad Co., 10 Ohio St., 65; Adams Express Co. v. Schwab & Bro., 1 O. S. C. D., 361; 34 W. L. B., 214; Pennsylvania Co. v. Yoder et al., 25 O. C. C., 32; Railroad Co.
      v. Simpson, 46 Am. Rep., 104 (30 Kan., 645); Railway Co. v. Chapman, 133 Ill., 96; Railway Co. v. Calumet Stock Farm, Adv. Sheets N. E. Rep., Jan. 10, 1902, p. 1095.
   Price, J.

Considerable argument is made in the. brief of plaintiff in error, regarding the form of action assumed in the petition against it in the court of common pleas. It was urged in that court, and it is argued here, that the action is upon a written contract, for the breach of which recovery was sought, and it appears from several averments of that pleading, that a contract for shipment of the horses from Warren, Ohio, to Wooster of the same state, their safe transportation and delivery to C. F. Frazier, one of the owners, was entered into by the Pittsburg & Western Railway Company and the defendants in error, and that this contract was binding not only upon that company, but on its connecting lines, and that when the horses reached the lines of the latter company, it undertook under said contract to safely carry and deliver the animals to O. F. Frazier at Wooster; that breach was made, in that the latter company did not properly care for one of the horses, known as Fred S., and through the negligence and wrongful acts of its employes, the said Norse was so injured at Lodi tNat his death resulted. Such is the substance of the averments referred to. But the petition does not allege that the contract was reduced to writing'. It was disclosed in the evidence •of Frazier, that there was some writing signed upon the subject. The railroad company insisted that when it appeared there was a written contract for ■the shipment, it must be produced and put in evideuce by the plaintiff before he was entitled to recover. The plaintiffs below did not introduce any written contract, and when their case was rested the defendant moved the court to direct a verdict in its favor, which the court declined to do.

In this we think no error was committed. It must be remembered, that the reply denies that the contract plead in the answer was ever executed by the plaintiffs or Frazier, and in his testimony, Frazier insisted he had not signed such contract, — that he had signed no paper except' the bill of lading. As long as that matter was in dispute by the pleadings and also in the evidence, it would have been error to have granted the motion. The plaintiffs had introduced evidence tending to establish a liability. The defendant then introduced its exhibit 1, and gave evidence tending to prove that it was the contract executed by the parties for the transportation of the horses.

The plaintiffs contended that their action was not founded on contract, but sounded in tort, and they were not required to prove a contract in writing or parol. It seems that the trial court took this view of the case, and charged the jury, “that the action is not based upon contract for shipment, but is based on specific acts of negligence, or wrongful conduct of the defendant’s servants and employes in operating a car against the car in which the horse was, with such force and violence as to cause an injury and death to the horse * *

For the purposes of this proceeding in error, it is .not very material which theory of the action is correct. The alleged contract became a part of the evidence, although introduced by the defendant. If the action was on a contract for safe carriage and delivery, the breach consisted in the negligent acts of the employes of the defendant which caused the injury. If the action sounded in tort, the same acts of negligence constituted the tort, and we pass the questions so fully discussed by counsel, without further observation, and take up the material ground of controversy.

The testimony introduced by the plaintiffs tended to prove that the value of the race horse, Fred S., at the time of his injury and death was $1,200. The contract known as defendant’s exhibit 1, and which was introduced by defendant company, had the following important provision:

“Uniform Live Stock Contract.

“Warren, Ohio, Station, Sept. 8, 1900.

“This agreement made this eighth day of September, 1900, by and between the Pittsburg & Western Railway Company, hereinafter called the carrier, and C. F. Frazier, hereinafter called the shipper, witnesseth': That the said shipper has delivered to said carrier live stock of the kind and number^ and consigned and destined by said shipper as follows: Consignee, destination, etc., C. F. Frazier, Wooster, Ohio. Number and description of stock, 3 horses— weight subject to correction, 10,000. * * *

“That said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of twenty-two cents per hundred weight, which is the lower published tariff rate based, upon the express condition that the carrier assumes liability on said live stock to the extent only of the following agreed valuation, upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of said carrier or connecting carriers or their employes, or otherwise.

“If horses or mules — not exceeding one hundred dollars each. ’ ’

■ Then follows a provision for the carriage of the person in charge of the stock. •

Next is the,provision: “ 0. F. Frazier does hereby acknowledge that he had the option of shipping the above live stock at a higher rate of freight according to official tariffs, classifications and rules of the said carrier and connecting lines, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said live stock upon their respective roads and ships, and has voluntarily decided to ship same under this contract at the reduced rate of' freight above first mentioned. ’ ’

This contract was signed by the Pittsburg & Western Railway Company by its station agent, and it bears thereunder the name of C. F. Frazier.

Pleading this contract, and introducing it in evidence, the defendant company claimed and now claims, that if liable at all to the plaintiffs, the liability did not exceed the sum of one hundred dollars. The plaintiffs below claimed and claim here, that Frazier did not execute the contract, and that if he did, it is invalid and against public policy. Whether he executed the contract on behalf of the owners of the horse, was a question of fact for the determination of the jury, under the rules of law as we shall hereafter determine them. Hence the legal question arises, is the stipulation relied upon by the carrier in this case valid in law, if properly signed? Is it competent for the railroad company to thus limit the amount of its liability for loss or damage, in consideration of the reduced rate of transportation? It is not a contract of exemption from liability for the negligence or wrongful conduct of the company or its employes, and its terms cannot be construed to provide for any such exemption. If it did undertake to so provide, it would be condemned as invalid, by a uniform current of authority. A common carrier cannot save itself from liability for its negligence and wrongful acts, by any contract to that effect. But that is not the question here, and it seems that the trial court needlessly confused our question with the well settled law as above stated.

The railroad company is not striving to escape payment of any sum on account of its negligence, but to limit the amount of recovery to an agreed valuation, in case of loss or damage as the result of its negligence, or otherwise. .

It is urged that under the law as held by the courts of this state, no such limitation is valid, and the following cases are cited: Davidson v. Graham et al., 2 Ohio St., 132-3; Graham & Co. v. Davis & Co., 4 Ohio St., 362; Welsh v. Railroad Co., 10 Ohio St., 65. We think neither ease holds what is contended for it. ’Instead of reviewing each of them, it will be sufficient to adopt the remarks of Scott, J., in Welsh v. Railroad Co., 10 Ohio St., 65, where he comments on Davidson v. Graham et al. supra, and Graham & Co. v. Davis & Co., supra. On page 70 of the opinion it is said, after referring to those cases: “But that the liability of the carrier may be qualified and limited by special contract, is well settled. It is true that even this right was denied upon grounds of public policy, in New York, in the case of Cole v. Goodwin, 19 Wend., 254, and in the subsequent case of Gould v. Hill, 2 Hill, 623. But these cases have since been overruled. * * * The authority of Gould v. Hill was also denied by the Supreme Court of the United States in the case of the New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 Howard, 344. That such restriction may be provided for by contract, has been affirmed in this state in the cases already referred to, in 2 and é Ohio State Reports.”

Throughout the opinion, especially on pages 74 and 75 the doctrine of the former cases was restated and adopted to the effect, that while a common carrier cannot relieve himself to any extent by special contract, from losses occasioned by his own neglect, he may by “contract restrict his liability as an insurer against losses arising from mistake, or unavoidable accident against which human prudence could not provide. ”

This of course does not include the right of the carrier to arbitrarily limit liability for either acts of negligence or the amount of liability in case of loss of or damage to the property consigned. Nor does it extend to mere notices given by the carrier to the shipper that a limited liability is being contracted for when the shipment is made. • The transaction must amount to a contract on the subject, wherein the minds of the parties meet as in the making of other contracts.

We have also considered the case of United States Express Co. v. Bachman. It does not determine our question, nor does it purport to modify or overrule the earlier eases already noticed. In fact the validity of the precise stipulation contained in the contract under consideration in this case, has not been passed on by this court. There are important facts in Express Co. v. Bachman, supra, which distinguish that case from the one before us. One of the facts in that case and which was regarded as material, is that while the bill of lading provided that the carrier should not be liable beyond an amount named therein, it was understood-by the parties that the sum so agreed on as to the amount of liability, was much less than the value of the goods. On page 150 of the'opinion this court quotes from the bill of exceptions the following: “It was admitted by the defendant that the whisky in question, at the time and place of shipment, was of much greater value than $20.00 per barrel, and that the defendant knew that fact at the time. ’ ’

The case at bar is different, the contract relied on by the railroad company is not a bill of lading, although such a bill did accompany the special contract and was issued at the same time. The value alleged to have been agreed upon in the special contract was $100 for each of the horses. There is nothing in the record to indicate that it was made known to the agent of the company where the shipment was made, that the horses were race horses of peculiar or greater value, and for the ordinary common horse, the value agreed upon would not be regarded as' unusual, and -it may be inferred from the facts,' or rather want of facts in the record, that the carrier was undertaking to carry horses of the value stipulated. On page 156 of Express Co. v. Bachman, the court gave weight to the fact in that case, that the carrier admitted that the whisky was worth much more than $20.00 per barrel, and said: “Carriers may by contract limit their liability at common law for damages or loss arising from other cause than negligence of themselves, or their servants. They cannot, however, as liquidated damages, where it is understood by the parties the sum agreed on is less than the value of the goods -determined in advance, the quantum, of damages for loss occasioned by negligence.” We think the points of difference between that case and the one at bar are sufficiently prominent to minimize its influence upon our judgment.

Another and later case is cited: Railway Co. v. Sheppard, 56 Ohio St., 68. Our exact question was not involved in that case, as will appear from its statement of facts, and from the opinion of Williams, C. J.

Counsel for defendant in error cite Adams Express Co. v. Schwab & Bro., 53 Ohio St., 659. It is an unreported case affirming the lower court, Shauck, Burket and Spear, JJ., dissenting. It is not clear on what ground the judgment was affirmed, and we are not at liberty to speculate concerning the reasons for the affirmance.

The Pennsylvania Co. v. Yoder et al., 25 O. C. C., 32, is also cited. We are aware that the circuit courts of the state are not in harmony on the question before us and have reached conflicting judgments, as is shown by Railway Co. v. Simon, 15 C. C. R., 123. Those two cases are in direct conflict and cannot be reconciled.

Having noticed in a brief way the preceding decisions in this state, we are inclined to think, that the conclusions we reach are not in conflict with former holdings of this court, although some of the latter are not entirely clear as to their scope. In this case, besides the bill of lading, the railroad company plead and contend, that in consideration of a reduced freight rate for the transportation of the horses, their owner entered into a written. special contract with the company wherein a valuation for shipping purposes was agreed upon beyond which the company would not be liable for loss or damage on account of negligence or any event. The value so agreed upon was not known to be unusually low, and below their real value. The shippers, under this contract, if they made it, obtained a low rate of transportation for which they were willing to allow the carrier to place a money limit on its liability. It is not a stipulation to exempt from liability for negligence, but a limit on the amount of liability for which the carrier should respond in case of loss or damage. “This limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value for the purposes of the contract of transportation between the parties to that contract. The carrier must respond for negligence up to that value.

It is just and reasonable that such a contract, fairly entered into and where there is- no deceit practiced upon the shipper, should be upheld. There is no violation of public policy. On the contrary it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contract, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.” So said the Supreme Court of the United States in Hart v. Railroad Co., 112 U. S., 340-341. The contract there considered is like the one here. That case reviews and discusses the subject thoroughly, and cites the eases arrayed, on each side of the controversy. It holds that the greater weight of authority and the better reasoned cases support the doctrine there announced. If the contract is induced by fraud or deception, or unfairly made and not understood by the shipper, a different rule will govern, as decided by the same cases.

In Alair v. Railroad Co., 53 Minn., 160, it is held: “The owner of some horses delivered them to a common carrier for transportation under a contract signed by him stating the terms and conditions upon which the property was to be transported, by which it was agreed ‘that the value of the live stock to be transported under this contract does not exceed the following mentioned sums, to-wit: each horse $100 * * * such valuation being that whereon the rate of compensation to the company for its services and risk connected with said property is based.’ Held, that, assuming that the contract was fairly made for the purposes therein expressed, (the sums named being approximately the average values of ordinary domestic animals), this was a just and reasonable mode of securing a due proportion between the amount for which the carrier becomes responsible and the freight which he receives, and of protecting himself against extravagant valuations in ease of loss, and that the recovery of the owner will he limited to the sums named, even although the loss occurred through the negligence of the carrier or his servants. ’ ’

That case was approved and followed in Douglas Co. v. Minnesota Transfer Co., 62 Minn., 288.

See also Belger v. Dinsmore, 51 N. Y., 166; Durgin v. Express Co., 66 N. H., 277, and the numerous cases cited in those cases and in brief for plaintiff in error.

Applying the principles endorsed by the many authorities, and which we believe are supported by the better reasons, it follows that the trial court erred in refusing to charge the jury as requested in propositions one and four, or giving their equivalent.

The defendant in error, Frazier, who was in charge of the horses, denied that he signed any instrument but the bill of lading, and therefore did not sign the. special live stock contract plead in the answer of the railroad company, and introduced in evidence as its exhibit No. 1. The reply denies its execution by Frazier. Therefore there was a direct issue on that- subject for the jury to try and decide, and it was the duty of the court to properly instruct the jury on that issue, and to say to them that if the contract was fairly entered into by Frazier and the company, no fraud or deception being practiced upon him, it was binding as a limitation on the amount of recovery. But if it was not fairly made and understood, or if Frazier was induced to sign it by fraud, deception or misrepresentation, then it would not be binding. And of course if he did not sign it, or authorize his name to be signed thereto, it would not be binding.

Instead of so instructing the jury the court charged as follows: “I say to you, gentlemen, as a matter of law, no such special contract can be made that would limit the liability of the defendant company as against its own wrongful act or negligence of its servants. So, gentlemen, if you find the facts as I have indicated them to you, you will find for the plaintiffs. ’ ’

We think in this respect the court erred. The instruction was wrong, as the issues were joined and they called for a different statement of the law of the case.

The plaintiff in error makes another complaint of the trial court. The special contract relied on by it, and the one we have been considering, contains the following provision: “That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the agent of the said carrier at his office m Wooster, Ohio, within five days from the time said stock is removed from said car or cars, and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or injury occurs.”

The railroad company asked the court to charge in two or more forms of expression to the effect, that if the jury should find from the evidence, that the horse of plaintiffs was shipped under special contract known as defendant’s exhibit 1, which con-tains the above provision, and the shippers did not comply with it, they conld not' recover.

It is well to look at the facts attending the unloading of the horse from the car, and about which there seems to be no disagreement. The collision of the cars in which this horse was injured occurred at Lodi late Saturday night, September 8th, or early Sunday morning, and he was so injured that it was necessary to remove him from the car on Sunday, at Lodi, in order to receive the attention of a veterinary-surgeon in whose care he was placed. Frazier went on to Wooster, their destination, with the other two horses. Wooster is about eighteen miles from Lodi. The horse died on Friday the thirteenth after his injury. This was the fifth day after the animal was removed from the car at Lodi. Hubbard, one of the owners, resided at Ashtabula, Ohio, and was there at the time of the injury. The. fate of the injured horse could not be fully determined until his death on the fifth day after having been removed from the car. If attention of the shipper should be given to the above period of limitation, they were entitled, in all reason, to time enough to know the extent of the loss before filing the claim referred to. If under the agreed circumstances, the period for filing the claim was unreasonable, the court should so declare it, just as a court should decide that an ordinance of a municipal corporation is unreasonable, if it be so.

On these facts and under the circumstances not in dispute we think the court very properly refused to instruct the jury as requested. As stated by counsel for defendant in error, the owners were entitled to time sufficient to know whether the claim should he for injury to a live horse, or for the value of a dead one.

But for error in refusing the instruction pointed out and charging to the contrary, the judgments of the lower courts are reversed and the cause remanded.

Judgment reversed.

Davis, C. 'J., Shauck, Crew and ‘Summers, JJ., concur.


source: Caselaw Access Project

author: Shaxjck, J.

license: Public Domain

text:
    The City of Cleveland v. The Standard Bag and Paper Company.

      Stream, of water — In city corporation — Used for open sewer for twenty-one years — Effect of rights, of riparian owners— Municipal corporations.

    When a part of a stream of water, being wholly within a municipal corporation so that none but its residents are thereby affected, is generally devoted to the purposes of an open sewer for more than twenty-one years, as against a riparian owner who contributes to and acquiesces in such use, it becomes charged with a servitude authorizing its like use by other riparian owners. (Mansfield v. Balliett, 65 Ohio St., 451, distinguished.)

    (No. 8900
    Decided April 11, 1905.)
    Error to the Circuit Court of Cuyahoga county.
    On the sixth of July, 1900, The Standard Bag and Paper Company brought suit against the city of Cleveland in the court of common pleas to enjoin the city from the further pollution of a stream of water known as Kingsbury run and to recover $30,000, the damages alleged to have been sustained by it in consequence of previous pollution occasioned by discharging sewers into the stream. At the time of the bringing of the suit the company was the owner of premises lying on the westerly side of For.est street and on both sides of Kingsbury run, the premises being occupied with buildings devoted to the manufacture of paper, the water of the stream in its natural state being alleged to have been suitable for supplying the company’s engines and for the processes of manufacturing paper from raw material, and was so used by it. The company alleged that by sewers constructed in 1896, -98 and -99 the city discharged into said stream sewage from a large area and in such quantities that it could not be absorbed or carried away by the stream thus causing serious injury to its plant and in consequence of offensive odors emitted rendering uninhabitable a dwelling house upon the company’s premises.
    In its answer the city admitted the construction and operation of the sewers as alleged in the petition but denied that they discharged into the stream, sewage from beyond the area of natural drainage. It also alleged that beginning in the year 1873 it had constructed several other sewers discharging into said run and that it had openly and notoriously used said run for sewer purposes from that time until the filing of its answer, all of which was done with the knowledge and acquiescence of the plaintiff and its predecessors in title and occupation; that all of said sewers were constructed at great expense to the city and that in reliance upon such acquiescence the city had expended large sums of money in the establishment and maintenance of said sewers and sewers tributary thereto.
    The city- also in its answer made the following allegation as its fifth defense:
    “Further answering and for its fifth defense to plaintiff’s petition defendant says that ever since 1860 the plaintiff and its predecessors have continuously used and are now using said Kingsbury run, the water course mentioned in plaintiff’s petition, by discharging therein from its plant and its premises a great volume of sewage commingled with noxious waste substances and chemical ingredients; that said discharge and drainage so made by the plaintiff is and always has been highly polluting in its character, and that by its said conduct and that of its predecessors said water course has been continuously polluted during the time herein set forth; that this plaintiff has during all the time it has owned and possessed said plant continued its said contamination of said Kingsbury run, and that the plaintiff is invoking the interposition of this court for the abatement of acts similar in character to those complained of.”
    The reply of the company after denying the other allegations of the answer admitted the allegations of said fifth defense as follows:
    “For reply to the fifth defense the plaintiff admits that ever since 1860 it and its predecessors in title have used and are now using said Kingsbury run, the water course mentioned in plaintiff’s petition, by discharging therein from its plant and its premises the waste fluids from its manufacture of paper, but says that said discharge has been into said water at points below on the course of said stream, any of the sewers maintained by tbe plaintiff, and denies each, and every allegation in said defense contained.”
    Upon tbe trial it appeared that after the commencement of the action, bnt nearly three months before the trial, the company had conveyed the premises and all its interest therein to the Cleveland-Akron Bag Company, which was then in possession of the premises, and thereupon that fact was set up in a supplemental answer which stood admitted. In the court of common pleas an injunction was refused “because of the fact that the plaintiff neither owned nor was in possession of the property in the petition described at the date of the trial of this action, ’ ’ but the court nevertheless rendered a judgment against the city for incidental damages in the sum of $3,500. The case was then appealed to the circuit court. On the trial in that court much testimony was introduced to show the condition of the stream and the use of its waters for a period of about forty years, and upon a consideration of all the evidence the circuit court found that the plaintiff had sustained damages by reason of the acts of the city in the sum of $100 per month. It also found that the company was not entitled to an injunction, “it appearing to the court that the nuisance complained of is one of long standing and that considerations of public policy intervene.” But the court nevertheless rendered judgment against the city for incidental damages in the sum of $6,600. There is no conflict in the evidence upon any point that is material to the controversy. The stream affords surface drainage for approximately two thousand acres of the city of Cleveland, and the sanitary sewers which discharge into it are restricted to that area. Kings-bury run discharges into the Cuyahoga river a short distance below the company’s premises, and that river in turn discharges into Lake Erie, all within the limits of the city. From the admitted allegations of the fifth defense and the undisputed evidence it appears that the company for forty years and the city for a period of more than twenty-five years had been using this stream for the purposes of an open sewer and in no 'sense using it for the purposes for which flowing waters are primarily used, the company through all of that time discharging into it the waste substances of a noxious character containing chemical ingredients from its entire plant and the discharge from its water closets, the washings amounting to a million gallons daily. One witness, who had been superintendent of the company’s plant from 1871 to 1891 continuously, testified that in that time no effort was made to use the waters of the run for the uses of the plant because it was regarded as unfit, and his testimony in that regard is corroborated in so far as it is affected by other testimony. During the nine years following 1891 another superintendent made occasional but unavailing efforts to render the water fit for the uses of the mill by the installation of filtration plants, and upon the failure of all these efforts this suit was brought. The other evidence in the case shows that a condition of extreme pollution was present in the stream prior to 1871. To that condition the inhabitants of the valley of the run contributed generally. Among the contributors are more than twenty large establishments discharging into the stream above the company’s plant the contents of water closets and the refuse of their business. They include a slaughter house, numerous oil refineries, a paint factory, ice works, candle and axle grease works, lubricating oil works and soap works. In the court of common pleas the facts were substantially found and though that finding is not under review here, it is convenient to resort to it for a partial statement of the facts which were developed upon the later trial in the circuit court. From that finding it appears that from Flick’s slaughter house located on Forest street just above the plant of plaintiff, there was a discharge, more or less continuous, of filthy water or liquid. That there were several works located on the run some distance above plaintiff’s plant at that time and there was a discharge of oil or oily substance from these plants into said run. That some manufacturing plants were located on said run during the period of time that plaintiff owned the property described in said petition and prior to the commencement of this action. And since the commencement of this action many other manufacturing plants have been located on said run above plaintiff’s plant. That said manufacturing plants, so located on said run have privy vaults for the accommodation of the employes of said plants, the refuse from which discharged into the run. That some of these plants were large manufacturing plants employing several hundred men each. That these plants, some of them besides discharging sanitary sewage into said stream also discharged into it streams of polluted water. That the nearest of said plants to plaintiff was about one-half mile above the same, and others were located at various points along the run for a distance of one mile or one and one-half miles above that point. That numerous private houses,, located along the banks of said run, discharged their wash water into the same, and had privies located on the banks thereof. Taking the view of the evidence most favorable to the company the fact appears that the stream from a point approximately a mile and a half above the company’s plant to its mouth was for more than twenty-one years before the beginning of the suit given over wholly to the purposes of a sewer. To the polluted condition of the stream the city admits that it contributed largely by means of sewers which were constructed from time to time as required by the growth of the city and this was done at great expense and without protest from the company. Upon the trial evidence was offered by the company to show injuries sustained after it had conveyed the premises to the Akron company and to this an objection was interposed on behalf of the city. There had been no assignment of the Akron company’s cause to the plaintiff company nor was the Akron company a party of record to the suit. But this objection was overruled, the evidence admitted and taken into account by the court in its assignment of damages because of a fact which appears only by a certificate in the bill of exceptions that the Akron company appeared “and in open court adopted and ratified the prosecution of this cause by the record plaintiff and by its counsel it' participated in the trial of the case.”
    The city interposed a motion for a new trial upon numerous grounds including the weight and effect of the evidence and the motion was overruled and judgment rendered by the circuit court in accordanee with its finding. For the reversal of that judgment this petition in error is prosecuted.

      Mr. Newton D. Baker, city solicitor; Mr. Charles J. Estep and Mr. Barry F. Payer, attorneys for plaintiff in error.
    Effect of transfer of title after commencement of action. Defendant in error should have been remitted to action at law and trial by jury.

      After the commencement of this action in the court of common pleas and prior to the trial of this cause therein, the Standard Bag and Paper Company, defendant in error, conveyed its title absolutely in fee and delivered possession of its plant and entire premises to another (the Cleveland-Akron Bag Company). The petition was filed in Cuyahoga common pleas court by the defendant in error, July 6,1900; on February 1,1903, about three months prior to the trial in said court, it parted with its title and possession absolutely without any reservation to it of any rights of action as respects its said plant and premises.
    When the record discloses that the city did not stand on its denial of plaintiff’s title, of course it is mutually understood to mean only that the city waived documentary proof of the fact that at the commencement of the action, defendant in error had title to the premises.
    The city of Cleveland by its counsel contends, first, that the circuit court manifestly erred in receiving evidence to control its decree and judgment as if the defendant in error and its grantee were both plaintiffs to the action; that the summary super-addition of the grantee as a party to the action without any order or leave of court to prosecute the equitable aspect of the case while the defendant in error was contemporaneously submitting its claim for past damages to a chancellor without the intervention of a jury, was a proceeding wholly unauthorized by our statute, unsupported by authority and legally ineffectual.
    If the grantee (the Cleveland-Akron Bag Company) should today commence an action against the city of Cleveland to recover for damages alleged to have been sustained during its period of ownership— a period that was considered by the circuit court in estimating the damages in this case — could the city of Cleveland interpose a defense of res judicataf Could not the grantee say: “Where is the record, or order, or process or pleading in any court to show that this grantee was ever a party to that cause— wherein does any judgment disclose that the claim of this grantee was ever considered — what record forsooth is there to show that we have ever had an interest in or controlled the proceeds of a judgment or decree predicated upon any injury to our plant or premises?” Schaeffer et al. v. Marienthal, Lehman & Co., 17 Ohio St., 183.
    It must, therefore, follow that it is proper for this court to reverse a judgment rendered and recorded in favor of the defendant in error, whereas the evidence and admissions in the record conclusively show that if the defendant in error was entitled to a judgment at all, the grantee, the Cleveland-Akron Bag Company, was entitled to have a portion thereof.
    If on the other hand we assume that this decree and judgment would bind the said grantee, by what

      authority^ could the circuit court permit the said grantee to participate in the trial and have its cause of action commingled with the cause of the defendant in error. Our statute (section 5012) certainly contemplates neither joinder of parties nor causes of action in such case. Where a person is substituted as plaintiff the issues are still between the original parties — he only takes the place of the original party who ceases to be a party to the suit. Both cannot remain to maintain and prosecute their separate claims; one or the other must go out of the case. Keys v. Grannis, 3 Nev., 548; Virgin v. Brubaker, 4 Nev., 31. The defendant in error could claim no interest in the equitable relief invoked to protect a plant and premises which it no longer owned; the grantee could claim no interest in the claim of the defendant in error for damages that had accrued in the past before it owned or possessed the plant. The intent of our statutes is to enable the real party in interest, either by substitution or in the name of the original party, to prosecute the action without abatement thereof, but there is no authority, either in this state or in any other state for the superaddition of a new party so as either to change or add a cause of action. 1 Bates’ Pleadings, 43, 62; secs. 4993, 5012 and 5013, Rev. Stat.; 1 Stover’s New York Code, 844, sec. 756; Rodgers v. Pitt, 96 Fed. Rep., 673; Mooney v. Railway Co. et al., 13 App. Div., 380.
    The city further contends that the defendant in error by its own voluntary act of conveyance and abandonment of plant and premises constituting the whole rem of its action divested the court of equity, wherein its action was being prosecuted, of the right to intervene in its behalf; that the defendant in error thereby abandoned the sole ground upon which its right to equitable relief rested; that an action at law for past damages alleged to have been sustained was then the full length, breadth and depth of the claim that remained in the defendant in error. In view of the pleadings and the admitted facts the court was without jurisdiction to entertain the claim of the defendant in error and the defendant in error must be and ought to have been remitted to its action at law and a trial by jury. Holzmann v. Monell, 19 App. Div., 242; McNulty v. Electric Co., 172 N. Y., 410; Rutty v. Fruit Jar Co., 36 N. Y. St. Rep., 121.
    If for the purpose of this contention we assume that the circuit court was right in awarding damages while denying the equitable relief sought; in granting incidental relief while denying primary relief, one or both of two things must be established by the proof to sustain such judgment, even if a jury trial had been granted:
    (a) That the city made unreasonable use of this run, which for forty years has not been regarded by any one as adapted even for secondary uses.
    (b) That the area drained into said run by the city sewers would not have been so drained in the course of nature.
    Water courses are the means that nature has provided for the drainage of the territory through which they pass. We may say that the rules of law in regard to water courses, and the rights, duties and obligations of riparian proprietors, depend very much upon circumstances. The measure of right in regard to streams and brooks in the country, for instance in farming communities, and where the owners are engaged in agricultural pursuits, or the raising of stock, can hardly be taken as the measure of right, duty and obligation in urban communities. Wood on Nuisances, sec. 694; Angelí on Water Courses, sec. 140d (7 ed.), 239; Jacobs v. Allard, 42 Vt., 303.
    If, as Angell says, these same rules govern as in the case of abstraction, detention or diversion of a stream, we invoke the doctrine clearly and ably laid down in the case of the City of Canton v. Shock et al., 66 Ohio St., 20.
    All the circumstances of the use of this run are presented in the record. Not only the use made of the run by every riparian proprietor as shown in the record verifies the contention here made, but the testimony of the only two experts, Mr. Hoffman and Mr. Parmley, called to testify upon the subject, is that the use of Kingsbury run for the discharge of city sewage therein is not only a reasonable but a necessary use. Valparaiso v. Hagen, 48 L. R. A., 710; Johnson v. Avondale (Vil.), 1 Circ. Dec., 124; 1 C. C. R., 231.
    The evidence conclusively shows that the city’s sewers drain only the natural drainage area into Kingsbury run. The evidence also conclusively shows that even if the sewers had not been constructed by the city and projected into Kingsbury run, it would have been as much polluted and perhaps more polluted in the course of nature by reason of the fact that the refuse and sewage finding its way there would not have been commingled with so much water, which tends to purify it, as is the case in the city sewers. No claim is made in this case that the city surcharged the stream. If recovery can be had at all, defendant in error can recover only for the quantum of pollution caused by the city, and not for that caused by others. Chipman v. Palmer, 77 N. Y., 51; Miller v. Ditch Co., 87 Cal., 430; Little Schuylkill Nav. Co. v. Richards, 57 Pa. St., 142; Sellick v. Hall, 47 Conn., 260; Gould on Waters, sec. 222; Pomeroy on Remedies, secs. 370-308; 1 Dayton, 30.
    Both these sewers were constructed above plaintiff’s plant and not far away, in the view and with the knowledge of the defendant in error. That knowledge is shown in the testimony of Mr. Jaite. If those sewers have had a deleterious effect upon the stream, he was bound to anticipate what any prudent man ought reasonably to have anticipated in that regard. Yet he remained silent during the months and the years of construction. Here was a system of sewerage affording a natural and the only practical outlet for the sewage of a large area in the city of Cleveland — a result of gradual development covering a period of thirty years, but no word of protest is heard from Mr. Jaite or any other representative of the defendant in error, although more than $200,000 are being expended under his very eye. No ivord of protest, no word of inquiry in the whole record is shown. Goodin et al. v. Canal Co., 18 Ohio St., 169; Chapman et al. v. Railroad Co. et al., 6 Ohio St., 120; Kellogg, Treas. v. Ely, 15 Ohio St., 64; Goodall v. Crofton, 33 Ohio St., 276; Pennsylvania Co. v. Platt et al., 47 Ohio St., 366; 21 N. Y. Eq., 283; Beach on Injunctions, sec. 1061; 2 Story’s Equity, see. 317; 2 Story’s Equity Jurisprudence, sec. 794.
    If the city of Cleveland has been acting wrongfully in using Kingsbury run, can the defendant in error be heard to make a complaint when it and its predecessors have been using the same stream in the same way for almost forty years? The unassailed analysis of Mr. Pate shows defendant in error’s effluent of a million gallons a day to be as highly polluting as the rawest sewage, yet may the defendant in error persist in that usage with regard to the same subject-matter and invoke equitable intervention against another riparian proprietor without an answer from the chancellor that if the use complained of be wrongful, the complainant is guilty in the same regard, and cannot be heard by reason of his own unclean hands? Cassady v. Cavenor, 37 Ia., 300; 1 Pomeroy’s Equity, see. 397; 27 Beavan, 425. •

      Messrs. Horr & Lowenthal, attorneys for defendant in error.
    The damage is undisputed. When the city’s Case avenue sewer began to empty one-sixth of the capacity of its forty-eight inch outlet into the stream practically at the front door of the mill, it discharged so much foul matter held in suspension that the mixture could no longer even be filtered into fitness for its previous use. No other conclusion is reasonable. The circuit court so decided.
    The right is enforceable in equity and is well established in this state. Rhodes v. Cleveland, 10 Ohio, 159; Mansfield v. Balliett, 65 Ohio St., 451; Chapman v. Rochester, 110 N. Y., 273; Pine v. City, 103 Fed. Rep., 337; Platt v. Waterbury, 72 Conn., 531; Smith v. Sedalia, 53 S. W. Rep., 907.
    The rule is that a municipal corporation causing its sewage to be emptied into a natural water course, thereby creating a nuisance or inflicting special and substantial damages on a riparian proprietor, is liable to an action for the damages so sustained. Fox v. Fostoria, 8 Circ. Dec., 39; 14 C. C. R., 481; Rouse v. Martin, 75 Ala., 510; Campbell v. Seaman, 63 N. Y., 568; Beach on Injunctions, sec. 1042; Pomeroy’s Equity Jurisprudence, secs. 139, 1351; Beach on Injunction, sec. 1042; Demopolis v. Webb, 87 Ala., 659; Carlisle v. Cooper, 21 N. J. Eq., 578; Chapman v. City of Rochester, 1 L. R. A., 296; Board v. Beyoe, 77 N. Y., 225.
    But the rights of the riparian proprietor to apply not only for damages, but for an injunction restraining the further continuance of the nuisance is also a recognized branch of equity jurisprudence, and inasmuch as the plaintiff below alleged facts sufficient to entitle it to an injunction and prayed therefor and for an assessment of its damages, the action became one to be entertained by a court of equity alone. 1 Pomeroy’s Equity Jurisprudence, secs. 235, 236; 237; Lynch v. Metropolitan Elevated, 15 L. R. A., 287; Gunsaullus v. Pettit, 46 Ohio St., 27; Chapman v. Rochester, 110 N. Y., 273; Lamming v. Galusha, 135 N. Y., 239; Platt v. City of Waterbury, 45 Atl. Rep., 154; Goodall v. Crofton, 33 Ohio St., 271; Stines v. Dorman, 25 Ohio St., 583; Crawford v. Rambo, 44 Ohio St., 287; Wood on Nuisances, sec. 778; Lembeck v. Nye, 47 Ohio St., 354; 1 Am. & Eng. Ency. Law (2 ed.), 69; Pollock v. Ship Building Co., 56 Ohio St., 673; Cilly v. City of Cincinnati, 7 Dec. Re., 344; 2 W. L. B., 135.
    Injunction is always a matter of discretion with the court. Carlisle v. Cooper, 21 N. J. Eq., 584.
    Damages may be awarded even if the court considers that it will not grant an injunction. 1 Pomeroy’s Equity, 246; Beach, on Injunctions, sec. 1058; Pomeroy on Remedies and Remedial Rights, sec. 78.
    The court having jurisdiction for the purpose of avoiding a multiplicity of suits, an extension of the same equitable rule requires that it should ascertain all the damages sustained by the plaintiff down to the date of the decree, which the court in this case did, taking effect as of the first day of the term. 21 Am. & Eng. Ency Law (2 ed.), 732; Webb’s Pollock on Torts, 519; Pomeroy’s Equity Jurisprudence, secs. 237, 242; Beir v. Cooke, 37 Hun, 38; Comminge v. Stevenson, 76 Tex., 642; Carmichael v. Texarkana, 94 Fed. Rep., 561, 575; Lynch v. Elevated Railroad, 15 L. R. A., 287.
    The city claims that it only made “reasonable” use of the stream. Of course the city has a right to make a reasonable use of the stream, but no use of its waters, is reasonable which causes damage to any riparian proprietor'. Mansfield v. Balliett, 65 Ohio St., 451.
    The governmental authority to build sewers, whether express or implied, does not license the city to create a nuisance. Grey v. City of Paterson, 42 Atl. Rep., 749; Platt v. City of Waterbury, 45 Atl. Rep., 154; Crossville v. Stuart, 77 Ill. App., 513; Peterson v. City, 119 Cal., 387; 24 Am. & Eng. Ency. Law, 946; Railroad Co. v. City of Rochester, 127 N. Y., 591; Moak’s Underhill on Torts, 469; Smith v. Sedalia, 53 S. W. Rep., 907; Beach on Injunctions, sec. 1094; Carmichael v. Texarkana, 94 Fed. Rep., 561, 572; Pine v. New York, 103 Fed. Rep., 337; 2 Dillon’s Municipal Corporations, sec. 1074.

      Counsel for the city do not particularly urge that the city has acquired rights by prescription, although the city pleads such rights and some evidence was introduced upon that subject. The claim has been abandoned because it was shown beyond a question that it would only apply to the use of the stream in substantially the same manner and to the same extent during the whole period of prescription, and the particular use of the stream which caused the damage to the plaintiff below, arose in 1898. Cotton v. Manufacturing Co., 13 Metc., 429; Buckingham v. Smith, 10 Ohio, 299; 1 High on Injunctions, secs. 799, 800, and cases there cited.
    As a matter of law, the fact that the stream was polluted by others cannot be proved or urged .by the defendant, particularly where it appears, as it does in this case, that the pollution by the defendant would of itself be sufficient to cause the damage complained of. Beach on Injunctions, 1060; 21 Am. & Eng. Ency. Law, 691; Barrett v. Cemetery Assn., 31 L. R. A., 109; Wood on Nuisances, 689; Moore v. Waco Bldg. Assn., 28 S. W. Rep., 1033.
    In a suit by a riparian owner to enjoin the pollution of a stream, the fact that others besides the •defendant pollute the stream, is no defense. Beach •on Injunctions, sec. 1060.
    Counsel for the city urged most strenuously below and seemed to persist in their attitude here, that there is some doctrine of estoppel which might have some applicability to the proof in this cause. This we have always utterly failed to' comprehend, because every case which we examined and every textbook predicates the very essence of the doctrine of estoppel upon the assumption that the subject-matter to which the estoppel is sought to he applied, must he identical. "We complained and procured an adjudication of damage on the ground that the city was', responsible for the polluted condition of the water of Kingsbury run at the point from which we withdrew it into the mill. We cannot understand how the owners of the mill can possibly be estopped from complaining of that condition, even if it were true, as claimed, that it in its turn contributed pollution to the same stream at a lower point in its course. The effluent from the mill discharges into the stream below the intake. No lower riparian owner is objecting, and the record shows that there are none in fact who could or do make any use of the water, or would be injured by any pollution of the stream. Kinner v. Railway Co., 69 Ohio St., 339; 69 N. E. Rep., 614; 1 Story’s Equity, 60; 11 Am. & Eng. Ency. Law, 163; Cassady v. Cavenor, 37 Ia., 300; Chapman v. Rochester, 1 L. R. A., 297; Campbell v. Seaman, 63 N. Y., 568; Learned v. Castle, 78 Cal., 454; Cilly v. Cincinnati, 7 Dec. Re., 344; 2 W. L. B., 135; Leonard v. Spencer, 108 N. Y., 346; Beach on Injunctions, 1061-2; Indianapolis Water Co. v. Strawboard Co., 57 Fed. Rep., 1000; Schumacher v. Shawhan, 67 S. W. Rep., 717; Newark Board v. Passaic, Baker & Rafter, 579; Chapman v. Rochester, 110 N. Y., 273; Beach on Injunctions, secs. 1061, 1062; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. Rep., p. 1000; Fox v. City of Fostoria, 8 Circ. Dec., 39; 14 C. C. R., 471.
   Shaxjck, J.

The judgment which this petition in error brings into review necessarily implies several propositions which it would be difficult to maintain. The ease in the court of common pleas- was a suit in equity to enjoin the further pollution of a stream of water and for incidental damages on account of injuries occasioned by its pollution previous to the bringing of the suit. The character of the suit was not changed by any amendment either in that court or in the circuit court. Both courts denied the principal relief by injunction but awarded incidental relief by way of damages. A jury was not waived. To the contrary, the city insisted that upon a mere question of damages it. was entitled to the intervention of a jury. The attitude of the city towards the subject of the suit did not change throughout its progress. At the close of the suit it was as well amenable to the equitable relief sought as at its beginning. The record shows that in the court of common pleas equitable relief was denied “because of the fact that the plaintiff neither owned nor was in possession of the property in the petition described at the date of the trial of this section;” and that in the circuit court there was a like denial of equitable relief “it appearing to the court that the nuisance complained of is of long standing and that considerations of public policy intervene.” According to the record, incidental relief by way of damages was awarded although the plaintiff failed to establish its right to the equitable relief primarily sought, because, in the view of one court, it had voluntarily changed its attitude towards the subject of the suit, and in the view of the other, because, of an infirmity which inhered in the equitable case of the plaintiff from the beginning. It is not a case in which, the right to the principal relief in equity being established, a court of equity, having jurisdiction of the case to award that relief, will go forward and award the plaintiff full relief by compensation in damages. Nor is it a case in which, the plaintiff’s equitable case being complete, the court will substitute a judgment for damages because, owing to a change in the relation of the defendant to the property concerned, the equitable relief would be unavailing. Nor can the procedure in the case' be justified by the precedents which give vitality to the law of lis pendens by holding that one who purchases property which is the subject of litigation purchases it subject to the event of the pending suit. Assuming that the courts below were correct in the view that the company was entitled to recover damages, when its equitable case failed for either of the reasons assigned, it should have been restricted to its action for money only in which either party would be entitled to a jury. In those states where legal and equitable remedies are administered by different courts, the plaintiff’s equitable case failing for either of the reasons here assigned, its bill in equity would be dismissed and it would be remitted to its action at law.

The judgment also implies the right of the plaintiff to recover damages on account of injuries to the property after it conveyed it to another; and this because, as appears only from the certificate in the bill of exceptions, its grantee "in open court adopted and ratified the prosecution by the record plaintiff, and by its counsel participated in the trial of the case.”

A more important question is, was the company entitled to recover damages in view of the facts which appeared upon the trial? With this question in view, the facts have been fully presented in the statement of the case, and it is not deemed necessary to repeat them here with fullness or detail. It appears that for very many years the owners of property lying by Kingsbury run for more than a mile above the company’s premises have generally treated it ■as completely diverted from the primary uses of a flowing stream to those of a public open sewer. It is sufficient for present purposes that both the company and the city, the parties who will be concluded by the judgment in the present case, have so treated it continuously and uninterruptedly for more than twenty-one years prior to the bringing of this suit. To that diversion both parties have effectively contributed, the city by discharging the contents of its sewers into the stream and the company by discharging into it the contents of its water closets ■ and a million gallons daily of noxious and polluting wastage from its paper mill. These things were done by each without protest from the other. The law applicable to these facts may be conveniently quoted from the texts of recognized authors. “It is hardly necessary to state that any private riparian proprietor upon a stream may acquire, as against other proprietors, special rights to the use of the water, in the nature of easements and servitudes far other and greater than those which the law confers upon him simply as a riparian proprietor.” Black’s Pomeroy on Water Rights, sec. 152. Servitudes are easements within the doctrine that “easements of every sort may be acquired by adverse user for the period of time limited by the statute of limitations for the right of entry upon land.” Angelí on Water Courses, sec. 208. “With respect to prescriptive rights it is conceded that the owner of land upon the margin of a natural stream may by long usage acquire the right to use the water in a manner not justified by his natural rights,” Gould on Waters, sec. 329.

That during the period named the city has increased the amount of sewage discharged into the run is unimportant. For more than twenty-one years before the beginning of this action pollution from sewers of the city, the works of the company and the multitudinous other sources mentioned in the statement of the case has rendered the waters wholly and admittedly unfit for any form of domestic use and devoted the run to sewerage purposes. The added sewers required by the growth of the city have been but a natural increase by it in the use of what was already a public sewer.

It is in vain that the company invokes the doctrine of Mansfield v. Balliett, 65 Ohio St., 451. Concerning that case it may be observed that it was an extreme application of the rules of law looking to the protection of the purity of flowing waters. Indeed it was so extreme as to bring the case into conflict with very many authorities and to prevent the concurrence in the judgment of half of the members of this court. But its correctness need not be questioned here. Differences between the cases are obvious and legally important. The stream whose waters were there the subject of controversy, after flowing by the city of Mansfield, continued to flow through the Open country, where they were continuously used for domestic purposes. The suit was brought by a riparian owner who had in no manner contributed to rendering the stream unfit for the purposes for which he insisted that the city should preserve it. It was brought before prescriptive rights had attached. In the present case the polluted portion of the stream is wholly within the city of Cleveland, where its surroundings are appropriate to the secondary use to which it has been devoted;, the suit is brought by a plaintiff whose contributions to the pollution of the stream would render it unfit for primary or domestic purposes, and it was brought after prescriptive rights had attached. If differences so vast should pass unobserved by the courts the bandage upon the eyes of imaged Justice would substantially change its symbolic meaning. Indeed it would be difficult to sustain a recovery by the present plaintiff if the city had not acquired prescriptive right to interfere with the original flowage of the water. But the case concedes the general proposition that the riparian owner has the right to the flowage of water in its natural condition as to purity, and it concedes all that was decided in Mansfield v. Balliett, for from its essential nature a servitude is always in derogation of common right.

We trust that the view of the subject which we have taken has not been influenced by a desire to enjoy the rare felicity of awarding a substantial triumph to both parties. For the operation of its plant the company can doubtless secure a supply of sufficiently pure water from sources which have become known in the thirty-five years during which resort has been had to them. And the conclusion that Kingsbury run is not within the rules of law for the protection of streams devoted to their primary uses may exempt the company from the' ruinous consequences of indictment and punishment under section 6919 and the following sections of the Revised Statutes providing for the punishment of offenses against public health.

The judgment will be reversed; and, as the case presented suggests no reason why it should further vex either of the parties or occupy the time of the courts, a final judgment will be rendered here in favor of the plaintiff in error.

Judgment accordingly.

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


author: Davis, C. J.

text:
    The City of Cleveland v. Payne.

      Police department of municipal corporation derives authority from the state — Municipal corporation cannot enlarge or 4 restrict duties of officers — Without legislative authority— Rule requiring police to note defects in street — Not necessarily notice to city, when — Municipal law — Law of negligence.

    1. The police department of a municipal corporation derives its authority from the state; and when such corporation is not expressly or by necessary implication authorized to do so, it can neither enlarge nor restrict the duties of such department or its officers and agents as defined by the general assembly.
    2. When it does not appear that there is any act of the legislature authorizing a municipal corporation to prescribe the duties of a policeman and to make him an agent of the corporation in respect to its duty of keeping its streets open and in repair, or when the legislature has conferred such power upon the corporation and it does not appear that the council of such municipal corporation has, by ordinance or resolution, so prescribed the duties of a policeman and so made him its . agent for such purpose, a rule of the police department which requires a policeman to note defects in the streets or sidewalks and to remove them when practicable, and in case of a complaint by any citizen to report the same, is irrelevant and incompetent as evidence to charge such corporation with notice of a defect in the street or sidewalk, although it is shown in connection therewith that a policeman had knowledge of such defect.
    (No. 8952
    Decided April 4, 1905.)
    Error to the Circuit Court of Cuyahoga county.
    This is an action to recover damages for injuries to the defendant in error by falling into a defectively covered coal hole in a sidewalk. At the close of the plaintiff’s testimony in the court of common pleas, on motion by the counsel for the city, the court directed the jury to return a verdict for the defendant, which was accordingly done and judgment was rendered on the verdict for the defendant, the plaintiff in error here. On the trial the plaintiff offered to prove by a witness, one Mary Pauli, that, a few days before the plaintiff was injured, the witness fell into the same placé and was hurt, and that a policeman came along and she called his attention to the hole. When the witness was asked to state the conversation with the policeman and what took place at that time, the counsel for the city objected and the court sustained the objection and instructed the jury to disregard whatever the witness had said in relation to a policeman. The plaintiff’s counsel stated that if permitted the plaintiff expected to prove that a policeman came there just after the witness got out of the hole, and ■ she told him that she stepped on the cover of that hole and that it tipped up and slid out of place and she fell in the hole; and that thereupon the policeman went into the building in front of which the coal hole was and a man came out with him and was shown the coal hole with the cover off, by the policeman, and by him was told that he must make it secure, and that the man said to the policeman that he could not fasten it because the fastening was broken. Thereupon the plaintiff offered in evidence rule No. 150 of the rules and regulations of the police force of the city of Cleveland, counsel for the defendant conceding in open court that the said rule was one of the rules and regulations of the police force of the city of Cleveland and that it was in force on June 25, 1895. Said rule is as follows:
    “He shall note all street and sidewalk obstructions, all defects therein from which accidents may occur, removing them when practicable, and when necessary, and no light is furnished, place a good and sufficient light, so that obstructions can be plainly seen; all places for which temporary permits are granted for building, or when openings or excavations are being made, and not suffer them to be continued without the proper permits being granted, authorizing the same, and shall cause suitable accommodations to be provided for the public travel; all coal holes being left exposed or insecure; all street lamps not lighted at proper time or too early extinguished, when not clean, or not giving sufficient. light; all wooden buildings erected contrary to law, or any building defectively built or becoming unsafe; or where any noisome, dangerous or unwholesome trade is carried on; and all nuisances, or violations of the health ordinance; and all other matters relating to the safety, health or convenience of the public, or to the interests of the city, and in all cases of complaint by citizens, with residence of. complaint, shall make report thereof. ’ ’

      The defendant objected to the admission of said-rule as evidence, because the same is incompetent and irrelevant, which objection was sustained by the court. For the exclusion of the proffered evidence aforesaid and for directing a verdict for the defendant, the circuit court reversed the judgment of the court of common pleas and in this proceeding the city seeks the reversal of the judgment of the circuit court and the affirmance of the judgment of the court of common pleas.

      Mr. Newton D. Baker, city solicitor; Mr. Charles J. Estep; Mr. Harry F. Payer; Mr. George S. Addams and Mr. W. A. Carey, attorneys for plaintiff in error.
    The question whether or not notice to a policeman is actual notice to the city has been frequently raised in our courts, but we are safe in saying that there is-no Ohio decision settling the question. The relation, however, which a police officer sustains to the municipality has been clearly settled in this state. Western College, etc. v. City of Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; Chase v. City of Cleveland, 44 Ohio St., 505; Robinson v. Greenville, 42 Ohio St., 627; Shearman & Redfield on Negligence (5 ed.), sec. 291; Bigelow, C. J., 82 Mass., 172.
    If we have the law correctly as to the relation police officers sustain to the municipality, and if we are right when we say that the municipality is not liable for the negligence, whether of omission or commission, of its police officers, we then think it clearly and logically follows that notice to these agents of the state is not notice to the municipality.

      These officers are clearly agents of the state, and they are in no sense agents of the city, unless the city has made them such by proper legislative act. Some states, however, have held that custom may make a police officer the agent of the city with regard to defects in the streets. City of Joliet v. Looney, 159 Ill., 471.
    The only testimony claimed by defendant in error which tends to show that the city had constituted police officers its agents for the purpose of reporting conditions similar to those complained of in this ease is the rule of the police force in force June 25, 1895. "When this rule was in force, to-wit, June 25, 1895, the law applicable to the passage of rules relating to the police force is found in Bates’ Annotated Statutes (3 ed.), secs. 1545-25 and 1545-42.
    We contend, therefore, that it is of the utmost importance by whom the rule referred to was made or adopted. There is no evidence in this record that this rule was approved or adopted by any ordinance or any action whatsoever of the city council, and hence' we say it was adopted as required by the statute then in force; that this statute empowered the head of the police department to enact the rule, 'and that he alone had authority to prescribe rules and regulations for the government of the conduct of their officers and employes, and the distribution and performance of the business under their charge.

      Mr. W. S. Kerruish and Mr. F. A. Beecher, attorneys for defendant in error, submitted no brief.
   Davis, C. J.

The defendant in error has filed no brief in this case and is probably relying on the reported opinion of the circuit court (25 O. C. C., 457) and the cases cited therein. We have examined all of these and also as many other cases upon the questions here involved as we could find.

The question presented is whether the knowledge of a policeman concerning the defective nature of the covering over the hole in the sidewalk, is such notice to the municipality as to make the latter responsible for damages resulting from the defect. It may be accepted as the general rule that the municipal corporation will be liable, if knowledge of the defect is brought home to an officer or employe who has some duties to perform in regard to the removal of defects or obstructions in the streets. Accordingly it has been held that knowledge of a defect or obstruction by a policeman, where he is properly charged with duties with respect to the removal of the defect or obstruction, is notice to the corporation. Even as to the proposition as thus ■ stated there is not entire harmony among the courts which have considered this question; but, as the authors of a leading treatise put it, “we think that, upon principle, a city ought not to be charged with actual notice in any case unless the officer or person having the knowledge is in some way charged with the duty of maintaining, repairing or looking after the streets.” Elliott on Roads and Streets (2 ed.), sec. 629.

• The fundamental proposition in cases of this kind is that notice to the agent is notice to the principal, provided that the notice must have reference to matters within the scope of the agent’s authority. For example, in Walker v. Railway Co., 121 Mo., 575, where the plaintiff was injured by a drill thrown from a car by the baggage man, it was held that knowledge by tbe conductor, who bad no authority over the baggage man, that the latter was in the habit of carrying drills for a lime company and putting them off at its quarry, was not notice to the railway ■company.

In determining the extent of a police patrolman’s authority, it will be necessary to go bach to the origin of his authority. The police power relates to the public peace, good order and welfare, and to the public health. It is a power which is inherent in the sovereignty of the state; and it can be ■exercised only by authority from the legislature. “Municipal corporations, in their public capacity, possess such powers and such only, as are expressly granted by statute, and such as may be implied as essential to carry into effect those .which are expressly granted.” Ravenna v. Pennsylvania Co., 45 Ohio St., 118. It follows that unless we can find in the statutes a distinct right to do so, a municipal corporation can neither enlarge nor restrict the duties of the police’ department as commonly understood.

Section 1692 of the Bevised Statutes, which was in force at the time of the injury to the defendant in error (Bates’ Bevised. Statutes, 3 •ed.) provided that, “In addition' to the power's specifically granted in this title, and subject to the exceptions' and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement, of the same;” and with relation to the police, the general power prescribed in that section is as follows : “29. To organize and maintain a police department.” That is the whole of it; simply to organise and mamtain a police department. There' is not even a suggestion here of power in a municipality to define the limits of police department duties.

But the legislature itself elsewhere in the same title specifically did this. The city was then governed under a special law which has since been repealed. By that act the police department was placed under the control of an officer who was called the director of police and he was invested with the power formerly vested in the board of police commissioners; and it was provided that “all the provisions of law pertaining to the said police and health departments shall apply to the police department and be administered by the director thereof.” (Sections 1545-40 and 1545-47, Revised Statutes. Bates’ Revised Statutes, 3 ed.) The general duties of the police force were defined in section 1934, Revised Statutes, as follows: “The board (director) of police and the police force hereby constituted shall * * * preserve the public peace, prevent crime, arrest offenders, protect rights of persons and property, guard the public health, preserve order, remove nuisances existing in the streets * * * report all leaks or other defects in water pipes and sewers to the proper authorities * * * and generally obey and enforce all ordinances of the city council,- criminal laws of the state and of the United States'. ”

Three things are evident in this legislation. First, that the authority of the police is derived directly from the -state and not from the municipality. Second, that there is no direction to repair or report to the proper authorities, a defect in the streets or sidewalks, although there is such s duty imposed as to defects in water pipes and: sewers. Expressio unius est exclusio alterius. Third, that the “nuisances existing in the streets”1' which the police force is required by this section to* remove, are public nuisances such as are defined in; and punished under section 6921, Revised Statutes -r or such as may be properly declared by ordinance of the council under section 1692, ut supra. The statute does not refer to private nuisances except in the requirement to report all leaks or other defects im water pipes and sewers.

In section 1933, which prescribes the duties of the head of the department, it is provided that “It shall be the duty of the board at all times, when consistent with the rules and regulations of the same, to-furnish all the information desired, and comply with all the requests made by the city council or mayor,” etc. The information which is here required to be given is not to the department of public works, which was expressly charged with the care and repair of the streets of the city, but to the* council upon its desire and request, and subject to-the judgment of the head of the department of police,, as to whether the giving of such information would be consistent with the rules and regulations of the-department and with the requirements of the statutes. No subordinate is given the right to give such-information ; and, conceding for the purposes of the; argument that he could be given such right by ordinance or resolution of the council, it does not; appear in this case that such ordinance or resolution; existed. Conceding for the sake of the argument that the municipality could make the police department jointly responsible for the care of the streets ■with the department of public works, or that it could, without a grant of power from the general assembly, make the officers of the police department the city’s agents for any purpose connected with the duty of the corporation to keep its streets open, in repair and free from nuisance, yet, this being a legislative power, it must at least be done by ordinance (section 1692, ut supra) and none is shown here.

All of the (jases relied upon as authority by the circuit court, we believe, were cases in which the authority of the officer was given through both statute and ordinance. City of Denver v. Dean, 10 Colo., 375; Rehberg v. Mayor et al., 91 N. Y., 137; Goodfellow v. Mayor et al., 100 N. Y., 15. The same condition of the facts appears in all of the following cases in which a municipal corporation was held to have notice through the knowledge of a policeman. Twogood v. Mayor et al., 102 N. Y., 216; Cummings v. Hartford, 70 Conn., 115; Carrington v. St. Louis, 89 Mo., 208; Hayes v. West Bay City, 91 Mich., 418; Columbus v. Ogletree, 96 Ga., 177; Columbus v. Ogletree, 102 Ga., 293. We have found no clear and well defined exception to this current of authority.

The rule which was offered in evidence by the plaintiff below, was conceded to be one of the rules and regulations of the police force of the city; but it stands by itself, unsupported by any act of the general assembly or any ordinance of the city council, valid or invalid, so far as appears in this record. We are bound to presume that the rule was made under favor of section 1937 of the Revised Statutes as then in force, which provided that “The qualification, enumeration and distribution of duties * '* * of each member of the police force, shall be particularly-defined and prescribed by rules and regulations of the board” (director). It therefore seems to be merely a rule for the government and convenience of the police department. It requires the policeman, to “note” and do certain things, “and in all cases of complaint by citizens, with residence of complainant, shall make report thereof.” To whom shall he report? Presumably to his superior officer. For what purpose? To advise the department as to matters which might come within the scope of its duties. The policeman is required to remove all defects from street or sidewalk “when practicable,” which means as we construe it, when it can be immediately, conveniently and readily done without interfering with the customary duties of a policeman. He is required to note all coal holes left exposed or insecure and all nuisances or violations of the health ordinance, because these, as well as the other'things which he is required to “note,” may involve such a breach of city ordinances as to call for intervention by the police. So that the policeman’s duty under this rule is strictly police duty and not street repair duty; and in the absence of any showing, or offer to show, that the city had authority, to make a policeman its agent in matters relating to keeping its streets and sidewalks in repair and that it had by ordinance made him such agent, such rule was properly rejected by the trial court; and that court did not err in directing a verdict for the defendant and in rendering judgment for the city upon such verdict.

Accordingly the judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed.

Reversed.

Shauck, Price, Summers and Spear, JJ., concur.