DITCHES — EVIDENCE—JURY.

[Huron Circuit Court,

April Term, 1894.]

Bentley, Scribner and Haynes, JJ.

#### G. C. Seel v. Eva J. Ernsberger.

I. Dhce di Front of Dweeeing.

In an action for a penalty against a supervisor of roads for putting a ditch in front of a dwelling without permission, whether it was done wilfully is immaterial. Sec. 4715a, Rev. Stat.

*1012. Expert Testimony.

A witness can describe bow the supervisor left the ground, but cannot be ashed, not being an expert, whether he left a ditch there, this being one of the issues.

3. Cause of Action not Transferred by Sate.

A cause of action, as above, is not transferred by a subsequent sale of the property by the owner.

4. Jury in Justice Court Viewing Premises.

Under sec. 6705, Rev. Stat., a justice may, in a proper case, send his jury to view premises, provided they are in substantially the same condition as when the cause of action arose.

Error to Common Pleas Court of Huron county.

Haynes, J.

(orally.)

The case of G. C. Sell, plaintiff in error, against Eva J. Ernsberger, defendant in error, is a petition in error brought for the purpose of reversing the judgment of the court of common pleas rendered upon a petition in error pending in that court to reverse the judgment upon the justice’s docket of C. W. Patchen, justice of the peace in Hartland township, this county. The original action was brought, by Eva J. Ernsberger to recover a penalty provided in sec. 4715a of the Rev.. Stat., which was passed to supplement sec. 4715, as appears in 89 O. L., 41, and which reads as follows:

> “It shall be unlawful for any supervisor to excavate or make any open ditch on and along: a public highway in front of any dwelling house or yard surrounding the same, or entrance thereof, or in front of the entrance or approach to any barn on that side of the road on which the said buildings are situated, unless he forthwith puts in a sufficient under-drain and fills, up the excavation to the original level except when authorized to make such open ditch at said points, by the owner of such buildings or trustees of the township. And any road supervisor violating this section shall forfeit and pay to the owner of any such building* twenty-five dollars, to be recovered in a civil action before any justice of the peace.”

Suit having been duly commenced at a certain time, a demand was made for a jury and a jury was selected and called. A trial was had which resulted in a judgment for the defendant below, the supervisor.

Thereupon, a bill of exceptions was duly taken by the plaintiff below. There are a great many points made in this case, but I shall not undertake to go very much at length into a discussion of them, as we have not time to do it. I don’t think the matter is sufficiently important to justify us in taking up the time which ought to be given to other matters.

However, it is said there was no reason given by the court of common pleas for its reversal of the judgment except that it stated that there was “ah abundance of errors.” I will, therefore, go over some of them and discuss them.

The first thing that was done wras this: After the jury was sworn, before any evidence was adduced, the defendant moved the court to send the jury in "a body to view the premises described in the bill of particulars, to which the plaintiff objected, stating at the time that the condition and surroundings of the place excavated or dug out had been materially changed since June 20, 1892, and that any view that the jury might take at this time, that is, at the time of the trial, would not assist them any in giving a verdict, but would mislead them. The justice sustained the motion to which the plaintiff excepted at the time. It appears that he directed the constable to take the jury out to view the premises; but whether they did go or not, is not reported, but it is hinted at from time to time, and we will assume that they did go in pursuance of the order of the court. We suppose that under the proper circumstances, it would be proper for a justice to send a jury out.

Section 6705, Rev. Stat., governing proceedings before justices of the peace, provides:

> “ The provisions of title one, part third, of the Rev. Stat., which are in their nature applicable to the proceedings before justices, and in respect of which no special provision is made in this title, are applicable to the proceedings before justices of the peace.”

*102We find nothing in the justice’s act to reverse this. We do not see why this may not, under proper circumstances, be applicable to proceedings before justices of the peace, but we are inclined to the opinion that, under the circumstances, the justice ought not to have granted this application, because it appears by statements made, which are uncontradicted, that these premises were not in the condition that they were at the time the work was done; in fact, the record shows that the place had been filled up by the supervisor himself, and the view that the}' would obtain would be perhaps general and might be misleading in regard to the matters in issue.

It is said here by counsel that under this act the jury go out simply to see the premises for the purpose of applying the evidence. Well, counsel ought not to be too sure about the matter. I know of no statute upon the books that gives the courts more trouble at the present time that this one. The question as to whether the facts that are ascertained, and the matters that are seen by a jury are to be deemed or held to be affirmative evidence, is one upon which courts differ and the authorities differ. There has been a great deal of irfk expended upon it, and the effect that is to be given to such a view when a bill of exceptions shows it to have been had. But, without discussing that, or passing upon it in any way, we simply say that we think the jury ought not to have been sent out, unless the premises were shown to be, or at least, the premises were in fact in substantially the same condition that they were at the time this alleged ditch was dug, or the excavation made.

The whole testimony is not set out, but from time to time evidence is adduced. The first exception is as to this question:

> “At the time this was done, (meaning the digging and excavating, or plowing and scraping by defendant,) you were not living there, so that if any one was inconvenienced, it was not yourself, but Mr. Lewis, your hired man?” This was objected to by plaintiff. Objection overruled and admitted. The witness stated, “ my husband was there and my hired man and his family and I considered it an inconvenience.”

I don’t see what that had to do with the issues in the case. The fact is, that the issue was simply this under the statute: Whether the supervisor had excavated or made a ditch along a public highway in front of any dwelling house, or that house or that yard or entrance, and whether, having done so, he has filled it up in the manner pointed out by the statute; or, if he had omitted to so fill it, whether he had done so by the consent of the trustees. It was not claimed that he had done it by consent of the trustees, and that may as well be left out, so that the two facts to be treated are whether he had caused a ditch to be dug. It was denied that there was any ditch dug at that point. Certainly, if the jury found that he had done so, and that he had not covered it up in the manner pointed out by the statute, then the cause of action accrued to the plaintiff; that is to say, the supervisor forfeited the $25 which the statute authorizes the then owner of the property to recover.

Now, that was all there was to be-considered before that jury.

The second exception was to the question : “ If there was any inconvenience from this ditch, as you call it, it was to Mr. Lewis ? ” And that was allowed. The next question is, “ Did your husband ever ask your permission to bring this suit?”

The property was in the name of the wife, it seems. That question was objected to and the witness answered:

> “ As I have before stated, my husband was my agent to bring this suit and I thought as Mr. Sell had done wrong it ought to be righted. I thought that he had done a mean trick.”

> Question. “ Didn’t your husband say, ‘I am going to sue Mr Sell ? ’ ” This was objected to, overruled and plaintiff excepted. Answer. “I don’t know as he did.”

> Question. “ Did you make the deposit for costs in this case, or do you know who made it?” This was also objected to, overruled and exception taken. The witness answered “ I suppose my husband made it as my agent.”

> “ Did you hire the lawyers in this case ?” The witness answered, “I think my husband did as my agent.”

*103It is sufficient to say that this is entirely immaterial and the questions ought not to have been allowed.

Then the next question is, “Did you sell this property, (meaningthe premises in question) before this suit was commenced ?” And she answers, “ I sold it to Mr. F, D. Tucker before this suit was commenced, but not until after June 20, 1892.”

Question. “ When did you sell it ? ” Answer. “ I don’t remember just when I sold it. I did not place it in my mind, but it was a good while after .this plowing and scraping was done. ”

Question. “ Did you own the land when you brought this suit ?” Answer. “ I think it was sold. We sold it to Mr. Tucker after this plowing and scraping was done as I have already said.”

The point that the counsel was aiming at was this, that suit must be brought by the owner of the property at the time the suit was brought. As to that we hold that the cause pf action arose at the time the action was performed and the property was vested in her — in this plaintiff and was hers; it was not transferred to anybody.

We come now to the tenth exception, and I may as well say that these questions were all objected to.

Question? “ Did you hire the lawyers in this suit ?” (This question was addressed to the husband.) Answer. “ I was my wife’s agent to bring this suit and hired them.”

Question. “ Did you deposit the security for costs in this case ? ” Answer. “ I, for my wife, put up some money.”

Question. “ Did you strike the jury in this cáse ? ” Answer. “Yes.”

Question. “Did your wife own that land since March or April pf 1893?” Answer. “ She has not owned it since March or April of 1893.”

For the same reason that I have already stated, this was improper.

Question. “ Is it not a fact that you have been stirring up trouble in your neighborhood for 20 years or more ?” Answer. “ No, sir, it is not a fact.”

' Question. “ Did you, not have trouble with James Park? ” Answer. “ I did have some trouble with him.”

Question “ Have you not had trouble with Mr. Chapin ? ” Answer. “ I once had to sue Mr. Chapin.”

Question. “ Did you not have trouble with S. A. Burras ? ” Answer. “ I don’t know as I did.”

Question. “ Did you have trouble with Mr. Morgan?” Answer. “ Morgan and I may have had some difficulty.”

Question. “Did you have trouble'with a Mr. Wiatt?” Answer. “I don’t know as I did.”

Question. “ Did you have trouble with Mr. Denslow ? ” ^Answer. “ I did not.”

Question. “ Did you have trouble with Mr. Lewis ? ” Answer. “-I did not have trouble with Mr. Lewis.”

Question. “ Did you have trouble with the Presbyterian Church at Olena ? ” Answer “ I applied to the Presbyterian Church for a letter, and it was refused me and I went to the Methodist Church without one.”

We know of no light that these questions and answers could throw upon the matter at issue before the court and jury. It certainly does not show that there was or was not any ditch excavated or dug.

We come now to the twenty-third exception — the next in order:

Question. “ Did you plow or scrape out the dirt intentionally or wilfully or maliciously?” (This question is to the supervisor himself.) Answer. “No, I did not. I done it for the good of the road.”

Question. " What was the condition of the road and surroundings and circumstances of the same in front of the Ernsberger property on June 20, 1892, and shortly prior to that time ? ” Answer. “ The road was hollowed out so that the water ran down from Ernsberger’s yard and lane onto the highway. Where the milk-stand -stood there was a sort of hammock which had to be removed.”

■ Question. “What effect did it (the water) have upon the road?” Answer. “It washed it out. I plowed and scraped it out, or had my son, Tom, and Grant Olney do it, into the road. I leveled it up nicely like an onion bed. I intended to fill and level the road up right away, but I was taken sick immediately after it was done, and came very near dying. Sol had to wait a week or so before doing it.”

First, whether it was done maliciously or not. The reason that that question was put by counsel was that the bill of particulars stated that it had been done *104wilfully and maliciously. That was not necessary to an action in recovering a penalty and the whole matter should be treated as surplusage, and the question, whether it was done maliciously, should not have been brought into the case, we think.

*Andrews Bros.,*for plaintiff in error.

*G. R. Craig,*and *A. M. Beattie,*for defendant in error.

It was a case where there could be no punitive damages, but simply to recover $25 penalty.

The question in regard to what was done at that point was proper to show whether there was a ditch dug there and what excavation was made, but his object and purpose in doing it was not a material matter. As I have already stated, he had the right, if, in his judgment, he thought it was necessary to do it, to put a ditch by the side of the road; he had the right to excavate there. It was his duty to do it, and perhaps in the preceding section of the statute it would require him to do it. But that is not the gist of the statute; that is not the purpose for which the change was made. The statute allows this excavation to be made — these ditches to be dug for the water to be carried off from the roadside. What it requires to be done is, that there shall be a replacing or a covering of the ditch, either by putting in tile, or else by putting on a sufficient covering so that a party shall have the same access to his property that he had before. That is the whole force and effect of the amendment to the statute and the object and purpose of it.

It was right to have that done, unless the township trustees in their judgment should order the work to be done without the refilling, or tiling or cover ing.

Some questions were asked here as to the effect upon the road, etc., which are not in our judgment material. The question was whether he did in fact dig a ditch there at that point, and the next question is whether he had covered it.

I come now to a series of questions that were put to parties, and there are quite a number of them, but they are of the same import and effect. They are something like this : The witness says: “I saw the place in question where the roadside in front of the Ernsberger house had been plowed and scraped out. I saw it after it was done. I was acquainted with the surrounding ground there.” Here witness described the appearance of the road and the ditch and gave all the facts connected with it at the place where the plowing and scraping was done by Sell.

The question was asked him whether there was any open ditch after the plowing and scraping had been done, which was objected to, and the objection overruled and exception taken.

We are clearly of the opinion that that class of testimony is not admissible in the case. That is to say, the concluding part of it. It was proper for the witness, if he saw the place at the time, or immediately after the work had been done, to state that he saw it at that point and describe it to the jury and then stop. We know of no rule of law, or any decision that authorizes a witness, not being a professional or an expert, but in ordinary facts of this kind, to go forward and State that that which he saw was either a ditch, or was not a ditch when that is the very question at issue. That is a question for the jury to decide. , After he had stated the facts he had seen and described the full particulars, the jury were to pass upon the question as to the result.

If I am correct in my recollection, that covers all the leading points, at least, all that are made in the case, and it follows from what I have said that the judgment of the court of common pleas reversing the judgment of the justice will be affirmed by this court.