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Guarrino v. Union Dock Co.

the gangway or shelf, as it is called by some, stepped upon one of these timbers and was thrown or knocked to the bottom of the boat, and there received some injuries.

There is evidence in the case tending to show that the gangway where these timbers had been left was not a proper place for them, and clearly it was a question for the jury whether or not there was negligence on the part of the defendant companies, or either of them, in leaving them in that place, and whether or not the plaintiff had been furnished a safe place to work.

The duty of furnishing a safe place for his workmen rests upon the employer, and the fact that the place where the men were working belonged to another company does not excuse the deck company from its duty in that respect in the least, but the fact that the duty of furnishing a safe place in which to work rested upon the dock company, could not in any way excuse the steamship company from the consequences of its negligence in leaving the place where the plaintiff was working unsafe. The plaintiff in engaging in the work of unloading boats assumed no greater and no different risk than he would have assumed if the boat had been owned by the dock company, his employer; consequently he did not assume the risk of the unsafe condition of the boat. It being a question for the jury to determine whether or not the place provided by the defendants for the plaintiff to work was a safe place it was error in the trial judge to direct a verdict in favor of the dock company.

Was the charge erroneous? The part of the charge complained of was as follows:

"The plaintiff is presumed to have assumed the risk of such injuries from accident which were incident to the nature and character of the work in which he was engaged, and against which the defendant could not, in the exercise of ordinary care, have protected him."

And again:

"The plaintiff is not entitled to relief against the defendant for injuries resulting from known and obvious dangers avoidable by the exercise of ordinary care on his part, notwithstanding the defendant may have been negligent. Such injuries, together with such as may have happened, if you so find, with no

Ashtabula County Appeals.

fault on the part of the defendant were assumed by the plain. tiff."

The question of assumption of risk is a question between employer and employee. The plaintiff's contract of employment was with the Union Dock Co. and not with the Interstate Steamship Co. He did not assume the risk of any negligence on the part of the steamship company; neither did he assume the risk of the unsafe condition of the place where he was working. We think, therefore, that the charge is erroneous and misleading, and for these reasons judgment is reversed, as to both of the defendants.

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[Cuyahoga (8th) Circuit Court, February 5, 1912.]

Marvin, Winch and Niman, JJ.

AUGUST BECKER V. CITIZENS REAL ESTATE CO. ET AL.

Order Disallowing Report of Receiver not Appealable.

An appeal will not lie to the circuit court from an order of the common pleas court disallowing a partial report of a receiver appointed in a case pending in that court and directing the receiver to file an amended report.

APPEAL.

W. W. Hole, for plaintiff.

Stearns, Chamberlain & Royon, Parsons & Fitzgerald and Myers & Green, for defendant.

MARVIN, J.

August Becker brought a suit in the court of common pleas against the Citizens Real Estate Co., a corporation, setting up that he was a creditor of such corporation, and averring other facts, which, if established, would justify the appointment of a receiver to take charge of the property of the corporation, convert it into money and distribute the avails thereof.

Such proceedings were had in this action that Howard A. Byrns was appointed such receiver and as such made a partial report to the court on June 14, 1911.

Becker v. Real Estate Co.

On July 6, 1911, F. L. Wenham, one of the creditors of the corporation, filed objections to this report, specifying a large number of items for which the receiver had taken credit to himself in the report, and concluding in these words:

"The said receiver has disbursed the funds of said estate, as shown by his partial report, in the payment of unnecessary expenses the maintenance of an office in the Citizens Building, including office rent, telephone service, the salary of a stenographer and various other items of expense, which are not properly chargeable to said estate; that said report should not be confirmed, but that the said report should be disallowed and the receiver be ordered to file a correct statement of his transactions."

On October 24, 1911, the court entered its order on this motion in these words:

"The objections of F. L. Wenham to the report of the receiver and motion to disallow same is heard and granted, at the receiver's costs, for which judgment is rendered against him, and said receiver is ordered to file an amended report by Novemher 4, 1911. The amount of the bond for appeal is fixed in the sum of $200."

The receiver gave his bond for appeal, and did all things necessary to perfect such appeal, provided the order is one from which an appeal may be taken. If this matter is a proper subject of appeal, it is because it comes within the provisions of Sec. 12224 G. C. This section provides that:

"An appeal may be taken to the circuit court by a party, or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist."

We are clearly of the opinion that the order made in this case is not a final order within the meaning of the section quoted above. Nobody's rights are fixed by it. The amount which the receiver is to distribute is not fixed. The amount of credits to which the receiver is entitled is not fixed. Nothing is fixed but that the report as a whole is not approved, and the court orders that a new report shall be filed. It is no more final

Cuyahoga County Circuit.

than an order sustaining a demurrer to a petition is final, where leave is given to amend the petition.

To construe this order as determining that no part of the credits objected to will be allowed, is to give it a construction which it clearly was not the intention of the court it should have. Had such been the intention of the court, the order should, and doubtless would have been, that certain items of credit claimed would not be allowed, and having specified such as should be so disallowed, there would have been no occasion to require an additional report to be filed, because the report taken in connection with the order would have shown the amount in the receiver's hands to be thereafter accounted for.

If there were no other reasons for holding that this is not a final order, the foregoing would be sufficient, and would require us to sustain the motion to dismiss this appeal.

The case of Evans v. Dunn, 26 Ohio St. 439, relied upon by the appellant does not, as we view it, support his contention. There a final report by a master was filed, stating an account between partners. Exceptions were taken to certain items in the report. The allowance or rejection of these items, or any of them, affected the amount to which each of the parties was entitled. The settlement of this account, the order of the court approving it, disposed of the entire controversy. The court ordered the modification of the report, and as so modified, it was confirmed. This was held to be a final order from which an appeal could have been taken. It was not taken, and therefore the court refused to lear evidence touching the questions settled by the order.

Whether any order made by the court of common pleas, in the settlement of the accounts of a receiver, can be appealed from, need not here be determined. Counsel are familiar with the case of Scheidler v. Railway, 1 Circ. Dec. 584 (2 R. 453), where the holding is that the only remedy open to the receiver, who feels aggrieved in such a case, is by proceedings in error. See also Cincinnati, S. & C. Ry. v. Sloan, 31 Ohio St. 1. The motion to dismiss the appeal is sustained. Winch and Niman, JJ., concur.

INDEX

ABANDONMENT-

Fee remains in heirs of dedicator and upon abandonment of
original purpose reverts. Newark v. Crane, 114.

ACCOUNTS AND ACCOUNTING-

Reference to master commissioner proper in equitable proceed-
ing to construe and enforce contract and accounting. Krippendorf
v. Ormsby, 172.

Accepted statement of account becomes basis of settlement though
inaccurate. Miller v. Miller, 533.

ACTIONS-

Action for cancellation of a substituted benefit certificate pre-
maturely brought before death of insured. Strauch v. Strauch, 140.

ADMIRALTY-

Negligence for captain without warning to order cable hauled in.
Gilchrist Transp. Co. v. Pearson, 513.

ADVERSE POSSESSION-

Adverse possession of dedicated land cannot arise from permis-
sive use. Newark v. Crane, 114.

Municipality can not hold as trustee and adversely. Newark v.
Crane, 114.

ADVANCEMENTS-

Receipting for draft endorsed as charged upon expectancy in
testatrix's estate evidences advancement. Ferris v. Goodin, 110.

AIDER AND ABETTOR-

Instruction concerning aider and abettor not prejudicial by adding
"and to some degree contributed thereto" though surplusage.
v. State, 146.

ALIENS-

Andy

Foreigner not absolved by ignorance from conditions of contract
signed. Muskovitz v. Insurance Co. 324.

Mandamus does not lie to compel clerk of common pleas to issue
naturalization papers. State v. Salon, 541.

ANNUITIES_

Annuitant entitled to have surplus applied to satisfaction of prior
deficiencies in annuity. Neville v. Carlet, 469.

APPEAL-

Perfecting appeal suspends order dissolving an injunction. Mas-
sillon Elec. & Gas Co. v. Orrville, 43.

Dismissal without prejudice of notice of election appeal not bar
to another appeal within prescribed time. Cook v. Pardee, 65.

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