negligently and carelessly operated, is dangerous to the lives of its citizens, then the operation of this dangerous instrument, while governmental, as being operated by the government for the public welfare, yet it is ministerial and proprietary. It is performed by agents who have no part in the decision or determination of the sovereign will and also exercise no part of the sovereignty. Their relation is precisely the same as the agent of a private person." The court states further that, "to adhere to the ancient rule in the presence of existing relations would seem to involve the obvious contradiction that the State, which is formed to protect society, is under no obligation, when acting itself, to protect an individual member of society. Such conceptions of sovereign prerogative are not only illogical, but they offend the spirit of our institutions. We have successfully striven under a system of checks and balances to reconcile liberty with authority. Authority should be reconciled with justice." That the legislature and judiciary have recognized the altered conditions and have shown a tendency to adopt the new notion of municipal liability is seen by the court in the statutory enactments imposing a duty on the city to keep the highways in repair and free from nuisances, and in imposing a like liability for negligence in the construction of improvements on its own property and also in the action of the people of the State of Ohio in 1912 in amending sec. 16, art. 1, of the constitution12 so as to provide that suits may be brought against the state in the courts and in the manner provided for, and that by reason of this amendment the state has surrendered the ancient privilege of exemption from suit. If this amendment is to be taken to mean that the state has abandoned the defense of sovereignty in claims against it, then the court is of course justified in its conclusion that the municipality, which is only an agent of the state, has in turn lost its privilege of exemption from liability, but it is submitted that neither the language of the statute nor of the court allows this broad interpretation. The court still recognizes the distinction between a purely ministerial or corporate act, and a governmental or public act, and that in the latter class of cases a municipality is not liable for the negligent acts of its agents. The effect of the decision is to declare that which was before classed as a governmental act now to be considered as a ministerial act. No doubt the court was largely influenced in its conclusion by its consideration of the amendment, and courts in other jurisdictions are not likely to adopt the view of the Ohio court in the absence of a statute of similar nature. However, the real basis for the court's change in principle lies in the interpretation of the nature and character of the work done by the firemen in the course of their employment, that such work is of a routine nature involving no element of discretion or exercise of the sovereign will. This conclusion appears 12Sec. 16, art. I of the Constitution as amended reads, "All courts shall be open and every person, for any injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law." to be sound as a legal proposition, although not sustained by authority generally.13 What effect the decision of the principal case will have upon the rule governing the departments of instruction, health, charity, etc., which have generally been considered on the same plane with the fire department, is of course a matter of conjecture and will only be definitely decided as the cases arise anew. The reasons stated by the court for declaring the work of the fire department as ministerial would seem also to apply to the other departments, but the rule for determining what acts are governmental or ministerial, as laid down by the court, may limit its application only to the fire department. The rule stated by the court is this: "Where a municiaplity (whether termed a governmental or a body corporate) with the sanction of the state has assumed the performance of a work of industry or enterprise formerly carried on by the citizenship, that of itself so far as its practical operation is concerned, stamps it as a corporate or ministerial work." While the citizenship in early days had control of the fire department in the form of voluntary organizations, this is not true of the work done by the city now through its departments of health, education, charity, and similar departments. Jacob Meadow, '20. Pleading: Proof of specific injuries under a general allegation in the complaint.-Kurak v. Traiche, 226 N. Y. 266 (1919), was a negligence action involving personal injuries. The complaint, alleging that the plaintiff while driving a horse and wagon was run into by the defendant's automobile, stated specific injuries of a serious nature to the plaintiff's leg, arm, back, spine and ribs, then continued, -and "he was otherwise bruised, sprained and injured in and about various parts of his body." Relying upon this general clause the plaintiff introduced at the trial evidence of paralysis of part of the plaintiff's face, resulting from the accident. The defendant objected to the evidence as being new matter not alleged in the complaint. The Court of Appeals, sustaining the objection, ruled that when the injuries alleged in an action for negligence are specifically stated, parts of the body mentioned, and the injuries to the parts set forth, and there is a general clause covering other injuries, they are implied to be of a minor nature, and serious special injuries cannot be proved under this general clause. The holding is a statement of the general rule in this state. The opponents of the rule rely principally on the case of Ehrgott v. Mayor etc., of New York. That case is distinguishable, however, in that there the complaint contained only a general allegation of injuries, and the court held that the defendant was not misled by proof of specific injuries included within the general allegation, but was sufficiently protected by its right to a motion to make more definite 13 In accord with the Ohio view, see Opecensky v. Omaha, 163 N. W. (Neb.) 325 (1917). 'Keefe v. Lee, 197 N. Y. 68 (1909); Kleiner v. Third Ave. R. Co., 162 N. Y. 193 (1900). and certain. A question to be considered in connection with the Ehrgott case is the scope of proof of specific injuries allowable under a general allegation, where the latter stands alone or follows allegations of particular injuries. In that case the wording of the complaint was substantially, that the plaintiff suffered great bodily injury, became and still continues to be sick, sore and disabled, and was otherwise greatly injured. It is doubtful whether the broad rule laid down in this case is still followed in this state. Later cases lead to this belief. For example, where the complaint merely alleged that the plaintiff was thrown forcibly to the ground, injuring her about the head, limbs and body, and rendering her sick, sore and disabled, it was held inadmissible to give evidence that the accident caused falling of the womb.3 Also where the complaint alleged that the plaintiff's brain and skull were crushed so as to necessitate removal of part of the brain and skull, the plaintiff was not allowed to give evidence showing that the injury resulted in epilepsy, paralysis or mental impairment, because those injuries did not necessarily follow from the injuries complained of. And where the injuries alleged were that the plaintiff "was severely injured in her person, that her skull was fractured and she was severely wounded, bruised and contused in various parts of her person, and received severe internal injuries and was greatly shocked," evidence that she was suffering from a form of insanity was not permitted. In Kleiner v. Third Ave. R. Co. an averment of severe nervous shock was held insufficient to allow proof that the result of the shock was to produce heart disease, vertigo, curvature of the spine, and other diseases. These cases, decided several years later than the Ehrgott case, seem to show that the courts have restricted the doctrine of that case to injuries which would commonly be expected to be included under the general allegation in the complaint, and have excluded proof of what are commonly known as "complications," such as insanity, paralysis, etc. It is a question, therefore, what the result in the principal case would have been, had the complaint contained only the general allegation. There is authority in New York for saying that the proof of paralysis would not have been allowed.8 The distinction is sometimes made by the courts between cases in which the complaint first mentions the special injuries and then contains a general clause covering other injuries, and cases where the injuries are first stated in general terms, followed by a more specific detail of those injuries. Where the former order obtains 296 N. Y. 264 (1884). Briscoe v. City of Mt. Vernon, 174 App. Div. (N. Y.) 200 (1916). 'Keefe v. Lee, supra, note 1; Hergert v. Union Ry. Co., 25 App. Div. (N. Y.) 218 (1898); O'Connor v. Prendergast, 99 Ill. App. 531 (1902); Geoghegan v. Third Ave. R.R. Co., 51 App. Div. (N. Y.) 369 (1900). Piltz v. Yonkers R. R. Co., 83 App. Div. (N. Y.) 29 (1903); Lockwood v. Troy City Ry. Co., 92 App. Div. (N. Y.) 112 (1904); Wilkins v. Nassau Newspaper Delivery Express Co., 98 App. Div. (N. Y.) 130 (1904); Briscoe v. City of Mt. Vernon, supra, note 3. 927 L. R. A. (N. S.) 837. in the complaint it has been held that the specific allegations, since they precede the general, are not, properly speaking, related to the latter at all and that therefore the general allegations have the same effect as though they stood alone, so far as the proof is concerned. 10 This rule does not seem to have been applied in the principal case, the court not mentioning it at all. Had the general allegation, however, been broad enough to cover the paralysis of the face under the authorities cited above, the rule might, and very properly, have been applied. The distinction is better illustrated by those cases where the general allegation is followed by a detailed account of the injuries. In such a case it is quite generally held that only the injuries stated may be proved, notwithstanding the scope of the general allegation." This well known rule applies to nearly every form of pleading; that is, a broad general allegation in a complaint is treated as a nullity if it is followed by a clause which covers the same ground, but in more detail.12 William B. Daley, Jr., '20. Real Property: Relative Rights of Adjoining Owners of Oil Lands. The case of the Higgins Oil and Fuel Company v. The Guaranty Oil Company, Ltd., 82 So. (La.) 206 (1919), raises two questions: (1) May a landowner extract unlimited quantities of oil from his soil regardless of the effect on his neighbor? (2) May a landowner leave an oil well open to the detriment of his neighbor? The plaintiff and defendant were lessees of adjoining land in the oil fields of Louisiana. The plaintiff had for some time been operating a well upon his land from which he was drawing a considerable quantity of oil by means of a pump. The defendant subsequently struck a well at a distance of approximately four hundred feet from the plaintiff's well. The defendant's well proved to be a non-producer and was totally abandoned. Through some underground communication it allowed air into the radius affected by the plaintiff's pump, thereby reducing the suction-power of the pump, and so reducing markedly the production. By plugging this well, from which the defendant derived no benefit, the usefulness of the plaintiff's well would be restored, but defendant refused to do this. The plaintiff sued the defendant to compel him to plug the well, and defendant answered by claiming the plaintiff had no right to use a pump in extracting oil, since that was a non-natural use of the land. The 10Walsh v. Richmond Light and R. R. Co., 124 App. Div. (N. Y.) 533 (1908); Tracey v. Metropolitan Street Ry. Co., 49 App. Div. (N. Y.) 197 (1900); Brooklyn Heights R. R. Co. v. MacLaury, 107 Fed. 644 (1901); O'Connor v. Prendergast, supra, note 7; Campbell v. Cook, 86 Tex. 630 (1894). "Southern Pacific Co. v. Martin, 98 Tex. 322 (1904); Southwestern Telegraph & Telephone Co. v. Tucker, 98 S. W. (Tex.) 909 (1907); dicta in Keefe v. Lee, supra, note I. 12 Hayes-Young Tie Plate Co. v. St. Louis Transit Co., 137 Fed. 80 (1905); Boesker v. Pickett, 81 Ind. 554 (1882) 1See 4 CORNELL LAW QUARTERLY 71 for note on Real Property: Effect of oil and gas lease. lower court refused an injunction to compel the defendant to plug his well, but the upper court reversed that decision as being against the weight of the evidence. There is a similarity between oil and gas in that they both pass freely through the earth and cannot be termed the property of anyone until confined. So the rules governing them are alike. A producer is allowed to draw as much oil or gas as he can, regardless of the effect upon his neighbor's supply. It seems also that he may extract oil and gas in any manner he chooses. The case of Westmoreland Natural Gas Co. v. DeWitt3 held that operators may resort to any machinery or appliances. And People's Gas Co. v. Tyner1 allowed the explosion of nitrogylcerine to increase the flow of gas. It is held in Kelley v. The Ohio Oil Co. that the owner of land may draw from it as much oil as possible, regardless of the effect upon the wells of his neighbors. In this case the defendant drilled several wells along the border of his land and so diminished the production of plaintiff's land. The following extract from the opinion of Haight, J., in the case of Wagner v. Mallory is representative of the New York view: "Petroleum oil is a fluid found in the porous sandrock of the earth. In some instances it, doubtless, exists in pools, but where are the pools located? They may be under the lands in which the well is drilled; they may be in the abutting or remote lands and may drain into the wells through seams or crevices in the rock, and then be extracted from the earth and reduced to possession by the operator. In this respect oil resembles water as it exists in the earth, especially salt and mineral waters, which have a market value, and is largely governed by the same rule of law. It, consequently, was held at a very early day in the history of the petroleum oil production that a man could not be restrained by his abutting neighbor from boring for oil upon his own premises, although he located his well within a few feet of the line and would necessarily drain the oil from his neighbor's land, if any existed therein." Manufacturer's Gas and Oil Co. v. Indiana Natural Gas and Oil Co.,7 would seem to hold the contrary, but the facts are unusual. There the defendant was draining gas from a common gas reservoir the exact location of which was known. His intention was to pipe the gas to a distant locality. The result of this would have been so to diminish the product of the neighboring company as to make it necessary to close the local industries for lack of fuel and throw a great number of persons out of work. It appears that the court was governed by public policy and special equities rather than by the usual rules of law. There is no basis for applying the reasonable user rule to oil or gas, since they have but one use, a commercial use. Neither oil nor gas "Hague v. Wheeler, 157 Pa. 324 (1893); Wagner v. Mallory, 169 N. Y. 501 (1902); Kentucky Heating Co. v. Calor Oil and Gas Co. 128 Ky. 715 (1908); Gain v. South Penn Oil Co., 76 W. Va. 769 (1915); Brown v. Spilman, 155 U. S. 665 (1895); Huggins v. Daly, 99 Fed. (U. S.) 606 (1900). 130 Pa. 235 (1889). 131 Ind. 277 (1891). '57 Oh. 317 (1897). 169 N. Y. 501 (1902). 7155 Ind. 461 (1900). |