Village of Struthers v. Falabielo.

[13 Ohio

We think the trial judge was right in the first place in saying to the jury that the fact that the barrier was built by the railway company, and the fact that a condition existed which would call for a barrier at that place, it being lower than the highway, and the fact that the company maintained it for some time, would be evidence which the jury would have a right to consider as bearing on the question whether or not the commissioners had directed the company to build a barrier, but, if there was error in the charge after argument, it was error in favor of the defendant railway company. It was not error, in our judgment, that this defendant, the village of Struthers, would have a right to complain of.

Now taking these questions in connection with the order of the court granting a new trial to the company, it is urged that error lies in the fact that a new trial was granted to the railway company and the judgment left standing as to the village. We cannot agree with that proposition. We do not decide whether the defendants are or are not joint trespassers. The alleged negligence of the village of Struthers is that it permitted the hole to exist in the traveled part of the highway, endangering the safety of travelers. The decedent got into that hole, and, upon this record, the jury were justified in finding the village liable. Suit could have been brought against the village, or against the railroad company. Each was responsible for its own act. The village is responsible for allowing the hole in the highway to remain out of repair and the highway thus to become dangerous. If the railway company is responsible, it is responsible for the fact that it failed to maintain a barrier at that place. The

App.]

Village of Struthers v. Falabielo.

acts of these parties were separate. Separate action could have been brought against both or either.

Where two or more parties have committed a tortious act they may be sued jointly, or they may be sued separately, and if they are sued jointly, and a verdict had against both, it is not reversible error to set aside the verdict as to one and allow it to stand as to the other. The one against whom the verdict is set aside has nothing to complain of, and the one against whom the verdict is rendered is not prejudiced by the setting aside of the verdict against the other.

At common law the verdict could not be set aside as to one of two joint trespassers and allowed to remain against the other. (20 Ruling Case Law, 224, Section 9.) But, quoting the same section of the same authority, "The prevailing rule at present is that, inasmuch as tortfeasors are jointly and severally liable, and an action may be maintained against one or all at the option of the injured party, a verdict may be set aside as to one and allowed to stand as to another."

In Sparrow v. Bromage, (83 Conn., 27), 27 L. R. A., N. S., 209, it is held:

"The court may set aside a judgment recovered against two in a civil action to recover damages for unlawful imprisonment, as to one of the defendants, and permit it to stand against the other, where it clearly appears that the latter performed acts. which would have rendered him liable if sued alone."

And in the note to the latter case it is said:

"Although some courts hold to the contrary, the preponderance of authority is to the effect that a

Board of Education v. Hoover, Clerk.

[13 Ohio

verdict may be set aside as to one alleged joint tort feasor and permitted to stand as to others."

"A new trial may be granted as to one or more of several joint trespassers, against whom a joint verdict has been returned, and judgment be left standing against the others for the full amount of the verdict." Loving v. Commonwealth, (103 Ky., 534), 45 S. W. Rep., 773.

In the light of these authorities there was no prejudicial error in sustaining the motion of the railway company, and the judgment is affirmed.

Judgment affirmed.

FARR and POLLOCK, JJ., concur.

BOARD OF EDUCATION OF JEFFERSON TOWNSHIP RURAL SCHOOL DISTRICT V. HOOVER, CLERK, ET AL. Constitutional law-Schools-Section 4692, General Code (106 O. L., 397) — Transfer of territory-Title to schoolhouse — Injunction against sale.

The provision contained in Section 4692, General Code, as amended 106 Ohio Laws, 397, relating to the transfer of territory by a board of education, by which it is enacted that the legal title shall become vested in the board of education of the school district to which it is transferred, contravenes no constitutional provision and is a valid and constitutional enactment.

(Decided May 24, 1920.)

APPEAL: Court of Appeals for Williams county.

Mr. Charles T. Stahl, prosecuting attorney, and Mr. Edward Gaudern, for plaintiff.

Messrs. Newcomer & Gebhard, for defendants.

App.]

Board of Education v. Hoover, Clerk.

RICHARDS, J. On May 8, 1918, the Williams County Board of Education, in compliance with a petition filed with it, asking therefor, transferred by resolution duly adopted certain territory from the Jefferson Township Rural School District to the West Unity Village School District. On the territory transferred was a schoolhouse. Thereafter the Board of Education of West Unity School District advertised for sale the schoolhouse so transferred, the sale to be on August 23, 1919.

This action is brought for the purpose of enjoining the sale of the school building and the tearing down and removal of the same. The trial court on the hearing of the action dismissed the plaintiff's petition, and an appeal has been taken to this court.

The regularity of the proceedings leading up to and including the transfer is not questioned. The transfer was made by virtue of the authority reposed in the county board of education by Section 4692, General Code, as amended 106 Ohio Laws, 397. That section provides, among other things, that the legal title of the property shall become vested in the board of education of the school district to which the territory is transferred, and the county board of education is authorized by the section to make an equitable division of the school funds of the transferred territory and also an equitable division of the indebtedness thereof. Plaintiff contends that the general assembly was without authority to provide in case of such a transfer that the legal title of the property should become vested in the school district to which the territory is transferred, as is provided in the section. The record in this case shows that the transfer by the county

Board of Education v. Hoover, Clerk.

[13 Ohio board of education was made only after the filing of a petition asking that such procedure be taken, and neither in the pleadings nor evidence is there any claim made of fraudulent conduct on the part of the county board of education or of an abuse of discretion on its part.

The general rule of law, in the absence of statutory provision to the contrary, is that when the territory of a school district is detached from that district, and attached to another, a schoolhouse on the territory so transferred would thereupon become the property of the district to which the territory was transferred. The substance of this general rule of law has been placed by our legislature in the statute above cited. Manifestly, in a rapidly growing county, it frequently becomes necessary to change the boundaries of school districts, as originally established, and such changes often result in the transfer of territory, which may include schoolhouses, and some adjustment on equitable principles should be made in case of such transfer. Our statute accordingly provides for an equitable division of the school funds and indebtedness. Clearly it would be impracticable in the majority of cases to require an equitable division between the two districts of the value of the schoolhouse so transferred, but we would feel better satisfied with the reasonableness of the statute if it required such adjustment in the event that the schoolhouse should thereafter be sold. However, the adjustment is left entirely with the legislature, the details to be effectuated by the county board of education pursuant to the statute.