Barron, Boyle & Co. v. Plate Glass Co.

(a) Because these matters are pleaded by way of inducement, and not by way of gravamen, and less certainty is required in inducement than when the gist of the action is being set out.

(b) Because these matters, if true, are peculiarly within the knowledge of the defendants, and the object of the rule of certainty is not infringed when the defendant has knowledge in full of the facts.

2. Defendants move that there be stricken out of the petition as redundant and irrelevant matter, the paragraph beginning with the word "lastly" in line 10, on page 3, of the petition, and ending with the word "fit" in line 7, on page 4; or, in the event that the court shall refuse so to order, that then the court will order the plaintiff to make these averments more definite and certain in certain particulars.

Both motions, or phases of this motion, are overruled on the same ground that all the matter complained of is pleaded by way of inducement, as preliminary either by way of history or explanation of motive and intent, to the gravamen of the complaint set forth in the petition thereafter.

3. So much of third motion as seeks to compel plaintiff to state fully and specifically the "threat" referred to on page 5 of the petition, and also what was said in "slandering the business of the plaintiff," referred to on page 5, is overruled, for the reason that the subsequent averments, although very involved, are in reality an explication of the "threats" and "slanders" complained of. The rest of the motion being directed to mere matters of evidence is denied.

4. The fourth motion is overruled in both particulars. Under the circumstances alleged, the solicitation away of plaintiff's customers was an unlawful act; who these customers were, where they lived, etc., are matters of evidence, and in addition, peculiarly within defendants' knowledge and need not be alleged with more certainty.

5. The fifth motion as to itemizing the damages, I think, should be overruled, although it has given me some trouble in arriving at a

conclusion.

The main gravamen of the complaint is the attempted destruction of the plaintiffs' business sought to be accomplished by defendants by various means, each of which means, if used alone, would constitute a single cause of action, but all of which, by reason of the alleged conspiracy or combination, are properly conjoined in one action.

The averment of the conspiracy makes it possible to unite in the one action and as a single cause of action, claims for damages which otherwise would have to be sought in independent actions. Now, while threats, slander of business, unlawful solicitation of customers, etc., are charged, they are all charged as parts or elements of the greater charge, viz., the intended destruction of the plaintiffs' business, and it seems to me they dovetail, by reason of the alleged conspiracy, so much one into another that it would be impracticable and impossible for a complainant

Superior Court of Cincinnati.

to say how much he lost by one act or the other. It seems to me it is a question to be determined by the evidence, and not to be first settled in the pleading.

This motion will be overruled, exceptions of defendants may be noted and thirty days allowed to plead.

C. W. Baker and Herman Steinberg, for plaintiffs.

Lawrence Maxwell and Herbert Jenney, for defendants and motions.

GUARDIAN AD LITEM-ATTORNEY FEES.

[Superior Court of Cincinnati, Special Terin, May, 1900.]

JOHN WORTHer v. Edward Ruehrwein ET AL.

1. GUARDIAN Ad Litem not Entitled to ATTORNEY'S Fees as CostS.

A guardian ad litem in an action of tort cannot have an allowance made to him for attorney's fees to be taxed in the costs and paid by the opposing unsuccessful party.

2. ATTORNEY Cannot Secure Fee by HAVING HIMSELF APPOINTED. Nor can an attorney by having himself appointed guardian ad litem, secure compensation for his services, to be taxed as aforesaid, because such services are not those ordinarily incident to the office of guardian ad litem and cannot, therefore be presumed to be within contemplation of the statute.

On motion to allow a guardian ad litem attorney's fees.

SMITH, J.

This was an action by the plaintiff against the defendants, Edward Ruehrwein and Elizabeth Ruehrwein, who are husband and wife, and their two minor sons, Edward Ruehrwein, Jr., and Frank J. Ruehrwein, to recover damages for an assault and battery upon the plaintiff.

Upon application of the defendant, Edward Ruehrwein, Dan Thew Wright was appointed guardian ad litem for the minor defendants, accepted the appointment and with D. H. Pottenger, another member of the bar, conducted the defense for all of the defendants.

The case was tried before myself and a jury. At the conclusion of the testimony of plaintiff a motion to arrest the case from the jury as to Edward Ruehrwein was granted; and the case proceeding as to the other defendants the jury returned a verdict in their favor. A motion for a new trial has been overruled.

A motion is now made by the guardian ad litem for an allowance of $250.00, as fees for services as attorney for the minor defendants, to be taxed as part of the costs in the case which are to be paid by the plaintiff.

The question whether a guardian ad litem can have an allowance made to him for attorney's fees in an action at law-in tort-to be taxed in the costs and paid by the unsuccessful party is a new question in our courts so far as my experience or information goes.

Worther v. Ruehrwein.

It is clear from the following sections of the Revised Statutes that if this allowance is made and taxed in the costs, it must be paid by the plaintiff.

Section 5348, Rev. Stat., provides that, "When it is not otherwise provided by statute, costs shall be allowed, of course, to the plaintiff upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property."

And in sec. 5349, Rev. Stat., it is provided that "if it appears that a justice of the peace has jurisdiction of the action and the same has been brought in any other court, and the judgment is less than one hundred dollars, unless the recovery be reduced below that sum by counterclaim or set-off, each party shall pay his own costs; and in all actions for libel, slander, malicious prosecution, assault, assault and battery, false imprisonment, criminal conversation or seduction, actions for nuisance or against, justice of the peace for misconduct in office, when the damage assessed is under five dollars the plaintiff shall not recover costs."

And sec. 5350, Rev. Stat., then provides that, "Costs shall be allowed, of course, to any defendant, upon a judgment in his favor in the actions mentioned in the two preceding sections."

The two sections of the Revised Statutes which relate to the defense

of infants by guardians ad litem are sec. 5003 and sec. 5001.

Section 5003, reads as follows: "The defense of an infant must be by a guardian for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge."

Section 5001, reads as follows: "The court shall require a guardian ad litem, or a trustee appointed under the preceding section, faithfully to discharge his duty, and upon his failure so to do, may remove him and appoint another in his stead; and the court may fix a compensation for his services which shall be taxed in the costs against the minor or insane person."

The contention of the guardian ad litem in this case is based upon the last liens of sec. 5001, Rev. Stat., which I have italicized.

It is a familiar rule in chancery, in a certain class of cases, to allow attorneys' fees to be paid out of a fund under the control of the court These cases are where one party has brought into court a fund which is to be distributed among a number of persons who belong to the same class. In such cases it is thought that the party who brought the fund into court should not be obliged to bear all the expenses incident to such a course. Without undertaking a complete enumeration of such cases, it will be sufficient for the purpose of illustration to refer to suits to assess stockholders' liability and suits to set aside fraudulent conveyances, in both of which classes of cases all the creditors are paid from the fund or property in court.

But the courts of common law never allowed attorneys' fees as part of the costs. Because at common law no right existed to recover any

Superior Court of Cincinnati.

costs. This rule is recognized and declared in Farrier v. Cairns, Exrx., 5 Ohio, 45, in which it is said:

"It is equally certain that he had acquired no right to any judgment for costs. This must depend upon the statute law in force at the time judgment should be rendered. Costs are unknown to the common law. They are given only by statute and may be changed or entirely taken away at the will of the legislature."

The language of the statute, "compensation for his services," limits the compensation to services which the guardian shall render and does not authorize compensation for the services any other person may render; and therefore does not authorize payment for services rendered by an attorney for the infant or the guardian ad litem; and I do not think the statute can be made to cover such compensation by having the attorney appointed as guardian ad litem; because such services are not those ordinarily incident to the office of guardian ad litem and cannot therefore be presumed to be within the contemplation of the statute.

Furthermore, I think that an intention to make so radical a change in the common law as to impose the attorney's fees of the successful infant upon his unsuccessful opponent, should clearly appear from the statutes before it is conceded to exist.

The Supreme Court of Illinois, as late as the year 1894, had occasion to construe a statute quite similar to the one under consideration which had been enacted by the legislature of Illinois with respect to courts of chancery. The case I refer to is Hutchinson v. Hutchinson, 152 Ill., 353; and the statute under examination read as follows:

"In any cause in equity it shall be lawful for the court in which the cause is pending, to appoint a guardian ad litem to any infant or insane defendant in such cause, and to compel the person so appointed to act. By such appointment such person shall not be rendered liable to pay costs of suit, and he shall moreover be allowed a reasonable sum for his charges as such guardian to be fixed by the court, and taxed in the bill of costs."

In refusing to make an allowance to the guardian for the expenses of his attorney and the expert witnesses called by him, the court held that the statute properly construed would not warrant such an allowance. It declared that:

"It would be a heavy tax upon, if not a denial of justice to keep out of court, a citizen who is advised that he has a just ground for relief in equity, without he assumes a liability to pay the fees and expenses of the solicitors and experts employed by his adversaries, in all cases where one or more of the opposite parties in interest happens to be under full age."

This declaration applies with equal force to the construction of our statute contended for by the guardian ad litem in this case.

Werther v. Ruehrwein.

As no special services are proven by the guardian ad litem other than his services as attorney, I see no ground for an allowance other than that usually made to the guardian ad litem, viz: $5.00 for each infant.

D. Thew Wright and D. H. Pottenger, for guardian ad litem.
G. R. Werner, for plaintiff.

CORPORATIONS-INTERROGATORIES.

[Superior Court of Cincinnati, Special Term, 1900.]

CARTER V. ENQUIRER CO.

INTERROGATORIES-NOT NECESSARY TO Designate OffFICER TO ANSWER. In addressing interrogatories to a defendant corporation it is not necessary to designate by what officer of the company they shall be answered.

DEMURRER to Interrogatories.

DEMPSEY, J.

Defendant is a corporation, and demurs to certain interrogatories annexed to plaintiff's petition, because plaintiff does not designate by what officer of defendant company they shall be answered. After a somewhat extended examination of sec. 5099, of the code providing for such interrogatories, I am of opinion the demurrer ought to be denied.

The code as originally passed March 11, 1853, made no provision for interrogatories. See sec. 105, 51 O. L., page 74. In 1857 this defect, if defect it was, was cured by an amendment to sec. 105, which provided that such interrogatories might be annexed by any party, whether plaintiff or defendant, "in all cases in which he would have the right to use the deposition of an adverse party." 54 O. L., 23; S. & C., 982.

This limitation on the right excluded, as a necessary consequence, the right to propound interrogatories to corporations, because in the nature of things their depositions could not be taken and could not be used against them. To remedy this the legislature amended the act in 1873, 70 O. L., 54, so as to extend the right as against corporations. The qual ifying clause that "if such party is a corporation," the answer under oath shall be "by the president, secretary or other officer thereof, as the party propounding requires," does not in my opinion limit the right to require answers only in cases where the opposite party designates an officer to

answer.

The remedy for failure to answer provided for in sec. 5101 was part of original sec. 105, and one of the penalties was by attachment against a contumacious party. This remedy, of course, could not apply to the corporation itself, and, in order to make this remedy as effectual against corporations as against individuals, an election or choice was given to