text:
    CHARGE TO JURY — FRAUD—MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Henry, Marvin and Winch, JJ.
    W. Scott Rader v. Mary Basch.
    1. Refusal to Instruct that Proof of Admitted Fact is Necessary Proper.
    It is not error to refuse to charge that the plaintiff can not recover unless she prove a fact which is admitted- in the answer..
    2. Action for Fraud Maintainable against Agent Making Representations after Judgment against Principal, Adjudicated Bankrupt.
    One who has been ■ defrauded by the misrepresentations of- an agent of an owner of property sold to her as to the incumbrances thereon, may maintain her action against such agent for the fraud, notwithstanding she has proved up her claim against the principal upon such principal’s adjudication in bankruptcy, but has realized nothing from the bankrupt’s estate.
    3. Maker of Note and Mortgage Induced by Fraud may' Recover for -Payment on Note Though Mortgage Defective.
    One who by fraud has been induced to give a note and mortgage on her property to an innocent third person, may recover from the person who so fraudulently induced her to give the note and mortgage, the amount thereof, notwithstanding the mortgage securing the note is defectively executed and unenforceably, she being required, however, to pay the note.
    Error.

      Carl Thompson and Frank C. Scott, for plaintiff in error.

      F. F. Klingman, for defendant in error.
   MARVIN, J.

The relation of the parties to each other here is the reverse of their relation in the court of common pleas. The terms plaintiff and defendant as used in this opinion, refer to the parties as they stood in the original case.

Plaintiff brought her action in the court of common pleas seeking to recover from the defendant the sum of $1,800 for damages which she claimed to have sustained by reason of the breach of a contract entered into between herself and the defendant on April 24, 1895. She prayed to recover a judgment for $1,800 and interest. The jury returned a verdict in favor of the plaintiff for $2,268.

A motion for a new trial was made and the court, as a condition for overruling the motion, required that the plaintiff remit from such verdict the sum of $490. This the plaintiff did, and the judgment was thereupon entered for the amount of such verdict, less said $490, to wit, the sum of $1,778.

The facts are these:

The defendant was acting as the agent of one J. W. Hamby, who was a dealer in real estate in this city. He agreed with the plaintiff to sell her a certain piece of real estate in the village of Lakewood in Cuyahoga county, Ohio, for the sum of $2,750, and to give her a free and unincumbered title to said property. The defendant disclosed the fact to the plaintiff that he was the agent of Hamby and she dealt with him with that understanding. The price of $2,750 was made up by her paying to him $1,150 in cash, or rather in a certified check, which was received as cash, and giving a note for $1,600 secured by mortgage upon the property. This note and mortgage were turned over by Hamby to one Shepherd, who furnished the $1,600. The mortgage was defective in that it was not acknowledged before any officer, and there was but one subscribing witness. The note, however, was valid. As a matter of fact, at the time the deed from Hamby was delivered to the plaintiff by the defendant, there was a mortgage upon the property for $1,800 owned by the Union Savings & Loan Co. As already stated, the title which the defendant agreed to give to the plaintiff was to be free and unincumbered. Some two years elapsed after the transaction already named before the plaintiff discovered that this mortgage of $1,800 was outstanding on the property. Meanwhile she had paid some $800 to Shepherd on the $1,600 note, and in the interim Hamby had disappeared, but he had reduced the mortgage for $1,800 as is said by the defendant in his answer, to about $1,650, so that the real incumbrance on the property was the last named amount when the deed was delivered to the plaintiff. This sum, with the interest upon it, making an aggregate of some $1,662, the plaintiff paid in order to relieve her property from the encumbrance wrongfully left upon it by Hamby. In order to do this, she was obliged to borrow about $1,600, $1,200 of which she borrowed of Shepherd, the man who had furnished the $1,600 at the time of the purchase, and whose note had been reduced at this time to about $800. To accomplish this, the original $1,600 defective mortgage was canceled and the $800 remaining unpaid upon the original loan from Shepherd was merged with the $1,200 which Shepherd now furnished, and the plaintiff gave her note and mortgage to Shepherd for $2,000, borrowing from a relative something like $400, which last named sum, together with the $1,200 new money obtained from Shepherd and some little money which the plaintiff had, was sufficient and was used to pay off the balance still due on the Union Savings & Loan Company’s mortgage. The damage, therefore, which the defendant suffered at the hands of Hamby, and for which the defendant is liable, if he is liable at all, is this $1,662, which she was required to pay to relieve the property from the last named mortgage.

It is urged as against this that since the original mortgage given to Shepherd was invalid for want of acknowledgment and for want of proper witnesses, she did not suffer this entire amount, because, it is said, her mortgage to Shepherd being invalid she need not have paid that sum to him. This ignores entirely the fact that she got $1,600 from Shepherd for which she gave her note, and which, because she gave her note, she was bound to pay whether she gave any mortgage for it or not. It is not to be presumed that the plaintiff could by some dishonest means have defeated Shepherd from collecting the $1,600 which he had furnished the plaintiff for the purchase of this property, and for which she had given her note, and half of which she had paid before she discovered the fraud. And what is here said disposes of one of the grounds of error claimed in the refusal of the court to charge as to the invalidity of this original Shepherd mortgage. So that the whole question is as to whether the defendant was responsible for this defect in title, and this depends upon a question of fact whether he, at the time he delivered the deed, told the plaintiff that the property was then free and clear of encumbrance. He says he did not, but that he assured her that the $1,800 mortgage would be at once discharged and canceled, and that he made this assurance upon the assurance of Hamby that the $1,600 which was to come from Shepherd and a sufficient part of the $1,150 paid in cash, would be used for that purpose. Hamby failed to do this.

The plaintiff, her husband and daughter, all testify that when the deed was delivered by the defendant to the plaintiff he stated that, to use his own terms, this Union Savings & Loan Company mortgage was “raised and canceled.” And these witnesses also testify that he then produced an abstract of title on which this mortgage was shown, and shown to be canceled, using the language, “You asked me for an abstract for 60 years, here is one for a hundred years; what more do you want?”

That the abstract shown had been in the possession of the Union Savings & Loan Co. is certain; that this abstract was taken from such company by Hamby is also certain. This abstract has disappeared; nobody is able to find it or produce it; it was not returned to the Union Savings & Loan Co. Hamby may have forged a cancellation upon it. The defendant testifies, however, that when this abstract was shown to the plaintiff it did not show a cancellation of this last named mortgage, and 'as has already been said, he denied that he made the statement that it had been discharged, and that he knew at the time the deed was delivered that the loan company’s mortgage was still outstanding, but he expected it would be at once discharged by Hambly, and that he stated those facts to the plaintiff.

If the jury believed him the verdict should have been for the defendant. Manifestly the jury did not believe him, but believed the plaintiff and her witnesses, and probably made the excuse for the defendant that when he made the statement that this mortgage had been “raised and canceled” he believed that no harm could' come from it, because he expected it would be at' once done. Yet giving this excuse, it does not relieve him from liability in this action. He was liable if he made the misrepresentation which the plaintiff and her witnesses, say he did make, knowing that it was not true.

The testimony shows that the bargaining for this property was conducted by tbe plaintiff and her husband; that the deed was first made out to the husband, but at his direction a new deed was made out to the wife. The husband testifies that he paid the money to the loan company for the cancellation of its mortgage, and, it is urged, that this, being true the plaintiff can not recover in this action. The evidence, however, shows that the money to the extent of $1,200 was raised by mortgage upon this very property, and that the $400 was borrowed from a sister of the plaintiff. The fact that the money was actually handed over by the husband does not take away the right of the plaintiff to recover, when the mutual interest of the husband and wife in this property, and the way in which it was purchased; are considered. This payment was not a voluntary payment on the part of the husband in such sense as it would be if some outsider, who had no interest in the property, had made the payment.

The defendant requested the court to charge, before argument, among other things, the following:

‘ ‘ Before there can be any recovery in this case, the plaintiff must prove that the amount she paid to the Union Savings & Loan Co., if she paid anything whatever to it to satisfy its mortgage on her property, was actually due and owing on such mortgage, and in the absence of such proof, your verdict must be for the defendant in this case.”

This was refused, and it was properly refused under the pleadings in the case, for the answer admits that there was such a mortgage to the amount of $1,800, and that payments had been made upon it, reducing it to $1,650. With that answer on file by the defendant it would have been clearly erroneous' for the court to charge as requested.

The court was also asked to charge that ‘‘the plaintiff, if she sustained any loss by reason of the mortgage to the Union Savings & Loan Co. on the property purchased by her, might recover such loss from J. W. Iiamby, who delivered his deed to .her to such property, warranting the title free of incumbrance. If 'you find, therefore, that she has elected to rely on such warranty and to look to J. W. Hamby or his estate for her loss, she can not recover such loss from defendant in this case. ’ ’

The only possible ground on which any claim could be made that this charge should go to the jury is the evidence that Hamby went into bankruptcy and that the plaintiff proved up her claim in the bankruptcy proceeding, and got nothing from it. Clearly it would have been erroneous to have given this charge. The plaintiff might well prove up her claim against Hamby and get all she could from his estate, and hold the defendant if she could hold him at all, for the balance. She did prove up her claim against Hamby. She got nothing. This certainly did not relieve the defendant.

A request was made that the court charge that if the mortgage to Shepherd was not acknowledged before a notary public or some other officer authorized by law to take acknowledgments, and that if Mary Basch never did acknowledge the mortgage before a notary who certified to such acknowledgment that such mortgage was null and void. This request was properly refused, because as has already been said in this opinion, the validity of this mortgage to Shepherd was a matter of indifference so far as the liability of this defendant is concerned. The plaintiff raised the $1,600 and it was paid to Hamby. She gave her note which she was bound to pay. It was a matter of indifference to Hamby or the defendant, so far as their liability to the plaintiff is concerned, whether the security which she gave for the payment of such note was valid or invalid.

This disposes of the requests to charge, and they have been treated here as though they were requests properly proffered before argument, although the language of the bill does not show that they were proffered in the manner pointed out by the statute, the language of the bill being: “Whereupon counsel for the defendant requested the court give the following charges to the jury before argument, ’’ whereas the statute provides that they shall be presented in writing. However, as already stated, no part of the finding of this court is based upon this failure to properly request charges before argument.

The result is that an examination of the entire record fails to show any error for which the judgment should be reversed ° and it is therefore affirmed.

Henry and Winch, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Humphrey Co. v. Frederick Ohlson.
    Duty of Proprietor of Bowling Alley to Inspect to Render It Safe.
    The proprietor of a howling alley impliedly warrants that it is safe for the purpose intended, and is therefore under a continuing duty of inspection to see that it is safe, and if he neglects this duty the question of his knowledge or ignorance of a defect which renders it unsafe is immaterial.
    Error.

      Smith, Taft & Arter, for plaintiff.

      Fred. Desberg, for defendant.
   MARVIN, J.

The relation of the parties to each other here is the reverse of their relation in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, refer to the parties as they stood in the original action.

The facts are that the defendant is a corporation conducting a place of amusement near the city of Cleveland, known as Euclid Beach Park; that the diversions offered to patrons thereof is that of bowling on a ten pin alley; that on the evening of September 16, 1907, the plaintiff, with his wife and other friends, were at said Euclid Beach Park and having paid for the privilege of doing so, were engaged in bowling at this alley; that when the plaintiff ran forward with a ball to bowl, the heel of his shoe caught on a nail; he was thrown down and his arm broken. His suit was brought to recover damages for this injury. A verdict for $500 was rendered in his favor and judgment was entered upon that verdict, to reverse which judgment the present proceeding is prosecuted.

It is urged that there was error to the prejudice of the defendant in the trial for which this judgment should be reversed.

First, it is urged that the court erred as shown on page 130 of the bill of exceptions, in excluding evidence offered by plaintiff in error.

D. S. Humphrey, the president of the defendant corporation, was upon the stand and was asked this question:

“Q. Can you tell us, Mr. Humphrey, how many square feet of floor space there are at Euclid Beach Park?”

An objection to this on the part of the plaintiff was sustained by the court. The answer would have been ‘! I can. ’ ’

Then this question was asked of the witness:.

“Q. Will you state to the court and the jury'how many square feet of floor space over which people walk, you have at Euclid Beach Park?”

Objection to this, made by the plaintiff, was sustained by the court. The answer would have been, “four hundred thousnad square feet. ’ ’

The only possible bearing that these answers could have had, or could be claimed to have had, upon the issues in this case, would be upon.the ground that because of their immense amount of floor space which the defendant had for the use of its patrons, less care would be required from it with respect to any one particular part of such floor space. This seems to us to be entirely untenable. A certain degree of care was required on the part of the defendant at its park, and that same degree of care was required at each particular part of the park to which its patrons were invited, and for which they paid, whether the park was large or small, or whether the floor space was great or limited. There was no error in this ruling of the court.

The only other claim of error in this ruling by the .court is, that under the evidence the jury should have'returned a verdict for the defendant, and that having returned a verdict the other way, the court should, on motion for a new trial, have sustained such motion; there was a motion for a new trial on this ground.

It is urged that what is properly called the “runway,” being the floor space over which the bowlers run before delivering the ball, was floored exactly as the-alley itself was floored; that indeed it was but a continuation of the floor of the alley; that this was of hard polished planking, set on edge and fastened together; that the sides of the several planks constituting this flooring were bevelled in such wise that the nails holding them together were driven in at the sides of said planks and would not project above the surface. The testimony of the plaintiff is that he was making the run on this runway, and just as he delivered the ball his foot caught and he was thrown. It is said that just back of this runway was an ordinary floor, not designed for patrons of the alley to run upon to get the momentum with which the ball was to be thrown, and that such running was to be.done on the runway proper, and that it must be that the nail, on which the foot of the plaintiff caught, projected from this part of the floor, not designed as a runway and not laid for the purpose of .haying the patrons run upon it to get the momentum necessary before throwing the ball, and that the plaintiff must-have been negligent in running upon a part of the floor not designed for the purpose. .The plaintiff says that his way of delivering the ball was to take two running steps and then glide his foot a little way and then deliver the ball, and it was while thus gliding that his shoe caught upon the nail; but he says that the nail was within about four feet of what is called the foul line, which is the line beyond which the bowler inust not go in delivering the ball. . This js the dividing line between the runway and the alley way proper. The runway was fourteen or fifteen feet in length, and if the plaintiff is right as to the distance of the nail from the foul line, it must have 'been in the runway.

When the plaintiff fell he says that half his body, or more than that was lying on what is called the gutter, which, as shown by the drawing produced by the defendant, extends alongside of the alley proper and terminates at the foul line, so that there is no gutter by the side of the runway, and if the plaintiff is right about this, .he is probably right as to the place where his foot caught, although he is uncertain as to some of the distances mentioned by him.

Notwithstanding the less likelihood of a nail working up from planks put in as those were which formed the runway and the alley (the nails being driven in at the sides), than from the planks which formed the floor just before the runway and alley was reached, we think it by no means .impossible or even improbable that a nail may have worked up, and if it had so worked up as to project above the surface of this runway, a proper inspection of this runway would have disclosed that fact to the defendant. We think from the evidence that the jury might well have found that this nail, though when the construction was made, it was driven below the surface of the runway, had worked up and that it had continued to work up without having been again driven back into place, and that this working up must have continued for such a length of time that the defendant by the exercise of proper care would have known of it. It was the business of the defendant to use all reasonable means to make this place of amusement safe. It is the duty on the part of the proprietor of resorts like that of the defendant to use reasonable care in the conduct of stash places, as pointed out in 1, Thompson, Negligence, Sec. 996, in which this language is used:

“Doubtless the true theory is that such persons assume\jj.e obligation of exercising reasonable care, and that what will he reasonable care will be a degree of care proportioned to the\ danger incurred, and to the number of persons who will be subjeeted to that danger. A good expression of the rule of liability, applicable in such cases, is found in an English ease to the effect that the proprietor of such a structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown and undiscoverable, not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial. ’ ’

To the same effect is the case of Currier v. Music Hall Assn., 135 Mass. 414, the syllabus of which reads:

“The proprietor of a hall to which the public is invited is bound to use ordinary care and diligence to put and keep the hall in a reasonably safe condition for persons attending in pursuance of such invitation; and if he neglects his duty in this respect, so that the hall is in fact unsafe, his knowledge or ignorance of the defect is immaterial.”

It is not at all certain that the jury came to a wrong conclusion in finding that the defendant failed to exercise such reasonable care as the . law requires, and the result is that the judgment is affirmed.

Henry and Winch, JJ., concur.


text:
    CHARGE TO JURY
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Forest City Provision Co. v. Adolph Blaha.
    Failure to Define Issues In Charge to Jury, Erroneous.
    It is reversible error for the court to neglect to state the issues in a case to the jury, when there are several issues of fact to be determined by it, and to refer the jury to the pleadings for a determination of the issues, notwithstanding the court at the conclusion of the charge asks counsel if they have anything further to which to direct attention and they answer in the negative.
    Error.

      Seaton & Paine, for plaintiff.

      A. W. Lamson and W. B. Beebe, for defendant.
   MARVIN, J.

The relatioh of the parties here is the reverse of their relation in the court below. The terms plaintiff and defendant as used in this opinion, refer to the parties as they stood below.

The plaintiff was an employee of the defendant and worked on a sausage machine; on the 18th of June, he was injured to such an extent that one of his arms had to be amputated. He complains in his petition that this injury was occasioned by reason of the negligence on the part of the defendant in failing to furnish him a proper machine at which to work. A very considerable number of defects in this machine are stated in the petition. Issue was taken on these several charges of negligence by the defendant.

Numerous grounds of error are claimed to have occurred at the trial.

It should be said that the arm of the plaintiff was.injured by receiving a severe blow from what is called the plunger in this sausage machine. We do not undertake here to give a description of the machine but content ourselves in saying that the injury was received from this plunger.

One of the charges of negligence in the petition was that the machine was being operated at an extremely high steam pressure.

Before argument, the court said to the jury, at the request of the defendant, among other things, the following:

“Among the allegations of negligence in the petition is one that defendant was negligent in operating said sausage machine at an extremely high steam pressure at the time of the injury to plaintiff.
“The court says to you that no evidence has been offered to sustain said allegation of negligence and the charge of negligence in-this respect is not to be considered by you.”

Going to the general charge the court said to the jury among other things the following:

“There are various allegations of negligence of the defendant company that are set forth in the' petition at great length. He claims that he was injured in this way: His arm was taken off, he suffered great pain in body and mind; and was damaged to the extent of $25,000; that he was without fault or negligence on his part. ’ ’

After then stating that all negligence was denied on the part of th'e plaintiff, the court said, among other things, to entitle the plaintiff to recover it is encumbent upon him to show by a preponderance of the evidence that the defendant company was negligent in the respects complained of in the petition or some of them, and that the injury which the plaintiff received resulted directly from such negligence.

The court further said to the jury:

“The allegations of negligence which will entitle the plaintiff to recover are the allegations of negligence that are contained in his petition; he doesn’t have to prove them all; if he proves any of the acts of negligence that was the proximate cause • — that was the thing which caused his injury and he had proven that part by a preponderance of evidence, then he is entitled to a verdict.”

What has been quoted contains all that was said by the court as to the issues made by the plaintiff. It has already been said that numerous items of negligence were alleged in the petition, all of which were denied by the answer. Attention has already been called to the fact that the court instructed the jury before argument, that no evidence had been introduced as to one of the grounds of negligence charged in the petition, and yet the court here leaves to the jury to ascertain by an examination of the petition, and that alone, the negligent things which must be shown by the plaintiff in order to entitle him to a recovery. The court ought not to have left to the jury to search out from the petition the items of negligence charged. It left them to look to the petition and for every charge of negligence contained in it, and yet he had already said to them, there was no evidence. tending to show negligence in one item charged. The court should have pointed out the several charges of negligence contained in this petition to which the attention of the jury must be given to reach a proper conclusion.

It is urged that because at the close of the charge this took place, to wit, the court said, “Has either side anything further to direct my attention to,” to which both parties by their counsel answered “No, we have not”; this error, if there was an error on the part of the court in failing to point out the issues, was cured, or rather that the defendant can not now be heard to complain because of the failure of the court to properly state the issues in the ease.

We think this is answered by the case of the Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. 1071], the syllabus of which ease reads:

“In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury, and not otherwise to define the specific issues, that these constitute the pleadings in the case, which make up the issue and from which they will try and determine the controversy between the parties.
“It is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition.”

In this case the trial court said to the jury:

“There can hardly be any question in your minds, gentlemen of the jury, at this stage of this trial, after hearing the general argument of counsel and the several requests the court gave you and the reading of these pleadings, that the issue in this case is negligence or want' of ordinary care, complained of on part of the railroad and denied by the railroad company, and allegations as to contributory • negligence on the part of the plaintiff, which resulted in this accident. ’ ’

Judge Davis in his opinion uses this language, in reference to that part of the charge:

“The court thus left it to the jury to find out for itself what were the.specific issues of fact as made up in the pleadings, and which it was the duty of the jury to decide from the evidence, under the instructions of the court. The court intimates to the jury that ‘the issue’ is negligence ‘on the part of the railroad company,’ and the contributory negligence ‘on the part of the plaintiff.’ ”

The opinion then goes on to show that there were several charges of negligence in the petition, and then says:

“It is the imperative duty of the court to separate these and to definitely state to the jury those issues which are to be determined by it, accompanied by such instructions in regard to each as the nature of the case may require. A failure to do this necessarily leaves the jury to grope around through the technical and often verbose allegations of the pleadings to find the real points of controversy in the case. When there is but a single issue, which is tersely stated, this might not be prejudicial to the parties; but in almost every case there are intricacies which the jury, from lack of legal knowledge and experience, can not unravel without the assistance of the court. The jury should be distinctly instructed by the court as to the facts which are admitted; and without this it can not be expected that a jury trial will result in an intelligent verdict.”

Our attention is called to the ease of Columbus Ry. v. Ritter, 67 Ohio St. 53 [65 N. E. 613], in which this language is used in the syllabus:

“Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the case, such failure is not a ground for reversal, unless it was called to the attention of the court, and further instructions requested and refused, provided the jury is not misled by the charge so given.”

This is cited in support of the proposition that the defendant, having been called upon in this case to ascertain if there was any point on which instructions were desired that had not been given, answered no.

It was undoubtedly because of what is said in this last named case that the court used the language quoted in the Baltimore & O. Ry. v. Lockwood, supra, because in the case of Columbus Ry. v. Ritter, supra, the court left the jury to determine the issues from the pleadings. But the court in its opinion in that case, used these words:

“ It is well at this point to recall the very simple and narrow issue between these parties in the trial court, for it has much to do with our conclusions. The pleadings brought the issues into a very narrow compass.”

Judge Davis, in the opinion in Baltimore & O. Ry. v. Lockwood, supra, recognizing what was said in Columbus Ry. v. Ritter, used the language already quoted, to .wit: “When there is but a single issue which is expressly stated, this might not be prejudicial to the parties.”

We think in the present case the court erred in not following the statute requiring that the issues be stated, and that it was not incumbent upon the defendant to point out to the court specifically what it regarded as erroneous in the charge, even though asked if it desired to direct the attention of the court to anything further. The court had itself directed attention to the issues and had erroneously instructed the jury to ascertain from the pleadings what these issues were, and as already * * * stated, the defendant was not called upon to point out to the court wherein the charge was erroneous, but at most to call the attention of the court to some matter entirely omitted in the charge.

On the authority of Baltimore & O. Ry. v. Lockwood, supra, this judgment must be reversed for error on the part of the court in failing to properly state to the jury the issues in this case.

An examination of the record fails to disclose any other reversible error and for this error in the charge, and this alone, the judgment is reversed and the cause remanded for further proceedings.

Henry and Winch, JJ., concur.


author: MAEVIN, J.

text:
    PEOCESS
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Henry, Marvin and Winch, JJ.
    Lewis Mayer et al. v. Thomas H. Groves.
    Judgment not Vacated for Want of Service When Contradicting Evidence not Clear.
    A judgment will not be vacated because of no service on .the defendant, when the evidence contradicting the return of the sheriff of residence service is not clear and convincing.
    Error.

      Burrows & Mason, for plaintiffs in error.

      Kline, Tolies & Morley, for defendant in error.
   MAEVIN, J.

The facts in this case are that on May 17, 1899, the plaintiffs filed a petition in the court of common pleas of this county against the defendant; that on the same day a summons was issued to the defendant on said petition, addressed to the sheriff of said county. Said summons was duly returned into court on May 24, 1899, with the following endorsement:

! ‘ State of Ohio, Cuyahoga County, ss: On the twenty-third day of May, 1899, I served this writ on the within named Thomas H. Groves, by leaving a true and certified copy thereof at his usual place of residence. Thomas F. McConnel, by John J. Many, Deputy.”

On June 1, 1899, appears this entry on the docket of the court of common pleas in this ease:

“June 1, 1899, to court: Leave to answer by July, ’99. Journal 135, p. 355.”

No answer or other pleading was ever filed in said cause by the defendant, and on March 11, 1901, the case coming on regularly to be heard upon the petition of the plaintiff, a jury was empaneled and sworn; the plaintiff offered its evidence; the jury found for the plaintiff and assessed its damages at $1,-441.16, and interest at 6% from January 4, 1901, together with a recovery for costs.

On August 12, 1899, a petition in involuntary bankruptcy was filed in the district court of the United States and for the eastern division of the northern district of Ohio, and.among the debts scheduled in the proceedings filed in said petition in said district court, was of the indebtedness upon which the plaintiffs recovered their judgment.

On June 9, 1900, the defendant was discharged in said bankruptcy proceedings.

On July 19, 1909, a motion was filed in the court of common pleas of Cuyahoga county to vacate said judgment so obtained by the plaintiff on the ground that no service of summons was ever made upon the defendant, and that he had no notice of the institution or pendency of the action in which said judgment was taken, and that he had no knowledge that he had been sued in said action until April 20, 1909.

Upon the hearing of said motion on December 20, 1909, the same was granted and said judgment was suspended until the final adjudication of the facts claimed by the defendant. Thereupon, on the same date, the defendant filed his answer in said cause, setting up said bankruptcy proceedings and his discharge therein. On January 29, 1910, the cause came on for hearing in said court of common pleas and judgment was rendered in favor of the defendant. The present proceeding is brought seeking to reverse the order setting aside said judgment. That motion was heard upon the evidence, all of which is before us in a bill of exceptions. From this evidence it is urged that the court was. not justified in making said order of vacation. We have no doubt of the authority of the court to make the order, if the facts were as claimed by the defendant as to the service of the summons and his want of knowledge of the pendency of the action in which the judgment was taken. The evidence on which the defendant relies is the testimony of himself and wife. He testifies in positive terms that no summons was served upon him nor to his knowledge left at his residence. He says in an affidavit which was introduced in evidence on said motion, that at the time said summons appears by the return of the sheriff to have been served upon him, he resided near the corner of Euclid and East Madison avenues in the city of Cleveland, in said county, and that the house was occupied by none other than himself and wife at the time. He further says that he never received a copy of the summons and never had any knowledge of the institution of the suit until April 20, 1908; that during the months of May, June and July, 1899, the Hon. E. J. Blandin, an attorney in Cleveland, was his attorney, whom he consulted on all legal matters in which he was then involved, and that he never authorized him or any other attorney to appear in said suit for the purpose of obtaining extension of time for answer or for any other purpose.

His wife, in an affidavit filed in evidence on the hearing of the motion says that during the month of May, 1899, she and her husband resided in the house mentioned by the defendant in his affidavit; that at the time the only inhabitants of the house were herself and her husband, and she says:

“I was at home during the month of May, 1899, and no copy of a summons issued by the court of common pleas of Cuyahoga county was left at our residence during that month, and I never knew of the institution of the above entitled action or of the recovery of a judgment against my husband thereon until April, 1909.”

So far as this statement of Mrs. Groves is concerned, it may be true, as far as it went, and still a summons may have been served at that residence as stated in the return of the sheriff. She does not say that she was at home “all” of that month, and even if she did, it might well be that using the words in the sense in which people ordinarily use the words ‘ ‘ I was at home during the entire month” it would not mean that she was not out of the house at any time during said month, or that she might not have been away for many hours, on some particular day of that month, or absent for a considerable part of several days. Judge Blandin’s affidavit as filed shows that he never appeared for the defendant in this action, nor had he any knowledge that such action was pending. On the other hand is the evidence of tb.e return of the sheriff. This can only be overturned by clear and convincing evidence, as was said by this court in the opinion delivered on February 21, 1905, in the ease of Keefe v. Everden (not reported).

Next is the entry on the court docket, showing an extension of time for answer in the then pending action in the court of common pleas. This extension was made before the answer was due and extended the time but two weeks beyond which the defendant would have been required to answer had no extension been given. Yet it is inconceivable that the court should have made this entry on its own volition. Somebody must have appeared and asked for this extension, and it can hardly be doubted that, whoever this person was, concerning which the record is silent, he was an attorney, recognized by the court, or it was the defendant himself. Presumably it was an attorney at law, and it would require strong evidence to convince one that an attorney, without any authority in the premises whatever from the defendant, should have appeared and made the application. There is further the. affidavit of Mr. George H. Burrows, a reputable attorney of this bar, filed about June 1, 1899, who had a conversation with the defendant in which the defendant said: “I am sorry you brought the suit against me for Mayer, Scheuer, Offner & Co. for the reason that the claim is large and it is apt to bring other creditors upon me.” He says further that in that conversation Mr. Groves said to him (Burrows) that Mr. Frank Skeels, who was then an attorney practicing in Cuyahoga county, Ohio, represented him in the matter of Mayer, Scheuer, Offner & Co., as well as in a number of other cases which were pending against him' before justices of the peace.

In another affidavit Mr. Burrows testifies that he had a talk with Mr. S. H. Tolies, an attorney at this bar, in the spring of, or summer of 1901, in which Mr. Tolies said to him that Groves had written to him about this judgment and that he had decided to take no action whatever in the matter; that Groves had received his discharge in bankruptcy and that the judgment was absolutely worthless against Groves. Mr. Tolies files his affidavit in which he says that he has no recollection of any such conversation with Mr. Burrows, nor of having received any letter from Groves on this subject, and that he is unable to find any such letter in the files of his office. Mr. Burrows produces copies of a considerable number of letters written by him or his firm to Mayer, Seheuer, Offner & Co. after the suit was brought. One of these letters is dated July 15, 1899, in which it is stated that the attorney for Mr. Groves had' telephoned Mr. Burrows that he was trying to arrange to raise money to avoid the litigation, and requested that no snap judgment should be taken on him and that they would not file an apswer for a little time if Burrows would consent not to take a judgment until after the date of the letter. Another letter of August 9, 1899, written by Burrows to his clients, says that he had a talk that day with Groves in which Groves said that they would soon be able to pay something. Other letters were introduced which tended to show that either Mr. Burrows was preparing himself to be able to say that Groves knew of the pendency of the action or else Burrows in the letters told the truth.

There is also filed the affidavit of W. E. Rice, a reputable attorney of this bar, not now a practicing lawyer at this bar, but a reputable man, and at the time this judgment was taken a partner with Mr. Burrows in the practice of law; he says in his affidavit: “that subsequent to the filing of the petition in the case within a week or ten days, he saw Groves and Groves told him not to carry out the suit to judgment and he would pay the claim of the plaintiffs in weekly installments.” He says that Groves talked freely about the suit having been brought, saying that he was sorry that the attorneys for the plaintiffs had been so expeditious in bringing the suit, as it only added to the expense and they would not get the money any quicker by reason of the suit.

From this and the other evidence introduced on the hearing of the motion it seems to us that not only was the evidence clear and convincing that Groves was not served with summons but that it is on the other hand clear that he was and that in any event he knew of the pendency of that suit at the time it was pending and before judgment was entered in it.

The result is that the judgment of the court of common pleas must be reversed and the cause remanded.

Henry and Winch, JJ., concur.


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    BUILDINGS — COVENANTS
    [Cuyahoga (8th) Circuit Court,
    November 14, 1910.]
    Henry, Marvin and Winch, JJ.
    Charles D. Boehme et al. v. Milton E. Bertram.
    1. "Residence Purposes Only” in Deed Restriction Means One Family Residence.
    A restriction in a deed that the premises conveyed shall be used for “residence purposes 'only,” means that a residence for one family only can be erected upon the premises.
    2. Owner Violating Building Restrictions cannot Enforce it against Another.
    One owner in an allotment who himself has violated such a restriction can not enforce it against another owner in the same allotment.
    Appeal.

      F. E. Bruml, for plaintiffs.

      White & Crosser, for defendant.
   MARVIN, J.

There is an allotment of land in the city of Cleveland in this county known as Schatzinger & Tromain’s Subdivision. This allotment contains a large number of lots, most if not all of which have a frontage on the several streets of forty feet and a depth of one hundred and twenty-five. One of the streets passing through this allotment is No. 124.

A general plan and scheme was adopted by the original proprietors of this allotment by which the several lots were to be used for the purpose of dwelling-houses only. The original deeds for the lots fronting on 124th street had a restriction reading, “that said premises'shall be used for residence purposes, only; that no intoxicating liquors of any kind shall ever be sold or manufactured on said premises. ’! The plaintiffs are the owners of lot No. 58 fronting on said 124th street. The defendant is the owner of lot No. 59, which fronts on the same street and adjoins said lot owned by the plaintiffs. The plaintiffs have erected on their said lot a dwelling-house, suitable and used for the residence of one family only.

Unless restrained by the order of the court the defendant will erect on his said lot a residence suitable and intended for the residence of four families. The purpose of the present action is to obtain an order perpetually enjoining the defendant from erecting the said four family building and residence.

Residences suitable and intended for the occupation of two families each have been erected on several of these lots fronting on 124th street and without any objection or remonstrance on the part of the plaintiffs or anybody else.

The plaintiffs themselves accepted a deed for one of the lots in this allotment containing a restriction that no residence for more than two families should be erected on the lot conveyed by such deed, and they conveyed this lot to another party with a like restriction.

The only question raised and the only defense here made by the defendant is that the plaintiffs are estopped from interfering with the defendant in the erection of the residence which he proposes to erect; and that is, a residence suitable for four families.

Our Supreme Court have decided in the case of the Lin-wood Park Co. v. Dudley, 63 Ohio St. 183 [58 N. E. 576], that where a lease contains a provision that the lessee would use such premises for the purpose of a.private dwelling or a residence only, that the letting out of rooms to temporary occupants in any dwelling on-the leased premises was á violation of the restriction. And in the case of Rose v. King, 49 Ohio St. 213 [30 N. E. 267; 15 L. R. A. 160], it is held that a four-story building occupied by three families living in separate apartments on the second floor, and by two families living in separate apartments on the third floor, numbering in all sixteen persons, all tenants of one owner, is a tenement house as distinguished from a family residence, within the meaning of the statutes providing for the protection and the regulation of tenement houses. And we think that it may be regarded as settled that in Ohio, a restriction such as that contained in the deeds already mentioned, is violated by the erection of a dwelling, suitable and intended for the use of more than one family. That being so, it is clear that the original general plan of this allotment has been violated and the restriction in the deeds has been violated by each person who has erected a dwelling fitted for more than one family, and it is clear from the facts in the ease, as has already been stated, that this has been done with the assent, that is, without any complaint on the part of the plaintiffs. And we therefore reach the conclusion that the general plan and the restriction in reference to the number of families for which a dwelling may be erected has been waived by the plaintiffs, and that they can not now be heard to complain that one is violating a restriction when he erects a dwelling suitable for four families. Because, having assented to the violation of the restriction (which we hold to be that dwellings shall be erected for one family only), to the extent of assenting to their being used for the residence of more than one family in each dwelling-house, it is not now in the mouth of the plaintiffs to say what number of families may be provided for in a dwelling-house on one of these lots.

The result is that the petition of the plaintiff is dismissed.

Henry and Winch, JJ., concur.


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    CRIMINAL LAW — ERROR
    [Cuyahoga (8th) Circuit Court,
    November 14, 1910.]
    Henry, Marvin and Winch, JJ.

      S. A. Grossner v. State of Ohio.
    1. Matters of Record Judicially Noticed Embodied in Bill of Exceptions.
    Matters of record in the trial court of which it takes judicial notice must be embodied in a bill of exceptions to be considered by a reviewing court.

      2. Resentence on Remand not Affected by Fact of Having Served Part of Erroneous Sentence.
    It is no objection to a resentence of one whose first sentence has been reversed by a reviewing court and the cause remanded for resentence, that the plaintiff in error has suffered some part of the original erroneous sentence.
    Error.

      Affirmed no opinion, (Grossner v. State, 86 Ohio St. 318.

   MARVIN, J.

The plaintiff in error, who is an attorney at law, was, by order of the court of common pleas, enjoined from proceeding with certain cases in which he was attorney before a justice of the peace. He violated the order and proceeded with and obtained judgment in a number of cases. Being brought before the court in proceedings in contempt, he was found guilty and sentenced to be imprisoned in the county jail for ten days. He was further ordered to cause said judgments so taken before a justice of the peace to be vacated, and in default of so doing, that after the expiration of said imprisonment for ten days, he be confined in the county jail until he should so comply, or be otherwise discharged by due course of law. To this judgment and order he prosecuted error to this court. Before we proceeded to the hearing we required that he should cancel his judgments before the justice of the peace, which he did. The error proceeding was then heard in this court, which found that there was error in the sentence, in that the court was without authority of law to commit the accused to prison, and the order made was that the judgment of sentence be reversed and the case remanded to the court of common pleas for judgment and resentence in accordance with Sec. 5581 R. S. (Secs. 11887 G. C. et seq.) Thereupon, said last named court sentenced him to pay a fine of $200 and in default thereof sentenced him to be committed to close confinement in the jail of said county until he shall comply with said order or be otherwise discharged by due course of law, and error is now prosecuted here to said last named sentence.

The section under which the order of this court directed sentence to be pronounced, so far as it authorizes sentence for' contempt, reads:

“And such party maj^ be required by the court or judge to pay a fine not' exceeding $200, for the use- of the county, to make immediate restitution to the party injured, and to give further security to obey the injunction and, in default thereof, he may be committed to close custody until he complies with such requirement or is otherwise legally discharged.”

It will be noticed that the sentence now under consideration conforms exactly with the statute and therefore that the court did just what the mandate of this court required should be done. It would seem to follow necessarily, that, if there is any error in the matter, it can be traced readily and directly to this court rather than to the court of common pleas. The order of this court was in full force when such sentence was pronounced, and still remains in full force.

It is urged, however, that before said last sentence was pronounced, the plaintiff in error had served a part of the term of imprisonment imposed by the erroneous sentence, and that therefore no new sentence, imposing other punishment, could be im-: posed. ■ -

We look in vain .to the record to find the' fact of any imprisonment having been suffered by plaintiff in error, under such sentence. If that fact were material in determining the question before us, it could easily have been brought into this record. Either evidence of the fact could have been submitted to the court at the time of the sentence, and embodied in a bill of exceptions, or if it was a fact of which that court would have taken judicial notice, as is contended here, that should have' been made to appear by record, and brought to this court.

If it be contended that a reviewing court is to take judicial notice of all the trial court is bound to take judicial notice of, the contention can not be upheld. A familiar example of this is found in cases where prosecutions are held before a police court for the violation of municipal ordinances. ■ The police’ court will take judicial notice of the ordinances of the municipality, but the reviewing court will not do so, and the ordinance must be brought by proper record into the reviewing court before that court will reverse because of anything that depends upon such ordinances; if this were not so, the Supreme Court of the state would be required to take judicial notice of the ordinances of every municipality in the state, which would be an impossibility.

Where error proceedings are prosecuted in such cases the court will presume, in the absence of any record to the contrary, that the trial court did not err as to the construction and application of the ordinance, unless it be that the ordinance relied on is one which the municipality was without authority of law to pass. As for instance, that one is prosecuted and convicted of doing' some act which could not be in violation of any valid ordinance.

These distinctions have been pointed out in various cases in this court. See Nelson v. Berea, 12 Circ. Dec. 329 (21 R. 781).

But, it is said, this court should look to an affidavit filed here, showing that plaintiff in error had suffered imprisonment under the first sentence.

We know" of no provision of law, or precedent, which would authorize us to take this affidavit into consideration, and we have not done so.

But we are of opinion that whether the party had suffered some part of the punishment inflicted by the first sentence or not, the trial court was not without power to sentence after the case was remanded, exactly as it could have sentenced in the first instance.

The case of Lee v. State, 32 Ohio St. 113, is not in conflict with this view. In that case, when the court came to resentence, no part of the punishment inflicted by the first sentence had been suffered; and that fact is mentioned in the opinion, and in the syllabus; but it does not follow that even in that case, where •the court .of its own motion and at the same term in which the original sentence was .pronounced vacated such sentence and pronounced a. new sentence, the court might not have .pronounced such -new sentence, even though some part of the- first had been carried-out.

If the contention of the plaintiff in error is sound, it would easily result in consequences- too, absurd to be seriously considered;

To illustrate: One might be convicted of the crime of manslaughter; the court might erroneously sentence to imprisonment for life. Upon proceedings in error being prosecuted, the judgment of sentence would be reversed and the case remanded for resentence, the court then pronouncing sentence that the defendant be imprisoned for the period of five years. It is needless to speculate on whether such sentence would be reversed on proceedings in error. No one would ever have the hardihood to bring such proceedings, even though, before the judgment of reversal, the prisoner had suffered months of imprisonment under the first sentence, before the reversal of the first sentence.

Judgment affirmed.

Henry and Winch, JJ., concur.


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    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    J. M. Dwinell v. M. A. Sprague.
    Third Party Signing Promissory Note after Maturity on Promise of Extension of Time to Maker.
    One who, upon request of the payee, but without knowledge of the maker, of a matured promissory note,- signs said note as a maker, upon the agreement of the payee that he would extend the time for payment of the note, becomes personally liable thereon.
    Error.

      D. T. Miller, for plaintiff in error.

      E. H. Tracy, for defendant in error.
   MARVIN, J.

The parties here are reversed from the relation in which they stood to each other in the court of common pleas. • The terms plaintiff and defendant, as used in this opinion, will refer to the parties as they were in the original case. ■

The plaintiff filed a petition against H. N. Porter and J. M. Dwinell upon a promissory note, in the ordinary form, for $94.60, dated January 15, 1896, payable eight months after date. This note was signed on its face by the two defendants above named. On the back of the note, besides certain .endorsements of payments, is this indorsement: “October 21, 1896, time extended eight mo. from this date. M. A. Sprague per H. J. Fitch.”

No service of summons was had upon Porter. Dwinell filed an amended answer, in which he set up as a defense that the note was originally given and signed by H. N. Porter alone, and that the consideration for the note was given to H. N. Porter that on October 21, one H. J. Fitch, who was the duly authorized agent of the plaintiff, Sprague, came to him (Dwinell) and requested him to sign his name on said note, stating that if he would sign the same as surety the time of payment thereon would thereby be extended to the defendant Porter for a period of eight months; that he (Dwinell) in pursuance of such request of said Fitch, and at the request of no other person or persons, so signed said note; whereupon the endorsement, already mentioned, of October 21, 1896, was made. He says that Porter never requested the plaintiff to secure or attempt to secure the signature of Dwinell, and that Porter was wholly ignorant of the fact, that the plaintiff intended to request him to sign the note, and that at the time and for several years thereafter, Porter was wholly ignorant of the fact, that he (Dwinell) had signed the note or that there had been any extension of the time of payment.'

To this answer the plaintiff filed a demurrer and that demurrer was sustained. Thereupon the ease was submitted to the court, without the intervention of a jury, upon the pleadings and evidence; on consideration whereof the report found for the plaintiff and assessed the damages at the amount appearing upon the note to be due, including interest.

No transcript of the evidence is filed here, and the only error claimed is that the court erred in sustaining the demurrer to the answer, and in entering judgment for the plaintiff.

Of course if this answer was good and if the evidence sustained it, the judgment was erroneous. But we are of opinion that the court did not err in sustaining this demurrer. The answer stated no defense.

It is urged on the part of the plaintiff in error that the signing by Dwinell was without consideration. But if the plaintiff was bound by the endorsement entered on the back of the note on October 21, wbicb, as the answer alleges, was placed thereon, because of the signing of the note by Dwinell, then there was sufficient consideration for this signing, for by that endorsement the plaintiff bound himself to refrain from forcing collection from Porter for a period of eight months from the time of such endorsement and at the time the endorsement was made the note had matured, and the plaintiff prior to such endorsement had a present right of action against Porter. By this éndors'fement he bound himself not to proceed upon such present right, and that was a sufficient consideration. The fact that Porter knew nothing of this agreement .does not defeat the contract, for if an effort had been made to enforce payment at once against Porter, it would have been his right to take advantage of this contract made for his benefit between the plaintiff and Dwinell, the plaintiff having received a consideration for his promise to defer, in that he obtained the signature of Dwinell upon the note.

On the part of the plaintiff it is urged that the signing of the note by Dwinell constituted a material alteration of the note which had the effect of releasing Porter, and made the instrument, after it was signed by Dwinell, simply the note of Dwinell, and that therefore there was a sufficient consideration on the part of Sprague for this signature of Dwinell; that, in effect, it was a release by the plaintiff of Porter from liability from the note, and the acceptance of a note from Dwinell in its stead. Authorities are not wanting for this claim, but whichever view is the right one, whether it be that Dwinell made himself liable to Porter either as a principal or surety, or whether by reason of the alteration of the note he became the only party liable upon it, in either casé Dwinell would not be released from liability, and the demurrer was properly sustained. •

The judgment of the court was right and is affirmed.

Henry and Winch, JJ., concur.


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    ATTORNEY AND CLIENT — ERROR
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    John Urbanowicz and Hedwig Urbanowicz v. Cyril Roman.
    Misconduct In Characterizing Defendant as Rich.
    It is misconduct of counsel for plaintiff to say to the jury in his argument, of and concerning the defendant, “He is a rich man. How did he get rich?' Just that way”; and where, upon objection by counsel for defendant, the trial judge neither reproves counsel, nor cautions the jury, and the facts are close, a judgment against the defendant will be reversed for such misconduct.
    Error.

      J. M.. Downey, for plaintiff in error.

      Henry Du Lawrence, for defendant in error.
   MARVIN, J.

The parties are here reversed from the relation in which they stood to each other in the court of, common pleas. The terms plaintiff and defendant as used in this opinion, will refer to the parties as they were in the original case.

The plaintiff sued the two defendants for services which he claims to have rendered for them as a farm hand from July, 1907, until January 15, 1908. He says that his work was per.formed at an agreed price of $20 per month; that the aggregate for his services would amount to $110; that $48 had been paid to him for these services, and prayed for judgment for $60, with interest.

The defendant, John Urbanowicz, answers admitting that the plaintiff worked for him on the farm; that the time was fifteen days less than the plaintiff claims; that the agreed price was $15 per month, and that he has been paid in full.

The defendant, Hedwig Urbanowicz, answers denying that she is indebted to the plaintiff in any sum whatsoever, and denying that he ever worked for her.

The result of the trial in the court of common pleas was a verdict and judgment for the plaintiff in the sum of $67.20.

The defendants prosecute this proceeding, claiming that the court erred in overruling the motion for a new trial in the case, on the ground that the verdict was against the weight of the evidence, arid on the further ground that there was misconduct on the part of the attorney for the plaintiff.

An examination of the evidence shows that the plaintiff testified that he began working for the defendant, John Urbanowicz, on July 15, 1907. He says that he continued to work for him until the middle of the following January. He testifies that he was paid by the defendant, John Urbanowicz, .$40.50 in money; that the defendant kept a store, and that he received from the store, to apply upon his pay, a pair of shoes and a pair of rubber boots, of the aggregate price of $7.50. He testifies that when he applied for work he asked $25 a month, that Mr. Urbanowicz said he would give him $18 a month, and that they' finally agreed upon $20 per month. He says, besides the money wages which he was to receive, his board and washing were to be furnished by Urbanowicz.

The defendant, John Urbanowicz, says that the plaintiff began working for him not on July 15, but on July 23, 1907; that at the time of the employment, the price was not fixed, but it was agreed that the plaintiff should go to work and they would agree later on what his compensation should be, and that a few days after he begun to work, they agreed on $15 per month. He says that the price agreed upon was fixed after the plaintiff had worked for him about a month, and he says that when the plaintiff quit working for him he settled with him for the entire amount which was coming to him, and he offers a small memorandum book in evidence as to the payments.

As to the defendant, Hedwig Urbanowicz, she is the wife of John, and she is the owner of the farm on which the work was done. The farm, however, was conducted and carried on by the defendant, John, and so far as the judgment against Hedwig is concerned, it should be reversed upon the weight of the evidence. The verdict and judgment against John are not so manifestly against the weight of the evidence as to justify a reversal on that ground. The jury heard the testimony of both parties, as well as other witnesses, and there was nothing improper about the story as told by the plaintiff, nor perhaps as told by the defendant. The jury saw fit to believe the claim of the plaintiff and we would not be justified in disturbing it.

As to the other claim, misconduct on the part of the counsel for the plaintiff, several things are complained of, but only one of them we regard as of sufficient importance to require any discussion at our hands.

During the address to the jury by counsel for the plaintiff among other things he said, referring to the defendant, John, “He is a rich man. How did he get rich? Just that way.” Counsel for the defendant immediately appealed to the court, saying that he objected to the language. The court said: “Do you want the stenographer to take down the speech?” “The objection is overruled. Co on with your argument.” We think this language of the counsel for the plaintiff was clearly improper to the degree that it constitutes misconduct. Earlier, in his address to the jury, counsel for the plaintiff had said, referring to the defendant: “He is a born liar.” This language was in very bad taste, but the theory of the plaintiff was that what the defendant, John, said about the hiring and paying of the plaintiff was not true, and though the language used by counsel for plaintiff in this regard is by no means commendable, we would not reverse the case for this, but what possible bearing could it have upon the case that the defendant was rich, or how he became rich? The language was clearly calculated to prejudice the jury and could have been used for no other purpose. It was not an issue in the case whether either the plaintiff or the defendant was as rich as Dives or poor as Lazarus. If the plaintiff were entitled to recover, it was because he had performed work for the defendant, for' which he had not been paid. That and that only was the issue, and that and that only should have been discussed in argument to the jury.

It is not meant by this, as appears from what has already been said, that in such arguments the conduct of the parties in connection with the transaction may not be commented upon and criticized with such severity as would seem to counsel to be just, but to make a statement which is clearly calculated to prejudice the jury against the defendant on a matter wholly unconnected with the case, and which by no possibility could have any bearing upon it, is reprehensible and, as we hold, amounts to misconduct, justifying a reversal of the judgment.

We had occasion recently in a case in Summit county to reverse a judgment for similar misconduct on the part of counsel for the plaintiff. In that case the offending attorney was a man of large experience, .both at the bar and on the bench. It was a case like this one, in that there was such a conflict in the evidence as that upon the evidence alone the jury might have gone either way, without justifying a reversal of such judgment, as being clearly against the weight of the evidence. In such case, it is especially censurable to use language calculated to prejudice the jury against a party in the ease in a matter wholly outside of any issue in the case. We do not take it upon us to say whether the court, when this offensive language was used, might not have taken such course as would prevent a reversal on the ground of this misconduct; but for some reason, which we are unable to understand, the court being appealed to, declined to take any action, and apparently gave the jury to understand that there was nothing censurable about this language, but said to counsel for the plaintiff, “Go on with your argument.’’

For the reasons indicated the judgment against Hedwig Urbanowicz is reversed, as clearly against the weight of the evidence, and the judgment against John Urbanowicz is reversed because of misconduct on the part of the counsel for plaintiff.

Henry and Winch, JJ., concur.


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    MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    December 19, 1910.]
    Henry, Marvin and Winch, JJ.
    Wellman, Seaver, Morgan Co. v. Cora P. Wood, Admx.
    1. Rule of Safe Place to Work not Applicable when Place Is Under Control of Another.
    The rule that an employer is bound to exercise ordinary care to furnish his employe a safe place to work, does not apply when the place is wholly under the control of another.
    2. Employe Bound by Rule of Knowledge as to Safety of Place to Work.

      Though the employer knew that such place under the control of another was not a safe place to work, or by the exercise of ordinary care might have known it, the employe can not recover if he also knew the same thing, or, by the exercise of ordinary care, might have known it.
    Error.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff in error.

      William Howell and N. Sheldon, for defendant in error.
   MARVIN, J.

The defendant in error brought suit against the plaintiff in error and the Zeigler Coal Co., seeking to recover damages for the death of Jerry L. Wood, which occurred at the mines of said coal company in Illinois on the 3d day of April, 1905. No service of summons was had upon the coal company, and so the case was tried between the defendant in error, as plaintiff, and the plaintiff in error, as defendant; the result being a verdict in favor of the defendant in error. The following facts are shown in the case:

The decedent was killed by a gas explosion at the mines of the Zeigler Co. in Illinois on April 3, 1905; he was an employe of the plaintiff in error; his home was in Ohio, and the plaintiff in error is an Ohio corporation engaged in the manufacturing and placing of heavy machinery and engines. In December, 1904, the plaintiff in error, hereinafter spoken of as the defendant, because it was the defendant below, sent a party of workmen, under the superintendence of one Keown, to put in certain machinery at the mines of the said coal company in Illinois. The decedent, Jerry L. Wood, was one of this party of workmen, and from the time that Keown took the workmen there up to the time of the death of the decedent, he continued in this employment engaged in the work of putting in the machinery at the mines. Coal mining operations were in progress at the mines during all the time that this work was going on. The coal was mined in chambers many feet below the surface of the earth. The miners and others having work to do in the mines were conveyed on a hoist or elevator down a shaft leading from the surface to these chambers, and the employes of the defendant were required to go by this same elevator down tbe shaft to the chambers. The explosion, resulting in the death of the decedent, occurred, as already said, on April 3, 1905, which was Monday, and took place in the morning, just as the workmen, including the decedent, had got on to the elevator platform to go into the shaft, and they were, therefore, at the mouth of the shaft. This explosion was terrific and resulted not only in the death of the decedent, but in the death and injury to still others and the destruction of the elevator platform. The ground upon which the plaintiff, claims to recover is, that this explosion was the direct result of negligence on the' part of the defendant. It should be said that the plaintiff is the duly appointed, qualified and acting administrator of the estate of the decedent, who left a widow and a child only about fifteen months old at the time of his death. The result of the trial was a verdict and judgment in favor of the plaintiff.

By proper proceedings the case is here for review upon errors claimed by the defendant to have been committed to its prejudice on the trial, including error in overruling the motion for a new trial which was made after the verdict; one of the grounds of which motion was that the verdict was not sustained by the evidence. Among the errors complained of is that the court erred in admitting certain evidence offered by the- plaintiff over the objection of the defendant. These have been examined, and the conclusion reached that there was no error in the admission of such evidence to the prejudice of the defendant. Evidence was introduced tending to show that in this mine gases generated, or at least existed, necessitating the ventilation of the mine by the use of a power fan forcing air into the chambers of the mine through a shaft constructed for that purpose, and that such a fan was used by the coal company for that purpose. That such fan was not operated on the Sunday, the day preceding the injury. A witness by the name of C. E. Childers, testified on the part of the plaintiff in a deposition, as also did a witness by the name of Edward Evans. Each of these men had worked at this mine a considerable time before the explosion complained of in this action. ■ Each had discontinued work at this mine some eight or nine months before the explosion. Each was asked as to the condition of the mine in regard to gases and the means of ventilation employed at the mine at the time he worked there, and each was permitted to answer. It is said on the part of the defendant, that the time when these witnesses knew and could testify as to the condition of the mine was too remote from the time when the explosion occurred. We are of opinion that it was admissible to show the condition of the mine at the time these men were employed there, as tending to show that it was a dangerous place, when the use of the fan for ventilation was'omitted, and the fact that gases existed in this mine. True, it was a good while before the explosion that they knew of this situation. But, if by the operation of the laws of nature gases were generated in the mine and existed there in dangerous quantities at the time these men worked there, it might have a legitimate tendency to show that such gases were generated in the mine at the time of the explosion. The weight to be given to this evidence was a question for the jury, and so, as already said, we do not find that the court erred in any ruling upon evidence to the prejudice of the defendant.

The plaintiff claims that one of the duties, devolving upon the defendant, in sending the decedent and others to work at this mine was that it should furnish a safe place for its employes to work. The rule which puts this duty ordinarily upon an employer is different when the employe is put to work in a place wholly under the control of the employer,' than when the employe is put to work in a place under the control of another; or rather, when the employe is put to work by his employer to do work in the premises of another, which are under the control of such other. This is pointed out in numerous cases to which attention is called' in brief of the defendant, such as the case of Shadle v. Cleveland Elec. Illum,. Co., 12 Circ. Dec. 37 (22 R. 49) and authorities noted in that opinion. Among other things this court said in that case, the following:

“There is a difference in the obligation of the employer in the matter of furnishing a suitable place for the employe to work where the work is to be done upon the premises of a third party, and where it is to be done in the shop or factory of the employer. ’ ’

In the case of Sharpley v. Wright, 205 Pa. St. 253 [54 Atl. 896], it is said:

“ It is well settled that an employer is not responsible for an injury sustained by his employe, caused solely by unsafe premises which are owned and controlled by a third person, and where the latter’s services are performed. The reason of the rule is that the employer does not use, own or control the premises, and hence is without power to make any change in their condition. ’ ’

In the case of Hughes v. Malden & Melrose Gaslight Co., 168 Mass. 395 [47 N. E. 125], it is said:

“The principle underlying this and like decisions is, that the employer can not be justly charged with negligence as to matters over which he has no control.”

See also Channon v. Sanford Co., 70 Conn. 573 [40 Atl. 462; 41 L. R. A. 200; 66 Am. St. 133], In that case it is said:

“ If an employer sends his servant to a distant place by rail to do a piece of work on the premises of B, it would hardly be contended in the absence of a special agreement to that effect that the master would be responsible to the servant for the negligence of the transportation company in failing to carry the servant safely, or for the negligence of B in failing to keep his premises in a reasonably safe condition. In the case supposed the servant, both while being carried and while at work on B’s premises, is at work for his master and the railroad car and the premises of B are places where he is directed to and does perform work for his master; and yet the master, as master merely, would be under no duty to use reasonable care to make such places reasonably safe. The law in such cases reads no such duty into the contract of hiring.”

To the same effect is the case of Long v. Stephenson Co., 73 N. J. L. 186 [63 Atl. 910]; Hyde v. Booth, 188 Mass. 290 [74 N. E. 337], and Connelly v. Faith, 190 Pa. St. 553 [42 Atl. 1024].

But, it is said, that notwithstanding this modification of the rule as to the duty of furnishing a safe place for the employe, the master is responsible if he sends his employe to do work in a place which the master knows to be unsafe, or by the exercise of reasonable care should know to be unsafe; and it is said in this case that Keown, the superintendent for the defendant on the work being done at this mine, knew (and hence defendant knew) that it was unsafe to work at this mine when the fan for ventilation was not in operation.

An examination of the record shows that Keown and Wood each knew that this fan was used for ventilating this mine, and each had equal means of knowing the length of time that the fan had been idle. It shows, too, that each had equal means of knowing that there was gas in the mine, for they had together been in the mine or rather the chambers where the mining was done, and so far as appears Keown had never made such a visit to the chambers of the mine except on an occasion when he was accompanied by Wood.

The statute of the state of Illinois was introduced in evidence to show that by law it was required that the mine be inspected from day to day, and a report of such inspection be kept at a convenient place for examination; the place being designated in the statute; and that these reports, had they been examined, would have shown that the inspection had been neglected for a few days preceding this explosion. But certainly Wood had the same means of knowing what the laws of Illinois were that Keown had. He had the same means of knowing where these inspection reports could be seen. He knew, too, from the fact that on the morning of the explosion he walked with Keown from their boarding house (and they both lived at the same boarding house) to the top of the elevator shaft where the injury happened, whether any inspection had been made by Keown or a report as to this inspection.

We think and hold that the evidence fails to show that Wood had not the same means of knowing of the dangers connected with this explosion that Keown had, and so under the rule announced in Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. 857], the verdict was not sustained by sufficient evidence.

In that case the court quotes, with approval, Sec. 414 of Wood, Law of Master and Servant, where it is said:

“The servant in order to recover for defects in the appliances of the business is called upon to establish that the servant • did not know of the defect, and had not equal means of knowing with the master. ’ ’

Whether this be a harsh rule or not, is not a question for us to determine. It has been determined by a court higher than this court, whose decisions this court is bound to follow.

For the same reason that the verdict was not sustained by the evidence, the charge was misleading where the court said (speaking of the decedent) :

“ If he knew of the existence of the danger which caused his death and proceeded to encounter it, it would be a risk assumed by him, and his representative could not recover unless he had notified his superior, and had encountered the danger relying on the promise to remove it by his employer. ’ ’

And again where the court said:

“If you find that the company’s foreman was negligent and that the deceased was without knowledge of that negligence, nor of the danger to which he was exposing himself, that he would not have met his death but for that negligence, then under the statute, the decedent’s representative, the plaintiff administratrix, would be entitled to recover. ’ ’

The first proposition, above quoted, states a proposition of law which is true, to wit, that if the decedent knew of the danger the plaintiff could not recover, but it implied that unless he knew, even though he had equal means of knowing with the defendant, still there might be a recovery.

In the last proposition quoted, he distinctly says there may be a recovery, if the decedent did not know.

Both of these propositions should have been qualified with the statement that such recovery was conditioned further upon the proposition that the decedent had not equal means with the defendant of knowing of the danger.

For the reasons pointed out, to wit, error in the charge as noted, and error in overruling the motion for a new trial on the ground that the verdict was not sustained by sufficient evidence, the case is reversed and remanded to the court of common pleas.

Henry and Winch, JJ., concur.