text:
    MISCONDUCT OF COUNSELS ARGUMENT TO THE JURY.
    Circuit Court of Cuyahoga County.
    The American Hard Rubber Company v. Lola Pierce.
    Decided, June 10, 1910.

      Master and, Servant—Negligence—Nature and Cause of Injuries for Jury—Charge as to Same—As to Assumed Risk—Misconduct of Counsel.

    1. In an action for damages resulting from personal injuries received as a result of the defendant’s negligence, whether the causal sequence in fact includes all that the petition claims in the way of physical disability' from the injury, is a question for the jury.
    2. The fact that the results alleged from the cause alleged are unusual and therefore antecedently improbable, is not the true criterion. Neither is it any test that the cause was small and the effect great, nor that the particular result claimed was facilitated by concomitant circumstances. The real question is whether the plaintiff’s disabilities are directly traceable to the injury received, or whether they were brought about by the active intervention of a new and distinct cause such as some injurious act or conduct of the plaintiff.
    3. Unless the distinction is pointed out between the kindred doctrines of employee’s risk, as applied to the ordinary hazards incident to the employment, on the one hand, and on the other hand to the defects and dangers which are not naturally incident to the employment but of which the employee has notice, it is misleading to charge that “injuries that result from the negligence of the master are not assumed,” or that the rule of assumed risk “presupposes that the master has exercised due care, in providing a reasonably safe and proper place to work, and reasonably safe ■ machinery for the performance of the required services.”
    4. It is misconduct of counsel, for which a judgment will be reversed, to say to the jury: “And the first thing this defendant did when this suit was brought was to compel this poor girl to give security for costs. This girl worked at this shop at a dollar a day. No wonder men become millionaires when they employ girls at such niggardly wages. You should give something as a wholesome example to this defendant in this case. Let your verdict be so large that it will be a lesson and punishment to this defendant to obey the law.”

      Arthur Van Epp, W. H. Anderson, J. A. Kohler, C. E. Smoyer and Thompson, Glitsch n Ginniger, for plaintiff in error.

      Musser, Kiniber if- Huffman, contra.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   This proceeding in error was brought to reverse a judgment recovered by the defendant in error for damages for personal injuries sustained by her September 7th, 1906, while in the employ of the plaintiff in error, a manufacturer of hard.rubber products such as penholders, telephone receivers, etc.

The defendant in error at the time of her injury was a young woman twenty years old. She entered this company’s employ about August 9, 1906, and between that date and the time of her injury she worked in the building room, in all about three weeks. She had previously had some factory experience in two other establishments, but not at the same kind of work. Here she was engaged with many other female employees, in polishing the small hard rubber objects which this company manufactured. This was accomplished by pressing the object to be polished against the cloth covering of a rapidly revolving buffing wheel. There were in the buffing room a number of such wheels, arranged in rows about fourteen or sixteen feet apart, each wheel having an operator. To facilitate the work of polishing each operator was supplied with a lump of polishing compound, known as a grease-ball, which was applied from time to time to the revolving wheel by pressing the same against it.

Lola Pierce was one of these operators. Birdie Springston was another. At the time of the accident they were situated diagonally across the room from one another, and working at their respective wheels in different rows-. "While Miss Springston was applying her grease ball to her wheel, it slipped from her grasp, and being forcibly thrown by the revolving wheel across the room, struck Miss Pierce in or over her left eye. The blow was not such as to leave any permanent external marks, but it was followed by a nervous condition which renders her apparently a physical wreck, . ....

ITer petition below alleged that the company was aware that the wheels not infrequently threw objects across the room in this manner, but that she was without means of knowing and did not know that such' was the fact. The negligence alleged is that the company failed to provide screens or other means to intercept such flying objects. The company insists, however, that its buffing room was equipped in the customary and most approved manner in every respect, with suction blowers- to carry away the dust and without any concealed danger in or about the machines; that Miss Pierce had previously worked at the wheel which threw the grease-ball, and in short that she had full knowledge of the situation and of the conditions attending' and surrounding her at the time she was injured.

The errors assigned here are:

- First. That the assumption by the plaintiff below of the risk from the negligence alleged by her is manifest both from her petition and from the facts proved; this question being saved by demurrer to the petition, and by motions to direct a verdict, and, after verdict, for a new trial, all of which were overruled and exceptions reserved.

It is true that the absence of any screen which would intercept objects flying across the room was manifest to the plaintiff below,, but it is by no means clear that the danger against which a screen would have protected her was apparent to an employee with such experience and understanding as she had. In Pennsylvania Company v. McCurdy, 66 Ohio St., 118, it was held that :

“An employee experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, might have knowledge.”

It can hardly be said, however, that the plaintiff below was experienced in this service wherein her entire period of employment was not more than three or four weeks. The cause of her injury was not of the sort that to be appreciated needs but to be seen, but was rather of the nature of a latent danger discoverable only by reason of experience, in addition to mere observation. To the latter class belongs the case of The Lake Shore & Michi gan Southern Railway Co. v. Fitzpatrick, 31 Ohio St., 479, wherein:

“The plaintiff was employed by the defendant to operate a turntable by means of a cranlr that was stationary upon and revolved with the turntable and a track was laid in such proximity to the turntable that while an engine was on the turntable being turned by. the plaintiff it ivas struck by an engine passing upon the track, causing the crank to strike the plaintiff by a reverse motion, inflicting the injury complained of.”

In that ease all the facts which contributed to the ultimate result were within the range of Fitzpatrick’s observation but it would have required reflection to bring home to his mind the possibility of his being injured under those circumstances. So here, anyone who once observed an object thrown across the buffing room by any of the wheels at which the operators worked, would of course realize that the occurrence might be repeated, but until it had once occurred in fact, it would be quite unlikely to occur to the mind of an employee having but little experience.

There is some evidence in this case that the foreman had been present on some former occasion when an object was thrown across the room thus, but whether so or not, notice of the likelihood of such an occurrence may fairly be ascribed to the employer who had installed the machinery and provided the power by which it was operated, and who exercised the duty of oversight of the business. There is no evidence to show that the plaintiff below had any actual knowledge of any prior occurrence of this sort, and as already intimated constructive notice can not, merely as a matter of law, be ascribed to her. The doctrine of Coal & Car Co. v. Norman, 49th Ohio St., 598, was properly charged to the jury and this sufficed to cover the subject.

The second assignment of error -is that the verdict of twelve thousand dolla-rs is excessive and was apparently given under the influence of passion and prejudice, so as to include compensation for a disability which, so far as it is real and not merely apparent, is neither the direct consequence of the blow received by the plaintiff below, nor was it reasonable to be anticipated as likely to result from the alleged negligence of the defendant below. The cause, extent and reality of plaintiff’s physical disability were, as the bill of exceptions discloses, sharply contested upon the trial. There are indeed disclosures in the record, to some of which we shall again advert, that suggest an overestimate by the jury of the actual damage sustained by the plaintiff below, as a direct consequence of the alleged negligent injury, but we fail to find enough in the record to warrant us in saying, as a matter of law, that the jury were biased, or that the verdict is excessive. On the contrary, it is apparent that if she was not malingering, and if her condition at the time of the trial was not due to some other and different cause than the one she alleges, the amount of the verdict will afford her but imperfect compensation for aggravated and lifelong invalidism.

AVhether the causal sequence in fact includes all that the petition claims in the way of physical disability from the blow which the defendant in error received, was, of course, a question for the jury. The fact that such results from such a cause are unusual, and therefore antecedently improbable, is not the true criterion. Neither is it any test that the causo was small and the effect great; nor that this particular result was facilitated by concomitant circumstances. The real question is whether the defendant in error’s disabilities are directly traceable and attributable to the blow, or whether they were brought about by the active intervention of a new and distinct cause, such as some injurious act or conduct of her own.

The third error assigned is upon the admission of evidence as to the existence of screens in other factories at the present time, and as to the former maintenance of such screens in this factory, all of which .is claimed to be prejudicial because of the fact that the jury in this case had viewed the premises and seen the buffing room equipped in like manner after the accident. This situation, if we correctly apprehend it, is not fully disclosed by the bill of exceptions, and after examination of the pages referred to in argument and in the brief of counsel, we find no prejudicial error, although it would apparently have been better under the circumstances if the jury had not been permitted to view the premises at all.

As to the existence of screens in other factories the witness Dangel was asked but replied that he did not know; and as to the present screens in the Akron factory the witness, though asked, did not answer, and the question was not pressed. We find no error in this regard.

The fourth assignment of error is upon the refusal of requests to charge presented by the defendant below, particularly' the second request; and the giving of the third and sixth requests presented by the plaintiff below.

Defendant’s second request sought to limit its liability to $3,000 pursuant to the provisions of Section (4238-ol), Revised Statutes, which provides that:

‘ ‘ In any action brought by an employee, or his legal representative, against his employer,' to recover for personal injuries, when it shall appear that the injury was caused in whole or in part by the negligent omission of such employer to guard or protect his machinery or appliances, or the premises or place where said employee was employed, in the manner required by any penal statute of the state or United States in force at the date of the passage of the act, the fact that such employee continued in said employment with knowledge of such omission, shall not operate as a defense; and in such action, if the jury find for the plaintiff, it may award such damages not exceeding, for injuries resulting in death, the sum of five thousand dollars and for injuries not so resulting, the sum of three thousand dollars, as it may find proportioned to the pecuniary damages resulting from said injuries.”

This section is claimed to be applicable because plaintiff’s cause of action arises under Revised Statutes (4364-86) which provides:

“That all persons, companies or corporations operating any factory or workshop, where emery wheels or emery belts of any description are used, either solid emery, leather, leather covered, felt, canvas, linen, paper, cotton or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers, or similar apparatus, which shall be placed over, besides or under such wheels or belts, in such a manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to carry away the dust arising from or thrown off by such wheels or belts while in operation, directly to the outside of the building, or to some receptacle place, so as to receive and confine such dust.”

Some confusion appears to have been interjected, intentionally or otherwise, into the trial of this ease in regard to the presence and function of blowers. As we view the record, the presence or absence of blowers is utterly immaterial. Their function is to dispose of dust, etc., so that the operator’s health shall not be injured by inhaling the same, etc. It can not be assumed that they have any function whatever in respect to intercepting objects that are thrown by the wheels across the room in which the work-is being done. There is, therefore, no ground for invoking these statutes. In the final state of the pleadings these statutory provisions are not invoked by the plaintiff, and'the defendant was clearly not entitled to invoke the limitation of liability therein prescribed.

Not less plainly unwarranted are the two requests, Nos. 3 and 6, which were’ presented by the plaintiff below, given by the court, and excepted to by the defendant. They are both misleading. Without quoting them at length it suffices to say that they confuse the kindred but distinct doctrines of employee’s risk, as applied to the ordinary hazards incident to the employment, on the one hand, and on the other hand, to the defects and dangers which are not naturally incident to the employment but of which the employee has notice. Unless this distinction is observed and allowance therefor properly made, it is misleading to say that “injuries that result from the negligence of the master are not assumed,” or that the rule of assumed risk “presupposes that the master has exercised due care, as above defined, in providing a reasonably safe and proper place to work, and reasonably safe machinery for the performance of the required services.”

The language thus employed, and indeed we believe the entire context of both these requests is taken from opinions of the Supreme Court; but it is to be remembered that since the reporter’s note of August, 1857, prefacing the 6th V.olume of the Ohio State Reports, the syllabus and not the opinion of the judge who announced the decision of the court in any case is to be taken as the authoritative expression of the precise point of law therein adjudicated. Moreover, it will not do to take language out of an opinion of a court which is entirely correct so long as it is understood as applying peculiarly to the facts of the case then in hand and charge the same in another case involving a different state of facts as a correct statement of law applicable thereto.

It follows from what has been said that these requests should not have been given because they were misleading and inaccurate as applied to the facts in this ease.

The fifth assignment of error is upon the refusal of the motion for a new trial, because of newly-discovered evidence. We do not think, however, that such diligence was shown in respect to procuring the evidence in question at the time of the trial of the cause as to warrant the granting of a new trial for that reason. Nor is the excuse that counsel for the defendant below expected the plaintiff to produce the. witnesses from whom this testimony might have been derived at all adequate. The defendant had opportunity to present evidence afterwards, but failed to take advantage of it. The fact that they had not time to communicate with the witnesses and find out whether their testimony would be favorable or unfavorable, if it be a fact, is of no moment.

The sixth and last assignment of error is opon the refusal to grant a new trial for alleged misconduct of counsel below in argument to the jury. We think there was decided misconduct in the use of the following language in the argument of counsel for plaintiff below to the jury.

"And the first thing this defendant did when this suit was brought was to compel this poor girl to give security for costs. This girl worked at this shop at a dollar a day. No wonder men become millionaires when they employ girls at such niggardly wages. You should give something as a wholesome example to this defendant in this ease. Let your verdict be so large that it will be a lesson and punishment to this defendant to obev the law.”

It is true that .the court subsequently instructed the jury as follows:

"In your deliberations you should entirely disregard what counsel for plaintiff said about a motion having been filed in this case to compel plaintiff to give security for costs, and not allow the same, even if the same were true, to influence your verdict in any particular. That is a right which resident defendants have to be indemnified against the liability for costs which a non-resident plaintiff would make in the prosecution of an action in court. ’ ’

In The Toledo, St. Louis & Western Railroad Company v. Burr & Jeakle et al, decided by the Supreme Court of Ohio, April 12, 1910, .the court says of a statement no more prejudicial than that above quoted from the argument of counsel for plaintiff below: . ‘

“That the statements thus made by counsel transcended the bounds of legitimate argument and were grossly improper, is both obvious and conceded, but it is claimed that any prejudicial effect which such statements may have had was removed or cured by the subsequent action of court and counsel. This conclusion we think, by no means follows, nor does it affirmatively appear in this case that such conclusion is justified by the facts. While it is true that courts of last resort have frequently, though not uniformly, held the rule to be, that the prejudice, if any, resulting from the' misconduct of counsel in argument to the jury may be eliminated or cured by the prompt withdrawal of the objectionable statements made by counsel accompanied by an instruction from the court to the jury to disregard such statements, yet this rule, so far as our examination of the authorities has disclosed, is recognized and applied by the courts in those (¡ases only, where it is 'made to appear by the record from a consideration of the character of the statements made, that their prejudicial effect has probably been averted by such withdrawal and instruction. ’ ’

Continuing the opinion, the learned judge points out, “the question of defendant’s negligence and consequent liability was at best a very close question of fact, involved in much uncertainty and doubt.” And that:

“The attempted withdrawal of these statements from the jury was wholly impotent to rid them of the mischievous inference that they were nevertheless true, and was utterly ineffectual to dislodge or remove from the minds of the jurors the .harmful impression, which such statements were calculated, and obviously intended to produce. No other rational conclusion can-be. reached in this case than that plaintiff’s counsel by the making of such statements intended thereby and in that way to get before tbe jury a fact which he was not entitled to, and one which from considerations of public policy the law forbade should be mentioned on tiie trial, and this for the sole and obvious purpose of inducing in the minds of the jury the impression or belief, that the railroad company in making such offer had, indirectly at least, confessed and admitted its liability. Manifestly this was the purpose of counsel’s statements, and we think it impossible to say in this case that such was not their effect. While it should perhaps be said, that after objection made, court and counsel did all in their power to counteract and overcome the effect of these improper and prejudicial statements, yet, the mischief' had been done, the poison had been injected, and that which thereafter occurred was not, in our judgment, a sufficient antidote. It is the policy of the law to encourage the settlement of legal controversies, and hence it does not permit an offer of compromise to be given in evidence as an acknowledgment or admission of the parts’- making it, and this salutary rule, which is grounded upon consideration of public policy, just as imperatively’- forbids that the fact that such offer was made shall be mentioned or commented upon by counsel in argument to the jury, and when it is, unless it shall clearly appear from the record in the particular case that the verdict of the jury was not affected thereby, the misconduct is such as to require in the due administration of justice, that a new trial be granted therefor. The vieyv that misconduct of counsel such as is complained of in this case is sufficient to warrant and require the granting of a new trial unless it be made to appear that the verdict of the jury was not in any manner influenced thereby, is fully supported by the several eases cited in the brief of counsel for plaintiff in error, and by many others.”

For the reasons thus expressed, we think the court below erred in the case at bar in refusing to grant a neyv trial for misconduct of counsel.

For error, therefore, in charging tbe jury in accordance with requests Nos. 3 and 6 by tbe plaintiff below, and in refusing a motion for a new trial, because of misconduct of counsel for the prevailing party, the judgment is reversed and the cause remanded for á new trial.


source: Caselaw Access Project

license: Public Domain

text:
    FIXING THE GRADE OF„A DEDICATED STREET.
    Circuit Court of Lorain County.
    The Ely Realty Co. v. City of Elyria.

    Decided, September 28, 1910.

      Municipal Corporations—Dedication o/ Street—Establishing Grade— Damages.

    Where land is dedicated for a street, the dedication carries with it the right to improve to a reasonable grade.

      E. G., H. G. and T. G. Johnson, for plaintiff in error.

      H. A. Pounds, contra.
    Henry, J.; Winch, J.. and Marvin, J., concur.

       Affirmed without opinion, Ely Realty Co. v. Elyria, 86 Ohio State, 328.

   Tbe parties stand here as they stood below. There the action was one to recover damages occasioned by the placing of the abutment of a high level bridge across Black river in the highway in front of plaintiff’s land in the city of Elyria.- The highway was originally dedicated to the river’s edge by Herman Ely, the founder of the city, and a predecessor of the plaintiff in the ownership of said land. The petition, though intimating that the dedication was never accepted, nevertheless alleges that the location of the bridge abutment is a public highway. The city, it may be fairly inferred .from the petition, had, by proper proceedings taken shortly before constructing the bridge, caused the highway to be extended in contemplation of law across the river to a corresponding highway on the opposite bank. Then it proceeded to effect what amounts to a very considerable change in the actual grade, by building said high level bridge. The abutments constitute a substantial impediment to ingress and egress to and from plaintiff’s land. No previous legal grade had, however, been established, and plaintiff’s land is unimproved.

Under these circumstances we are unable to distinguish the case from the long line of authorities which establish that a reasonable grade when first fixed by the public authorities, however much it may alter the actually existing surface of a highway, affords no ground for the recovery of damages by abutting lot owners. Their plight is expressed in the maxim damnum absque injuria. Where land is dedicated for a street the dedication carries with it the right to improve the street to a reasonable grade.

The facts of Cohen v. Cleveland, 43 Ohio St., 190, are admittedly such as to distinguish it from the case at bar. It will be remembered that the facts of that case are these (I read from the syllabus):

“Under the acts of 1872 and 1876 (69 O. L., 138, 73 Ohio Laws, 107), a viaduct sixty-four feet wide, with a level roadway was constructed in Cleveland across the Cuyahoga river. On the south side of Superior- street, between Water street and the river, a distance of 768 feet, the city condemned a strip of ground, and the viaduct was constructed over that strip and over part of Superior street, about thirty-seven feet being over the strip opposite Cohen’s premises, and the balance over the street, so that in effect Superior street, which was ninety-three feet wide, is reduced in width between Water street and the river, and opposite Cohen’s premises its present width is sixty-six feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen which are on the north side of Superior street, midway between Water street and the river, the elevation is forty-five feet and it is alleged that the viaduct diverts travel from that part of Superior street, impairs the light and air to Cohen’s premises, causes noise and the jarring of his house day and night, and has impaired the value of his property and reduced its rental value. Held:
“1. The viaduct is a lawful structure.
“2. On proof of the alleged injury, Cohen is entitled to damages.
“3. Colme is not owner of a lot ‘bounding or abutting upon the proposed imphovement, ’ within the meaning of the municipal code, Section 564, and hence it was not necessary for him to file a claim for damages under that section.”

We do not consider that that decision is applicable to the facts of the ease before us, and while the facts here undoubtedly present some elements that have not been present in any cases of the sort referred to in the long line of decisions of the Supreme Court of this state, yet we think that the facts are to be assimilated to the change of grade cases' where no grade had previously been established, and the demurrer to the petition below, was properly sustained, and the judgment is. affirmed.


text:
    BREACH OF ADVERTISING CONTRACT.
    Circuit Court of Lorain County.
    A. A. Hartzell v. H. A. Oehlke.
    Decided, September 28, 1910.

      Contract—Termination of, by Defenclnat—Action on Contract for Part Performed and on Breach of Contract for Balance.

    In an action on a contract for publication of advertising matter, when it appears that the defendant notified the publisher to discontinue the publication, the publisher is entitled to recover for advertising published up to the date of the notice and damages for breach of the balance of the contract; he can not disregard the notice, continue the publication and thereafter recover full compensation as provided in the contract.

      Webber c6 Metcalf, for plaintiff in error.

      G. A. Beseh and Van Deusen & Calhoun, contra.
    Henry, J ; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand related here as they stood below. The plaintiff there recovered ■ a judgment (which he deems to be inadequate in amount), in his action for the entire compensation provided for by the terms of a written contract which his petition alleges to have been fully performed on his part. The agreement between the parties is styled " Advertising Contract” and is dated "Lorain, 0., Aug. 26, 1908.” It provides in substance that Hartzell was to publish in the programs of the Majestic Theater in that city at every performance during the season of 1908-9 such advertising copy to occupy two .spaces of 2% by 5% inches each at top of page as the defendant Oehlke, a merchant of Lorain, should supply from week to week for that purpose, to be paid for at the price of one dollar for each performance, payable weekly.

Upon the trial it appeared that Oehlke had notified the plaintiff that he would not be bound by the agreement any longer and requested that the publication of his advertisement be discontinued. Hartzelt ignored this notice and request, continued the publication throughout the season, and sued for the whole amount stipulated in the contract, on the theory, apparently, that the agreement remained in full force, unaffected by the renunciation, and that it had been completely executed by him. The answer set up the repudiation of the contract and alleged that it had been procured by fraud and false representations. The verdict eliminated the issue of fraud by affirming the validity of the contract, trader proper instructions of the court in that behalf; but, under the charge of the court, the verdict could and did embrace only the amount of the earned installments of compensation which accrued before the contract was repudiated. The court thus instructed the jury:

“Ordinarily, in a proper action for breach of contract the plaintiff would be entitled to recover the damage which the evidence showed he suffered as the natural and necessary consequence of the breach of said contract by the defendant which he admits he committed when be served notice on the plaintiff thirty days after the contract was signed, but if such was this action, even if the contract was valid, the defendant had a right to stop its further performance by the plaintiff, being liable in damages in a proper action for so doing; but after the defendant repudiated the contract and ordered the plaintiff to discontinue its performance, the plaintiff could not add to his damages by disregarding the repudiation and continuing performance.
“But this is not such an action. This is an action on the contract, and if the contract was a valid contract the plaintiff can, if he chooses, sue for and recover pay at the contract price for so much as was due under the contract at the time of repudiation, and in this action that is all he can recover. The fact that it cost the plaintiff to continue the publication after repudiation of the contract by the defendant or that defendant might have derived some benefit from the continued publication, has nothing to do with the amount which plaintiff is entitled to recover in this action, and there being no evidence of damage for breach of contract in this case, if you find that the contract is valid, not void lor fraud, jmu will return a verdict for the plaintiff for the amount which was due at the contract price for the publication at the time of the repudiation, together with interest thereon from the time of the repudiation to the first day of this term of court, which was April 4, 1910.”

This charge accords with the doctrine laid down in 3 Page on Contracts, Section 1435 et seg. A similar case is Waid et al v. American Health Food, Co. (Wis., 1903), 96 N. W., 388, the last three paragraphs of the syllabus of which are as follows:

“Defendants contracted with plaintiffs to place their advertising cards in certain railway ears in a manner provided from June 19, 1900, up to and including July 10, 1901. The contract also provided that 'non-use of space from advertiser’s act or omission was the advertiser’s loss/’ Held,: That the contract did not constitute a sublease of space which had been let by the owners of the cars to plaintiffs, but was a contract for plaint-.. iffs’ personal services, and was. therefore, executory until the date provided by the contract for its termination.-
“Where defendants contracted with plaintiffs for certain advertising to be placed in railroad cars for a period of twelve months, the contract being executory-before termination of the contract period, defendants were entitled to stop further performance on plaintiffs’ part and limit their further liability for remaining period to damages sustained from breach of the contract.
“Defendants contracted with plaintiffs for certain advertising to be placed by plaintiffs in certain railroad cars for a period of twelve months. Oh the expiration of two months and seventeen days defendants directed plaintiffs to remove the cards, which they failed to do, and after the expiration of the twelve months brought suit to recover the contract price, alleging full performance. Held: That defendant’s notification constituted a breach of the contract, and hence, under the complaint, plaintiffs were only entitled to recover the contract price for the two months and seventeen days during which the contract was performed prior lo the breach.”

I am not sure that this syllabus is the syllabus prepared by the court for the official reports, but it is sufficiently well prepared to reflect the view which the court take .of the case, the facts of which arc strikingly like those in the case at bar.

An advertising contract of this sort being thus deemed to be a contract for personal services the rule in this jurisdiction may be found in James v. Allen County, 44 Ohio State, 226, where Spear, J., at page 237 says:

“As a result from the authorities, as well as upon principle we are satisfied that in such a contract as the one in the' case at bar, where the employee is wrongfully dismissed, but all wages actually earned up to that time are paid, the only action the employee has, whether he bring it at once or wait until the entire period of hire has expired, is one for damages for the breach of the contract, and the measure of damages will be the loss or injury occasioned by that breach.”

Some of the reasoning of the court in the opinion in the ease of James v. Allen County, is not applicable to the facts before us now, and with respect to the line of reasoning here indulged it may be asserted, and it has occurred to our minds, that there is a difficulty arising from the fact that ITartzell in this case continued to perform the contract, or to perform the things contemplated by the contract as originally made, throughout the full contract period and then sued alleging full performance and praying for the contract price or pay for his services so rendered.

The answer to the suggestion of difficulty arising from that plain statement of facts of the case is to be found, we think, in this: that from the moment of the renunciation of the contract, wrongful though it be, the relationship of employer and einployee, the status of employment, is terminated and thenceforward the things done in attempted fulfillment of the contract are not done in pursuance of the relationship which the contract creates, that relationship having been terminated by the repudiation of the contract. So that no action for wages or compensation, or pay, for the period elapsing after the contract is so repudiated can be maintained, and the only action, as Judge Spear says, .that can be maintained under such a state of facts is an action for damages for breach of contract. There is no hint or suggestion in the petition in this ease that such was the theory of the pleader when he prepared the petition that was filed in the court below. ITis theory was simply that the contract remained in full force and effect and that he had fully performed it, and he was entitled to the pay which was provided for.

The trial court, we think, correctly charged the jury and we find no error in the charge nor elsewhere in the record, and the judgment below is affirmed.


text:
    PROSECUTION FOR. ABSTRACTION OF STOCK OF A FREE BANKING CORPORATION.
    Circuit Court of Stark County.
    William L. Davis v. State of Ohio.
    Decided, July 21, 1910.

      Abstracting Property of Bank—Free Banks—Certificates of Shares Therein. ' '
    An officer of a state bank, incorporated under the free banking- act, who withdraws from its custody certain certificates of partially paid up shares of its capital stock, owned by him and by him hypothecated to it as additional security for an antecedent debt due from him to said bank, can not .be convicted under Section 3821-85, Revised Statutes, of abstracting property of said bank.
    Henry, J.; Marvin, J., and Metcalfe, J., concur.
   The plaintiff in error, an officer and director in the Canton State Bank, incorporated under the free banking act, was convicted of abstracting from it certain certificates of partially paid-up shares of its capital stock, owned by him and by him hypothecated as additional security for an antecedent debt due from him to said bank, the same being in alleged violation of Revised Statutes, Section (3821-85), which reads as follows:

“Every president, director, cashier, teller, clerk or agent of any banking company, who shall embezzle, abstract or willfully misapply any of the moneys, funds, or credits of such company, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any notes, bonds, drafts, or bills of exchange, mortgage, judgment or decree, or shall make any false entry in any bank book, report or statement of tbe company, with intent in either case to injure or defraud the company, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the company, or any agent appointed to inspect the affairs of any banking company in this state, shall be guilty of an offense, and, upon conviction thereof, shall be confined in the penitentiary at hard labor, not less than one year, nor more than ten years.”

Among the errors assigned is the fundamental one that the .first count of the indictment, being the one on which the conviction was had, states' no offense. This count charges that:

‘ ‘ William L. Davis and Corwin D. Bachtel late of said county, on or about the 13th day of December, in the year of our Lord one thousand nine hundred and four, at the county of Stark aforesaid, said William L. Davis being then and there an officer, to-wit, vice-president and a director of the Canton State Bank, a corporation, incorporated and organized as a banking company under the law of the state of Ohio, known as the free banking act passed 1851, by the Legislature of Ohio, and which banking company, on or about the 25th day of December, 1904, and at the time of the abstraction of' the personal property of said banking company, to-wit, the certificates of stocks as hereinafter described, was doing a banking business in the city of Canton, Stark county, Ohio, as a free banking company, and said Corwin D. Bachtel being then and there and at the time an officer, to-wit, the cashier and director of the Canton State Banking Company, certain property, to-wit, certain certificates for 350 shares of the capital stock of said banking company, to-wit, certificate No. 20 for 100 shares, certificate No. 181 for 100 shares, certificate No. 223 for 100 shares, certificate No. 244 for 40 shares and certificate No. 256 for 10 shares, which said certificates of stock had theretofore been issued by the said Canton State Bank to the said William L. Davis, and which said certificates of stock had theretofore been hypothecated by the said William L. Davis with'the said Canton State Bank, as security for moneys theretofore received by the said William L. Davis from the said, the Canton State Bank, and which said certificates were of the face value of fifty ($50) dollars per share, and upon which had been paid thereon the sum of thirty ($30) dollars per share, and which said certificates were then and there of the value of one hundred and five thousand ($105,000) dollars, of the personal property of and belonging to the said the Canton State Bank. They, the said William L. Davis and Corwin. D. Bachtel, officers of the said the Canton State Bank, as aforesaid, did, at the time and date aforesaid and at the county aforesaid, with the intent on their part to injure and defraud the said the Canton State Bank, unlawfully and fraudulently abstract from the possession of the said the Canton State Bank said certificates of stock heretofore described without the authority of any of the other officers and directors of the said the Canton State Bank, and thereby did defraud and injure the said the Canton State Bank.”

The alleged insufficiency of this indictment is predicated upon the provisions of Sections 11 and 12 of the Free Banking Act, Revised Statutes,'Sections (3821-70) and (3821-71) as follows:

“Sec. 11. The capital stock of every company shall be divided into shares of fifty dollars each, which shall be deemed personal property, and shall only be assignable on the books of the company, in such a manner as its by-law^ shall prescribe; each bank shall have a lien upon all stock owned by its debtors, and no stock shall be transferred without the consent of a majority of the directors, while the holder thereof is indebted to the company.
“See. 12. No company shall take, as security for any loan or discount, a lien upon any part of its capital stock; but the same security, both in kind and amount, shall' be required of shareholders as of persons not shareholders; and no banking company shall be the holder or purchaser of any portion of its capital stock, or of the capital stock of any other incorporated company, unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, on security which, at the time, was deemed adequate to insure tbe payment of such debt, independent of any lien upon such stock; and stock so purchased shall in no case be held by the company so purchasing, for a longer period of time than six months, if the same can be sold for what the stock cost, at par.”

It will be noticed that these statutes give to a free banking corporation a lien upon all stock owned by its debtors, and provide that “no stock shall be transferred without the consent of a majority of the directors while the holder thereof is indebted to the company.” They further provide that “no company shall take, as security for any loan or discount, a lien upon any part of its capital stock,” and “that no banking company shall be the holder or purchaser of any portion of its capital stock * . * # unless such purchase shall be necessary to prevent loss upon a debt previously contracted,” etc. The certificates of stock in the ease before us were not transferred upon the boobs of the company from the name of the plaintiff in error to that of the defendant in error, so as to make the bank “the holder or purchaser of any portion of its capital stock” represented by such certificates. The only possible property interest, which could have been contemplated by this transaction as passing from Davis to the bank, in and to the certificates in question or the portion of the bank’s capital stock which they represented, was that of a pledge, or the lien created by a deposit of certificates of stock as collateral security for a debt owing by the bailor to the bailee. But the object thus contemplated is specifically prohibited by the statutory provision already quoted, that “no company shall take as security for any loan or discount a lien upon any part of its capital stock.” This prohibition is, if possible, made more specific by the circumstance that the statute provides that such “bank shall have a lien upon all stock owned by its debtors,” and'this without the necessity of any deposit, contract or other transaction whatsoever; and by the further circumstances that the statute expressly allows the outright purchase by the bank of its stock owned by its debtor when.“necessary to prevent loss upon a debt previously contracted in good faith,” etc. The property rights in its own stock which a free banking corporation may not have, and those also which it may or does have, are alike defined, and limited by express provisions of law, and such enumeration is necessarily exclusive.

It follows that the deposit by Davis oE his certificates of stock with the bank, and the acceptance of such deposit by the bank, for the purpose of creating a lien thereon or upon the stock represented thereby, was ultra vir.es and in contravention of an explicit provision of the statute by which the bank was created and under which alone it could lawfully do business. The transaction was vain and nugatory. It could accomplish nothing beneficial to the bank, for the bank had its statutory lien: and if a pledgee’s lien be supposed to be in any respect superior to or different from the statute lien, the bank could derive nothing therefrom, because such superiority, or difference, if any, transcended the express limitations upon the hank’s authority to have or enjoy a lien upon its own stock.

In this posture the transaction between the parties rested at the time the alleged offense was committed.

The bank, having gained no advantage by the transaction could suffer no detriment by its undoing. Davis had lost no rights in the certificates of stock and could work no wrong upon the bank by repossessing himself thereof. It was the continuing duty of the parties' to undo the illegal thing which they had done in the making and accepting of such deposit. If Davis had at any time demanded of the directors a return of his certificates, they would have had but one lawful course open to them, to-wit, to comply with such demand. Davis, as an officer and director of the bank, having access to the certificates, which were all the time his own property, could, without trespass, taken them into his own'possession, either with or without demand made or permission had. ITis doing so was not an offense. He did not “embezzle, abstract or willfully misapply any of the moneys, funds or credits of such company” by taking his own certificates, which he had the immediate, continuing and absolute right to possess. He could not and did not take the entire property nor indeed any property beyond what he all the while had in the stock represented by those certificates: nor did he deprive the bank of the statutory lien which it had and retained therein.

There may be and doubtless are cases in which certificates of stock, as the evidence of ownership of some portion of the capital stock of a corporation and the muniments of title which pass from hand to hand by way of symbolical delivery of possession of the intangible property which they represent, may be considered as the stock itself. But it must not be forgotten that, as clearly set forth by Crew, J., in Ball & The American Exchange Bank et al v. The Towle Mfg. Co., 67 Ohio St., 306, 314, it is an

“Erroneous assumption and mistaken notion that the stock itself follows the certificate, and that possession of the certificate is possession of the stock. There is a marked and obvious distinction between the stock of a corporation and the certificate representing such stock. The certificate of shares of stock in a corporation is not the stock itself, but is a mere evidence of the stockholder’s interest itself, in the corporate property of the corporation which issues said certificate (Cook on Stocks and Stock holders, Section 485). In the absence of statutory or charter requirement no certificate of stock is necessary to attest the rights of the shareholder in the corporation, and such certificate when issued to the owner of shares of stock is merely an evidence or acknowledgment of the owner’s interest in the property of the corporation, but is not the property itself. In law a corporation is the trustee of the corporate property and holds the same for the benefit of 'the stockholders, and so Jong as such corporation continues to have a legal existence and to carry on the business for which it wás created, it alone is the proper custodian, and has possession of the corporate property. In Cook on Stocks and Stockholders, Section 480, the author says:
“ ‘It has been held that if a stockholder whose stock has already been attached or sold on execution sells his certificate of stock after the levy of such attachment or execution, the vendee or transferee buys subject to such levy, even though he had no knowledge of it. The stock in contemplation of law has already been seized by the levy, and the purchaser is bound to take notice of that fact. The only means of avoiding this danger in the purchase of stock is by an inquiry at the office of the corporation at the time of making the purchase.’ ”

The circumstances of this case are such as to make this distinction both germane and necessary.

From what has been said it follows that all the proceedings in the trial upon the first .count of the indictment were erroneous, and that the judgment of conviction is contrary to law.

Reversed.


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    PARTITION OF PERSONAL PROPERTY.
    Circuit Court of Harrison County.
    John C. Martin v. William M. Eaton.

    Decided, 1912.

      Partition—Right of, Where Personal Property is Owned Jointly Not Dependent Upon a Statutory Provision.

    Where one of two or more joint owners of personal property which is susceptible of division has taken possession of such property and refuses to make a division thereof, an action in partition may be maintained in equity by one of the joint owners, and the share of each set off to him in severalty, if such share is ascertainable.
    Metcalfe, J.; Fillius, J., concurs.

      Note.—Upon the trial of this case on the merits, at a subsequent term before Norris, Pollock and Metcalfe, JJ., the same conclusion was reached as to the right to partition as announced in the above opinion, and partition of the property was ordered.

   This case comes before us on demurrer to the second amended petition. This pleading avers, in substance, that the plaintiff and defendant are the joint owners of one hundred and twenty-two bushels of wheat, and that each is entitled to an undivided half interest therein, that the defendant has taken possession of the wheat and refuses’to make a division thereof, claiming that he is entitled to more than one-half; and that it is the plaintiff’s desire to have his share of the wheat set off to him in severalty, and he prays that partition be made of the joint property.'

A demurrer is filed to this petition on the ground that the facts stated do not constitute a cause of action, and it is argued that under the law of Ohio no partition- can be made of personal property, and that is the only question we have to decide on this demurrer.

It is true there is no statute authorizing this' proceeding, at least our attention has been called to none, and so far we have been unable to find one. But in the absence of such statute does it necessarily follow that such an action can not be maintained? It is the province of equity to deal with the rights of parties upon principles of natural justice, and when the right ought to be enforced, is clearly just and contravenes no statute or principle of law, surely the absence of a statute specifically defining such right, or establishing some particular method of procedure in obtaining it, or the want of a precedent, should not prevent the corirt from doing what seems to be equal and exact justice between the parties. When two parties own personal property in common, and it is easily susceptible of division, and the share of each is ascertainable, what more appropriate method can be conceived of disposing of a controversy about it than to divide it between them, and what sound principle can be urged against it? On principle we think the right to partition is clear, and we are not entirely without light from the authorities. 21 A. & Eng. Encl, of L., 1160; Weeks v. Weeks, 5 Iredell Eq., 111 (s. c. Am. Dec., 358); Pell v. Ball, Cheves Ch., 99; Robinson v. Dickey, 52 Am. St. Rep., 417; Pickering v. Moore, 68 Am. St. Rep., 695; Wetmore v. Zabriskie, 29 N. J. Eq., 62; Perry v. Smith, 42 N. J. Eq., 504.

The demurrer is overruled.


author: By the Court.

text:
    ALIMONY IN A LUMP SUM.
    Court of Appeals for Hamilton County.
    Lucile Lawson Baker v. Thorne Baker.
    Decided, January 10, 1914.

      Divorce and Alimony—Allowance of Alimony as Fixed on Appeal— ' Wife’s Inchoate Right of Dower.

    In fixing alimony, in cases where there are no children and the probabilities are that the lives of the parties will diverge, the preferable form of permanent alimony is a lump sum, having in mind the fact that the wife can not be divested of her inchoate right of dower in the real estate owned by her husband during the coverture.

      Harmon, Colston, Goldsmith &■ Hoadly, for plaintiff.

      John C. Healy, contra.
   By the Court.

Under .the rule laid down in Cox v. Cox, 19 O. S., 502, on an appeal from a decree for alimony to this court all the issues of fact upon which the rights of the parties depend with respect to alimony are reopened for trial, notwithstanding a divorce was granted in the court below. This divorce is unaffected by the appeal, and this court has no power to review or disturb that part of th,e decree which relates to the divorce, although the correctness of the decree made by the lower court may well be doubted from a review of the evidence before us. That d&cree is now a finality and so fixes the status of the parties as they now appear before us that it becomes an element of consideration in determining the question, of alimony.

The court has carefully considered all of the evidence submitted to us, which comprises all of the evidence taken in the court below and some further evidence submitted in relation to the property of the respective parties. After full consideration the conclusion is reached that plaintiff is entitled to a judgment against defendant, for permanent alimony in the sum of seventy-five hundred ($7,500) dollars, this sum to be made payable, .without interest, in installments extending over a period not to exceed four years—the time and amount of such installments to be agreed upon by the parties before the entry of decree, and upon failure of such agreement to be fixed by the court.

In a ease .of this kind, there being no children, and the probabilities being that the lives of the parties will hereafter diverge, we see no reason for making an allowance of alimony in the form of a continuing order payable in monthly installments, and believe that the payment of a fixed amount within a short time is more in compliance with the provisions of law and will better serve the welfare of both parties. And in fixing the amount named we have in mind that under the provisions of the General Code, 11991, as construed by the Supreme Court in DeWitt v. DeWitt, 68 O. S., 340, the court is without power in this ease to divest the wife of her inchoate dower in the real estate owned by the husband during the coverture. A counsel fee of $500 was allowed plaintiff in the court below, and if this amount has not been paid by the defendant, the decree in this court should provide for its payment.


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    DISCRETION AS TO ORDER OF PRESENTATION OF EVIDENCE.
    Circuit Court of Summit County.
    Hannah M. Wylie v. Nettie E. King.
    Decided, October 12, 1910.

      Evidence in Chief Introduced Out of Order in Three Cornered Case—■ Verdict—Special Interrogatory—Failure to Answer it.

    1. In an action upon a promissory note against a maker and two endorsers, where the maker pleads forgery of her name and the plaintiff and endorsers claim the maker’s signature is genuine, it is not an abuse of discretion to permit the endorsers to introduce evidence of the genuineness of the maker’s. signature after she has rested her defense.
    2. A judgment will not be reversed because the trial judge received the jury’s general verdict without requiring an answer to be returned to a special interrogatory, where it appears that the parties were in court when the verdict was returned and made no objection to the omission complained of, or that the question asked, if answered, would not have tested the correctness of the general verdict.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The action below was founded upon a promissory note, as follows:

“$525.85. Akron, 0., Feb. 9th, 1906.
“Two years after date or previous death after date I promise to pay to the order of myself five hundred and twenty-five and 85-100 dollars, at Second National Bank, Akron, O. Value received, with interest at eight per cent, per annum after maturity.
“Mrs. Hannah M. Wylie.”
Said note is endorsed:
“Demand, notice of non-payment, protest and diligence in collection waived.
“Mrs. Hannah Wylie,
“C. F. Chamberlain.
“O. A. Hoyt.”

The defendant, Hannah Wylie, answered that her signatures were forged. The defendants, Hoyt and Chamberlain, answered admitting their secondary liability, denying the alleged forgery and praying that judgment fixing primary liability upon the defendant, Hannah Wylie, might be rendered.

Upon trial to a jury verdict and judgment were rendered against all the defendants. Hannah Wylie seeks by petition in error here to reverse this judgment.

The note is claimed to have been given by Mrs. Wylie in payment of the first premium on a life insurance policy issued to her through Hoyt and Chamberlain, agents of the insurer. Mrs. King, the plaintiff below, became the bona fide endorsee of the note from Hoyt and Chamberlain.

Among the errors complained of is the alleged abuse of discretion by the trial court in permitting Hoyt and Chamberlain, after the defendant had rested, to introduce expert testimony rrpon handwriting to defeat her defense of forgery. Seasonable protest had been made that all such evidence ought to be introduced in connection with plaintiff’s case in chief. But in the triangular ease which resulted from the raising of an issue between the defendant Wylie and the other defendants below, it was impossible to exclude the defendants Hoyt and Chamberlain from their right to reply to their co-defendants’ defense of forgery by allegation and evidence that her signature was genuine. It follows that no abuse, of the trial court’s discretion can be predicated of its ruling.

Error is also assigned upon the court’s reception of the jury’s general verdict without any answer'being returned by them to a special interrogatory submitted at the request of the defendant Wylie. Either of two complete answers may be made to this contention: First, that in contemplation of law the parties were in court when the verdict was returned and should then and before the jury’s discharge, have objected to the omission complained of. Secondly, that the interrogatory was not such as that an answer thereto would tend to test the correctness of the general verdict. The interrogatory is as follows: “Was the defendant, Hannah M. Wylie, at her home in Akron, on Friday. February 9th, A. D, 1906, from 8 o’clock A. m. to 4 o’clock P, h. ? ” The testimony tended to prove that the execution of this note by Mrs. Wylie took place at her home on this date and between these hours. But an answer, either yes or no, to the question as submitted would not necessarily have indicated that she was continuously present or absent during the whole period named. The trial court said to the .jury on submitting this interrogatory “This question is not decisive of the question in the case, but is merely a finding of fact or interrogatory to be answered by you on one feature of it.” This, also, is complained of as error. But the court’s observation was literally true. It was not the controlling issue. That issue was simple, viz; were Mrs. Wylie’s signatures genuine? The court’s charge is not very elegant in style, but it sufficiently indicated the point in controversy and the jury’s duty. Upon consideration of all the evidence we are impressed that the jury’s verdict was right and the judgment is therefore affirmed.


text:
    CHILD RUN OVER. BY STREET CAR.
    Circuit Court of Cuyahoga County.
    Myron J. Morgenroth v. The Northern Ohio Traction & Light Company.
    Decided.. October 12, 1910.

      Street Railroad Accident—Child Playing in Street—Oare Required of Company—Charge—Matters Omitted Must Render Charge Misleading.

    1. In an action for damages against a traction company for injuries sustained by a child run over while playing in the street, a request to charge the jury, “That a street railway company in the operation of its cars upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required,” should not be given, for “ordinary care” is the standard, and not “more care than is ordinarily required.”
    2. A general exception to the court’s charge, does not go to matters omitted, unless such omission renders the charge misleading.

      Henry, J.; Winch, J., and Marvin, J., concur.
   After the exhaustive argument and re-argument of this case and the intimations given upon the hearing upon minor points in the case, we confine our attention now to two main' questions.

An infant too young to be guilty .of contributory negligence "'as run over by defendant’s street car and lost, its legs. The jury found for the defendant.

There was some evidence to show that children were wont to play near the scene of the accident and the plaintiff below before argument in writing requested the court to charge upon that subject as follows:

“4. That a street railway company in the operation of its ears upon the public streets is required to exercise more care at those places where children ■ congregate and play than is ordinarily required. And it is the duty of the railway company to know at what places, if any, small children are in the habit .of congregating and playing.
“And if the jury find from the evidence that small children were in the habit of congregating and playing at or near the place of this accident at and prior to the time of this accident, it would be the duty of the defendant company to exercise more care in the operation of its ears at this point than is ordinarily required, and failure to do so would be negligence on the part of the defendant company.”

This was refused (over exception) and, as we think, properly so, because “more care than is ordinarily required” is too vague a standard to fix for the jury’s guidance. Indeed it is absolutely erroneous; for “ordinary care” is the standard, and not “more care than is ordinarily required.” It may possibly be questioned, too, whether the duty of the company to know is not too broadly affirmed. But the subject was thus properly brought to the court’s attention and a correct charge on the subject was called for (Lytle v. Boyer, 33 Ohio St., 506). But it was nowhere given, except abstractly, in the general charge, in the statement that the amount of care' required of the defendant varied with the amount of danger encountered. The only exceptions reserved in this behalf were the exception to the refusal to give plaintiff’s said request before argument and the general exception, under the statute, to the charge as given. Neither of these exceptions alone, nor the two combined, suffice to save the precise question here sought to be made. The request was erroneous, and the general charge as it stands is not. A general exception to the court’s charge does not go to matters omitted, unless such omission renders the charge misleading. It can not be said that this charge is misleading. It contains no affirmative error. The court’s ruling to which the first exception was addressed was strictly correct. So was the court’s charge to which the second exception was addressed. Neither exception is well taken. A majority of the court (our brother Marvin dissenting) hold that a specific exception should have been reserved to the omission of the trial court to charge correctly upon the subject-matter brought to its attention by the plaintiff’s technically imperfect request. Columbus R. Co. v. Ritter, 67 Ohio St. 64.

The other .'question is upon the defendant’s first request to charge before argument which .was allowed as follows:

“If you find that the car in question was proceeding up West Market street and approaching Oakdale avenue at a reasonable rate of speed, and you further find that the motorman on said oar running westerly saw two little children not in front of his car and in such close proximity thereto as to cause him in the exercise of reasonable care to believe that there was danger of running said two children down, and you find that, in the proper discharge of his duty to said children, he watched them as they went across the track until they got beyond the sphere of danger, and that by reason of his attention being attracted by said children crossing the track he did not see the Morgenroth boy approach the car that he was running until it was too late to stop his car, by reason of which the said Morgenroth boy was run over, the defendant would not be liable.”

This was excepted to for the reason that it fails to take into account the motorman’s possible opportunity to see the Morgenroth boy approaching the car before his attention was distracted by the other two hoys’ danger and in time to avoid injuring any of the three. We think this distinction is a little too finely drawn both in fact and in law. Tf. as the. request expressly presupposes, the cause of the motorman’s failure to see the Morgenroth boy was the distraction of his attention by the’other boys’ danger, how can it be claimed that such failure was caused by the motorman’s previous inattention? If, moreover, as the request further presupposes, he was in the exercise of ordinary care in all that he did while the boys were within the sphere of danger, what more can the law require? The various requests given seem to have fully presented every aspect of the ease, except as already discussed, and we think that defendant’s first request as given does not conflict.with any other view which the jury were or should have been free to consider.

We have given an unusual amount of time and attention to this case, and, pending the re-argument, we called to counsel’s notice the difficulties which we had encountered in our previous deliberations upon it, to the end that we might have the utmost aid that might be afforded to us\

We find no error in the record and the judgment is affirmed.


text:
    BEQUESTS TO CHILDREN OF DIFFERENT FAMILIES.
    Circuit Court of Summit County.
    Sylvestor Falor et al v. Lewis D. Slusser et al.
    Decided, October 12, 1910.

      Will—Construction of.

    Under a bequest of “the balance” of testator’s estate to be “divided among the children living of Isaac and Jacob Falor, and Alice and Henry Reaves, of Swan, Iowa, share and share alike, providing they are living at my death,” Alice and Henry Reaves share and share alike with the children living of Isaac-and Jacob Falor.
    Henry,. J.; Winch, J., and Marvin. J., concur.
   This proceeding-in error, brought here upon a record exhibiting only the pleading's in the ease below, no evidence having been introduced there, challenges the correctness of the common pleas court’s construction of the twentieth item of the will of Lydia Scanes Jackson, deceased. This item reads;

1 ‘ The balance, if any, after paying all the above bequests and all my just debts and the expenses of settling up my estate, and all other just debts, shall be divided among the children living of Isaac and Jacob Falor, and Alice and ITenry Reaves, of Swan, Iowa, share and share alike. Providing they are living at my death.”

The question submitted by the petition of the administrator de bonis non with the will annexed is “whether Alice and Henry Reaves are to share and share alike with the children living of Isaac and Jacob Falor, or whether the children of Alice and Henry Reaves living at the time of testatrix’s death are to share and share alike with the children living of Isaac and Jacob Falor.”.

The court below embraced the latter alternative; but we hold that the former alternative is the correct construction.

We come to this conclusion because of the comma after the word “Falor” and because of the concluding proviso, which repeats the word “living.” The natural meaning of the language excludes the children of Alice and Henry Reaves.'

Judgment reversed because contrary to law and final judgment is here rendered according to the view here expressed.

The administrator is allowed $25 for his attorney’s fee in this court, in addition to the amount ordered below.


text:
    ACTION UPON A GUARANTY OF PAYMENT FOR MERCHANDISE.
    Circuit Court of Cuyahoga County.
    C. F. Gunther v. F. O. Pfaffman.
    Decided, March 20, 1911.

      Guaranty of Credit—Acceptance—Payments by Debtor.

    1. No formal acceptance of a guaranty of credit to be extended to a third person is necessary to make it binding upon the guarantor.
    2. In the absence of directions to that effect, one who guarantees any indebtedness incurred by a third party to plaintiff after a certain date, is not entitled to have payments thereafter made by the debtor to the plaintiff credited on the guaranteed items rather than on earlier items not guaranteed.

      M. B. cO H. H. Johnson, for plaintiff.

      B. H. Lee, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. The plaintiff sued the defendant upon an account for goods sold and delivered by plaintiff to W. P. Chase Company, the payment for which goods, the plaintiff says, was guaranteed by the defendant. The ease was tried to the court without a .jury, by consent of parties. ' At the close of plaintiff’s evidence the court sustained the motion of the defendant for judgment in his favor.; plaintiff duly excepted.

If there is such guarantee it is found in letter of defendant to plaintiff, dated February 19, 1908, which reads:

“C. F. Gunther, Co.,
Chicago, Ill.
“Gentlemen:
“I have just received a letter from W. P. Chase & Co. of Los Angeles, in which they state that you are pressing them a little too hard for money and asking me to explain matters to you.
“I called on this firm during the early part of January and was very favorably impressed by both Mr. Chase and Mr. Crane. We have done business with them for a number of years and they always gave us good results for the same.
However, I will confess frankly that they impressed me as being honest, able and aggressive, but somewhat short on cash. In other words, they were long on brains but short on cash.
‘ ‘ I quickly realized that they would be able to accomplish wonders with the necessary amount of cash and I volunteered to back them. I will make this prophesy: that they will be the most prominent brokerage house in Southern California within the next year, and will have their choice of accounts from all over the United States, as they are running the brokerage business on correct and up-to-date lines. Any appreciation shown them at present will be amply rewarded in the near future.
“If there is any question in your mind regarding the possibility of losing money on them, I will go on record as guaranteeing you against any loss you may have in giving them credit. Furthermore, I will assure you that within the next 90 days they will be in a position to' pay promptly for everything. Should you at any time become alarmed regarding their financial condition or think it good business to break off connections with them and want your money immediately, inform me and after I have them O. Ñ the amount, I will send you a check by return mail. There is not another concern in the United States whom I. would guarantee in this manner. I am not casting any reflections on the honesty of any other concerns, but I wish to impress upon you the fact that when it comes to ability and integrity W. P. Chase & Co. stand out prominently on the Pacific Coast.
‘ ‘ Yours very truly,
“F. 0. Pfannman.”

At the time the letter was written Chase & Co. were indebted to plaintiff in a considerable amount. After the letter was written the plaintiff sold goods in considerable amount. Payments were made from time to time by Chase & Co. to plaintiff on account, after receipt of this letter. The amount of such payments was in excess of the amount of goods sold, within the same time and was also in excess of the amount owing at the time the letter was written, but was less than the' aggregate amount of the debt existing at the date of the letter and the sale made subsequent to such date, so that at the close of the business between the parties, there was remaining due to the plaintiff the sum of ‡986.64. This amount was admitted by the counsel for the defendant, as appears- at page 4 of the bill of exceptions.

The real questions arising in the ease are:

Did the defendant give an absolute guarantee for payment of goods which plaintiff should furnish to Chase, after February 19th?

It not, did he give a conditional guarantee, the conditions of which have been complied with?

If either of the above is answered in the affirmative the question remains, is the defendant entitled to have payments made by Chase to plaintiff after February 19, 1908, credited upon the account accruing after the same date rather than upon indebtedness existing at that date.

The language of the letter taken as a whole seems clear that the defendant meant to do more than simply to express great confidence in Chase & Co. as urged on part of plaintiff in error. True, it does this and in strong language, before the fourth paragraph of the letter was reached; this paragraph reads: “If there is- any question in your mind regarding the possibility'of losing money on them I will go on record as guaranteeing you against any loss you may have in giving them credit.” Then follows an assurance that they would be in condition to pay promptly within 90 days for everything. .Certainly up to this point of the letter sufficient confidence in Chase & Co. had been expressed to satisfy anyone that defendant had full faith in that firm, and desired to impress that faith upon the plaintiff, but defendant was not content with this, he decided to go further and so added, as a new and additional sentence: “-Should you at any time become alarmed regarding their financial condition, or think it good business to break off connections with them, and want your money immediately, inform me and after I have them O. K. the amount, I will send you check by return mail.” If, after this language is used, there could be any doubt that defendant intended that this should be an absolute guarantee and should be so understood by plaintiff, it would seem to be settled by the next sentence which reads: ‘ ‘ There is not another concern in the United States whom I would guarantee in this manner,”

Surely lie did not mean that this was not the only concern of which he would speak in high terms of praise, but for this firm he would go further and guarantee the payment for goods which they might purchase from the plaintiff.

That this was understood by the plaintiff to be a guarantee absolute, and that the defendant was so notified by him is evidenced by plaintiff’s letter to defendant of February 24, 1908, which begins with these words:

“We have your letter, dated February 19th, guaranteeing Mr. Chase and Chase’s Brokerage account in Los Angeles for which we thank you.”

If there was any necessity for acceptance of the guarantee in order to hold defendant, surely this letter with the continuing to sell goods to Chase & Co. was sufficient. Under the Ohio authorities, no formal acceptance is necessary. Stearns’ Suretyship, Section 66; Powers et al v. Berncratz, 12 Ohio St., 273; Birdsall v. Seacock, 32 Ohio St., 177.

' That the defendant understood this to be a guarantee is clearly evidenced by his letter to plaintiff of September 18th, 1908, in which he says:

“This replies to yours of the 16th inst. requesting me to pay certain bills of the W. P. Chase Co. of which I guaranteed the payment. I am surprised to note that it amounts to such a great amount. I will take the matter up with W. P. Chase Co. immediately, and have, the account verified, and then I will take care of you. Kindly note, until further notice, I will not be responsible for any more of W. P. Chase Company’s accounts.”

Counsel for defendant in error urges very strenuously that contracts of guarantee, like all other contracts, must be construed so as to carry them out in accordance with the understandings of the parties, and cites numerous authorities in support of this proposition. What has already been said seems to establish that both the plaintiff and defendant understood this to be a guarantee, and we hold that it was.

If it be said that there was a condition to this guarantee that it should be operative only when plaintiff should become alarmed, “or think it good business to break off connections with Chase $; Co. and want his money immediately, ’ ’■ this condition is surely met by the letter of September 16, 1908, written by plaintiff to defendant in which this is said:

“You stated in your guarantee, that at any time we were dis-' satisfied with the account, you would send us a cheek for same. Now we would appreciate it very much if you would attend to this at once, as we do not care to continue doing business with the W. P. Chase Company the way things have been running of late.”

As already shown, defendant by letter of September 18, 1908, to plaintiff, said he would immediately take the matter up with Chase & Co., and have account “verified/’ and remit amount to the plaintiff. This suit was not brought until March 20th, 1909.

It does not appear that defendant did or did not learn from Chase &• Co. whether the account was all right, but he admits at the trial, that it is, and as Chase & Co. notified plaintiff on October 9,1908, that the account was correct to the amount of $884.59, as shown by letter of that date sent with statement to plaintiff, the defendant is not to be relieved because it is not affirmatively shown that he got direct notice from Chase & Co. before the trial, or before suit was brought that the account was O. K.

As to the application of payments made after the date of the letter of guaranty upon the prior indebtedness, as he did, the guarantor was not entitled to have them applied to the latter account in the absence of and direction to that effect being given to the plaintiff at the time the payments were made. Birdsall v. Heacock, 32 Ohio St., 177; Gaston v. Barney, 11 Ohio St., 506, and Stearns’ on Suretyship, Section 96, and authorities there cited.

We come then to the conclusion that the court erred in dismissing the petition and the judgment is reversed as being contrary to law.


text:
    WHEN A COURT MAY CHARGE UPON CONTRIBUTORY NEGLIGENCE.
    Circuit Court of Cuyahoga County.
    The Interstate Engineering Company v. Sam Colechia.

    Decided, March 20, 1911.

      'Master and Servant—'Negligence—Charge as to Contributory Negligence.

    In a personal injury damage case it is not error to charge upon the subject of contributory negligence, where that is made an issue by the pleadings, and there is evidence tending to establish the fact that the injury was received wholly as the result of the plaintiff’s negligence, not partly by reason of his contributory negligence.'

      Seaton t6 Paine, for plaintiff in error.

      Harry Payer, contra:
    Marvin, J.; Winci-i, J., and ITenry, J., concur.

      Affirmed without opinion, Interstate Engineering Co. v. Colechia, 86 Ohio State, 318.

   , The parties here stand in relation inverse to that in which they stood in the court below, but will here be spoken of as in ,the original case.

■ ■ The defendant is a manufacturing corporation, with its plant at Bedford in this county. The plaintiff was in its employ, and while in its employ on the 7th day of January, 1908, was severely injured-by the falling of a heavy pile of angle irqns upon him while engaged in his work. He claims that this injury was caused by the negligence of the defendant, and without any negligence on his part. The result was a verdict and judgment in favor of the plaintiff.

It is urged that this judgment- should be set aside, first, because it is said that it is against the weight of the evidence.After a careful examination of the evidence, we are not prepared to say that this claim is well taken, and the case can not be reversed upon that ground.

Without entering into details as to the facts, it is clear that if the plaintiff was entitled to recover, it was because of the negligence of one Joe Kelley, another employee of the defendant.

On the part of the plaintiff it is claimed that this1 man Kelley was his superior; that he had a right to direct him what to do ; that he did direct and control him, and that therefore the negligence of Kelley was the negligence -of the company.

Oh the part of the defendant it is claimed that Kelley had no authority over the plaintiff, but was his fellow-servant on an equal footing with him; the defendant; by its answer, says that the accident was due entirely to the negligence of the plaintiff, but that if that be not true, the negligence of the plaintiff contributed to the injury.

The language of the answer in that .regard is in these words:

“Second defense. Further answering and for a second defense defendant says that any injuries complained of (sustained by plaintiff) were due to the plaintiff’s own negligence in the premises; and further answering, defendant says that if it was negligent (which it denies) plaintiff’s own negligence contributed directly and proximately to the injuries which he sustained and about which he complains.”

The evidence of the plaintiff, if it be true, and certainly that .evidence in connection with the evidence of Rigrio Riomundo, might well cause one to believe that Kelley was the superior of the plaintiff, but all the evidence taken together leaves the question in grave doubt; it is by no means clear however that the jury went wrong in finding that Kelley was the superior of the plaintiff. The injury was caused by the falling of these angle irons, already mentioned, upon the plaintiff’s legs, but the cause of such falling is in. dispute. On the part of the plaintiff, evidence is given tending to show that it was because of the negligence of Kelley. On the part of the defendant the evidence tends to show that the accident was caused by the negligence of the plaintiff. The jury reached the conclusion that the injury was caused by the negligeuce of Kelley. 'Without reciting the evidence, though we have .examined it with care, we are not prepared to say that the jury were wrong in reaching the conclusion that Kelley’s negligence was the cause of the injury.

It is claimed on the part of the defendant (plaintiff in error) that there was no evidence tending to show that the plaintiff contributed by his negligence to his injury, but that under the circumstances and the evidence the injury was wholly caused by the.plaintiff’s negligence, or wholly caused by the negligence of Kelley; that there was no contribution on the part of one to the other. The negligence of one or the other, the defendant says, was the sole cause of the injury. We are not prepared to say that the defendant might not, under this evidence, have made the claim that even though Kelley were negligent, the plaintiff’s negligence did not contribute to the injury. What has already been said sufficiently indicates that the case will not be reversed as being against the weight of the evidence.

. Complaint is further made, however, that the court erred in its charge to the jury, in that the court instructed the jury upon the issue of contributory negligence, when it is claimed, as already stated, by the defendant, that no such .issue was made by the evidence. Whether this claim can be maintained or not, we think there was no error in the charge of the court on the subject of contributory negligence, for the reason that this defense was set up in the answer, and thereby an issue was raised as to whether plaintiff contributed to the injury. Certainly, unless it was beyond the possibility of question that no reasonable claim could be made from the evidence that the plaintiff contributed in any degree by his negligence to his injury, it was proper for the court to charge upon the issue of contributory negligence as made in the pleadings, and we think it was proper, in any event, to charge upon it.

One of the paragraphs complained of in the charge is in these words:

"If these three charges, that is to say, first, that Kelley was plaintiff’s superior, second, that he ordered plaintiff to assist as aforesaid, and third, that Kelley was negligent as aforesaid, if those three claims are proved by a preponderance of the evidence then your verdict should be for the plaintiff, unless it has also been proved by a preponderance of the evidence that plaintiff was himself negligent, his negligence contributing to his injury, in which state of the proof your verdict should be for the defendant.
“As to this claim that the plaintiff was negligent the burden of proof is upon the defendant. And the evidence bearing upon that question must preponderate in favor of the defendant’s claim of contributory negligence in order that you may find it proved. If it does not so preponderate then it is not proved and does not stand in the way of recovery, if a right of recovery is shown by the evidence relating to those other issues that I have stated.”

Another paragraph of the charge is in these words:

‘ ‘ I have said to you as to the claim made by the defendant that the plaintiff was negligent, that is negligence contributing to his injury, I have stated to you that upon that claim the burden is upon the defendant. There is an exception to that rule as to where the burden lies. If from the plaintiff’s own evidence, evidence produced by the plaintiff, there is a fair inference from the evidence that the plaintiff was negligent, his negligence contributing to his injury, then the burden would be upon the plaintiff to remove that inference. That circumstance, this inference fairly arising from plaintiff’s own evidence, places the burden upon him to clear himself of that inference. If such inference has arisen from the plaintiff’s own evidence then the burden as I have said would be upon him. If there is no such inference, then the general rules I have stated would apply and the burden would be upon the defendant.”

The fault that is found with this is that it places the burden of establishing the negligence of the plaintiff, upon the defendant. Whereas, it is said, that if the court had charged only upon the question of negligence on the part of the plaintiff as being the sole cause of the injury, this burden would not have been upon the defendant.

It will be noticed, however, by the language quoted in the charge, that it was only contributory negligence, the burden of proving which was placed upon the defendant. Indeed, no complaint could properly be made of the language used by the court, if the question of contributory negligence was in the ease. We think it ivas in the case, because so made by the pleadings, and that the charge was not erroneous in the matter of placing the burden, and so wé find no error in the record of this case, and the judgment is affirmed.


text:
    ENCROACHMENT OF WALL ON ADJOINING LOT.
    Circuit Court of Cuyahoga County.
    Theresa Quigley and W. S. Blau v. The Fireproof Storage Company et al.
    Decided, March 20, 1911.

      Injunction—Trespass by Painting Sign on Side Wall.

    One whose side wall has been erected over a few inches on the land of another without seasonable objection by the other, will yet be enjoined from thereafter painting a sign upon said side wall, upon complaint of such other.

      Cyrus Looker, for plaintiffs in error.

      Henderson, Quail & Sidda.ll, contra.
    Marvin, J.; Wincit, J., and IIenby, JY, concur.
   The plaintiff, • Quigley, owns a'parcel of land situated on the north side of Euclid avenue in the city of Cleveland. The defendants own a parcel of land immediately east of the above named plaintiff’s parcel, also abutting on Euclid avenue. On the parcel of land of the plaintiff Quigley, is a dwelling-house, occupied by the plaintiff Blau as a residence, under lease from the plaintiff Quigley. On the lot o£ the defendant is a large brick business block -which extends southerly to the north line of the avenue; that is, it comes out clear to the front of the lot; whereas the dwelling occupied by the plaintiff Blau, stands back from the avenue about 50 feet. There is a dispute between the parties as to where the true boundary line between their properties is, but from the evidence we find that the true boundary line is as claimed by the plaintiffs; that is, some six inches further east than the claim of the defendant would make it.

It is admitted that if this be the true line between the lots, as we find that it is, the building of the defendant extends a few .inches over the line upon the land of the plaintiff Quigley. It is not sought in this action to restrain the defendant from using its building to the full extent for which it was intended, or for which it can be used. It is probable that the plaintiff, Quigley, by failure to notify the defendant while the building was being constructed that her land was being encroached upon, could not now maintain an action in ejectment or to enjoin the use of the building. In any event, that is not what she seeks here, but the defendant, at the time this suit was begun, was proceeding to paint upon the west wall of its building a large sign, announcing its business as that of storing and moving furniture and other chattels. This sign, if completed, will contain a large picture of a moving van with a team attached to it, and upon the van the name of the company in large letters. This wall is- of red brick, and the ground work upon which the sign is to be painted is already painted upon the wall in white, and a part of that which is to be painted on the white is already on. This painting will be so far to the front of the west wall of the building and so high from the ground as to be in plain sight of whoever sits at the windows of the residence of the plaintiff Quigley’s property.

In doing the work which has been done upon this sign the defendant has placed lárge coils of rope and other -tackle on' the front lawn of the said plaintiff’s property, near to the wall it is true, but still in such wise as to be a trespass upon this lawn. Both plaintiffs pray that the defendant be enjoined from completing this sign; from placing any material upon the plaintiff’s land, and that it be required to remove so much of the sign as has already been painted, or in some other wise restore the west wall of its building to the condition it was in before anything was done toward the painting of this sign.

It is urged on the part of the defendant that this relief ought not be granted, because, it is said, it would impose an expense upon the defendant and would be of no value to the plaintiff to have it done; that is. that the plaintiff suffers no damage by having this sign completed, even if technically the defendant is without right to put up the sign.

That the plaintiffs are entitled to have an injunction to prevent the defendant from placing any of its material upon the plaintiff’s property goes without saying; and we are of the opinion that the plaintiff Quigley is entitled to a further order of the court. The plaintiff Quigley has permitted the defendant to construct its building, as it has, over upon her land, and thereby it may be conceded, so far as this ease is concerned, that her only redress for such construction of the building will be in damages; but we think that beyond that she is not estopped, after ascertaining he,]1 rights, from attempting to prevent anything to be done to such part of the building that is upon her land as will in any -wise interfere with the full enjoyment of her property. And if she is entitled to any relief, it would certainly seem to be by injunction. This great sign, staring out as it will upon this residence, may well be an annoyance to those who occupy this residence, and yet it is that kind of an annoyance for which damages in a suit at law could not well be measured, and that being so, injunction seems to be her only relief. In the case of Pollock v. The Cleveland Ship Building Company, 56 Ohio State, 655, in the opinion at page 674 thereof it is said:

“ It is by no means clear, that they would not, if pursued long enough, grow into a prescriptive right. It isn’t necessary to ascertain this with positiveness. It is enough that if there be any doubt, the risk should not be imposed upon the plaintiff. And it is no hardship upon defendant to say that if it needs to use plaintiff’s land it can do as other people do in like circumstances—obtain a right to such use by negotiation. The very fact that the trespasses are in themselves trifling, and the damage, if any, so small that suits at law to recover would be impracticable, affords an additional reason for granting an injunction.”

High on Injunctions, Section 696 (4th Edtion), uses these words:

“So equity may properly interfere to restrain repeated and continuous trespasses where it would be difficult or impossible to ascertain the damages resulting from each act complained of So also relief may be granted, where from the nature of the case, it will be impossible to estimate the actual damage, which the plaintiff will suffer, and the injury resulting from n trespass in order to be a continuing one justifying relief by injunction must be of such a character that its recurrence is not dependent upon any act to be done by any person, but results from a continuing state or condition of things caused by the act of trespass itself.”

In Wilson v. The City of Mineral Point, 39 Wis., 160, it is h-dd that injunction is the proper remedy against cutting down shrubbery and shade trees, on the ground that injury is such that damages are indeterminable.

In Joyce on Doctrine and Principles of Injunction, Section 218, it is said that injunction is proper, where the injuries can not be measured by any pecuniary standard or where it is impossible or hardly possible to so measure them.

To leave the wall as it now is would leave it, perhaps, in as objectionable a state as it would be in if the sign were completed. It will not be any considerable expense to the defendant, by the use of paint or some other material, to so obliterate this white paint which has been placed upon the wall and so much of the sign as is on said white paint, as to practically restore the wall to the appearance which it had before this painting was begun, and the order of the court will bo that the defendant is enjoined from placing any materials upon the lawn of the plaintiff Quigley; from proceeding with the work of painting this sign, and that it obliterate what has been done to the extent that it can reasonable be done by the use of red paint, or otherwise, as shall best accomjjlish the result.