author: POLLOCK, J. SPENCE, J.,

text:
    STREET RAILWAYS — VERDICTS.
    [Mahoning- (7th) Court of Appeals,
    October 20, 1916.]
    Pollock, Metcalf and Spence, J,T.
    Eliza Simms, Admx. v. Stark Electric Ry.
    1. Findings of Fact may be Ordered Returned though not Requested by Counsel.
    It is within the discretionary right of the trial court, even against the objection and exception of both parties, to require the jurors, if they render a general verdict, specifically to find upon particular written questions of fact and return written findings thereon.
    2. Judgment may be Entered on Said Findings where Inconsistent with the Verdict.
    If the special findings of fact returned by the jury in obedience to the direction of the court, are inconsistent with the general verdict, the former shall control and it is not error for the trial court to enter judgment thereon.
    3. Interurban Railway May Eject in Night Time Intoxicated Passenger Refusing to Pay Fare.
    A railroad company operating its cars by electricity in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for the nonpayment of his fare at a regular stop for the discharging and receiving of passenger-s on a public highway, when he, although noticeably intox- ' icated, was able to walk and talk intelligently.
    [Syllabus by the court.]
    Error.

      E. H. Emmermcm, for plaintiff in error.

      Hart & Koehler, for defendant in error.
   POLLOCK, J.

The plaintiff in error began an action in the court of common pleas of this county against the defendant in error, alleging in her petition that the defendant was operating an electric railroad from the city of Alliance to the village of Sebring; that the plaintiff’s intestate, at the time alleged, purchased a ticket and became a passenger on one of defendant’s cars, intending to ride from the city of Alliance to Sebring; that he was unlawfully ejected from the car by the conductor at a stop on defendant’s road known as No. 47. She further alleges that at the time Arthur Simms was ejected from defendant’s car he was intoxicated and by reason thereof was stupid and bereft of intelligence and unable to take care of himself, which was known to the conductor of defendant’s car at the time he was ejected; that it was in the night time, and that there was no direct road from the stop where he was ejected to Simms’ home except along the line of defendant’s railway where cars were passing frequently at a high and dangerous rate of speed; that shortly after Simms was ejected from defendant’s car he was struck by another ear of defendant company and killed. She asks damages for negligently causing the death of her intestate.

An answer was filed denying the acts of negligence and alleging that Arthur Simms was guilty of contributory negligence in going upon the private right of way of defendant company.

The evidence adduced at the trial in the court below shows that Arthur Simms took passage on one of defendant’s cars at the time alleged, standing on the back platform; that he was intoxicated, and when asked for his fare or ticket he insisted he had a ticket but could not find it. The conductor left him standing on- the platform and when the car stopped at the station known as No. 47 to discharge and receive passengers the conductor again apprgached him for his fare, and as he did not produce Ms ticket or offer to pay his fare, the conductor told Mm he would have to leave the car. Thereupon he left the car, which proceeded on its journey, leaving Simms standing at the side of the track.

This stop was on a public Mghway which crossed the tracks of defendant company at right angles, and was a regular stop on defendant’s railroad for discharging and receiving passengers. Shortly afterwards the deceased was found lying on defendant’s track a short distance east of the spot where he was ejected. He had been struck by one of defendant’s cars and injured so that he died shortly thereafter. From Stop No. 47, on the public highway, east to the point where Simms was struck and killed was the private right of way of the defendant company.

On the trial of the case, the court, at the close of the argument, without being requested by either party, submitted five written interrogatories to the jury with instruction that, if they returned a general verdict to return written findings of facts thereto. The jury retired, and afterwards returned a general verdict for the plaintiff and therewith returned answers to the interrogatories submitted by the court.

Upon motion of the plaintiff, the court refused to enter judgment on the general verdict, but upon the motion of defendant gave judgment for defendant on the findings of fact contained in the answers to the interrogatories.

The plaintiff claims that the court erred in entering judgment for the defendant upon the finding of the jury to the interrogatories submitted by the court, and refusing to give judgment on the general verdict, for the reason that the court is without authority to require the jury to find specially on particular questions of fact except upon request of a party.

Section 11458 G. 0. provides that the verdict of a jury must be either general or special. The next section defines a general verdict and the following section defines a special verdict,. Section 11461 provides that unless otherwise directed by the court, the jury may render either a general or a special verdict and the section following requires the court, on request of either party, to direct the jury to return a special verdict.

We see that under the provisions of Sec. 11461 the kind of a verdict the jury shall return, whether special or general, does not depend alono upon the request of the parties or the will of the jury, but the court may direct the jury to render either a special or general verdict. Section 11463 provides that upon request of either party, the court shall instruct the jury, if it returns a general verdict, specifically to find upon particular-questions of fact to be stated in writing, and shall direct a written finding thereon.

This is usually done by submitting to the jury written interrogatories mid directing that if they shall find a general verdict, that they shall make written findings thereon. The next section provides that if the special finding of fact is inconsistent with the general verdict the former shall control.

The plaintiff in error insists that the court can not, except upon a request of one of the parties, require the jury to return with the general verdict specific findings upon proper questions of fact in accordance with the provisions of Sec. 11463 G. C. and if the special findings of fact by the jury are inconsistent with the- general verdict, enter a judgment upon the special findings of fact.

It is evident from a reference to the section of the General Code, which is referred to, .that the statute under which the court directs a jury to return a special finding of fact with the general verdict does not specifically provide for the court upon its own motion making such direction, so that if it was not error for the court to do so it must be under the inherent power of the court to direct and control the procedure in the trial of a ease.

We find from an examination of the legal history of the English jury law that the jury had a right to return either a general or a special verdict and the court had no power over the jury to control the form of verdict. 3 Blackstone Com. 377. This right does not seem to have been accorded to the jury by the courts of this country, or at least the jury has not exercised this privilege. The right of the court to inquire of the jury in regard to its acts while in the jury room considering the case after it had been submitted to the jury was recognized by the Supreme Court of Massachusetts. Hix v. Drury, 22 Mass. (5 Pick.) 296.

The practice became common for the trial court to interrogate the jury at the time they returned their general verdict in regard to the grounds on which it was founded, or they could require them to return with their general verdict a finding as to certain facts, the existence of which were material in determining the rights between the parties. This was done upon the direction of the court under its discretionary power for the purpose of enabling the court to determine the materiality of the question upon which the jury based their verdict. Lawler v. Earle, 87 Mass. (5 Allen) 22; Spoor v. Spooner, 53 Mass. (12 Met.) 281; McMasters v. Insurance Co. 25 Wend. 379-381; Smith v. Putney, 18 Me. 91; Walker v. Walker, 13 N. H. 196.

The practice was within the discretion of the court and could be exercised by it even against the objection of both parties. Spoor v. Shelburne, 131 Mass. 429; Barston v. Sprague, 40 N. H. 22; Walker v. Bailey, 69 Me. 354.

When the answers to these special findings were irreconcilably inconsistent with the general verdict, or the answers to the interrogatories showed that the verdict was founded upon unsubstantial grounds or a misconception of the ease, the verdict was set aside. 28 Am. & Eng. Encycl. (1st ed.) 397; Richardson v. Ware, 62 N. H. 80; Pierce v. Woodword, 23 Mass. (6 Pick.) 206; Parrot v. Thatcher, 26 Mass. (9 Pick.) 426.

Many of the states now have statutory provisions, similar to those of this state, requiring the court on the request of the par-lies to direct the jury to find specifically upon particular questions of fact, and return their finding of fact with the general verdict. These statutory provisions do not affect the discretionary power of the court to require the jury to return with the general verdict findings of certain facts which had been recognized by the court before the enactment of the statute, but only extended the right to the parties to demand their submission. Both are in the interest of justice in order to determine whether the general verdict of the jury is based upon the real issues joined in the action. The trial court should have equal power to direct the procedure in the trial of a cause before it with that of the parties.

The right of the court upon its own initiative to require the jury to return specific findings of fact with a general verdict, has been affirmed in a number of states having statutory provisions giving to either party the right to request the court to direct a jury to make such findings and return with their general verdict. Those returned by direction of the court will have the same effect upon the general verdict as those submitted by request of the parties. Thompson on Trial, Section 2673.

The statute, See. 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction placed upon the Indiana statute by the courts of that state. Gale v. Priddy, 66 Ohio St. 400, 405 [64 N. E. 437],

The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned.

“The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict.” Senhenn v. Evansville, 140 Ind. 675 [40 N. E. 69]; Killian v. Eigenmann, 57 Ind. 480; Louisville, N. A. & C. Ry. v. Worley, 107 Ind. 320 [7 N. E. 215]; Halstead v. Wood, 48 Ind. App. 127 [95 N.E. 429].

We think the court did not err in submitting to the jury these interrogatories, but was within the discretionary right of the court.

An examination of these interrogatories shows that they were all, except the first, and fourth, subject to the objection that they were not findings of facts alone, but mixed finding of fact and law. Brier Hill Steel Co. v. Ianakis, 93 Ohio St. 300.

' The fourth interrogatory and its answer are not material to any issue in the case.

The first interrogatory and1 its answer read as follows:

“State, if possible, the nature and extent of decedent’s intoxication? A. He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car.”

We have examined the evidence in this case, and while the decedent was under the influence of intoxicating liquor at the time he boarded and remained on defendant’s car, yet there was nothing in his conduct that would indicate or notify the conductor of defendant company that he was in a helpless condition, or in fact was not in a condition to know where he was and his surroundings and fully care for himself.

We think that the answer of the jury to this interrogatory is fully justified by the evidence.

He was asked to leave the car because he had not paid his fare. He said he had a ticket, but neither produced the ticket nor offered to pay his fare in case he could not find it, and when requested to leave the car he did so. He was requested to leave the car and did leave the car at a regular stop of the defendant company for discharging and receiving passengers and where other passengers were alighting from the car. After this he went upon the private right of way of the defendant company and was there struck and so injured by another ear of defendant company that he died. There is no testimony tending to prove that defendant’s employees, in charge of the ear which actually inflicted the injury that caused the death of plaintiff’s intestate, were in any way negligent. An electric railroad company operating its cars in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for. non-payment of his fare at a regular .stop for discharging and receiving passengers on a public highway when he, although noticeably intoxicated, was able to walk and talk intelligently. Elliot, Railroads, Sec. 1637; Roseman v. Carolina Central Ry. 112 N. C. 709 [16 S. E. 766; 19 L. R. A. 327]; Korn v. Railway, 125 Fed. 897 [63 L. R. A. 872]; Bageard v. Traction Co. 64 N. J. L. 316 [45 Atl. 620; 49 L. R. A. 424; 81 Am. St. 49.8]; Smith v. Railway, 114 N. C. 728 [19 S. E. 863, 923; 25 L. R. A. 287]; Wood v. Commissioners, 128 Ind. 289-291 [27 N. E. 611],

The railroad company was not required to anticipate that any injury would result to plaintiff’s intestate from its requiring him to leave the car at this place after a failure to pay his fare.

After a full consideration of all the evidence we think the judgment of the court below is manifestly right and for that reason we are not authorized to reverse the judgment.

The judgment of the court below is affirmed. Exceptions noted.

Metcalf, J., concurs

SPENCE, J.,

dissenting.

The plaintiff in error began this action in the court of common pleas of Mahoning county, to recover damages for the wrongful death of Arthur Simms, averring in the petition that her decedent purchased a ticket and boarded one of defendant’s cars, intending to go from Alliance to Sebring; that at stop 47, which was some distance out of the city of Alliance, he was wrongfully ejected by the conductor of defendant’s car; that at the time he was put off the ear he was intoxicated, and by reason thereof was stupid, bereft of intelligence, and unable to take care of himself, which fact was known to the conductor of the car; that it was in the night time and dark; that there was no direct road to decedent’s home, except along defendant’s railway, on which cars were passing frequently; and that shortly after he was ejected, through the negligence of defendant’s employes, he was struck by another car, at or near to the highway crossing, Avhere he was ejected, and died soon after from the effects of the injury.

The defendant company, in its answer, denied any acts of negligence on its part, and averred that Arthur Simms was guilty of contributory negligence in going upon the private right of way of the defendant company.

The case was tried to a jury, and after the evidence was all in, arguments of counsel and the general charge of the court, the court, on his own motion and against the objection and exception of both parties, submitted, in writing to the jury, five interrogatories, prepared by himself, and directed the jury that if they returned a general verdict to answer the interrogatories ;md return them into court with their verdict. The jury returned a general verdict for the plaintiff, answered the five interrogatories, and returned them with the Awrdict.

The court refused plaintiff’s motion for judgment on the verdict, and on motion of the defendant entered a judgment for the defendant, because the ansAvers to the interrogatories were inconsistent with the general verdict.

The majority of this court refused to consider three of the special interrogatories because they were “mixed finding of fact and law, ’ ’ and one because the interrogatory and its answer are not material to any issue in the case. Leaving the following interrogatory and its answer as the only one considered: “State, if possible, the nature and extent of decedent’s intoxication? A. He Avas intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car. ’ ’ The majority of the court dd not find, or state in the opinion, that the interrogatory and ansAver determined the issue or the controlling fact in the ease.

Defendant company introduced evidence, at the trial, showing that Arthur Sims was intoxicated while riding on defendant’s car; that he rode on the rear platform of the car from Alliance to the place where he was ejected; that when the conductor first asked him for his fare he replied that he had a ticket, fumbled through his pockets and said he could not find it; when the conductor again went to him for his fare he did not produce the ticket or offer to pay his fare, and the conductor put him off the ear; that it was in the night and dark; that stop 47 is in the country; that shortly after he was ejected from the ear the motorman of another of defendant’s cars, as he Avas approaching the highway crossing Avhere Simms was ejected, saw an object on the track, Avhieh object proved to be Simms lying on the track where he was struck by defendant’s car and injured so that he died soon after the injury.

From the evidence in the case it is fair to presuine that, almost immediately after leaving the car, Simms lay doAvn, or fell down on the tracks of the company; as Avhen he was discovered he was at or near to the highway crossing where he was ejected from the ear; that he Avas' in a helpless or unconscious condition from the effects of bis intoxication. From the undisputed evidence in the ease any reasoning mind would be led to the inevitable conclusion that the answer to the interrogatory, as returned by the jury, that, “He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car, ’ ’ is not justified by the evidence.

The only statute in this state authorizing the court to submit special interrogatories to the jury to be answered and returned with a general verdict, is See. 11463 G. C. which provides :

“"When either party requests it, the court shall instruct the jurors, if they return a general verdict, especially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Quoting from the majority opinion:

“It is evident from a reference to the section of the General Code, which is referred to, that the statute under which the court directs the jury to return a special finding of facts with the general verdict, does not specifically provide for the court, upon its own motion, making such direction, so that if it was not error for the court to do so, it must be under the inherent power of the court to direct and control the procedure in the trial of a case.”

In another part of the opinion it is said:

“The statute, Sec. 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction placed upon the Indiana statute by the courts of that state. The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned. The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict. Senhenn v. Evansville, 140 Ind. 675 [40 N. E. 69]; Killiam v. Eigenmann, 57 Ind. 480; Louisville, N. A. & C. Ry. v. Worley, 107 Ind. 320 [7 N. E. 215].”

The opinion does not state which is the correct construction of our statute. The first proposition is that the statute does not authorize the court, on its own motion, to submit interrogatories to the jury. The second proposition is, that because of the Indiana parentage of the statute, it does authorize the court to submit them. The “inherent” power of the court to submit interrogatories on its own motion, is supported by decisions of the courts of Massachusetts, New Hampshire and Maine. At an early day the practice seems to have grown up in Massachusetts for the court to ask the jury when they returned a verdict, whether they had found a certain fact necessarily involved in a general finding; or if the judge is surprised by thee verdict, to ask the jury upon what principle it was found. This practice was followed in New Hampshire, Maine, and in an early case in New York. The questions and answers were used in making up a bill of exceptions, or on granting a new trial, because of the insufficiency of the evidence. We have not been referred to a case, and I have not been able to find one, in those states, where the court, on answers to questions or interrogatories submitted to the jury, on the court’s own motion, entered a judgment contrary to the general verdict of the jury.

We are not informed as to the nature or extent of the jurisdiction conferred upon those courts, but the courts of Ohio have a limited jurisdiction. Article 4, Sec. 4 of' the constitution of Ohio provides:

“The jurisdiction of the courts of common pleas and the judges thereof shall be fixed by law. ’ ’

In Stevens v. State, 3 Ohio St. 453, the syllabus is:

. “The constitution confers no jurisdiction whatever upon the courts of common pleas in either civil or criminal cases. It is made capable of receiving jurisdiction in all such cases, but can exercise none until conferred by law. ’ ’

And in Allen v. Smith, 84 Ohio St. 283 [95 N. E. 829; 24 Ann. Cas. 611], it is said:

“The jurisdiction of the courts of common pleas of the state is, by force of this section of the constitution, to be fixed by statute.”

There is no “inherent” power conferred upon the courts of Ohio, and the value of decisions of other states, as aids to our courts, depends upon the jurisdiction conferred upon such courts. Section 11463 G. C. is tbe only statute in Ohio authorizing the courts to direct the jury, specially to find upon particular questions of fact, “when either party requests it,” but it does not authorize the court, on its own motion, to direct a finding of facts. Courts have certain incidental powers necessary to carry into effect the delegated powers, but there is no inherent power conferred upon them in this state.

The proposition that Sec. 11463 was adopted from an Indiana statute on the same subject, and presumably with the construction placed upon the Indiana statute by the courts of that state, is a rule of construction which we supposed was abrogated by the Supreme Court of Ohio in the case of Erie Ry. v. Steinberg, 94 Ohio St. 189 [113 N. E. 814], in the case of Killian v. Eigenmann, 57 Inch 480, it is said: “The court may direct a jury to answer interrogatories propounded of its own motion. See Weatherly v. Higgins, 6 Ind. 73.” In Louisville, N. A. & C. Ry. v. Worley, supra, Elliott, J., said:

“Our decisions are that it is proper for the trial court to revise interrogatories submitted by the parties, and to prepare and propound for itself proper' interrogatories to the jury, Killian v. Eigenmann.”

And in Senhenn v. Evinsville, supra, Howard, J., said:

“We are of opinion, however, subject to review, as in other eases, the court may prepare and propound to the jury proper interrogatories to be returned with the general verdict. Killian v. Eigenmann, and Railway Co. v. Worley.”

There is no intimation in any of these cases, that the court was authorized to enter a judgment, on the answers to the interrogatories contrary to the general verdict. In each case judgment was entered on the general verdict, and each case was reversed for error in the charge of the Court.

It will be noticed that none of the above cases refers to the statute of Indiana authorizing the submission of interrogatories to the jury, or places a construction upon the statute. The first decision referred to, in Killian v. Eigenmann, supra, refers for authority to the case of Weatherly v. Higgins, supra, where the court was construing the statute that provides:

‘ ‘ Unless otherwise directed by tbe court, a jury may render either a general or a special verdict in all actions.”

Held, that the words: “Unless otherwise directed by the court,” show that the legislature intended to clothe the court with power to direct the jury to find a special verdict without being requested by either party.”

The court was construing a different statute, and this decision is no authority for the decision in Killian v. Eigenmann, supra, and the two decisions following it are based upon this erroneous reference, and the only way those eases can be sustained as authority, is on the theory of some courts that an error frequently repeated by the courts makes it an established principle of law.

The learned judge in preparing the opinion for the majority of the court, seems to have overlooked the case of Cleveland, C., C. & I. Ry. v. Bowen, 70 Ind. 478, syllabus:

“Under Sec. 336, 2 B„ S. p. 171, a jury can only be requested to answer special interrogatories conditionally upon their finding a general verdict, and then only when so instructed by the court, upon the request of one or both of the parties. The submission of interrogatories to the jury is a judicial act, and the record ought, in some way, to show affirmatively that the interrogatories were submitted to the jury in the manner and under the circumstances contemplated by the statute.”

Elliott, C. J., said:

“If the court were authorized, at their discretion, to submit interrogatories upon mere questions of fact, in all cases, we might be justified in assuming, where interrogatories have been answered and returned into court, that they have been properly submitted to the jury; but, however that might be, we think a stricter rule ought to be observed, where the authority of the courts in that respect is limited and special.”

The majority opinion seems to have followed the obiter dicta of the courts, rather than the construction placed upon the statute by the Supreme Court of Indiana. Our attention has not been called to a case, and we have not been able to find one, where judgment was entered, contrary to the general verdict, on answers to special interrogatories, submitted to tbe jury, on tbe court’s own motion, except, in states where tbe legislature has specially authorized the court, on its own motion, to submit interrogatories to the jury. The majority opinion seems to have gone farther than any case, ancient or modern, and to be a departure from both principle and authority.

The petition in the case at bar raised the question of the “last clear chance,” or at least the case was tried and submitted to the jury upon that theory. The duty of the defendant company is defined in the following cases. In Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. 282; 16 L. R. A. 674], it was held:

“It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the injury of which he complains, if the defendant, after he became, aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid it, and he was thereby injured. The rule that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

In West v. Gillette, 95 Ohio St. 305 [116 N. E. 521], Johnson, J., said:

“It seems to be now generally agreed that this doctrine of ‘last chance’ is a humane modification of the strict and rigid rule which denies to a plaintiff under all circumstances any recovery for the negligence of a defendant, where the plaintiff has himself contributed to the injury by his own negligence. The application of this rigid rule was in many eases found to work injustice, for it would surely be unjust to hold that one should be denied the protection of the law because of acts of carelessness on his part, which were followed by subsequent acts of negligence on the part of another, which latter acts were the proximate cause of the injury. It would, in effect, be holding that where, “for example, one goes upon a railway track without exercising proper precaution as to danger, the railway company would be relieved, thereafter, of the duty to exercise ordinary care for his safety. Where one knows of another’s negligence and the circumstances are such that the former has control of the situation, this knowledge and control impose on him as to his subsequent acts an affirmative duty to use ordinary care to avoid injury.’’’

In 2 Thompson, Negligence (2 ed.) Sec. 1629, the rule is stated as follows:

“Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings, as distinguished, from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them. ’ ’

In 2 Wood’s Railway Law, p. 1267, Sec. 320, it is said:

“It may be said to be that a railroad company is bound to keep a reasonable lookout for trespassers upon its tracks, and is bound to exercise such care as circumstances require to prevent injury to them. ’ ’ And on page 1269, it is said:
“If, however, he, the engineer, sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving good reason to believe he is insane or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not or would not, and he should, therefore, take measures to stop his train in time to avoid injuring him.”

Some little confusion is created in regard to the duty of an engineer to keep a lookout ahead of his engine or train by the decisions of the courts in Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. 571 ]; Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844], and the dissenting opinion in West v. Gillette, supra. These eases are distinguished from Cincinnati, H. & D. Ry. v. Kassen, supra, but do not assume to reverse that ease. An analysis of the cases will show that the apparent confusion is in generalities, rather than in the correct application of the law to an admitted or proven state of facts.

The doctrine of the “scintilla rule” of which Judge Wanamaker said in the case of Gibbs v. Girard, 88 Ohio St. 34, 43 [102 N. E. 299; 1914c Ann. Cas. 1082], “We content ourselves merely with the brief statement that we heartily reaffirm the doctrine. ’ ’ Under this rule it was the duty of the court to submit the case to the jury if there was any evidence on every fact necessary to sustain plaintiff’s cause of action. The evidence shows that the accident occurred at or near to the highway crossing where Simms was ejected, and where all the authorities agree that it was the duty of the person in charge of defendant’s car, to keep a lookout ahead of the ear for persons on the track. Whether there is sufficient evidence was, in the first instance, for the jury, and the jury having returned a substantial verdict for the plaintiff, it was then a question for the court to determine whether the verdict is sustained by sufficient evidence.

At the close of the majority opinion it is said:

“After a careful consideration of all the evidence we think the judgment of the court below is manifestly right, and for that reason we are not authorized to reverse the judgment.”

This is an attempt to apply to this case the doctrine of the “substantial rights” statute which provides:

“In every stage of an action the court must disregard any error or defect in the pleadings or proceedings which does not effect the substantial rights of the adverse party,” etc.

After a case has been submitted to the jury, and a general verdict returned by them, the code provides, See. 11576, that the trial court, on application of the party aggrieved, may grant a new trial, and one of the grounds for which a new trial may be granted is, “That the verdict is not sustained by sufficient evidence,” and Sec. 11576 of the code says: “A new trial is a reexamination, in the same court, of an issue of fact, after a verdict by a jury," etc. All that the trial court is authorized to do, if it is satisfied that the verdict is against the weight of the evidence, is to grant the party a new trial, and if judgment is entered on a verdict all that the court of appeals on error can legally do, if it is satisfied that the verdict is against the weight of the evidence, is to reverse the. judgment and remand the case for another trial. This court held in the case of Mahoning Valley Ry. v. Santoro (not reported), that the common pleas court can only grant one new trial, and the court of appeals can only grant one judgment of reversal, in the same case, against the same party, on the weight of the evidence, which judgment was affirmed by the Supreme Court.

If the trial court was right in entering judgment for the defendant, then the verdict of the jury must have been against the weight of the evidence, as the verdict was for the plaintiff. The majority of this court assume to determine this question from the evidence which they have no right to do, and in doing this they cannot be aided by the answer to the interrogatory.

In the case of Cleveland & E. Elec. Ry. v. Hawkins, 64 Ohio St. 391 [60 N. E. 558], Shauck J., said:

“Its object (the statute authorizing the court to direct the jury to find specific facts), is to enable the court to determine as a matter of law whether the general verdict is right in view of the jury’s conclusions upon questions of fact, not to aid the court in determining whether the verdict is contrary to the weight of the evidence."

The petition avers that Simms was wrongfully ejected from the car and that he received the injury which caused his death through the negligence of the defendant company, neither of these questions is answered by the interrogatory.

The defendant company set up as a defense that Arthur Simms was guilty of contributory negligence in going upon the private right of way of defendant company. The burden of proving this defense was on the defendant company.

Judge Davis, in Drown v. Traction Co. supra, said:

“But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until tbe moment of tlie accident, or the defendant either knew of his danger, or, by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury, and that of the plaintiff the remote cause.”

The burden of showing that Simms wrongfully went upon the right of way of the defendant company, and that his negligence actively continued and concurrently combined at the time of the accident, with the negligence of the company in producing the injury was upon the defendant. The evidence shows that Simms was drunk while on the car; that shortly after he was pnt off he was discovered lying on the track near to the place where he was ejected; evidently in a helpless or unconscious condition, or he would not have remained there until struck by another car and killed. This question is not determined by the answer to the interrogatory.

Section 10214 G. C. provides: ‘ ‘ The code of civil procedure shall be liberally construed in order to promote its object and assist the parties in obtaining justice.”

An eminent former Ohio judge, recently said:

“They, (the statutes providing for a liberal construction of the code) seem to have proved traps for the unwary, for today it is authoritatively stated that the majority of cases rest upon technical points of practice not involving the merits. '

I do not believe that it was the intention of the legislature, in enacting these statutes, to give to courts the right to correct supposed errors, omissions or other defects in our laws; that would be judicial legislation, and certainly it was not the intention of the legislature of Ohio to make the “substantial rights” statute a “stygian pool,” in which to bury the mistakes of courts; nor was it intended to give to the courts the power to take from even the humblest citizen a right guaranteed to him by the constitution of the state.

Substantial justice is seldom, if ever, attained, except by a substantial compliance with the laws of the state. Some judges seem to have conceived the idea that superior wisdom, is shown in originality, and many of them are original; th’eir idea is that a liberal construction of our practice acts gives to the eourt an unrestrained discretion in the conduct of trials, and that no violation of these acts will effect the substantial rights of the parties. If such rules are to obtain in our courts, then the judges will have as free a hand in the conduct of trials as the chancellors in the early English practice, and no doubt there will be as great a diversion of opinion as there was among the early chancellors.

In Gibbs v. Girard, supra, syllabus:

“The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.”

Judge 'Wanamaker, said, after referring to a number of cases:

“We content ourselves merely with the brief statement that we heartily reaffirm the doctrine. To hold otherwise would not only commit but permit, in a multitude of cases, a sinister and indirect invasion and usurpation of the right of trial by jury. A legislative act impairing it would be clearly unconstitutional. How, then, can a judicial order or judgment that indirectly but most effectually defeats the right of trial by jury, be otherwise than an invasion and violation of a party’s rights? The right is merely to have questions of fact determined in the first instance by a jury under proper instructions of the eourt appropriate to the issues and the evidence.”

In the ease at bar the province of the jury has been invaded by the court, and the plaintiff has been deprived of the right of trial by jury, which is guaranteed to her by the constitution of the state. This case will exemplify the effect of the narrow construction placed upon the constitution of Ohio, which construction has sent many a worthy causé, to an untimely grave.


source: Caselaw Access Project

author: HOUCK, J.

license: Public Domain

text:
    WORKMEN’S COMPENSATION.
    [Delaware (5th) Court of Appeals,
    July 5, 1917.]
    Powell, Houck and Shields, JJ.
    Maria Placide Bellomo Musselli v. Industrial Commission of Ohio.
    Legal Wife Not Barred from Benefits Under Workmen's Compensation Act by Husband’s Bigamous Marriage.
    The fact that one killed in the course of his employment had contracted a bigamous marriage does not bar his legal wife living in Italy from receiving benefits under the Ohio workmen’s compensation act, where there is no evidence that she had been other than a faithful wife.
    [Syllabus by the court.]
    ERROR.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      T3. C. Turner and D. M. Cupp, for defendant in error.
   HOUCK, J.

The error complained of in this ease is to the sustaining of a general demurrer to the petition of the plaintiff below, the plaintiff in error here. The following are the material allegations of the petition:

Plaintiff is the lawful widow of one Raphael Musselli, who on or about December 1, 1913, received an injury, while in the course of employment with the Delaware Blue Limestone Quarry, and from such injury died; that the wages earned by the decedent at the time of the injury were three dollars per day, and that application was made by the plaintiff for compensation to the Industrial Commission of Ohio; that plaintiff’s application for compensation was disallowed by the said commission for the reason that the plaintiff herein was not a dependent of the deceased at the time of the injury causing his death; that the decedent came to the United States of America about the year 1901, leaving plaintiff and a child in Italy; that after the decedent’s arrival in America correspondence was continued with the plaintiff from time to time, and that the decedent sent plaintiff money at various times; that two attempts were made by the decedent and plaintiff to have plaintiff come to the United States of America, but said plaintiff was refused the right of immigration, the last attempt being made in 1908.

The petition further alleges that the last money received by plaintiff from her husband was in January, 1909- that shortly after this time Raphael Musselli married a woman in the state of West Virginia, with whom he lived for about one year and a half, after which time he left the woman he had married in West Virginia and came to Piqua, Ohio, later locating in Delaware, Ohio; that the decedent often spoke affectionately of his family in Italy, and that he had given some money to a friend, which was placed in a letter, addressed to plaintiff, and mailed in New York city, and the reason given for this peculiar action is that the decedent did not desire to have it known where he was located ; that the decedent while in this country had never made application to become a citizen of the United States, and that he always expected and looked forward to returning to the kingdom of Italy; that plaintiff is extremely poor, and that since the death of the decedent she has not remarried, and that she is dependent for livelihood upon labor in the fields, when such employment can be obtained.

The petition further alleges that the plaintiff is the lawful wife of the decedent, and dependent upon him within the meaning of the workmen’s compensation law, and asks the court to determine her rights under said law, and for the compensation to which she is entitled under the provisions of said law.

The rights of the parties hereto must be determined from the proper construction to be placed upon See. 35 of the workmen’s compensation act of 1913, as found in 103 O. L. 72, being the law in force at the time the alleged cause of action arose. The statute reads as follows:

“In case the injury causes death within the period of two years, the benefits shall be in the amounts and to the persons following:
“1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof.
“2. If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date of injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars.
“3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent of the average weekly wages, and to continue for all of such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars.
“4. The following persons shall be presumed to be wholly dependent for support upon a deceased employee:
“ (A) A wife upon a husband with whom she lives at the time of his death.
“(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.
“In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee; but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband or widow, lineal descendant, ancestor, or brother or sister. The word ‘child’ as used in this act, shall include a posthumous child, and a child legally adopted prior to the injury.”

It is contended by counsel who filed the demurrer that under the allegations of the petition and a proper construction of the word ‘ ‘ dependent, ’ ’ as found in the statute under consideration, that the plaintiff is not entitled to compensation, because at the time of the injury and death of the decedent, who was the husband of plaintiff, they were not living together, actually or constructively, and that the husband must have contributed to the support of his wife at or near the time of his death in order in law to make plaintiff a dependent and entitled to participate beneficially under the workmen’s compensation act.

Let us first inquire what is meant by “dependent.” as the word is used in this statute. The commonly accepted meaning of the word is, one who looks to another for support, help or favor.

The crux of the case seems to center, in the word “dependent,” as used in the statute heretofore referred to. A wife is a natural dependent — a fact that is universally conceded — and the dependency of the wife on the husband is continuous while the marital relation exists, unless by some act of herself of by operation of law such dependency ceases.

Then let us inquire as to whether or not the claim of defendant’s counsel is sound, that because the wife was several thousand miles away from her husband she is not entitled to benefits under the statute, although she had made two attempts to cross the Atlantic ocean, leaving her home in Italy to come to America and join her husband but for some reason not being permitted to do so, and although her husband had sent her money from time to time and as a matter of fact and in law was his wife at the time of his death. In the face of these facts we can not agree with the claim of counsel for defendant.

Learned counsel for defendant in their brief say:

“In March, 1912, after living with wife number two in the state of West Virginia for about three years and three months Musselli left her and came to the state of Ohio. He had contributed nothing to the support of his wife and child in Italy since the month of January, 1909, and nothing toward the support of his West Virginia wife and child since March, 1912.

The question involved in this ease, and the question which was submitted before the Industrial Commission of Ohio, is whether or not the wife and child residing in the kingdom of Italy, at the time of the death of Raphael Musselli, the husband and father, are dependents of said decedent under the Ohio Workmen’s Compensation Law, and whether they were dependent upon said decedent for their support at the time of the injury which caused his death.

* * $ * * *
“The facts in this case clearly indicate that there was neither a voluntary or mutual agreement to live separate and apart, but that there was an abandonment of the marital relations, both legal and moral, by the husband of this plaintiff, and that there existed no reasonable expectations that the relation of husband and wife would ever be resumed, and that under no circumstances under the facts in this case could the plaintiff and the decedent be considered to be either actually or constructively living together. We think that the fact that the decedent had contracted a bigamous marriage is conclusive proof of abandonment of the wife and child living in Italy. ’ ’

We are unable to subscribe to this doctrine, and do not believe it to be sound from a legal standpoint, and most certainly has no foundation upon which to stand from a moral point of view.

It must be conceded that the provisions of the law under review are wise and humane, and were enacted for the purpose of furnishing the means of support for the widows, children and dependents of employees who might lose their lives while engaged in some labor or work in an endeavor to obtain the means of support for those near and dear to them. This law is for the benefit of the dependents of employees, and in view of this fact how can it be claimed with any force that the surviving widow in the present case should be barred of her rights under the law because her husband contracted a bigamous marriage, or because for a period of time he failed and neglected to send her money ? What act has she done or failed to do that should prevent her from receiving the benefits of this law? Are the wrongful, unkind, unfaithful acts and misconduct on the part of her husband to be charged against the dutiful wife and mother, thereby preventing her from reaping the benefits of the statute that was specially enacted to take care of just such unfortunate persons? Certainly not.

We find no allegation in the petition that could be construed as an admission on the part of the plaintiff that she knew of any misconduct of her husband.

Courts have no function of legislation, but simply seek to ascertain the will of the legislature in its enactment of a law and to give the language used that plain meaning which the words and sentences upon their face imply.

If we are to determine the intent of the legislature in its enactment of the workmen’s compensation act by the rule herein laid down, and applying the law as thus interpreted to ascertain whether or not the petition in this case is sufficient in law, we must and do say that it is.

Having so found, the judgment of the common pleas court is reversed, and this cause is remanded to that court with instructions to overrule the demurrer to the petition.

Judgment reversed.

Powell and Shields, JJ., concur.


author: CHITTENDEN, J.

text:
    CARRIER — STREET RAILWAYS.
    [Lucas (6th) Court ot Appeals,
    January 15, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Toledo Railways & Light Co. v. John Duggan.
    1. Street Car Conductor Is Alter Ego of Company.
    A street car conductor, while in charge oí a car and engaged upon his regular run, is the alter ego of the company, and, when performing any act associated with his duties as conductor, is acting within the scope of his authority and his employer is responsible for such act.
    2. Passenger Permitted to Enter Pay-Enter Car Entitled to Protection as Such.
    Where a street railway company instructed its conductors to refuse a tender of a three cent fare but to permit the person making such tender to ride, and the plaintiff presented himself at a proper street crossing as a passenger and was permitted to enter the car and thereupon tendered to the conductor three cents, and the conductor allowed him to be transported, he was • in every sense a passenger, and entitled to protection ol such.
    [Syllabus by the court.]
    ERROR.

      Messrs. Tracy, Chapman & Welles, for plaintiff in error.

      Mr. W. E. McLellan, Jr., for defendant in error.
   CHITTENDEN, J.

John Duggan sued tbe Toledo Railways & Light Co. to recover damages for an alleged assault and battery committed by a conductor in the employ of the defendant, while the plaintiff was a passenger upon one of its cars. The trial in the common pleas court resulted in a verdict and judgment in favor of the plaintiff in the sum of $500.

The claimed errors presented by the plaintiff in error to secure a reversal of the judgment are the refusal of the trial court to give certain written instructions, requested by the defendant before argument; failure to give certain instructions requested by the defendant after argument; errors in the charge of the court, and that the verdict and judgment are excessive.

Instruction number two, requested to be given before argument, is as follows:

‘ ‘ Even if you find that plaintiff had trouble with some conductor as claimed by him, he is not entitled to recover herein unless you find that the conductor was acting within the scope of his authority at the time. ’ ’

The evidence leaves no question but what the conductor alleged to have made this assault was the conductor in charge of the car upon which Mr. Duggan was at the time. The testimony of Mr. Duggan is to the effect that, upon entering the car, it being of the pay-enter type, he tendered the conductor three cents in payment of his fare; and that thereupon the conductor asked him what he was trying to do and demanded that he pay a full fare, saying to Mr. Duggan that he had a lot of money. Mr. Duggan responded that he was going to pay only a three-cent fare; that he was doing as other lawabiding citizens were doing, and stated that he was authorized to pay no more than three cents. Thereupon, he says, the conductor seized him, jerked him up against the side of the door, knocked the money out of his hand and scratched his nose. In this situation the jury should have been charged by the court that the conductor was acting within the scope of his authority. A conductor, while in charge of a car and engaged upon his regular run, is the alter ego of the company, and, when performing any act associated with his duties as conductor, he is acting within the scope of his authority and his employer is responsible for such act. Baltimore & O. Ry. Co. v. Reed, 31 O. C. C. 521 (12 N. S. 177).

In the general charge the court left to the jury the question as to whether or not the conductor was acting within the scope of his authority, and charged the jury that, if they found that he was not acting within the scope of his authority in committing the assault charged by the plaintiff, the defendant would not be liable. In so charging the jury the trial court was in error. But inasmuch as the instructions contained in the general charge, as above stated, were favorable to the plaintiff in error, the error is not prejudicial and affords no ground for reversal.

Request number three is as follows:

“Plaintiff is not entitled to recover herein unless he was wantonly, willfully and maliciously assaulted by one of the de-: fendant’s conductors acting within the scope of his authority. ’ ’

This request is based upon the theory that the plaintiff was not, at the time of the alleged assault, a passenger, but was only a licensee. ¥e think the request is erroneous even upon this theory of the ease. In order that the defendant shall be held liable because of injury to a licensee, it is not necessary to show that it was wanton, willful and malicious. It is sufficient to show that the injury was willfully inflicted. We think, however, that the evidence fairly shows that the plaintiff was more iban a licensee. The evidence of the conductor is to the effect that when persons boarded the car he was to demand of them either a four and one-sixth cent ticket or a five-cent cash fare, and that if the person tendered to him but three cents, he was to refuse the tender of three cents and permit such person to ride. We have no doubt that under this peculiar situation, when Mr. Duggan presented himself at the proper street crossing as a passenger, and he was permitted to enter the car, and tendered to tbe conductor three cents, and the conductor permitted him to be transported, that he was in every sense a passenger and entitled to protection as such. It follows from this conclusion that there was no error in refusing written instruction number three. "What has been said also disposes of the claimed errors in the refusal of the court to give instructions requested after argument.

We have examined the charge of the court and, aside from the error heretofore pointed out, and which was favorable to the defendant, we find no error in the charge.

We are unable to find that the verdict is excessive. The jury were entitled to assess punitive damages if they found that the assault was malicious. In determining the amount of such damage they migli t rightfully take into consideration everything disclosed by the evidence — the fact that the plaintiff was an old man some seventy-four years of age, and that he was in feeble health. The jury might well feel that a substantial sum should be imposed as punitive damages to the end that the defendant might take all proper and necessary precautions to prevent recurrence of such treatment of passengers upon its cars.

It is claimed that there was some error in not instructing the jury that if they should find that the assault of the conductor was contrary to instructions which had been given him by the defendant company, no punitive damages could be assessed against the defendant. An examination of the record fails to show that the conductor had received any such instructions; but, even if it had so appeared, the charge requested was not a correct statement of: the law. Such instructions are competent evidence, in a case in which punitive damages may be awarded, for the purpose of mitigating or defeating punitive damages, as the judgment of the jury may determine, but it is erroneous to charge the jury that such instructions, as a matter o£ law, operate to defeat punitive damages. Western Union Telegraph Company v. Smith, 64 Ohio St. 105 [59 N. E. 890].

Finding no prejudicial error in the record, the judgment of the common pleas court will be affirmed.

Richards and Kinkade, JJ!, concur.


author: KUNKLE, J.

text:
    STREET RAILWAYS.
    [Montgomery (2nd) Court of Appeals,
    July 6, 1917.]
    Kunkle, Allread and Perneding, JJ.
    Ohio Electric Ry. v. W. C. Mendenhall.
    1. Questions of Negligence of Motorman and Automobile Driver In Crossing Collision Case are for Jury.
    In an action against an interurban railway company for injuries sustained by the driver of an automobile struck by a car as he was attempting to drive across the track, questions concerning the negligence of the motorman and contributory negligence of the plaintiff are for the jury, and it is not error to refuse to direct a verdict.
    2. Instruction Limiting Blowing Whistle at Street Crossing to Instances of Person on Track Properly Refused.
    Refusal to give a special charge in an action for negligence against an interurban railway, based upon a collision of a railway car arid an automobile, to the effect that the duty was not imposed on the motorman to blow his whistle upon approaching the crossing “unless he saw someone was about to cross the track,” was not erroneous.
    3. Speed of Car as Question of Negligence Is for Jury to Determine.
    And in view of the principle that it is not the duty of the court to determine the question of negligence, it is not error to refuse to give the charge “under such circumstances I charge you that the operation of a car at a high rate of speed, if you find by a preponderance of the evidence that the car was so operated, would not be such negligence as would entitle plaintiff to a verdict.”

      McMahon c& McMahon, for plaintiff in error.

      Roy G. Fitzgerald, for defendant in error.
   KUNKLE, J.

Defendant in error sought to recover judgment against plaintiff in error in the sum of $20,000 for personal injuries and damage claimed to have been sustained by reason of the negligence of the employees of plaintiff in error in the respects stated in the petition.

The case was tried and submitted to a jury with the result that a verdict was rendered in favor of defendant in error in the sum of $5,000. Motion for a new trial was overruled; judgment was rendered upon the- verdict and from such judgment error is prosecuted to this court.

In brief, it appears from the record that in the afternoon of August 13, 1914, Dr. Mendenhall, the defendant in error, was driving eastwardly on the Eaton pike, for the purpose of visiting a patient who resided on the driveway which runs north-wardly from the Eaton pike near a point on the line of the railroad of plaintiff in error called Crown Point. At this place the tracks of plaintiff in error are constructed along the north side of the Eaton pike. The track is not constructed upon the traveled portion of said pike but upon the right-of-way of the pike.

Defendant in error was driving in an automobile and in order that he might reach the home of his patient was obliged to cross the track of plaintiff in error at this point, and in so doing was run into by one of the cars of plaintiff in error and was injured. Plaintiff in error insists that it is not responsible for the accident. The testimony shows that defendant in error was seriously injured. No claim is made in the brief of counsel for plaintiff in error that the verdict is excessive. Plaintiff in error contends that it is not liable for the injury in question.

Defendant in error in his petition alleged three grounds of negligence upon the part of the employees of plaintiff in error, namely:

1. That the rate of speed at which the car was being operated was excessive.

2. That no signal was given of the approach of the car.

3. That a proper lookout was not maintained by the motorman in charge of this ear.

We have carefully read the record in this ease, but shall not attempt'to quote therefrom in detail. It is sufficient to say that a number of witnesses testified that this car was being operated at from 40, 50 and 60 miles an hour at the time of the accident. There was also testimony tending to show that another employee of plaintiff in error was standing in the doorway immediately behind the motorman talking with the motorman at-aúd about the time of the accident. There is also testimony tending to show that no signal was given of the approach of the car until just about the time of the crash, i. e., the collision between the automobile and the traction car.

Plaintiff in error introduced witnesses contradicting such evidence. The motorman testified about blowing the whistle for this crossing (page 196) :

“Q. Go ahead. A. When I saw the machine running along side I blew for the crossing, which we naturally do that anyhow; and the next I noticed his wheels turned; that was the first I noticed him turn in at all; I just threw up the emergency break and whistled and reversed the car; by that time it was done.”

Counsel for plaintiff in error rely upon the following alleged errors for a reversal of the judgment:

1. Eefusal of the trial court to direct a verdict.

2. Kefusal to give certain special charges requested.

3. Error in the general charge of the trial court.

In regard to the first claim we think it is sufficient to say that the question of the negligence of plaintiff in error and the contributory negligence of defendant in error were questions for the jury to determine from all the facts and circumstances disclosed by the testimony, and under proper instructions from the court.

Under the decision of our Supreme Court in the case of Ohio Electric Ry v. Weingartner, 93 Ohio St. 124 [112 N. E. 203] and other decisions of the Supreme Court, we think the trial court properly submitted to the jury the question of the negligence of plaintiff in error and the contributory negligence of defendant in error.

Plaintiff in error insists that the trial court erred in refusing to give special charges numbers 1 and 2, before argument of counsel, as requested by plaintiff in error.

Assuming that the facts stated in special charges numbers 1 and 2 are correct (although this fact is disputed by counsel for defendant in error), we are of opinion that the trial court did not err in refusing to give special charge number one for at least the following reason:

This special charge concludes with the following paragraph:

“Under such circumstances I charge you that there was no duty imposed upon the motorman to blow his whistle on approaching said crossing unless he saw some one was about to cross the tracks, and his failure so to do, if you find by a preponderance of the evidence that he did so fail, would not be such negligence as would entitle plaintiff to a verdict:”

The motorman claims that he blew the whistle for the crossing. Other witnesses testified that the whistle was not blown for this crossing. The motorman seems to have considered that some duty devolved upon him to blow the whistle for the crossing in question. We think the trial court was justified in refusing this special charge at least for the reason that it eliminates any degree of care upon the part of the motorman in discovering whether any one was or was not about to cross the tracks at the point in question. It imposed no duty unless the motorman saw that some one was about to cross the tracks.

Under all the circumstances disclosed by the record we think it was the duty of the motorman to at least exercise some degree of care for the purpose of discovering whether any one was about to cross the tracks into this driveway. The charge instructs the jury that no obligation exists unless the motorman saw that some one was about to cross the tracks.

This charge would permit the company to escape liability if the motorman had not been looking at all, or had not made any effort to discover whether any one was about to cross over this driveway. We think the trial court properly refuged to give special instruction number one.

As to instruction number 2, again assuming that the facts stated in this charge are correct, which fact is disputed by counsel for defendant in error, we think the concluding paragraph of this special charge does not correctly state the law upon the subject.

The paragraph referred to is as follows:

“Under such circumstances I charge you that the operation of a car at a high rate of speed, if you find by a preponderance of the evidence that the car was so operated, would not be such negligence as would entitle plaintiff to. a verdict. ’ ’

It was not the duty of the trial court to determine the question of negligence, but it was the duty of the jury under proper instructions from the court and under all the facts and eir-cumstanees disclosed, by the evidence, to determine the question of negligence.

It is further claimed that the trial court erred in charging the jury upon the question of wanton and willful negligence.

The trial court stated to the jury that there was no evidence to support the charge of willful negligence, but did instruct the jury in reference to the question of wanton negligence.

This was an issue under the pleadings in the ease. This issue was explained by the court in its general charge to the jury At the request of counsel for plaintiff in error the issue of wanton negligence was also called to the attention of the jury by the concluding paragraph in one of the special requests, to charge, namely:

‘ ‘ If you find, therefore, by a preponderance of the testimony that if he had looked at such point before attempting to cross the tracks he could have seen the car approaching in time to have stopped the car and avoid the accident, his failure to do so was such negligence directly contributing to the accident as would prevent his recovery and your verdict should be for the defendant, unless you find from a preponderance of the evidence defendant at the time and place of the accident was guilty of wanton disregard of plaintiff’s rights as charged by plaintiff.”

Th's special instruction was given before argument at the request of counsel for plaintiff in error and recognizes one of the issues in the case, namely, that of wanton negligence.

The trial court in the general charge to the jury defined what would constitute wanton negligence, and in other ways referred to this issud We have considered the charge of the tidal court in the respects complained of by counsel for plaintiff in error and when the charge as a whole is considered we find no error therein which ire consider prejudicial to plaintiff in error.

Finding no prejudicial error in the record the judgment of the lower court will be affirmed.

Allread and Ferneding’, JJ., concur.


text:
    SCHOOLS AND SCHOOLHOUSES.
    [Knox (5th) Court of Appeals,
    October 25, 1917.]
    Powell, Houck and Shields, JJ.
    Ira Wheaton et al. as Members of the Board of Education of Union Township v. George H. Ferenbaugh.
    Abandonment of School Property not Shown by Mere Non-Use for Period Less Than Three Years.
    Suspension of school for a period of three years, in the school district in which the school property involved in the instant case is located, does not constitute abandonment on the ground of non-user.
    [Syllabus by the court.]
    Appeal.

      Charles L. Bermont, Pros. A tty., for plaintiff.

      F. 0. Levering and P. A. Berry, for defendant.
   HOUCK, J.

The basis of the action is one for injunction, and was submitted to this court upon an agreed statement of facts.

We do not deem it necessary in order to decide the real question involved in this case to set out in this opinion the agreed statement of facts, as we think it sufficient to say that applying the propositions of law pertinent and applicable to the facts agreed upon, it leaves but one question to be determined by the court, which is a question of fact, namely, as to whether or not said board of education has ceased to use said premises for school purposes.

An examination of the agreed statement of facts shows that 'the school in the school district in which said premises are located has been suspended for about three years by the board of education, and the question for solution is, does this fact constitute such a non-user as would be held to be an abandonment of said school property for school purposes which would warrant, justify and authorize the defendant to take possession of said premises ?

Abandonment, as we understand it, means an intentional relinquishment of a known right, and to constitute abandonment there must be an intent and an actual failure to use. Non-user alone, at least short of the period of the statute of limitations, unless otherwise provided by contract, is not sufficient, as we deem it, to prove an abandonment; but non-user, if continued for such a length of time, coupled with other acts of a character which would within themselves tend to show an intention on the part of the owner not to resume or repossess himself of the thing whose use is relinquished, may constitute an abandonment.

Applying these rules to the conceded facts in this case, we are bound to find and do find that the claim of 'the defendant is not well taken, and therefore the plaintiff is entitled to the relief prayed for in his petition.

Judgment for plaintiff as prayed for in his petition. Injunction made perpetual. This case is remanded to the common pleas court for execution as to costs.

Powell and Shields, JJ., concur.


author: WALTERS, J.

text:
    EMINENT DOMAIN.
    [Pike (4th.) Court of Appeals,
    May 31, 1917.]
    Walters, Sayre and Allread, JJ.
    Judge Allread of the second district sitting in place of Judge Middleton.
    Keziah D. Barger et al. v. Chesapeake & O. N. Ry.
    Proof of Incorporation of Railway Company of Sister State Required as Prerequisite to Exercising Right of Eminent Domain.
    A railway company, incorporated under the laws of another state s and seeking to exercise the right of eminent domain in this state, ‘ has at the preliminary hearing the burden of proving by a preponderance of the evidence:
    (1) Its incorporation in accordance with the laws of the state of its domicile.
    (2) That those whose names appear as stockholders are stockholders in good faith.
    (3) That it has organized a board of directors and said board has met and organized.
    (4) That it is a de jure corporation, vested with the power of eminent domain in the state of its creation.

      (5) That it is unable to agree with the owner of the land in question as to the compensation to be paid therefor.
    (6) That a necessity exists for appropriation of the land for railway purposes, and that its board of directors has so declared.
    [Syllabus by the court.]
    ERROR.

      G. W. Riilenour and C, K. Blanchard and R. J. Odell, for plaintiffs in error.

      Henry Bannon and Levi B. Moore, for defendant in error.
   WALTERS, J.

The railway company filed its petition in the probate court of Pike county, Ohio, to condemn certain lands of the defendants through which it proposed to build its railroad. In its petition it alleged that it “is a corporation duly organized under the laws of the state of Kentucky,” and that “it is authorized as well by the laws of the state of Kentucky, and by its charter fully granted to it by the state of Ohio,' as by the laws of the state of Ohio, to appropriate lands under the statutes of the state of Ohio.”

These allegations were, denied by the defendants, and it was necessary for it to prove these facts by a preponderance of the evidence. The laws of a foreign state must be proven as any other fact in the case. There is no evidence in this case showing that it was authorized by the laws of the state of Kentucky, authorizing its incorporation and organization and that it has complied with these laws, and that the power of eminent domain has been conferred upon it by the laws of the state of Kentucky.

“The laws of another state, where they come in question in the courts of this state, must be pleaded and proven as mat-tei's of fact. ’ ’ Williams v. Finley, 40 Ohio St. 342.

No attempt was made to prove these laws, and this was error.

The burden of proof is upon the railway company to prove that it has a de jure organization, and that its stockholders and directors are Iona fide stockholders and directors in their own right.

In Bowers v. Hazelton & L. Ry. 33 Ohio St. 429, the court held:

“It is essential to the exercise of the right of eminent domain for the company to prove that it has fully organized by the election of directors, and that they are unable to agree with the owner of the property upon the compensation to be paid therefor. ’ ’

In this ease, at page 432, the court says:

“The condemnation of land for the construction of the road comes within the powers to be exercised by the corporation through its directors. It was therefore incumbent on the company to show, in addition to the fact of its incorporation, that it had brought itself into a condition to exercise its powers for the construction.of the road, by a full organization in the election of directors.”

In Queen City Telephone Co. v. Cincinnati, 73 Ohio St. 64, 77 [76 N. E. 392], the court said:

“In Powers v. Railway, 33 Ohio St. 429, it is held that it is essential to a judgment of condemnation in an appropriation proceeding that the company should prove its corporate existence, and among other things show that it has fully organized by the election of directors.
“Proof of the existence of the corporation and of its right to make the appropriation is also now required by Section 6420 Revised Statutes, and the determination by the court of those questions favorable to the company is made jurisdictional.”

It is contended that the filing of articles of incorporation was conclusive evidence of the existence and incorporation of the corporation, but the court, at page 360 of the ease last cited, following State v. Insurance Co. 49 Ohio St. 440 [31 N. E. 658; 16 L. R. A. 611; 34 Am. St. 573], holds that:

“The making and filing for the purpose of profit of articles of incorporation in the office of the Secretary of State do not make an incorporated company; such articles are simply authority to do so.”

In Cincinnati v. Telephone Co. 15 Dec. 43, 53 (2 N. S. 349, 361), the court says:

“The organizing of a corporation is the election of officers by the stockholders. All lawyers use the word ‘organizing’ in this sense. * * * To obtain a charter and to certify that ten per cent of the stock is subscribed are only the first steps towards forming a corporation. At such a state of its existence a corporation can not be said to be organized, and the term is not so used in the reports.”

This decision was affirmed by both the circuit and Supreme Courts, Queen City Tel. Co. v. Cincinnati, 27 O. C. C. 385 (5 N. S. 411), and Queen City Tel. Co. v. Cincinnati, 73 Ohio St. 64.

In American Ball Bearing Co. v. Adams, 222 Fed. 967, Mr. Justice Clarke delivering the opinion of the court held:

“Whether or not an organization is a valid corporation is to be determined by the statutes and decisions of the state where it is organized. ’ ’

In State v. Insurance Co. supra, it is said:

“The making and filing of articles of incorporation in the office of the secretary of state do not make an incorporated company; such articles are simply authority to do so. No company exists within the meaning of the statute until the requisite stock has been subscribed and paid in, and the directors chosen.”

In the case at bar it was necessary for the railway company to prove by the statutes and decisions of the state where it was organized that it is organized as á valid corporation. All these preliminary steps must be strictly pursued and proven.

Parkside Cemetery Assn. v. Traction Co. 93 Ohio St. 161 [112 N. E. 596], syllabus 1, 2 and 3.

“1. The right of eminent domain belongs to the sovereign power, and statutes delegating authority to exercise it must be strictly construed. When it is sought to take the property of an individual under statutes granting such authority to corporations, subject to conditions specifically set forth, the protection of the constitutional guaranty of the right of private property requires that the powers granted by the legislature be strictly pursued and all of the prescribed conditions be performed.
“2. In a proceeding by a railroad company to appropriate land for its use, it is incumbent on the company to prove its incorporation according to law, including the due and legal election of directors, its right to make the appropriation, its inability to agree with the owners and the necessity for the appropriation. By the provisions of Sec. 11046 G-. C., the determina-t:on by the court of those questions favorably to the company is made jurisdictional.
“3. The statutory requirements provided by- Sec. 8632 et seq. G. C., for the creation of a corporation are mandatory and must be complied with before the corporation can be in existence.

Certain extracts from a book referred to as the “Plaintiff’s Corporate Minute Book” were offered in evidence. The book was not identified by any witness who made it, or who was the official secretary, or who had official possession of it. The extracts were incompetent evidence.

305-106 O. L. 347: This section, as amended, does not excuse the company from showing that it is a foreign corporation or from showing the preliminary steps which shall be taken.

The fact that a demand was made to produce certain books and papers containing evidence relating to the merits of the action and defense does not estop the Bargers from objecting to their introduction. The object of the production of books and papers is that the party demanding them may have an opportunity of inspecting them.

The Bargers are not estopped by having given an option on the land because they never received any benefit thereunder and the said contract was abrogated before any benefits were received by them, and therefore no injury was done the railway company.

The railway company must prove by a preponderance of the evidence, in order to acquire jurisdiction to exercise the right of eminent domain, before the probate court on the preliminary hearing:

1st. That it was duly incorporated under the laws of the state where such incorporation was had when the hearing is had in a state other than that of its incorporation, and it must be proven as any other fact in the case.

2d. It must prove that its stockholders are real stockholders in good faith.

3d. That it has organized a board of directors, and that said board has organized.

4th. That it is a de jure corporation.

5th. That it has attempted to agree with the owner of the land as to the compensation and damages, and has failed to do so.

6th. That it was necessary to appropriate the land for the uses and for railroad purposes.

7th. That the road’s directory has declared that it is necessary for the purposes of the road.

8th. That the power of eminent domain has been conferred upon it by the Kentucky laws.

For the errors indicated the judgment of the court below is reversed, and the cause remanded to the probate court for further proceedings according to this opinion and according to law.

Sayre and Allread, JJ., concur.


author: RICHARDS, J.

text:
    INJUNCTION — PARTNERSHIP.
    [Franklin (2nd) Court of Appeals,
    April 25, 1914.]
    Kinkade, Richards and Chittenden, JJ., of the sixth district sitting by • designation.
    M. Lichtenstein v. Max Silverman.
    Window Cleaning not Unique or Extraordinary Work Against which Former Partner May Enioin.
    Injunction will not lie against one who has provided himself with a bucket and ladder and is engaging, without the assistance of employes, in the work of cleaning windows, contrary to a partnership agreement theretofore entered into, where it does not appear that he has solicited or proposes to solicit the work of any of the customers of the plaintiff, his former partner, the work being common labor and in no sense special, unique or extraordinary.
    fSvllabus by the court.]
    Appeal.

      8chanfarl)er <& Schanfarher, for plaintiff.

      Harry Kolm, for defendant.
   RICHARDS, J.

This action is brought for the purpose of enjoining the defendant from engaging in the window cleaning business in the city of Columbus, and from soliciting said business, and from doing any work or getting any work done, in connection wdth the window cleaning or general cleaning business in the city of Columbus.

The parties hereto entered into a contract of partnership on September 18, 1913, for the purpose of engaging in the cleaning business in Columbus. The defendant had no property, but had been theretofore engaged in the work of cleaning windows in that city, while the plaintiff had capital and was engaged, on a large scale, in the same business and in the same city. The partnership seems not to have been very successful, for it was only in effect a few weeks, and resulted in the bringing of this action in the common pleas court on October 31, 1913. The written contract between the parties provided that in the event of a discontinuance of the agreement or of the business, Silverman would not engage in the cleaning business or in any competing business to any cleaning concern in which Lichtenstein was interested, for a period of three years from the date of such discontinuance, in the city of Columbus, directly or indirectly, either as owner, employer, employee, agent or partner.

It is clear from the evidence in this case that after the parties ceased to continue in business as partners, the defendant engaged in the cleaning of window's himself in a small way in the city of Columbus. It appears that his only outfit w'as a ladder and a pail and a chamois skin. This elaborate equipment he carried from place to place in the city by hand, and the motive power in performing his labor was his own muscle. He had no other person in his employment, but it does appear from the evidence that on one occasion he employed a man for a brief period of time to wash certain windows; that occasion, however, was the day that this case ivas tried in the common pleas court, such trial necessitating the appearance of the defendant in court for the purpose of making his defense against the action brought by this plaintiff. The evidence shows that he has not solicited, and does not intend to solicit, the customers of the plaintiff.

The brief of counsel for plaintiff contains the following statements:

“It is not the purpose of this proceeding to enjoin the defendant from cleaning window's. It is not the .purpose of this proceeding to enjoin, the defendant from working as a common laborer. This can not be done. But it is the purpose of this proceeding to enjoin the defendant from carrying on the window cleaning .business in a general way, and to enjoin the defendant from soliciting customers and engaging as an independent contractor. ’ ’

The evidence in this case would not justify the court in granting an injunction against soliciting business from customers of the plaintiff, because it does not show that he has solicited, or contemplates soliciting, such persons. Neither does it show within any fair interpretation of the language of the contract between the parties, that he has engaged, or is about to engage, in the prohibited business other than as simply a common laborer. It is not an occupation which requires any special skill or ability, and the services are not of a unique character. A court of equity will not enjoin, under such circumstances, the performance of such common labor as the cleaning of windows.

I call attention to Columbia College of Music and School of Dramatic Art v. Tunberg, 64 Wash. 19 [116 Pac. 280], where the rule is concisely announced. See Eureka Laundry Co. v. Long, 146 Wis. 205 [131 N. W. 412; 35 L. R. A. (N. S.) 119]. In the last citation the ease may be found fully annotated. See also Jewel Tea Co. v. Novak, 146 Wis. 224 [131 N. W. 415].

We hold, therefore, that the petition of the plaintiff should be dismissed at his costs.

Kinkade and Chittenden, JJ., concur.