author:
KINKADE, J. PARKER, J.,
      WILDMAN, J.,

text:
    ARREST — RAILROADS—PRINCIPAL AND AGENT.
    [Huron (6th) Circuit Court,
    April 19, 1910.]
    Parker, Wildman and Kinkade, JJ.
    New York, C. & St. L. Ry. v. Henry Fieback.
    1. A Railroad Policeman may Act as Agent of Company also, and-Company is Liable for Such Acts.
    A railroad company’s detective duly commissioned as a policeman by the governor may act as an agent of the company for some purposes and not within the scope of his authority as such policeman, and the company is liable for his acts as such agent, but is not liable for acts done in the scope of his authority as a. policeman.

      2. Driving People out oe Railroad Yards is not within Duty of a Policeman.
    When an employe of a railroad company - who is duly commissioned as a policeman by the governor drives people, not committing or threatening to commit a crime, out of the company’s yards and has done so for a long time with the knowledge of the company, he does so as the agent of the company and not as a policeman, and the company is liable for his acts as such agent.
    3. A Man will not be Permitted to Testify Whether He Intended to Act in This or That Capacity in' Doing a Certain Past Act.
    It is not error for the court to exclude the testimony of an employe of a railroad company, who acted at times as a duly commissioned policeman and at other times as an agent of the company, as to whether, in doing a certain act, he intended to act as a policeman or as an agent of the company.
    [Syllabus approved by the court. Wildman, J., dissents as to 2nd paragraph.]
    Error to Huron county common pleas court.
    C. P. & R. D. Wickham, for plaintiff in error.
    Jesse Vickery, for defendant in error.
   KINKADE, J.

This was an action in the court of common pleas to recover damages for an assault committed on Mr. Fiebach as alleged, by the agent of the railway company in the yards at Bellevue, the jury returning a verdict of $1,000 for damages sustained by Mr. Fiebach and judgment was entered accordingly.

A large number of errors are assigned setting forth the reasons why this judgment should be reversed. We find in the record one hundred and twenty-eight exceptions and twenty-eight requests to charge and we are very clear that, after a careful examination of this record, no one will reach the conclusion that any of the rights of the defendant railway company have been overlooked by its counsel in this case; they have certainly been presented very fully.

From what I have said, it will be apparent that it is not practicable for the court to undertake to review in detail the exceptions that have been presented nor to review in detail the requests to charge. I think we have reached a conclusion that perhaps could not have been reached if the court had not been an odd number. We might have been as far apart as counsel were at the trial table, if the court had been an even number. It is perfectly apparent to anybody who will take the trouble to examine this record, that it is full of very important questions, and as I have said, they are fully presented and all presented with great care so that they may be passed upon and a correct result reached.

The case has caused us more concern than any other two eases that we have had, and in announcing the opinion of the majority of the court, I feel at liberty to say that even the majority of the court entertains some little doubt about the correctness of our conclusion in some respects.

Speaking of the requests to charge, while we hold that neither 5, 9, 12 nor 18 should have been given, it may be said that the majority of the court are somewhat in doubt "about 5, 9 and 18. Twelve, we think might well have been given, because it is simply a charge that the commission from the governor was a commission that clothed a detective of the railroad confpany with police powers. We think the failure to give it cannot be prejudicial error in this case, because the commission is in evidence and, taking, the case in its entirety, we cannot see that the failure to give it could be prejudicial to the defendant. We are very clear that none of the requests other than 5, 9 and 18 should have been given.

Is is said here that the court should have admitted evidence that was offered of the intention of Mr. Beattie, the railroad detective, to wit, that he should have been permitted to state whether he intended to act as a policeman, or whether he intended to act as the agent of the company. Upon careful reflection, and an examination of this question in the record, we think that is not correct.

The record discloses that he was asked, not what he intended to do but he was asked in what capacity he intended to act, and we think the capacity in which he acted cannot be determined in that way.

It is said here that it is against public policy for the alleged agent of the railroad company to be at the same time the agent of the company and a commissioned officer of the state, and that consequently no duty that he performed, as long as he held his commission, can in any view of the case be properly outside his commission; that everything that he does must fall within his commission within the terms and scope of his commission — whether it is a police duty or some other duty, and that consequently he falls within the rule that a municipality is not liable for the acts of its police officers and that the same rule applies to an individual who has secured an appointment of a policeman; that the payment,of the salary under the statute does not make the railroad company responsible for the acts of the policeman.

It is true, unquestionably, that a . municipality ' is not responsible or is not liable for the acts of its police officers, done in excess of their authority while acting as policemen.

Nothing could be better established than that by the authorities and the authorities presented here by counsel for the railroad company are very strong indeed along the line that a policeman, working for a private individual under a commission from the governor, is also acting in such capacity as that his employer is not responsible, or the man who pays him rather, is not responsible for any of his acts; and therefore, it is said that this assault, if an assault was committed, must be held to have been committed by the man in his police character, and if he exceeded his authority, nobody is responsible but himself, that certainly the railroad company is not responsible. Many authorities are cited in support of that proposition.

We think the difficulty in this case lies in the fact that the proof in the record which is very long, tends to show that this man had duties outside of the duties as a police officer.

It is said here, that he had no specific instructions and that consequently his relation of agent to the company cannot be shown by showing that he was held out as an agent of the company, as for instance, in a case where some man had contracted with him supposing him to be an agent because he had prior thereto contracted with him; that the rule does not apply here, because Mr. Fiebaeh never saw the man until a few moments before they were in this personal encounter; therefore, it is said that no holding out of the man would be of any avail as showing that he was an agent of the railroad company, and that inasmuch as the plaintiff has not been able to prove any specific instructions to-the man, therefore he cannot be held in this case to be an agent with any specific authority as is claimed here.

The man testified in two ways: — He testifies in one instance that he got all of his instructions from the chief of police of the railroad company, Mr. Snyder, and that Mr. Snyder, whose office was in Cleveland, was charged with the general duty of instructing all subordinate officers in their duties and that he got his instructions from Snyder. Later he testified that when he began work, he reported to Mr. Blair who was one of the division superintendents and he states that he got his instructions from Blair; but perhaps his testimony later may indicate that he did not intend to say quite that much, because at a later point in the record he does state positively that he never had any instructions from any of the officers of the railroad company; he nowhere takes back the statement that he did get instructions from Snyder; but he says positively that he did not have any instructions from any of the other officers of the railroad company; however, in two places in the record, at least, he is inquired of, what his duties were and he details what they were; and among other things, he gives as his duties the driving of people out of the yard of the company; he says he was there to prevent people from riding trains in and riding them out and to drive hoboes out of the yard, whatever that may mean; and that he had driven all classes of people from the yards, that he had been doing that from the time of his employment, some seven years before.

He does not say that he saw people who were violating the law, or who were about to violate the law to the extent, at least, that they had given evidence of such intention, but he simply, says, when he saw people in the yard that to him seemed the proper people to have move along or to leave the yard, that he should consider himself commissioned to perform that service and he proceeded to perform it and he did perform it for some seven years.

Without extending this statement further, I will say that the majority of the court are of the opinion that this record clearly discloses that this man had two lines of duty and that he performed them both — one as a policeman in which he performed purely police duties — and for this we think the the authorities cited by counsel for the railroad company clearly established the proposition that the company would not be liable; but he also had another line of duty, and that was a line of work for the company that did not at all fall within his duty as a police officer; it might fall within the line of duty of any agent, whether he carried a police commission or not, and that in the discharge of those duties, he must be held, under this evidence, to be the agent of the railroad company.

In this case, he encountered a man who was walking along by a train,' toward a switch shanty, and he accosted the man and asked him what he was doing there, and some statements between them took place, each inquiring who the other was and both of them behaving about as unbecomingly as any two .men could behave. Neither of them took the slightest pains, as appears, to avoid trouble; in fact, a reading of this record discloses that they were quite ready to get into difficulty, and like most any two men that meet in the dark in a railroad yard, with that disposition, that followed which naturally would follow and it followed with remarkable rapidity and with disastrous results to one of them.

The whole affair might have been avoided. We think it does not appear that this man was attempting to make an arrest at the time; we think it. appears from the record that he found a man in the yard that he believed belonged to that class that he had customarily chased out of the yard and he proceeded in his own way to chase him out of the yard. Some objection was made by the other man, and his stopping at the shanty resulted in a free-for-all fight.

It is said that there was a cessation of hostilities and that one of them politely asked the other one to pick up his cap for him and when the other offered to perform that service, that he attacked him again, and that renewed the fight and that from that time on, the most injury was done to the plaintiff below in this case and consequently he ought not to recover.

We had read the record in that regard and it presents to us rather a continuous fight, and if there was any cessation of hostilities in which subsequent politeness played any particular part, we do not discover it in reading the record. It is not manifest to anybody; it is manifest that a row was on there, with all the -incidents of a free-for-all fight; and it is also manifest, we think, that the aggressor was Mr. Beatty who was the agent in that transaction, at the start, of the railroad company, and was not acting with a view of making an arrest:

It is said that, after the assault was committed upon him, he then had authority to arrest the man, because the man had committed an assault upon him and that he, Mr. Fiebach, being a violator of the law at that particular moment, it was of no moment that his energies were directed toward Mr. Beatty instead of somebody else.

We think that is true, if the facts were a little different, but we think it would require rather a fine sighting into this record to work out-the situation and find that there had been a cessation of hostilities and a separation of the combatants and the dropping of the controversy, and then such a renewal as justified the man who first began it, in making an arrest because he feared that the law was about to be violated. We think the first violation of the law was upon the part of Mr. Beatty, and it is apparent that it was simply an excess of force used by Mr. Beatty in a representative capacity, as agent of the company in attempting to exclude the man from the property of the company, who had not violated any law so far as the record discloses, nor had he given any evidence of any intention to violate the law to such an extent as would have warranted either his arrest or his being excluded from the property of the company.

Mr. Beatty had a star on, as a police officer, he says, and he says he had it buttoned under two coats; it was not disclosed at all; nothing was said by him about his being an officer until the fight had progressed to some considerable extent, and then the only thing that was said about it was the statement of another man — perhaps a Mr. Tracy — who admonished Mr. Fiebaeh to go along with the man because he was an officer; but for some reason not apparent in the record, Mr. Beatty saw fit to conceal entirely the fact that he was an officer and refused to tell Mr. Fiebaeh his name, and in no wise, as we read it, acted as an officer, but acted as an agent of the company, and acted with excessive force, and acted with resulting injury to Mr. Fiebaeh.

A verdict- of $1,000 has been returned and we think, upon reading the record, that the jury were justified in finding damage to that amount.

Without dwelling upon this case further — a case which we considered and examined very carefully for over a whole day in great detail — I will say that the judgment of the court of common pleas will be affirmed.

PARKER, J.,

concurring.

I desire on my own behalf to attempt to emphasize one or two points that seem to me to be very important in the case, and I do it because these are the points upon which the court has been divided in its opinions.

As indicated by my associate who has just spoken, there was an effort made to have Mr. Beatty testify as to his understanding of the capacity in which he acted on this occasion; that was denied by the court below, and we think correctly. But there was a series of requests to charge based apparently upon the same idea; that is to say, that the jury could, in some way, from the transactions, ascertain the opinion or idea of Mr. Beatty as to the capacity in which he acted, and that then they were to give that idea or opinion consideration, and that, under certain charges requested, if they had been given, it might have a controlling effect.

Now, we have concluded that although the evidence is not strong — is not entirely satisfactory — there is enough here to justify the jury in finding that Mr. Beatty was in fact acting at this time for the company (I do not mean in this particular transaction, but generally, at that period) in two capacities; first, as a policeman with all the authority of a policeman in a city of the first class, so long as he exercised that authority with respect to the property of the railroad company,, and in enforcing such rules as the railroad company may have laid down for the protection of itself, its property and the public, and that he was also acting as a sort o'f patrolman, perhaps a detective, in the preservation of order and in the protection of property for the railroad company, outside of, and beyond, the scope of his duties and authority as a policeman.

It is with respect to his action in- this last mentioned capacity that the plaintiff has undertaken to hold the railroad company liable. I say the evidence is not clear and satisfactory that he was employed by the railroad company to act and that he was acting in this private capacity, but we think there is enough to indicate that they recogniz'ed him as being in their service in the doing of those things; for instance, the driving of hoboes and undesirable and objectionable people away from the right-of-way, so that they might hot commit trespasses or crimes on the company’s property or grounds.

If he had been permitted to testify to what was in his mind or what he may have supposed when a witness, was in his mind, when he was acting on this occasion, as to the capacity in which he was acting, he certainly would have been in a position of great advantage to one party to the suit, and of great disadvantage to the other party, to say the least of it. In this particular instance it was intended, by the testimony offered, to prove that he was attempting to act and supposed he was acting, and intended to act in the capacity of a policeman. If he had been of a different mind, for instance, if he were a witness unfriendly to the railroad company, he might conclude, upon reflection, that he was not acting as a policeman, but that he was acting in the capacity of a private employe of the railroad company, and thereby put the railroad company at great disadvantage. Certainly he ought not, by his mere ipse dixit, or declaration of his supposition as to the capacity in which he was acting, either to fix the liability of the railroad company, or receive or exonerate it. Yet what he might say as to the capacity in which he was acting, or supposed he was acting, would not be susceptible of denial, so there would be only one way of getting away from it, and that would be, for the jury to disbelieve it. Unless they disbelieved his unsupported statement, which could not be contradicted, his declaration upon the subject would be an absolute finality.

That may not always be a valid objection to evidence, but we think it should have a good deal of influence here, where, after the act, one undertakes to characterize his own act ant fix the responsibility of himself or another, by declaring what was in his mind as to the capacity in which he acted.

If the law were, as to such policeman, that the company should be responsible for his acts in excess of authority, or his wrongful acts as a policeman (as in the ease of a railroad conductor), even if it were clear that his acts were entirely outside of the scope of the duties or authority of a policeman, if such evidence were competent, he might make the railroad company liable, or put it in great danger of being required to answer in damages by his simple declaration that, on the occasion, he understood that he was acting in the capacity of policeman.

We think that that would be a very unsafe rule to adopt and one that should not be adopted; and it follows that if he should not be allowed to testify as to his notion of the capacity in which he was acting it would not be proper to direct the jury to try to divine from the circumstances and then to consider what he may have had in his mind upon the subject.

We think the capacity in which he was acting must be determined by the acts that he did. If they were within the scope of the duties of a policeman, then it should be said that he was acting as a policeman, and even if he exceeded his authority in the performance of a policeman’s duty by the use of an excess of force or otherwise, under the law, the company would be exonerated from the consequences of his acts.

On the other hand, if his action was clearly outside of the scope of the duties or authority of a policeman, we think it should be found in that ease, that he is not acting as a policeman, and it did not lie in his mouth to undertake to exonerate himself or the company by saying that the acts were acts that a policeman should do, or that he had it in his mind to act as a policeman on that occasion and therefore the company is-not responsible.

On this occasion, as has been stated, he did not disclose-that he was a policeman; he did not disclose it by the garb he wore — by any uniform; he did not disclose the badge of a policeman that he had upon his person; and when the plaintiff below, who evidently did not know him and did not know that he was a policeman, but had been ordered by him to “move-on,” inquired of liim who he was (not perhaps what his name was, for he was evidently seeking to. ascertain by what authority Beatty undertook to interfere with him), Beatty refrained from' telling him and did not disclose that he was a policeman, and then he proceeded to do acts which, in our opinion, were not within the scope of the duties of a policeman.

Beatty says that he went down there suspecting that this: man was going to attempt to steal a ride on the train.

The evidence in the case is pretty clear that when the altercation took place, and when, in the course of the altercation (according to the testimony of Fiebach), Beatty struck the first blow, the train had moved out, and there was no opportunity for anybody to steal a ride upon it; and therefore at the time of doing the acts complained of, whatever Beatty’s suspicions may have been before — whatever his purpose may have been in moving down to that point — when he did the acts complained of, he could not have done them for the purpose of preventing Fiebach from stealing a ride upon the train. If he was there for that purpose, if that could be fairly said, still in the opinion of a majority of the court, it was not within the authority of a policeman to arrest a man upon mere suspicion that he contemplates a crime. There must be some overt act amounting to an attempt or preparation to commit a crime to authorize an arrest on view without, warrant.

I cannot find from this record that there was ever any attempt to make an arrest. What Beatty did when he became' provoked that indicated a purpose to arrest, according to his testimony, was to grab at Fiebach, and then they clinched and had a fight. What Fiebach says Beatty did was to strike him and knock him down. He made no declaration and gave no-command; he did not say, “I arrest you, come along with me,’' or anything like that, at that time. Later on, and after the first, there may have been something of that kind.

Now I do not understand that, under the circumstances,, he was authorized by law to arrest the man. He might have ordered him off the premises by virtue of his authority as ai representative of the railroad company, but not, as I can see,, as a policeman; he might have ordered him off .as a trespasser^ and he should have disclosed why he did it, and his authority, especially after having thus been pressed for his authority^ Then if the man persisted in remaining there, it is possible that in his other capacity as a policeman he might have arrested him for his refusal to obey the order, i. e., for continued' trespass. Fiébach would not be subject to arrest because he was a trespasser, but because he refused to quit the premises; when ordered to leave by one apparently authorized to give the order.

It seems to me, therefore, that Beatty, never having put himself in the position of policeman where he had authority either to arrest this man for attempting to get upon the train- or to arrest him because he persisted in trespassing, it does not lie in his mouth to say on his own behalf, or on behalf of the-railroad company, that he was acting in the capacity of a. policeman, and that it, would not have been proper for the-jury to find under the instructions that he was, or might have been acting in that capacity, because he supposed he was so-acting, and .that the company should.be exonerated because he supposed he was acting in that capacity.

Neither do I think that the testimony tends to support the idea advanced in argument that Beatty was not acting for the. railroad company at all, but was acting on his own account, and was guilty of assault and battery for which he alone should answer.

It seems clear to me from the evidence that Beatty was undertaking to order and drive Fiebaeh from the premises in. the exercise of .his authority as private patrolman and that the assault and battery was committed in an effort to enforce the order to leave as a sort of “Knock down and drag out.”

WILDMAN, J.,

dissenting.

The case is by no means free from difficulty and notwithstanding the very careful thought that has been given to it by both of my associates, as evidenced by their opinions just expressed, there still seems to be some lingering ’ doubt about the propriety of an affirmance of this judgment. I have no doubt that the judgment should be reversed.

This man Beatty, at the time of the alleged assault for which judgment has been obtained in the court below, was acting in one of three capacities: — He either, as substantially asserted in the evidence of the plaintiff and as the latter describes the transaction, committed an unprovoked . assault, acting on his own violation, ahd' neither as policeman nor agent, upon an altercation arising between Fiebach and Beatty and 'not in the performance of any duty for the company and not in the performance of any duty to the public; or else he acted as an agent of the company; or he acted as a policeman in the discharge of his duties under the commission given-him by the governor and under the statute.

, If he was acting, as the plaintiff describes, without in the first instance directing him to go off the premises, without any effort to prevent him from committing a trespass, if it be true that he struck the plaintiff without provocation, after mere words between them, then he was acting on his own volition and in his own behalf; and surely, it cannot be assumed that even if he was in the employ of the company generally for the purpose of protecting its grounds and driving away trespassers the company had ever authorized him to make unprovoked assaults upon persons outside of any effort to carry out the work entrusted to him. <

Tt is not a ease where, as in the case of a passenger upon a railway train, the person assaulted may be in a sense under the protection of the company. It is possible that if a railway conductor, not in an effort to eject a passenger from a car, but actuated' by private and personal motives, should commit an assault upon a passenger in a car, the company might be liable, although our Supreme Court, so far as I am aware, has never so held.

The company was not liable, if this man committed an assault not within the scope of his employment as agent or servant (the transaction that plaintiff describes), and the company was not liable if he was acting as policeman under his commission as such.

It has been properly urged in argument in behalf of the plaintiff in error that Beatty could not act both as agent of the company and as a public officer at the same time. I do not understand that there is any discord among the members of this court upon that proposition; but the question has been, in which one of two capacities, that of policeman, or of agent, of the company, was he acting, in the transactions which are alleged as the grounds of the plaintiff’s recovery and which resulted in damage to the plaintiff. I am inclined to agree with my associates that the court below was not in error in refusing to permit the testimony of Mr. Beatty that he intended, in what he was doing, to act as policeman. If the question had been, whether at the time he took hold of Fiebach, he was intending to arrest him, I think the answer to the question should have been permitted; but there perhaps was involved in the inquiry, what was the understanding of Beatty as to the nature of his duties, rather than an understanding or statement of just the kind of an act he was intending to do. His purpose is an important element in the case — whether he was at the time intending to make an arrest or whether he was at the time intending to eject the man from the company’s grounds. If he was intending to make an arrest, he was surely doing something that the company could not- . authorize or control or prevent. My own judgment is, that even if he was intending merely to eject the man from the grounds, he may have been acting also as a conservator of the peace, consequently as an officer of the law.

It may be assumed that, although there is very little evidence in the case that he was acting in any capacity for the company, or that he had ever received any instructions whatever from the company, still upon the very slight concession made along that line, he had some authority from the company to patrol its grounds and to drive away trespassers, or to direct them to go away from the grounds, acting as an agent <of the company.

Assuming that he had such authority and that in directing any one to go off the grounds, he was acting as the agent of the company, it does not seem to me that it can be assumed that in the subsequent act, when he put his hands upon the man and attempted either to eject or to arrest him, he was so acting; that is, as an agent of the company.

Gen. Code 12522 (R. S. 6880e) provides a penalty for trespassing upon lands of another:

“Whoever, being about to enter unlawfully upon the inclosed or uninclosed lands of premises of another, and shall be forbidden so to do by the owner or occupant, or his agent or servant, or who, being unlawfully upon the inclosed or uninclosed lands or premises of another, shall be notified to depart therefrom by the owner or occupant, or his agent or servant, and shall thereafter enter upon such lands or premises, or neglect or refv,se to depart therefrom, except persons who .are crossing said lands or premises for some lawful purpose, with the consent of the owner of such premises, shall he guilty of a misdemeanor, and upon conviction thereof, shall be fined, etc.

If Beatty, as agent of the company, notified Fiebach, to '“get off the grounds or come-along with me” and Fiebach '“neglected or refused to depart,” Beatty as agent might have •ejected him or as an officer might in my judgment have lawfully either ejected him to prevent further violation of the law or might have arrested him, or both. He had all the powers under the statute by virtue of which he was commissioned, of .any policeman of a city.

We have another statute, Gen. Code 12543 (R. S. 6982), which reads as follows.- . '' (

“A person who climbs, jumps, steps or stands upon, or •«lings or in any way attaches himself to any locomotive, engine, or car, upon'any part of the track of a railroad, unless in so •doing he acts in compliance with law, or by permission under the lawful rules and regulations of the corporation then managing such railroad shall be fined not more than twenty-five dollars.”

Here we have another misdemeanor which may be the stealing of a ride, or it may be getting upon a car which is standing still, but in either event, it is trespassing upon some of the rolling stock of the company. Mr. Beatty claims that that was what this man was hanging about there for — to “steal a ride.”

It is true, as suggested by Judge Parker, that when the final violence came, according to one witness, one train mentioned had moved on away from the station; but the controversy arose, as claimed by Mr. Beatty, upon the basis of his supposition that the man was there for the purpose of stealing a ride upon the cars.

Now, we have very clear authority by our Supreme Court that where evidence in a case is susceptible of a choice of interpretations and especially in a ease where the presumptions are more strongly against the plaintiff’s theories, than fon them, it is the duty of the eourt to arrest the case from the jury and not permit the jury to speculate as to whether or not the plaintiff’s theories may be well founded. It is probable here, that Mr. Beatty was attempting to act as a police officer, although he grossly neglected some of his duties as such in not having a badge displayed and in not informing the man that he was an officer, so as to remove any excuse for resistance. Although neglectful of his duties as an officer, if he was still attempting to act as an officer, then manifestly he was not acting as an agent of the company and the company would not be liable.

It seems to me the tendencies of the evidence are fortified by what seem to be the legal presumptions.

Tolchester Beach Imp. Co. v. Steinmeier, 72 Md. 318 [20 Atl. Rep. 188; 8 L. R. A. 846], is a case partly in point:

“A policeman appointed upon the application of a corporation which is required by law to pay his salary, is an officer of the state, and the corporation is not responsible for his acts as such officer in making an arrest, especially if it is not done on the premises of the corporation.”

In Jardine v. Cornell, 50 N. J. L. 485, 486 [14 Atl. Rep. 590]:

“The police officer was expressly directed by defendant’s agent to make the arrest, and _ the court held that this made the officer the agent of the défendant, yet the court held that for the subsequent arrest the defendant would not be liable, saying that the act of the officer will be presumed to have been done by virtue of his official character, notwithstanding the fact that, prior to such disorderly conduct, the officer was in law the agent of the defendant.”

In Brill v. Eddy, 115 Mo. 596, 605 [22 S. W. Rep. 488]:

“The officer had been in the employ of the defendant as watchman and was, while so employed, appointed policeman by the mayor of the city. The court held it was a question of fact whether he was acting in his capacity of employe of the defendant, or as policeman. Yet the court said: ‘It is no uncommon thing for corporations and individuals to employ duly appointed police officers to watch their property; and if such officer so employed make an arrest for disorderly conduct, the presumption is, that he acted in his official capacity as agent for the state, and not as agent of his employer. Being an officer whose duties are prescribed, by law, it should be presumed, until the contrary is shown, that his employment contemplates only the exercise of such powers as the law confers upon him.’ ”

There are several other authorities that tend in the same direction in the brief before me from which I have read.

No authorities have been cited to us in conflict with the rule or the statement here made, that the presumption in the case of an arrest is, that the man is acting under the authority of his commission, as a policeman, and that he is not acting as an agent. But, discarding all this, and considering only the rule that the burden of proof is upon the plaintiff to establish his claim that the man was acting as the agent of the company, it seems to me very clear that he has not, by the evidence in this case, substantiated his claim. His own evidence, as I have said, tends to show that the assault was an unprovoked one by Mr. Beatty, as an individual, acting neither as a policeman, nor within the scope of any authority as an agent of the defendant company. The defendant’s testimony, through Mr. Beatty himself, is rather that he was acting as a policeman; it strongly tends to show that he was intending to arrest the man; that seems to have been the impression of the on-lookers and while he perhaps did not so conduct himself in doing it as to justify himself, in case he had been sued personally by Fiebach for assault and battery, still he did not so conduct himself as to make the company liable.

Without dwelling longer upon this phase of the case, and without attempting to read the special instructions asked by defendant and refused, I will content myself with saying that I think instructions 5, 9, and 12 should surely have been given and probably some others.

I do not agree with one of my associates that this was one continuous fracas from beginning to end. I think that according to all the testimony, not only that of Beatty, but that of Fiebach and the bystanders, there was a cessation of hostilities in which the parties separated and after which it was resumed in such mannar that there can be no possible claim that as to subsequent transactions the witness Beatty was acting as agent of the company. However, it is possible that the court sufficiently, in one of the instructions given, guarded the jury from blending all the elements of damage arising from the transaction before the renewal of the fracas with those which arose afterwards. The most serious injury was done to plaintiff after the fight was renewed by the plaintiff himself. I am not prepared to say that the court erred in not sufficiently separating the transactions in this regard, or that the damages, if permissible at all, were so excessive as to show passion or prejudice on the part of the jury.

The judgment, in my opinion, should be reversed for the reasons that I have stated.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    NEGLIGENCE — PLEADING—RELEASE.
    [Lucas (6th) Circuit Court,
    July 3, 1908.]
    Parker, Wildman and Kinkade, JJ.

      Toledo & Ohio Cent. Ry. v. Harry M. Coleman.
    1. Release for Personal Injuries Voidable but not Void Established Requires Instructed Verdict for Defendant.
    Where, in an action for damages resulting from injuries alleged to have been sustained through the negligence of the defendant, the answer sets forth as a defense that the plaintiff in writing released the defendant from all claims resulting from such alleged negligence, and the reply sets forth facts which, if established, would render such release voidable, and further fact which, if established, would render such release void, and there is evidence tending to establish the facts which might render . the release voidable only, but no evidence tending to establish the facts necessary to be established to render the release void, it is the duty of the court, on motion of the defendant, to instruct the jury to return a verdict for the defendant.
    2. One Dollar Consideration hor Release.
    One dollar is sufficient consideration, in law, to sustain such release.
    3. Voidable Release cannot be Pleaded in Reply to Defense of Release Executed.
    Pacts that, if established, would render the release void, may be pleaded in the reply by way of avoidance of the defense of release; but if the facts would render the release voidable only, and not void, the plaintiff cannot avail himself thereof by way of reply.
    4. Cancellation of Voidable Release for Injuries Received not Obtainable in Reply to Defense Interposed.
    If the release is voidable only and not void, the plaintiff cannot maintain his action while it stands uncanceled, and he cannot seek its cancellation in a reply but must do so by petition in a suit in equity for that purpose only, or as a cause of action in the same suit in which he seeks to recover damages for the injury. Perry v. O’Neil & Oo. 78 Ohio St. 200, followed.

      Affirmed, no op., Coleman v. Railway, 81 O. S. 522.

   PARKER, J.

Harry Coleman recovered a judgment in the court of common pleas against the plaintiff in error on account of injuries received to his eye, through the bursting of a water glass, part of a steam gauge of an engine, while he was in the employ of and was in the line of his duty as locomotive fireman; many interesting questions have been presented and argued, but I shall discuss but one.

By way of the defense to the action the railway company pleaded a release given by Coleman to the company, signed by him and dated August 9, 1902. This release seems to have reference to this particular injury, but subsequently on three other occasions Mr. Coleman received other injuries which appear to have been slight, and he executed like releases with respect to those injuries. Each of these releases contained a general clause releasing the company from all claims for damages up to date, and then each mentions specifically the injuries that had immediately preceded the release.

This release of August 9 reads as follows:

“Whereas, on the 7th day of August, 1902, the undersigned, Harry M. Coleman, while in the employ of the Toledo & Ohio Central Railway Company as fireman received certain injuries as follows, to-wit: hit in right eye by piece broken water glass while in said employment at or near Horton station in the state of Ohio; and
“Whereas, the said Harry M. Coleman does not make any claim of any class or character against said company, for or on account of said injuries, and admits that the same are not the result of any negligence on the part of said company,
“Now, therefore, in consideration of tlm sum of one dollar ($1.00) in hand paid, and the further consideration of my reemployment by said the Toledo & Ohio Central Railway Company, for such time only as may be satisfactory to the company, said railway company is hereby released from any and all claims that I, said Harry M. Coleman, claimant herein, ever had or might have against said company, up to date and especially released from any and all other claims arising out •of injuries specially set forth herein.
“Given under my hand and seal at Toledo, Ohio, this 9th day of August, 1902.”

And following that is a receipt for the one dollar mentioned in the foregoing agreement and that is signed by Harry M. ■Coleman and witnessed by H. P. Latta and G. D. Lewis.

What the plaintiff says by way of reply I can hardly state more succinctly than to read it:

“Now comes plaintiff and for reply to the amended answer filed herein, says that.it is not true that on the 9th day of August, 1902, or at any other time, plaintiff entered into an agreement by the terms of which he released the defendant for injuries which he suffered as set forth in his petition.
“Plaintiff alleges that on the said 9th day of August, 1902, the plaintiff was still in the employ of the defendant company and that he had not in any way applied for reemployment by said company, and was not re-employed by said company. That at said time he was temporarily off duty because of the injuries which he received by the bursting of the water glass as set forth in his petition.
“Plaintiff says that on or about the 9th day of August, 1902, he was suffering a great deal of pain from the injuries, which he received in his right eye, and that said eye was in such condition that he could not use the same, and that his left eye was very much impaired by reason of the injuries to his right eye. That by reason thereof he was unable to read. That on or about the said day, he was at the office of the defendant company in the presence of one Latta, who was in charge of the defendant’s round-house, and the superior over-plaintiff. That the said Latta placed before plaintiff a paper containing some printed and written matter, which plaintiff now is informed and believes and therefore avers is the paper referred to in said answer and bearing date of August 9, 1902. That at said time said Latta requested plaintiff to affix his signature to said paper in one or more places,, and at the time told plaintiff it was a mere formality required by the defendant in all cases wherein a person had met with an injury and did not affect any claim he had against said company. That at said time plaintiff was unable to read said paper, and ttiat tbe said Latta and no other person read the same to him or made the contents of the same known to plaintiff, but the said Látta told plaintiff that the same was of no importance, and was a mere formality. That plaintiff relied upon the said statement and affixed his signature as best he could to said paper at the request of the said Latta. That all of the foregoing was well known to said Latta.”

There is more of said reply upon the same subject and of the same tenor, but the substance of it is contained in the paragraphs I have read. There are other averments to the effect that he did not receive the dollar, and that the matter of settling his claim was not discussed and was not considered, and that no idea of that sort was entertained by himself or by the representative of the railroad company, and more to the same effect.

If what I have read were established it would appear that the release was absolutely void. If it were true that Coleman at the time was unable to read by reason of-these injuries to his eye, and if he was deceived by Mr. Latta, his superior in the employ of the company, as to the contents of the paper, if he signed the paper under such circumstances, supposing it to be one thing, whereas it was an entirely different thing, that is to say, a mere matter of form that he must sign before he began work again, whereas it was a release of all his claims against the company, if his signature to the release was obtained under such circumstances and by such method, the release would be absolutely void; and under the authorities, this issue of release might be raised by a reply setting forth the facts showing that the release was void.

On the other hand, if the circumstances were such as to make the release simply voidable in law and not void; if the circumstances were such that a court of equity alone could give relief, then the matter could be properly pleaded in a reply; but it would be necessary, before the plaintiff could maintain his suit, for him to get rid of the release by instituting proper proceedings in equity to have it canceled and set aside. That might be done in a separate and distinct cause of action in the same case as the one wherein he prosecpted his claim for damages, or by suit brought for that purpose only.

As we have said, in this reply, besides the matter pleaded, which, if true, would make the release void, there is much else which, if established, would render the release voidable and would authorize a court of equity to cancel it.

It will be observed that the plaintiff, by bringing this issue into the case by reply, undertook to establish that the release was void.

Now, to go through the record in this case and call attention to all of the testimony bearing upon this issue would take a great deal of time and would not be profitable. I may say, however, generally, that after a careful examination of the record, we are unanimously of the opinion that there is in it no evidence tending to establish the allegations required to be established to render this release void. The evidence does not establish that the plaintiff at the time he signed this release was unable to read; that his eyes were so affected by the injury that he .was unable to read, though it appears that his eyes were somewhat affected, and perhaps he could not have read at that time as easily as ordinarily. It does not appear that Mr. Latta stated to the plaintiff that this release was a mere formality, or that it did not affect any claim that he had against the company. In plaintiff’s interview with Mr. Latta there was nothing said upon that subject, or to the effect that it was of no importance and a mere formality.

On the contrary it appears that Mr. Latta was a friend of the plaintiff’s and that he treated him with entire fairness and candor on this occasion. There was no fraud practiced upon the plaintiff. Had he cared to acquaint himself with the contents of the paper he had full opportunity to do so. It seems quite apparent that he knew substantially what was in the paper.

He received one dollar for the release. It is said that the consideration of one dollar is merely 'nominal, and that it must be apparent that the plaintiff would not release a substantial claim against the company for a consideration of one dollar. In law, a consideration of one dollar is a valuable consideration, and to fulfill the requirement that a contract shall - be supported by a consideration it is as good as a thousand dollars or any other sum. Of course there are circumstances, especially in equity, where the amount or value of the consideration will have weight but it can not be said that this release was void at law because wholly unsupported by a consideration.

The fact is that the plaintiff, after having his eyes injured as we have stated, laid off for a time' and had his eyes treated, and when he came back to the company to “sign up” as they call it, he supposed that his injuries were substantially over with and cured. He did not then appreciate or apprehend that he had received the serious and permanent injuries that he now claims he had in fact sustained. And it was therefore, no doubt, that the matter of signing this release for the consideration of one dollar was regarded by him, as it was by Mr. Latta, as somewhat in the nature of a formality and a matter not involving serious consequences.

It is true, and is very apparent from this record, that they did not consider, upon either side, the question -of settling for the alleged serious injury that it is said had really been sustained by the plaintiff. But it was known by both that the plaintiff had sustained some injury to his eyes, and that it was with respect to those injuries that the dollar was paid and the release given.

Whether the circumstances were such as that the releasshould be set aside by a court of equity because of inadequacy, of consideration, or because of ignorance of the parties of the true situation, or for any other reason, are questions that we are not now called upon to consider.

That the plaintiff understood that he was signing this release is very apparent from his own testimony. He understood that he was signing a release. Several times in the course of his cross-examination when asked why he signed this paper and what he supposed he was signing, he answered in substance that he supposed he was signing off for the time he had lost; that he was releasing any clhim that he might have against the company for the time he had lost. That of course had reference to the time he had lost by reason of this injury to his eye; and it is apparent that at that time he supposed that the only claim that he had against the company on account of these injuries was for loss of time for a few days— loss of wages in consequence of loss of time, and such loss of time being due to the injury to his eye. So that he knew that he was releasing the company from the only claim that he supposed he had against the company for the injuries that he supposed he had received. Under those circumstances the release is valid in law although he discovered afterwards that he had received more serious injuries than he supposed when he signed the release, and concluded that he should have received a large compensation therefor on settlement instead of one dollar only.

Now this question has been fully considered and passed upon by the Supreme Court of Ohio in a decision recently handed down in the ease of Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41]. When we had the case under consideration we had a certified transcript of the opinion of the Supreme Court, but since we decided it the ease has been published. We decide the case at bar upon the authority of Perry v. O’Neil, supra. We will not attempt to add by further comment anything to what is there said in elucidation of this subject.

At the close of all the evidence the trial court was requested by the defendant below to instruct the jury to return a verdict for the defendant in view of the fact that there was no evidence tending to support the allegations of the facts necessary to be established to render this release void. We think that instruction should have been given. As the greater includes the lesser, of course it follows that the verdict on that issue is against the weight of the evidence also.

For these reasons the judgment of the court of common pleas will be reversed and the case will be remanded.

Wildman and Kinkade, JJ., concur.


author: CilFFEN, J.

text:
    CORPORATIONS — RESCISSION.
    [Hamilton (1st) Circuit Court,
    December 7, 1908.]
    Giffen, Smith and Swing, JJ.
    Francis H. Baldwin v. Thomas P. Egan et al.
    1. Retention of Real Estate, Acquired by Corporation Under Ultra Vires Contract, Justified by Necessities of Company, not Rescinded.
    Retention of real estate, acquired by a corporation under an ultra vires I contract and in compromise of pending suits, being justified by the necessities of the company, the agreement will not be rescinded and reconveyance ordered in the absence of fraud or bad faith.
    2. Contract Designating Purchaser “I” Signed with Corporate Name by its President, That of Corporation.
    Contract referring to purchaser of real estate by the pronoun “I” and signed with the corporate name by its president, is the contract of the corporation.
    Error to common pleas court.

      Charles B. Wilby, for plaintiff in error.

      Morrison R. Waite, for defendant in error.
   CilFFEN, J.

The contract of February 16, 1893, although referring to the purchaser of the real estate by the pronoun “I” is signed by “The Egan Company. Thos. P. Egan, Pres’t,” and is "therefore the contract of the company.

The agreement to pay $30,000 in stock of the J. A. Fay & Egan Company for the real estate and the agreement to repurchase the stock on or before ten years from date at $45,000, constituted one indivisible contract, and was assumed by the J. A. Fay & Egan Company when it purchased the business —assumed and agreed to pay the debts and liabilities of the Egan Company.

The contract could not, although ultra vires, be rescinded without a tender and ultimate reconveyance of the real estate.

The necessities of the company justified the retention of the real estate and a compromise of the pending suits to recover the $45,000 on return of the stock, and in the absence of fraud and bad faith the judgment will be affirmed.

Smith and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    December 11, 1909.]
    Giffen, Smith and Swing, JJ.

      William Heffron Construction Co. v. Martin Glass, an Infant.
    1. Test of Master’s Liability for Negligence of One Employe Causing Injury to Another. - '
    The test of liability of a master for injury to one servant caused by negligence of another is whether the latter is placed in authority and control over the former, not whether the former was originally employed to do the act complained of, especially when such act is in furtherance of work in which both are engaged.
    2. Burden of Proving Contributory Negligence.
    Burden of proving contributory negligence put upon defendant by charge of court when no such issue is tendered is erroneous and prejudicial.
    Error to common pleas court.
    Fm. Littleford, for plaintiff in error.

      Kinkead, Rogers & Ellis, for defendant in error.

      Affirmed, Glass v. Construction Co. 86 O. S. 000; 57 Bull. 149.

   GIFFEN, P. J.

The test in this state of the liability of a master for negligence of one servant causing injury to another servant is whether the former is placed in authority and control over the latter, and not whether he (the latter) was originally employed to do the act complained of, especially when such act is in furtherance of the work both are engaged in.

The objection to the charge of the court upon the subject of contributory negligence is not that the court instructed the jury that the negligence of the plaintiff, contributing directly to his injury, would defeat a recovery, but that the burden of proving contributory negligence rested upon the defendant, although no such issue was tendered.

The defense at the trial was that the defendant was not guilty of any'negligence, and that the accident was due entirely to the carelessness of the plaintiff. In such a case the error is necessarily prejudicial. Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818]; Cincinnati Trac. Co. v. Stephens, 75 Ohio St. 171 [79 N. E. Rep. 235]; List v. Chase, 80 Ohio St. 42.

There was no error in refusing the special instructions requested by the defendant.

Judgment reversed and cause remanded for a new trial*

Smith and Swing, JJ., concur.


author: DUSTIN, J.

text:
    NEGLIGENCE — RAILROADS.
    [Franklin (2nd) Circuit Court,
    March 25, 1910.]
    Sullivan, Dustin and Allread, JJ.

      Toledo & Ohio Central Ry. v. John Fippin.
    1. Passenger in Vehicle Required to Warn Driver of Danger not Manifest to Driver, but Negligence of Driver is not Imputable-Per se.
    A passenger in a vehicle who sees or hears anything indicating danger that the driver cannot, or probably does not, see or hear, is bound to warn the driver thereof; but it is not incumbent upon the passenger to call attention to every approaching vehicle or possible peril, which is as manifest to the driver as to the passenger.
    2. Verdict not Reversed for Failure to Exclude Driver From Participation in Damages Awarded on Count of Fatal Injuries, to Wife.
    The question of a driver’s contributory negligence as a cause of' an accident not being raised by the pleadings, a reviewing court is not at liberty to hold the verdict erroneous, in that it contains no finding whereby he may be excluded from participation in the damages awarded on a count of fatal injuries to his wife? sustained in the collision which occurred with a railway train.
    Error to common pleas court.

      A. T. Seymour and L. F. Sater, for plaintiff in error.

      J. F. Rogers and G. S. Peters, for defendant in error.

      Affirmed, no op., Toledo & O. C. Ry. v. Fippin, 86 O. S. 000; 57 Bull. 196.

   DUSTIN, J.

Our conclusions in this case are as follows:

1. That the railway company was negligent in not having a watchman at the crossing, and in not providing gates.

2. That John Fippin was guilty of negligence contributing to the accident to his wife (a) in not cheeking his horses; (b) in failing to see Mr. Zetty (a volunteer watchman). If he had looked for the regular watchman he would have observed Mr. Zetty in time to stop his horses; (c) in not looking and listening for trains.

3. That the negligence of Mr, Fippin was not imputable to his wife.

It was not a case of a joint enterprise where she furnished the eyes or ears, as in New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]. His sight and hearing were good, and he was an experienced driver, using his own horses, with which he was presumably familiar.

She had no knowledge of the situation superior to him. If she saw or heard anything indicating danger that the driver could not, or probably did not, 'see or hear, it was her duty to tell him. We think it is not incumbent upon a passenger in- a wagon to tell the driver of every approaching vehicle, and every ear, car-track, hole in the road, stone or gutter. Such a course of conduct would be an annoyance, calculated to confuse the driver and increase the dangers of travel.

Mrs. Fippin had a right to trust in her husband as the head of the family, and his judgment and skill as a driver; and that he would heed all apparent warnings and avoid all apparent dangers. As soon as she realized that collision with the train was imminent, she left her seat and prepared to jump from the wagon. That act was a notice to her husband, quicker and more effective than words. It was also a prompt attempt to escape the peril. It at once brought the husband to his senses and he made efforts to escape, but too late. The lamentable accident was largely his fault, but we cannot see that any of it was attributable to her.

4. ’ There was no error in refusing special instructions 1 and 2. They wrongly put the burden on plaintiff to establish his freedom from negligence.

5. If the pleadings permitted, we should hold that the verdict is erroneous in that it does not find John Fippin guilty of contributory negligence, and thereby exclude him from participation in the verdict. The answer does not charge him with contributory negligence. Nor was there any amendment after the verdict to correspond with the evidence. We must consider, therefore, that the point was waived. It comes too late, now, to make it in the brief.

We find no prejudicial errors, and the judgment must be affirmed.

Sullivan and Allread, JJ„ concur.


text:
    MASTER AND SERVANT — PLEADING.
    [Lucas (6th) Circuit Court,
    June 6, 1908.]
    Kinkade, Parker and Wildman, JJ.

      Milburn Wagon Co. v. Roy Gawronski.
    1. Pleading of Statutes Requiring Guarding of Machinery not Necessary to Make Provisions thereof Available.
    Under the liberal practice of this state, an action for personal injuries based upon an alleged failure to guard a buzz saw as required by statute, although not specifically designating the par ticular statute, may be brought under Sec. 1 of act 94 O. L 42 (R. S. 4364-89c; Gen. Code 1027), providing for the boxing or guarding of certain machinery, including- saws, or under act 95 O. L. 114 (R. S. 4238o; Gen. Code 6242), providing an employer’s liability for defective machinery, or under both statutes, if either or both support the action.
    2. Evidence of Defective Guard Sustains Allegation of Absence of Guard.
    An allegation in a petition charging failure to guard a saw as required by statute is sustained by evidence that the guard supplied was ineffective, for instance, a board eight inches wide, four feet long, on the end of which was attached a heavy piece of belting, more particularly designed to keep sawdust out of the operator’s eyes.
    3. Assumption of Risk not a Defense to Action Based on Failure to Guard Machinery.
    Assumption of risk by an employe cannot be interposed as a defense to an action for persona] injuries based upon the failure of the employer to guard machinery as required by statute, notwithstanding the employe continued at his work with knowledge that the machinery was not so guarded. Such statutes are enacted, not only for the protection of the individual working man, but for the protection and good of the whole community, which benefits cannot be frittered away by contracts between individuals.
    4, Knowledge of Absence of Guard on Saw Need not be Pleaded.
    Act 97 O. L. 547 (R. S. 42380-1; Gen. Code 6243), excluding the defense of assumed risk in actions for personal injuries resulting from failure to guard machinery, creates no -new cause of action but simply operates to modify the requirements of 'pleading £,nd evidence, and amount of recovery. Hence, knowledge of absence of necessary guard and continuing at work ■ notwithstanding such knowledge need not be pleaded in order to avail an employe of its protection.
    5. Continuing to Work with Saw not Guarded with Knowledge not Contributory Negligence per se.
    An instruction to the jury “that the mere fact that the plaintiff knew that the top of the saw in question was not completely covered, and continued to work with it in such condition, is not evidence of contributory negligence on his part,” does not imply that the jury should disregard such facts, but that standing alone they are not sufficient to justify a finding of contributory negligence. Hence, giving it such construction, and in view of the fact that the question of contributory negligence is safeguarded in both -special requests and general charge, such instruction is not so far erroneous as to justify a reversal. Kinkade, J., dissents.
    [Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]
    Error to Lucas common pleas court.

      W. H. 'McLellan, for plaintiff in error.

      C. A. Thatcher, for defendant in error.

      Affirmed, no op., Milburn Wagon Co. v. Gawronski, 81 O. S. 565; reaffirmed, 82 O. S. 421.

   PARKER, J.

The action in the court of common pleas was by Gawronski, through his guardian, against the Milburn Wagon Company, to recover on account of injuries he received to his hand while working for the wagon company at a buzz saw, which injuries he alleged were due to the negligence of the wagon company, and especially in not guarding the saw as required by statute. The answer denied negligence, and alleged that the plaintiff’s own negligence contributed to the injury. The cause was tried and submitted to a jury, which brought in a verdict for $2,000 in favor of the plaintiff, upon which judgment was entered.

It is contended by the Milburn Wagon Company that many prejudicial errors occurred during the progress of the cause through the court of common pleas. We cannot take up all the alleged errors in detailj but we will make some mention of, and comment upon, those which appear to us to be the most material and worthy of attention.

Section 1 of act 94 O. L. 42 (R. S. 4364-89c; Gen. Code 1027) contains provisions requiring thé boxing or guarding of certain kinds of machinery when in use in workshops and in factories, and among the machines' to be guarded are saws. X read a portion of that section:

“Owners and operators of factories and workshops, which terms shall mean all manufacturing, mechanical,' electrical and mercantile establishments, and all places where machinery of any kind is used or operated, shall take ordinary care, and make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery, or .any part thereof; and such ordinary care and such suitable provisions shall include” * * * “the guarding of all saws and other woodcutting and wood-shaping machinery,” etc.

Section 2 (R. S. 4364-89d; Gen. Code 1028) provides a penalty for the violation of any of the provisions of the foregoing section.

Act 95 O. L. 114 (R. S. 4238o; Gen. Code 6242) provides 'that,

“An employer shall be responsible in damages for personal injury caused to an employe, who is himself in the exercise of due care and diligence'at the time, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of the employer, which arose from, or had not been discovered or remedied owing to the negligence of the employer, or of any ‘person in the service of the employer, entrusted by him with the duty of inspection, .repair, or of seeing that the machinery or appliances were in proper condition.”

The petition does not charge the violation of any specific statute, that is to say, it does not disclose, by mention thereof, the particular statutes upon which the plaintiff relies. It is said by the plaintiff in error that the plaintiff in this ease relied upon E. S. 4238o. We find nothing in the record, however, disclosing that his reliance was upon that statute, and in argument here, and in his brief, he seems to rely upon both the statutes that I have mentioned and from which I have quoted — and I may say in passing, that we can see no reason in the circumstances of the case why he may not do so, why the judgment, if it is to be supported, may not receive support from the one statute as well as from the other, or from both, if either or both lend support to it.

In the case of Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886], an action founded upon the alleged negligence of a mining company for injuries to a servant arising out of violation of a duty both at common law and under the statute, this was said, page 30:

“The defense was a denial of negligence and omission of duty, and that the injury occurred by reason of the willful negligence of plaintiff after being warned not to enter the part of the mine where the explosion occurred. Plaintiff, by reply, denied the warning and the negligence.
“Under the construction given the petition, the plaintiff was permitted, against the objection of defendants, to introduce testimony tending to show what would be proper practice in operating mines in that vicinity independent of the statute. To rebut this, the defendants, against objection of plaintiff, were permitted to offer proof showing the ordinary and general practice in mines in the vicinity in the respects referred to. We need not take the trouble to determine whether or not the liberal construction given the pleading by the trial court was correct. Clearly, it would have been proper practice to embrace both charges in the petition, and, inasmuch as the plaintiff sought to try his ease upon that theory, and could, if necessary, have amended the pleading to meet the facts, he ought not to be heard to object to testimony in contradiction of the case he had thus voluntarily made. We think the testimony offered by the defendants was competent.”

Of course the precise question as to the form of objection raised by the pleading is not the question presented here, but this opinion illustrates the view of the court that under our liberal practice the case could be tried upon both theories. It seems to us from an examination of the statutes, however, that the section which is applicable here, is the one from which I first quoted, E. S. 4364-89e,' and that the petition in charging the violation of duty adopts in a measure the language of this statute requiring the taking of ordinary care to “make such suitable provision as to prevent injury to persons who may come in contact with any such machinery, or any part thereof.”

The petition charges that the saw was not guarded, so that the person attempting to operate the same would be in danger, etc. It is said, however, that the evidence does not support this case as stated in the petition; that the evidence discloses a case, if any casé at all is made against the plaintiff in error, of a defective machine or appliance provided against by R. S. 4238o. The alleged fault here was a. failure to have a guard over the saw. It appears that hanging in front of the saw, that is, between the operator and the saw was a board eight or ten inches wide and perhaps four feet high, that came down close to the table through which the saw ran and upon which the lumber to be sawed was laid and moved, and that from the end of this board there was a piece of heavy belting extending down quite to the table or nearly to it, and it is said that this was a ghard within the meaning of the statute, and that, therefore, this is not a. case where there was no guard, but a case where there was a guard, but perhaps a not entirely effective one. A reading of the record leaves some doubt as to whether this was ever designed as a guard to protect the operator, further than to keep the sawdust from the saw from flying in his face and eyes and bothering him about his work. But whether it may be regarded as a guard or not, we think that, nevertheless, the plaintiff contending that it was not a sufficient guard might therefore contend that it was not a guard that complied with the statute, was not a guard in the furnishing of which the obligation resting upon the employer under the statute was discharged; that he might well allege the absence of the guard required by law, and that the fact that it appeared that there was some pretense of a guard would not defeat his recovery, or would not make the cause as presented by the evidence so different from the cause presented by the pleadings as to amount to a material variance; and certainly, under the circumstances of this ease, it cannot be pretended that this could have been misleading or in any way prejudicial to the plaintiff in error.

A great deal of the controversy in this ease centered about the question whether the employe remaining in the employment, remaining at his worjk with knowledge that the machine was not guarded as required by law, assumed the risk and hazard of continuing his work there, so that no cause of action could arise in his favor on account of injuries received in consequence of the saw being unguarded; or, to state it in another way, so that the contention that he assumed the risk and hazard could be interposed as a defense to his recovery.

The prayer in the petition was for a judgment of $15,000. R. S. 4238o (Gen. Code 6242) was invoked on behalf of the plaintiff below in answer to this contention, and, besides, it was urged that independently of the provisions of this section of the statute, the doctrine of assumed risk did not apply to suqh a situation as was here presented.

The view of this court upon a case of like character, Ziehr v. Paper Co. 28 O. C. C. 342 (7 N. S. 144), involving this statute in which this question was raised, was expressed by Judge Hull, and it was there held, as expressed in the fourth clause of the syllabus, which I read:

“At the common law, a servant continuing to use dangerous machinery without objection on his part or promise to repair on the part of the master, was held to have assumed the risk thereof; under the statute, however, which requires certain machinery to be covered, and makes it negligence on the part of the master if it is not, a servant will not be held to have assumed the risk thereof so as to bar a recovery, unless he be guilty of contributory negligence.”

The words “unless he be guilty of contributory negligence” might well have been omitted, because the court was considering the question whether there was an assumption of the risk, and to mix up with that the question of contributory negligence has a tendency to confuse. I want to say with respect to this report that it was published after the death of Judge Hull; that he never had an opportunity to revise it and it contains some clerical and some typographical errors that would have been corrected no doubt had he been afforded an opportunity to examine the proof. But the substance of the decision cannot be mistaken.

Now, in support of the contention that the doctrine of assumed risk applies, notwithstanding this penal statute, the alleged violation of which forms the basis of the claim for recovery, counsel for the plaintiff in error has cited the case of Krause v. Morgan, supra, and the case of Hesse v. Railway, 58 Ohio St. 167 [50 N. E. Rep. 354], and some other decisions by the Supreme Court, and, besides, the case of Johns v. Railway, 13-23 O. C. C. 442 (3 N. S. 545), which was affirmed by the Supreme Court, without report, Johns v. Railway, 69 Ohio St. 532.

A reading of the opinion of Judge Hull will show that this court considered most of those eases, and I think all of them. Most, if not all, are,commented upon. The one especially relied upon before us, in the case of Ziehr v. Paper Co. supra, was the case of Krause v. Morgan, supra, and it was urged that it had been therein distinctly held by the Supreme Court that the doctrine of assumed risk still obtains in Ohio, even where statutes of'this character are invoked; but Judge Hull undertook to point out, and we think he did it very successfully, that the real question involved in that ease was one, not of assumption of risks, but of contributory negligence, and in this attempt he had the assistance of a decision by Judge Taft of the United States circuit court of appeals, Narramore v. Railway, 10 O. F. D. 7 [96 Fed. Rep. 298], from which he made certain quotations. I mean that he had this assistance, not only in distinguishing the case of Krause v. Morgan, supra, as not being a ease founded upon the doctrine of assumption of risk, but he also had its support to the contrary doctrine; that is to say, that the doctrine of assumption of risk could not be invoked in the face of a violation of a statute of this character.

Quoting from Narramore v. Railway, supra, Judge Taft says, page 11: or implied on his part, to waive the performance of a statutory duty of the master, imposed for the protection of the servant, and in the interest of the public, and enforcible by criminal prosecution. We do not think they will.' To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal, in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract, and it would entirely defeat this purpose thus to permit the servant to 'contract the master out’ of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute; and yet, if the assumption of risk is the term of a contract, then the application of it in the case at bar is to do just that. ’ ’

“The doctrine of the assumption of risk rests really upon contract, the only question remaining is whether the courts will , enforce or recognize as against a servant, an agreement express

There is another consideration that I think is taken up in the decision by Judge Taft — I know it is in some of the cases— and that is- that these statutes are passed, not only for the protection of the individual working man, but they are passed for the protection and the good of the whole community, and it need not be argued at length, nor enforced by illustrations, that the whole community is interested in the physical health and welfare of each individual, pecuniarily and selfishly interested therein, putting it upon no higher ground, and that it would not do for the benefits to the public sought to be secured by statutes of this character to be frittered away by contract between individuals.

But, as I have said, the views of this court upon this subject are expressed in that opinion, and the court as at present 'constituted feel disposed to adhere to that decision until a higher authority shall direct a different course.

This case of Johns v. Railway, supra, was decided at an earlier period. I do not remember whether Judge Hull takes notice of it in his opinion, but I know that it was under consideration, and it seems that the court which announced that decision, the circuit court of the eighth circuit, felt impelled to do so by its understanding of the decision of Krause v. Morgan, supra, and not because it was quite satisfied with the doctrine of the case. Judge Marvin, in delivering the opinion, says, page 443:

“The opinion in this case, by Judge Spear, I will not stop to read. It sustains this proposition: That, although the railroad company is in violation of this statute, still one who is in the employ of the company, and knows all about such violation, must be held to have assumed the risk. However hard that doctrine may seem, it seems to be the doctrine of the Supreme Cburt of Ohio. ’ ’

I read an earlier paragraph:

“In Valley Ry. v. Keegan, 10 O. F. D. 298 (40 Bull. 167), Judge Taft of the federal circuit court delivers an elaborate opinion, holding that one violating a statute in the prosecution of its business, cannot avail himself of his employe assuming the risk that comes from the violation of that statute. Judge Taft makes an argument which, to me, is very satisfactory, but is not so to our Supreme Court, which holds directly opposite. ’ ’

Our view of the matter was that our Supreme Court had not held “directly opposite,” but that its decision had been misunderstood by the circuit court of the eighth circuit. The case of Ziehr v. Paper Co. supra, went to the Supreme Court, but it was settled out of court, so we never had tin judgment of the Supreme Court upon it.

Now, holding this view, to discuss the possible effect of avi 97 O. L. 547 (R. S. 4238o-1; Gen. Code 6243) seems somewhat like discussing a moot question, for if the doctrine of assumption of risks did not apply at'all, it was not necessary to invoke R. S. 4238o1. This section has no effect on the matter at all. It was a sort of work of supererogation upon the part of the legislature. But assuming that this statute was necessary for the purpose of affecting this question of assumed risk as it applies to the case at bar, we come to consider the question whether- it may be invoked and whether it may be applied in this ease.

This statute was passed after the decision by the circuit court of the eighth circuit cited supra. It seems to have been in force when Ziehr v. Paper Co. supra, was before this court, but no heed was given to it, and it probably had no application to the ease being presented to the court. It was not in force when these decisions of the Supreme Court which are cited to us were decided, or at least when the causes of action in those cases arose. In other words, what the Supreme Court was considering was the question independent of this statute. But now it is said to us, on behalf of the defendant in error, that ‘ ‘ even if we are not right about the doctrine independent of the statute, hpre is the statute for his protection,” while, on the other hand, the plaintiff in error urges that he may not avail himself of this statute because he has said nothing about the statute in his pleading, he has not invoked it, and he has practically abandoned it or rejected it by asking for $15,000, whereas the statute applies only to cases where but $3,000 may be recovered on account of a personal injury, or $5,000 on account of a death. In other words, the statute steps in to modify or affect the doctrine of assumed risks only as to a limited amount oil recovery. We think of this statute, as we remarked of the others, that it need not be specifically mentioned in the pleadings, in order that it may be invoked, or in order that the party may avail himself of its provisions. We do not regard it as a statute which creates a new cause of action in favor of the person injured. The cause of action is the ordinary one, sounding in tort, and the action to recover on account of an injury arising through negligence. The statute operates upon the case so as to, in effect, modify the requirements as to pleading and evidence, and to modify the rights as to amount of recovery.

Act 97 O. L. 547 (R. S. 4238o-1) reads:

“In any action brought by an employe, 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 employe was employed, in the manner required by. any penal statute of the state or the United States in force at the date of the passage of this act, the fact that such employe continued in such 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 $5,000, as it may find proportioned to the pecuniary damages resulting from said injuries; but nothing herein shall affect the provisions of R. S. 6135 (Gen. Code 10772,10773). Nothing herein contained shall be construed as affecting the defense of contributory negligence, nor the admissibility of evidence competent'to support such defense. ’ ’

Had the recovery been for more than '$3,000, then the question would be presented, whether the plaintiff might not even then come in and enter a remitter for all in excess of $3,000, and so save the judgment under the statute.

Here the evidence disclosed that the employee, the plaintiff below, was well aware that the machine was not guarded, and that he continued at his work notwithstanding such knowledge. He does not say in his petition that he had such knowledge, but it is open to that construction. We do not think he is required to state specifically in his pleading that he was aware of the absence of a guard in order to bring himself within the provisions of this statute. We do think that the effect of the statute is to modify certain rules of pleading in cases coming within it, particularly the rule of pleading as laid down in Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857], and Hesse v. Railway, supra, requiring the servant to allege and show that he did not have knowledge of alleged defects. Such allegation and proof are not mow necessary in eases coming within the purview of this statute.

There were a great many requests to charge on behalf of plaintiff below that were given, and that were objected to by the defendant below, plaintiff in error, and requests to charge on behalf of plaintiff in error, that were refused, of which matters the plaintiff in error complains. We cannot take them up and discuss them one at a time, but we have to say generally that we find no error in the rulings of the court upon those matters or in the general charge, and, that this conclusion naturally follows, as to most of the questions presented, from what we have said in respect to the rights of the plaintiff under R. S. 4238o-1, 4364-89c.

There is one instruction, however, that was given on behalf of the plaintiff below that has bothered us a great deal, and we are not in entire harmony in our views upon it. One member of the court finds no difficulty in sustaining it, another has finally become reconciled to it, but not very heartily, and another thinks it radically wrong. It is the sixth request given on behalf of the plaintiff.

‘ ‘ The jury is instructed that the mere fact that the plaintiff knew that the top of the saw in question was not completely covered, and continued to work with it in such condition, is not evidence of contributory negligence on his'part.” • •

The fourth request given on behalf of plaintiff below, we think correct, and we think it substantially covers the matter of this sixth request, and that it would have been better to have refused the sixth.

The fourth reads:

“The jury is instructed that should you find from the evidence that the plaintiff knew that the top part of the saw was not covered, that fact, of itself, is not as a matter of law proof of contributory negligence on his part in working with said saw. ’ ’

Perhaps the same thing was meant' in the sixth, that is to say, knowledge that the saw was uncovered, and continuing in the work with that knowledge, those facts of themselves would not be sufficient evidence of contributory negligence to defeat recovery b'y the plaintiff. If that had been given, because of the provisions of R. S. 4238o-l, we think it would have been correct.

While the title of this act, as found in 97 O. L. 547, “An act quálifying the risks to be deemed as assumed by employes,” and while it has been discussed as if it were an act that dealt only with what is known as assumed risk, as distinguished from contributory negligence, yet upon looking into the statute, it will be observed, that it provides distinctly that the fact that the employe continued in said employment with knowledge of such omission shall not operate as a defense; so the fact of continuing at work with such knowledge is not to operate as a defense whether it be regarded as giving rise (in the absence of the statute) to what is known as “assumed risk” technically and distinctively, or whether it be regarded as an act of contributory negligence.

It is conceived that one may enter an employment, or remain in an employment, under circumstances where the hazard is so apparent, where it is so clear, that a man of ordinary prudence would not undertake the risk of the character of the machinery, the character of the place, or defects in the machinery, or other hazard, and that therefore he would be .guilty of contributory negligence in so doing, and that that defense might be asserted and maintained quite independently of the doctrine and defense of assumption of risks as distinguished from contributory negligence. But under this statute, no matter whether you should treat the act as coming within the scope of the doctrine of assumption of risk or of contributory negligence, “the fact,” the statute says, “shall not operate as a defense.” So that we think it would have been quite right for the court to charge that remaining in the employment with knowledge of the condition would not defeat a recovery even if, independent of the statute, so doing would have amounted to contributory negligence that would defeat a recovery. Under the statute such use might not be made of that fact alone. This charge seems to go beyond that. It seems to be open to the construction that when the jury came to consider the whole case upon the question of contributory negligence, which is an issue in the case, they may or should disregard the circumstance that the plaintiff remained in the employ and at work at this machine, with knowledge that it was not covered, and that if they find facts and circumstances from which they may impute to him contributory negligence, such facts must be sufficient in and of themselves and entirely independent of any consideration of this fact of remaining at work with knowledge of all conditions. If given such construction, we think the charge wrong; but we have concluded that that would perhaps be a strained construction and one which the jury probably did not give it; that it is not meant by such instruction that when they come to the consideration of the question of contributory negligence they are to disregard those facts, but it is simply meant that these facts, standing alone, are not sufficient to justify a finding of contrib"utory negligence. Because of this statute standing alone they are not evidence, certainly not effective evidence, certainly not evidence of any value in law, of contributory negligence. And giving the instruction that construction, and giving further consideration to the fact that in the requests on behalf of plaintiff in error the rights of the plaintiff in error are well safeguarded upon this question of contributory negligence, and that such view is strengthened also in the general charge, we think we should not hold that this instruction is so far erroneous as to justify a judgment of reversal.

On the requests on behalf of the plaintiff in error these charges were given:

“If the jury shall find that the saw was so guarded as to protect a person operating it in the usual and ordinary manner, and that the plaintiff’s injury resulted from his operating the saw in some other manner, your verdict should be for the defendant. ’ ’
“If the jury find that the plaintiff was injured while reaching with his hand over the saw, and further find that in the exercise of ordinary care and in the ordinary course of operating the saw, the plaintiff would not have placed his hand over the saw and reached over the saw, then your verdict should be for the defendant.”
‘ ‘ The jury are instructed, as a matter of law, that it was not the duty of the Milburn Wagon Company to protect the plaintiff against injury which might result to him while operating the saw in a manner other than that usually adopted by ordinarily prudent operators of rip saws.”

And also in the general charge:

.“You are instructed that it was the duty of the plaintiff, while operating the saw, to exercise ordinary care to avoid injury. Notwithstanding any negligence on the part of the defendant in failing to guard the saw, if you find&that it failed to do so, the. plaintiff cannot recover, if he himself was guilty of contributory negligence; that is, if by his own failure.or omission to . exercise ordinary and reasonable care while operating the saw, he contributed directly to the injury of which he complains. If you find that the'defendant, the Milburn Wagon Company, did not exercise reasonable care in the maintenance and operation of the saw at which the plaintiff claims he was injured, in that it did not properly guard the saw, and if yon further find from the evidence that the plaintiff in attempting to operate the saw was injured by reason of the failure of the defendant to guard the saw, and that the plaintiff was exercising reasonable care and caution at the time to avoid injury, then you will find that the defendant is liable and your verdict will be for the plaintiff,” etc. Under the circumstances, a majority of the court hold that there is, not in the record prejudicial error justifying a reversal. The judgment will be affirmed.

Wildman, J., concurring;

Kinkade, J., dissenting.