text:
    APPEAL — PARTNERSHIP.
    [Hamilton (1st) Circuit Court,
    July 8, 1908.]
    Swing, Gillen and Smith, JJ.
    Theo. M. Harsch v. William Brown, Sr., et al.
    Appeal Lies to Action to Dissolve Pabtnership and Distribute Assets.
    An action, seeking a dissolution of a partnership and division of partnership assets is equitable in its nature and appeal will lie.
    Appeal.
    Healy,' Ferris & McAvoy, for the motion:
    W. J. Davidson, contra:
   SWING, J.

The motion to dismiss appeal will be overruled. The petition states facts which show a partnership. An action which seeks a dissolution of the partnership and a division of partnership assets is equitable in its-nature.

Giffen and Smith, JJ., concur.


source: Caselaw Access Project

author: CRAINE, J.

license: Public Domain

text:
    HABEAS CORPUS — PRISONS AND WORKHOUSES — SENTENCE.
    [Ashland (5th) Circuit Court,
    November 11, 1908.]
    Taggart, Donahue and Craine, JJ.
    William Young v. State of Ohio.
    1. Sentence must Direct Such Confinement to Commit Accused in Workhouse in Another County.
    A constable, in a county having no workhouse hut which has made terms, under Sec. 2107a (Lan. 3444; B. 1536-378) Rev. Stat., with a city or district of another county having within its limits a workhouse, cannot commit a prisoner found guilty of violating a state law, to such workhouse, unless the sentence so provides, although the writ issued to the constable directs such confinement.
    :2. Constable should Commit Accused to County Jail on Execution of Judgment fob Pine and Costs without Imprisonment on Default.
    It Is the duty of a constable holding a writ of execution for the collection of a judgment for a fine and the costs of prosecution, rendered by a magistrate for the violation of a state law, but which judgment makes no provision for imprisonment in case of default in the payment of said fine and costs, to take the body of the offender and commit him to the county jail, in case he fails to pay said fine and costs and there is no property out of which to satisfy said judgment.
    3. Habeas Corpus does not Lie until Constable has Reasonable Time to Convey Accused to County Jail.
    Where, under such circumstances, a constable has taken possession of the body of the defendant, habeas corpus will not lie against the constable for the release of the defendant, at least until the constable has had a reasonable time in which to convey him to the county jail.
    [Syllabus by the court.]
    Error to Ashland common pleas.
    H. E. Bell, for plaintiff in error.
    F. N. Patterson, for defendant in error.
   CRAINE, J.

William Young, the plaintiff in error, was arrested, convicted-and sentenced by the mayor of Ashland for a violation of the Beal law,. S'ecs. 4364-20a Rev. Stat. et seq. The sentence provided that Young: should pay a fine and the costs of prosecution, but imprisonment was; not made a part of the punishment, nor did the sentence provide for imprisonment in case the defendant defaulted in the payment of the* fine and costs of prosecution. A writ of execution was issued by the* mayor and placed in the hands of a constable, directing the constable* to collect the amount of said fine and costs of prosecution and in default thereof, commit the defendant to the Columbus workhouse. The* constable, being unable to find property of the defendant with which to satisfy his writ, took the body of the defendant and was about to-commit him to the Columbus workhouse, when the defendant applied to the court of common pleas for a writ of habeas corpus, claiming that said constable unlawfully deprived him of his liberty. A writ of habeas corpus was issued by the court of common pleas, but upon a final hearing of the ease, the court of common pleas dismissed the petition and remanded Young to the- custody of the constable. From the-judgment of the court of common pleas, error has been prosecuted to this court, asking this court to reverse the judgment of the court of common pleas. The contention of plaintiff in error is, that there being no provision for imprisonment mentioned in the sentence, either as a part of the punishment or as a means of collecting the fine and costs,, the constable had no right to take the body of Young and commit him to the Columbus workhouse or any other prison, but that the sentence-stood like a judgment in a civil case, and that if Young did not have-property sufficient to satisfy the fine and costs, that ended the matter.

Section 2107a (Lan. 3444; B. 1536-378) Rev. Stat. provides:

“Any city or district having, * * * within its limits, a workhouse, may receive as inmates of such workhouse persons sentenced thereto as provided by law, from counties other than the one in which such workhouse is situated.”

It does not appear from the record whether or not the county of Ashland had made any provision for sending inmates to the Columbus workhouse, but assuming that Ashland county had such arrangements with the authorities of the Columbus workhouse, we are of the opinion that Young could not be committed to this workhouse, unless the sentence of the court so provided, as the language of the statute is:

“May receive as inmates of such workhouse persons sentenced, thereto as provided by law.”

If Young .were in the possession of the workhouse authorities we would be inclined to hold that such confinement, under the circumstances, would be illegal and that he be released by habeas corpus, but Young never having been admitted to the Columbus workhouse, a writ of habeas corpus would not lie, simply because the officer threatened to send him there.

The remaining question is as. to whether or not the constable has; a right to the custody of Young. See. 7327 Rev. Stat. reads as follows:

“When a fine is the whole or part of a sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine and costs are paid, or secured to be paid, or the offender is otherwise legally discharged.”

This section of the statute provides that the magistrate may order-the person confined in the county jail, but we apprehend that such order should be made a part of the sentence.

Section 7328, we think, is decisive of the duties of the constable under the circumstances and reads as follows:

“When a magistrate or court renders judgment for a fine, an execution may issue for the same, and the costs of prosecution, to be levied on the property, or, in default thereof, upon the body of the defendant; and the officer holding such writ may arrest the offender in any county, and commit him to the jail of the county in which the writ issued, there to remain until the fine and costs are paid, or secured to be paid, or he is otherwise discharged according to law.”

As I have said, in this ease, there was no provision made in the sentence for any imprisonment, but when the magistrate issued the writ of execution he provided in it that in default of property out of which to satisfy the fine and costs,' the constable should commit Young to the Columbus workhouse. We do not think that under this writ the constable had any right to commit Young to the Columbus workhouse, but it was his duty to ignore that part of the writ which provides for commitment to the Columbus workhouse and proceeded under See. 7328, which provides that in default of property he shall commit the body of the defendant to the county jail. The constable had not committed Young to the county jail, but he certainly had a reasonable-time in which to do so.

Section 5729 Rev. Stat., which is a part of the habeas corpus act, provides: .

“If it appear that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; etc.”

There is no doubt but what the.magistrate had a right to render the judgment and likewise had the right to issue the writ of execution for the collection of the judgment and costs, and the fact that he ordered Young to be committed to the Columbus workhouse in default of the payment of the judgment and costs, would not, in our judgment render the writ nugatory, except as to the commitment part. In Stanfeal v. State, 78 Ohio St. 24, a party was sentenced to pay a fine and the costs of prosecution. Afterwards the mayor issued a mittimus, commanding the person to be committed to the county jail until the fine and costs were paid, without including the words “or secured to be paid,” .as provided by Sec. 1846 (Lan. 3380; B. 1536-793) Rev. Stat. Habeas corpus was brought and a writ issued. The trial judge gave the state leave to amend the writ, so as to include the omitted words. This being done, the court remanded the prisoner to the custody of the marshal, and the Supreme Court held there was no error in so doing.

We think the court of common pleas was right in dismissing the petition of the plaintiff in error and in remanding the body of Young to the custody of the constable and we also think that it is the duty •of the constable to commit Young to the county jail in pursuance of iSec. 7328, and being of this opinion we affirm the judgment of the ■court of common pleas. We would suggest, however, that the constable obtain a new writ of execution from the magistrate, providing for imprisonment in the county jail, in default of the payment of said fine and costs and in default of property of Young, out of which to satisfy said writ.

Taggart and Donahue, JJ., concur.


text:
    BILL OF DISCOVERY.
    [Stark (5th.) Circuit Court,
    October 2, 1908.]
    Taggart, Donahue and Craine, JJ,
    Stark Rolling Mill Co. v. Ocean Accident & Guaranty Co.
    Necessity of Pursuing of Statutory Procedure.
    When, under a given state of facts, Sec. 5293 Rev. Stat., together with Secs. 5289, 5290 and 5101, will afford the same relief as was formerly administered in chancery by a bill of discovery, under the same facts, the provisions of said sections must be pursued.
    [Syllabus by the court.]

      Lynch & Day, plaintiff in error.
    Shields & Pomerene, defendant in error.
    Error to Stark common pleas court.
   CRAINE, J.

The Ocean Accident & Guaranty Company brought an action in the nature of a bill of discovery in the court of common pleas against the Stark Rolling Mill Company, in which it, in substance, alleges that it entered into a contract with the Stark Rolling Mill Company, whereby it agreed to insure the defendant below against liability arising from injury to certain employes of the defendant; that the premium to be paid by the defendant depended upon the amount of wages paid by the defendant to its employes; that the amount of premium, to be paid in advance, was based upon an estimate of the amount of wages to be paid; and that if that estimate was too high, then the plaintiff was to. make certain refunder to the defendant, but if the estimate was too* low then the defendant was to pay the plaintiff an additional amount; that the provisions of the contract provided that the plaintiff might have an inspection of the books of the defendant for the purpose of determining the amount of wages paid to the defendant’s employes; that the plaintiff believed and was informed that the wages paid by tho defendant were much higher than had been reported to it by the defendant ; that the plaintiff demanded of the defendant an inspection of' its books and papers, for the purpose of determining what the wages, that had been paid, were; that the defendant refused to allow the plaintiff to inspect its books; that the plaintiff believed and was informed, that the defendant had paid a less amount to its employes than it reported to the plaintiff, and that the plaintiff desired to bring an action against the defendant, but could not do so without an inspection of the-books and papers of defendant to determine the amount of wages paid,.- and asked for a bill of discovery, and that the defendant be compelled! to exhibit its books and papers to the plaintiff.

The defendant filed a demurrer to this petition, on the ground that it did not state facts sufficient to constitute a cause of action, claiming that if the plaintiff wanted an inspection of the books and papers of the defendant or a discovery of any facts peculiarly within the knowledge of the defendant, it should have resorted to the provisions of Secs. 5101, 5289, 5290 and 5293 Rev. Stat.

On a hearing of this demurrer, the court of common pleas overruled the same, and the defendant below prosecuted error to this court asking this court to reverse the judgment of the court of common pleas in overruling such demurrer.

Upon the adoption of the code of civil procedure in 1851, the distinction between forms of action at law and in equity was abolished, but the power to grant equitable relief existed thereafter, as well as before, and equity jurisprudence exists in this state the same as it did before the adoption of the code, excepting where it has been changed or modified by the legislature.

Before the adoption of the code, if a party was unable to bring his action at law without the discovery of some facts peculiarly within the knowledge of the defendant, he could file his bill of discovery in a court of equity, setting forth the fact that he had .a cause of action, but by reason of some information possessed by the defendant, which he, himself, did not possess, he was unable to file his action at law, and submit certain interrogatories in his bill, which the defendant was required to answer under oath. If the bill was properly brought, the ■defendant was required to answer these interrogatories under oath, but this was the extent of the relief afforded by a bill of discovery.

A court of equity went no further than requiring the defendant to answer these interrogatories under oath; and the answers, so made by the defendant, could be used in the action at law.

After the adoption of the code of civil procedure, the legislature enacted Sec. 5293 Rev. Stat., which seems to be almost, if not entirely, equivalent to a bill of discovery in equity.

Section 5293 Rev. Stat. undertook to direct a course of procedure in all cases where adequate relief could be obtained under it.

In First Nat. Bank of Cadiz v. Beebe, 62 Ohio St. 41 [56 N. E. Rep. 485], we find the first paragraph of the syllabus reading as follows :

“The purpose of Sec. 5016, Rev. Stat., which permits a defendant before answer, in an action upon contract or for the recovery of personal property, to interpose an affidavit and ask that opposing claimants interplead, was intended as auxiliary to the practice in chancery respecting interpleader, and to direct the practice in the particular classes of cases named, and was not intended to regulate the entire subject of the interpleader.”

Interpleader was recognized in courts of equity, but the legislature of the state passed Sec. 5016 Rev. Stat. providing for interpleader, and the Supreme Court in that case held that when the legislature had passed a law upon the subject of interpleader, that statute directed the practice and should be pursued, when the statute gave adequate relief under the facts of the case.

We think See. 5293 Rev. Stat. falls within the doctrine announced in First Nat. Bank of Cadiz v. Beebe, supra, and that if relief can be granted under Sees. 5101, 5289, 5290 and 5293, then their. provisions must prevail, and the party seeks his relief in accordance therewith.

If Secs. 5101, 5289, 5290 and 5293 could be ignored, when their provisions control or apply to a particular ease, then .it would be useless for the legislature to undertake to prescribe a course of procedure.

An analysis of See. 5293 Rev. Stat. will show that its provisions apply to just such a case as alleged in the petition. It reads:

“When a person claiming to have a cause of action, or a defense to an action commenced against him, is unable, without a discovery of the facts from the adverse party, to file his petition, or answer, such person may bring his action for discovery, setting forth in his petition the necessity of such discovery, and the grounds thereof, and such interrogatories relating to the subject-matter of the discovery as may be necessary to procure the discovery sought.”

Now applying that section to the ease at bar. The plaintiff claims to have a cause of action; it claims that it is unable without a discovery of the facts from defendant to file its petition. Now'what should it do?

It should do just exactly what the statute provides: file its petition setting forth the necessity and grounds for the discovery, and attach such interrogatories relating to the subject-matter of the discovery, as may be necessary to procure the information sought.

The plaintiff below did all that is required by this section of the statute, except that it did not attach interrogatories. But in failing to attach such interrogatories it ignored the plain provisions of the statute.

It is said, however, that the answers to the interrogatories might not be truthful, and that it was necessary that the plaintiff might see the books in order to ascertain whether or not the answers were true. A bill of discovery in chancery never gave the plaintiff such a right. It simply compelled the defendant to answer the interrogatories under oath, — and that was the extent to which a court of chancery would go. That being true, Sec. 5293 Rev. Stat. gives the same relief as did a bill of discovery in chancery.

1 Pomeroy, Eq. Jurisp. Sec. 82, (new ed.), together with Chapman v. Lee, 45 Ohio St. 356, 365, 366 [13 N. E. Rep. 736], gives a very clear statement as to the relief afforded by a bill of discovery in chancery, and on page 366 of Chapman v. Lee, the court says:

“All the aid which a suit for recovery would give is now given by our code in the ease' at law itself. ’ ’

In onr judgment, Sec. 5293 Rev. Stat. is a substitute for the old bill of, discovery in chancery, and the provisions thereof should be followed when applicable.

It is claimed, however, by plaintiff below, that under its contract with the defendant it had a right to an inspection of defendant’s books, and a court of equity should enforce that contract. In answer to this, we say that parties, contracting together, cannot by virtue of their contract extend the equity power of the court, nor can they enlarge the statute.

Sections 5101, 5289, 5290 Rev. Stat., afford ample means for obtaining an inspection of the books or papers of an adversary, and should be resorted to rather than applying to a court of equity.

We think these statutes are as abroad as the old chancery practice and provide a method of procedure, and that method must be pursued, and in holding otherwise the court of common pleas erred in overruling the demurrer.

The judgment of the court of common pleas will therefore be reversed, at the costs of defendant in error; and this court proceeding to render the judgment that the court of common pleas should have .rendered, dismisses the petition of the plaintiff below at its costs.

Taggart and Donahue, JJ., concur.


author: SMITH, J.

text:
    BROKERS — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    November 30, 1907.]
    Swing, Giffen and Smith, JJ.
    William F. Chambers, a Taxpayer, v. Cincinnati et al.
    Ordinance Licensing and Regulating Chattel Mortgage and Salary Loan Brokers, Held Valid.
    An ordinance “to regulate and license chattel mortgage and salary loan' Brokers,” requiring such brokers to secure a license before engaging in the business and fixing a license fee of $250, is not unreasonable; nor is it invalid in that it requires records of the names of pledgors severally, amount of loan, rate of interest charged, date when payable, and description of the articles pledged, and the filing of such record in the city auditor’s office for inspecion by the mayor and chief of police; but a provision requiring signature of the application for a loan by the wife of a married pledgor is of no effect.
    [Syllabus approved by the court.]
    Appeal from Hamilton common pleas.
    This case involves the validity of ordinance No. 1671 of Cincinnati, “to regulate and license chattel mortgage and salary loan brokers.”

      “Section 1. No person, firm or corporation shall, within the city of Cincinnati, engage in the business of a chattel mortgage loan or salary loan broker, or engage in the business of loaning money secured by mortgage, bills of sale or other contracts involved as security the forfeiture of rights in personal property, or upon assignments, bills of sale or other conveyance of salary or wages, without first having obtained a license from the auditor of said city so to do.
    “Section 2. The auditor of said city shall issue to any person, firm or corporation a license as provided for in section 1, for the period of one year, upon the payment to the city of Cincinnati of the sum of two hundred and fifty dollars ($250), upon condition that the books and accounts of such licensee shall be open at any time to inspection by said auditor; provided, however, that said license shall expire on the thirty-first day of December of the year in which issued; but said auditor may issue a license to any such person, firm or corporation who engages in business after the first of January, for a period less than a year, upon payment of a proportionate amount of said sum.
    “It shall be the duty of the auditor to examine the books and accounts of such licensee at least once every year.
    “Section 3. Every such person, .firm or corporation so licensed, shall give to each pledgor, mortgagor or assignor, a card upon which shall be written in ink, typewriter or printed, the name of the person, firm or corporation making the loan, the name of the pledgor, mortgagor or assignor, the article or articles pledged, mortgaged or assigned, unless there be more than fifteen of said articles, in which case a general description thereof be sufficient; the amount of the loan, the amount of interest charged, the amount of expense charged, exclusive of interest, and the time for which each of said charges are made; the date when the loan is made and the date when payable; and shall also give the pledgor, mortgagor or assignor a receipt for each payment of principal, interest or any other charge made on said loan, by or in behalf of said pledgor, mortgagor or assignor, and if any payment shall consist of principal and interest, or any other charge, said receipt shall specify the amount of each.
    “Section 4. No such person, firm or corporation so licensed shall receive as security for any indebtedness any chattel mortgage, bill of sale or assignment, or any other conveyance of any personal property, salary or wages, signed in blank, but all blank spaces shall be filled in with ink or typewritten, with the proper words and figures, and if said conveyance shall be for salary or wages, the name of the person, firm or corporation by whom the person making the conveyance is employed, and shall also appear on said paper.
    “Section 5. Every such person, firm or corporation shall, on or before 10 o’clock a. m. on each and every Wednesday, file with the auditor of said city of Cincinnati, a true record of each and every loan made during the calendar week immediately preceding. Said record shall be made upon cards or blanks furnished by said auditor and shall consist of the name of the person, firm or corporation making the loan, the name of. the-pledgor, mortgagor or assignor, a specific description of the article or articles pledged, mortgaged or assigned, the amount loaned, rate of interest, the amount charged for interest and the time for which said interest charged is made, the amount of expense charged, exclusive of interest, and the time for which said expense charged is made, and the date when said loan is payable; such record so filed with the auditor of said city shall remain in the office of said auditor as a permanent record, open to the inspection of the mayor or chief of police of said city.
    “Section 6. No such person, firm or corporation shall make a loan to a married man upon the security set forth in section 1 unless the application for said loan and the conveyance of the chattels or salary shall be signed by the wife of said applicant.
    ‘ ‘ Section 7. Any person or persons either as principal,, agent, officer or employer who violates any of the provisions of this ordinance, or any person or persons, firm or corporation who shall carry on the business of a chattel mortgage or salary loan broker, or loan money as set forth in section 1, without obtaining a license as provided herein, shall for the first offense be fined not less than twenty-five ($25) dollars, nor more than two hundred ($200) dollars and the cost of the prosecution, and for the second and any subsequent offense shall be fined not less than one hundred ($100) dollars, nor more than five hundred ($500) dollars, and it shall be the duty of the auditor, upon the second conviction of any s.uch person, firm or corporation holding a license issued under this ordinance to forthwith revoke said license.' ’
    W. F. Chambers and Fyffe Chambers, for plaintiff.
    J. R. Schindel, assistant city solicitor, for defendant.
   SMITH, J.

In this case, heard on appeal, we are of opinion that ordinance No. 1671 of the city of Cincinnati, to regulate .and license chattel mortgage and salary loan brokers in said city, is valid. We do not think the sum required to be paid is unreasonable, or that the condition relating to the inspection of the books and accounts of the parties affects the validity of the ordinance. .

It is evident that the ordinance is intended solely to regulate, as its title sets forth, chattel mortgage and salary loan brokers, and does not extend to others engaged in the loaning of money, as banks, brokers, etc.

While we are of opinion that Sec. 6 relating to the wife of a maji signing the application for a loan, or the conveyance of the chattels or salary is of no effect, yet this would not invalidate the other provisions of the ordinance.

The petition, therefore, for an injunction will be dismissed.

Swing and Giffen, JJ., concur.


author: GIFFEN, J.

text:
    CHARGE TO JURY — DAMAGES—NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    November, 1907.]
    Swing, Giffen and Smith, JJ.

      Cincinnati Traction Co. v. Dorenkemper, Admrx.
    1. Application of Doctrine of Last Chance not Warranted in Absence of Averments of Such Negligence.
    An instruction that failure of a motorman to stop a street car, when by the exercise of ordinary care, he could have seen the driver of a horse and buggy after he had started, without negligence, upon the track and in time to stop it before striking such driver, is actionable negligence, cannot be sustained upon averments that such car was operated at a dangerous rate of speed, without warning or signal given, and with lights and headlights extinguished as it approached a street intersection.
    2. Special Charges Omitting Conditions Necessary to a Determination of Question of Negligence.
    An instruction, that no recovery can be had if the motorman gave the signal by ringing his gong, and as soon as deceased started to cross the track, applied his brake and used every effort to stop the car, ignores questions of speed, lights of the car, time and place of ringing the gong as acts of negligence and is properly refused in an action charging excessive speed, want of lights and warning by a street car approaching a street intersection. So also is an instruction that if deceased started to cross the track when the car was so near that it was impossible for the motorman, by the exercise of ordinary care, to avoid the collision after he became aware of the peril of deceased.
    ■'3. Charge Warranted by Evidence.
    The belief of the decedent that he had time to clear the tracks and its reasonableness must be determined, not from the direct testimony alone, but from all the circumstances surrounding him at that time; and where the evidence warranted such an instruction, it will not be deemed prejudicial even if no issue of contributory negligence was tendered by the pleadings.

      4. Verdict of $6,000 for Wrongful Death of the Proprietor of a Butcher: Shop Held Excessive.
    A verdict of $6,000 for the Wrongful death of a butcher, running his own shop, and though he is a strong healthy man, capable of doing, and earning money at such work if well directed, in the absence of evidence-as to his thrift or success in such business, or to what extent he provided for his family, will be deemed excessive.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    Kittredge & Wilby, for plaintiff in error.
    Horstman & Horstman, for defendant in error.

      Reversing Dorenkemper v. Traction Co. 19 Dec. 181.

   GIFFEN, J.

The negligence charged in the petition is—

1. The car was at the time operated at an excessive and dangerous: rate of speed.

2. Without any warning or signal having been given of its ap- • proach towards said point of intersection.

3. That prior to the approach of said car to said point of intersection defendant caused the lights and headlight- of said car to be extinguished so that plaintiff’s intestate was unable to see its approach.

The second special instruction requested by the defendant and refused by the court is as follows:

“If the preponderance of the evidence shows that the motorman-gave the signal by ringing his gong, and as soon as the deceased started to cross the track applied his brake and used every effort to stop the-car, your verdict should be for the defendant.”

This charge ignores- the question of speed, lights of the car and the time and place of ringing the gong, hence properly refused.

The eighth special instruction requested by the defendant and refused by the court is as follows:

“If the jury find that the deceased started to go onto the track when the car was so near that it was impossible for the motorman, by the exercise of ordinary care, to stop the car without a collision, the verdict should be for the defendant, provided that the jury find that there ' was nothing to indicate to the motorman that the deceased intended to attempt to cross until he started to go onto the track. ’ ’

Under this charge the defendant could be guilty of every act of negligence charged in the petition, and yet be released from liability, provided it was impossible for the motorman to avoid a collision, after he became aware of Dorenkemper’s peril. It was properly refused. .

The general charge of the court contained the following:

“The court charges you that if you find from all the evidence that the motorman who had charge of the ear which struck the plaintiff’s intestate could, by the exercise of ordinary care, have seen the plaintiff’s intestate after he started upon the tracks, and in time to stop the car before it struck him, and that by reason of the failure to stop the car said plaintiff’s intestate was injured, it-would be such negligence on the part of the defendant as would enable the plaintiff to recover, provided that the plaintiff’s intestate was free from negligence on his part.”

This was clearly erroneous and prejudicial because no such negligence is averred in the petition. Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844].

The general charge contained also the following:

“You have a right in making your estimation of the damages, if you so do, to look to the pecuniary benefit that the wife and children would probably have derived from Henry Dorenkemper, if he had not lost his life, and in assessing such damages you may look to the manner of man that Henry Dorenkemper was, his occupation and ability to earn money and to acquire property.”

His occupation was that of a butcher, and the evidence tended to prove that he was a strong, healthy man, capable of doing the work of a butcher and earning money at such work if well directed; but the decedent had for many years conducted his own butcher shop, and the record is silent as to his thrift of success in such business except as may be inferred from the length of time he continued it. Nor does the evidence show to what extent he provided for his family except by inference only. We think, however, that the evidence was sufficient to justify the charge given, but not the verdict for such a large sum as $6,000.

The general charge contained also the following instruction:

“If you find from the evidence that plaintiff’s intestate could have seen the ear and would have seen it in the exercise of ordinary care, then you should find for the defendant, unless you find further that he had reason to believe that he had sufficient time to clear the tracks before the car reached the place where he was attempting to cross.”

His belief that he had sufficient time to clear the tracks and its reasonableness must be determined, not only from the direct testimony, but from the situation of the parties and the circumstances surrounding. We think, therefore, that the evidence warranted the charge, although the pleading did not, as no issue of contributory negligence was tendered, hence not prejudicial to plaintiff in error.. Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818]. The absence of such; issue prevents us also from weighing the evidence in support of it.

Judgment reversed and cause remanded for new trial.

Swing and Smith, JJ., concur.


author: WINCH, J.

text:
    CONSTITUTIONAL LAW — INFANTS—WORK AND LABOR-
    [Cuyahoga (8th) Circuit Court,
    January 11, 1909.]
    Winch, Henry and Marvin, JJ.
    J. W. Bolton v. State of Ohio.
    Act Limiting Employment of Girls under Eighteen Years to Eight Houbs. per Day is Constitutional.
    Act 99 O. L. 30, fixing eight hours as the maximum hours in one day in which girls under eighteen years of age shall he permitted to work in. certain occupations and imposing a penalty for violation thereof, is constitutional.
    [Proof of this decision and syllabus was submitted to Judge Winch and corrected. — Ed.]
    Error to Cuyahoga common pleas.
    Hoyt, Dustin & Kelley, for plaintiff in error.
    Charles P. Hine, for defendant in error.
   WINCH, J.

Plaintiff in error was convicted of employing a girl nnder eighteen years of age and permitting her to .work more than eight hours in one-day in the factory of which he was superintendent, contrary to the provisions of the Act of February 28, 1908, 99 O. L. 30.

In this court it is claimed that the provision of the law referred to, under which plaintiff in error was convicted, is unconstitutional.

We find nothing upon which to base this claim. The state has. plenary power to legislate regarding minors, as wards of the state; they have only such right to contract as the state awards them.

That the provision of the law referred to is a reasonable exercise-of the police power of the state is apparent, if it be viewed in its bearing upon the health of immature girls who are to be the future mothers-of our citizens. The judgment of the legislature in this matter, is not. to be set aside by the courts.

Judgment affirmed.

Henry and Marvin, JJ., concur.


author: MARVIN, J.

text:
    MANDAMUS — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    November 4, 1908.]
    Henry and Marvin, JJ.
    (Winch, J., not sitting.)
    State ex rel. Edward A. Binyon v. Eugene O. Houck et al.
    Mandamus Does not Lie to Remove Deputy Coboner.
    A deputy coroner, appointed pursuant to Sec. 1209a Rev. Stat., having power to do and perform all the duties imposed upon the coroner in his. absence but having no independent duties, is not an officer against whom quo warranto will lie to remove.
    [Proof of this decision and syllabus has been submitted to Judge Marvin, and corrected. — Ed.]
    Quo Warranto.
    William Howell, for plaintiff. .
    M. P. Mooney, for defendant.
   MARVIN, J.

This proceeding is brought to lest the right of Dr. Houck to hold the position of deputy ..coroner for Cuyahoga county. The right to proceed in quo warranto depends upon the question of whether the position held by Dr. Houck is an office, under the laws of the state of Ohio. Dr. Houck was appointed to the position named, by the coroner of the county. The appointment was made pursuant to Sec. 1209a Rev. Stat. This section provides, that the coroner in a county having a city of the first class of the second grade may appoint a deputy coroner, who shall have power to do and perform all the duties imposed by law upon the coroner of said county, in his absence, at a salary not to exceed $1,500 per annum.

If the deputy coroner, herein provided for, is an officer, after such appointment, then quo warranto is the proper proceeding to test his right to hold the office. It will be noticed that no duties are, in terms, imposed upon the deputy coroner, and. that the authority given him is to perforin the duties, which, under the general statutes, are imposed upon the coroner. He has no independent duties whatever; nor has he any independent authority, except that when the coroner is absent, he may perform the coroner’s duties. This seems to us clearly-to indicate that his position is properly designated in the statute as that of a “ deputy. ’ ’ The word “deputy” is defined in Anderson’s Law Diet, as “one who acts officially for another; ” “ the substitute of an officer, usually a ministerial officer. ’ ’

The definition in Bouvier’s Law Diet, is “one authorized by an officer to execute an office or right which the officer possesses, for and in place of the latter.”

The fact that the statute uses the word “deputy” is not necessarily controlling, but, as already said, the things which a deputy coroner may do, under the statute, being only to be done as a substitute for the coroner, that is to say, their being only the things which it would be the coroner’s duty to do, if he were present, clearly make him a deputy only, and that being so, he seems clearly to be 'included in the general provisions of law relating to deputies. See Secs. 9 and 10 Rev. Stat.

As against this, it is urged that this court in the case of State ex rel. Vail v. Craig, 11 Circ. Dec. 553 (21 R. 175), held that certain parties holding positions as deputy supervisors of elections and a party holding a position as clerk of Such deputy supervisors, were officers, and that this is in conflict with the present holding.

The statute under which the parties in that case claimed to hold, is found in 89 O. L. 455 and 456. An examination of the statute will show that the duties imposed upon the deputy supervisors and the clerk were not to be performed in lieu of some other officer or officers, but are wholly independent, notwithstanding the title given to the. supervisors is that of deputy supervisors, as the statute provides, in terms:

“That there is hereby created the offices of state supervisor of elections and of deputy state supervisors of elections, with the powers and duties hereinafter prescribed, for the conduct and supervision of all elections in this state, except for school directors and road supervisors.” Section 4 of the statute provides for the election by the board of deputy supervisors of a chief deputy, and a clerk, and the duties of each are pointed out by the statute.

"We think this clearly distinguishes the present case from that referred to. The conclusion is therefore reached that the party here sought to be removed, is not an officer, and hence quo warranto cannot be maintained against him, and the petition is dismissed.

Cause No. 4059, in which the same relator seeks to have Alice Lines removed from the position of stenographer, must be decided in the same way, because the reasons suggested in the cause against Dr. Houck apply with equal, if not greater force, to the defendant Lines, and the petition in that cause is therefore dismissed.

Henry, J., concurs.


text:
    ATTACHMENT — ERROR—JUSTICE OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Winch, Henry and Marvin, JJ.
    Henry & Scheible Co. v. Collinwood Furnace Co.
    Discharging Attachment and Remanding Cause to J. P. upon Error to Refusal to Discharge Attachment, Held Improper Procedure.
    Section 6733 Rev. Stat., requiring the common pleas upon reversal of a judgment of a justice of the peace to retain the cause of action for trial and final judgment as upon appeal, applies to error proceedings under Sec. 6524 Rev. Stat., predicated on an order overruling a motion to discharge an attachment.
    [Proof of this decision and syllabus has been submitted to Judge Winch and corrected. — Ed.]
    Error to Cuyahoga common pleas court.
    Tracy, Caldwell & Younger, for plaintiff in error.
    C. B. Robinson, for defendant in error:
   WINCH, J.

Plaintiff in error sued defendant in error before a justice of the peace and caused an attachment to be issued against the defendant’s property.

The defendant moved to discharge the attachment, and his motion being overruled, filed a petition in error in the common pleas court to reverse said ruling, under favor of Sec. 6524 Rev. Stat.

The common pleas court reversed the ruling of the justice of the peace and discharged the' attachment, without retaining the ease for trial and final judgment, as in eases of appeal, as provided in See; 6733, Rev. Stat.

We think this was error. Section 6726 Rev. Stat, provides, that “When a judgment or final order is reversed either in whole or in part, in the common pleas court, the circuit court, or the Supreme Court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment, ’ ’ but the last clause in the section reads: “but this section shall not apply to judgments of justices of the peace”.

There is no other statute authorizing the common pleas court, upon reversing the judgment of a justice of the peace, to either render the judgment the justice should have rendered or to remand the cause to> the justice for further proceedings, so we hold that Sec. 673$ Rev. Stat. applies to error predicated to a ruling on a motion to discharge an attachment the same as to error proceedings generally, from a justice of the peace. This conclusion finds some support in the cases; of Bradley v. Wacker, 7 Circ. Dec. 565 (13 R. 530) and Tombow v. Haskins, 8 Circ. Dec. 281 (15 R. 656).

Evidently the point here made was not called to the attention of the court in the cases of Hoyman v. Beverstock, 4 Circ. Dec. 491 (8 R. 473), and Seville v. Wagner, 46 Ohio St. 52 [18 N. E. Rep. 430].

For error in rendering final judgment instead of retaining the case-for trial, as upon appeal, that part of the judgment of the common pleas court is reversed and the cause remanded to that court for further proceedings.

Henry and Marvin, JJ., concur.


text:
    DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    October 26, 1908.]
    Winch, Henry and Marvin, JJ.
    W. F. Hribal v. Marie Hribal.
    Deceee foe Alimony Remaining Unimpeached Additional Alimony Cannot be Granted.
    Permanent alimony in gross having been allowed and paid, a suit for new and additional alimony cannot he maintained.
    [Proof of this decision and syllabus has been submitted to Judge Marvin, and corrected. — Ed.]
    Error to Cuyahoga common pleas court.
    C. W. Noble, for plaintiff in error.
    F. C. Friend, for defendant in error.
   MARVIN, J.

Marie Hribal filed a petition in the court of common pleas against-W. F. Hribal, averring that she is a bona fide resident of Cuyahoga county; that she is the wife of the defendant, W. F. Hribal; that the defendant has wholly disregarded his duty and obligations toward her, grossly neglected his duty to her, and she says that on September 1,1904, the defendant wilfully deserted her, and from that time forward has refused to live with her or to contribute anything to her support. She says, however, that in September, 1904, she brought suit against defendant for alimony; that she obtained a decree for alimony in that suit in the sum of $600, that this has been paid to her, and that she has expended it, all in her reasonable and necessary support; that she is now destitute; that the defendant has property and has an income as a practicing physician, and she prays for a judgment for alimony against him.

A.fter the bringing of this suit she filed a motion in the court for alimony pendente lite. Upon the hearing of this motion the court ordered that the defendant should pay to the plaintiff the sum of $25 per month, and an.additional sum of $25 as for attorney’s fees. To this order the defendant below prosecutes error here.

The position taken by the plaintiff in error being, that with the former decree of the court allowing the plaintiff $600 alimony, remaining unimpeaehed, she is not entitled now to require any further alimony.

In this contention we think the plaintiff in error is right. There are numerous cases whore by reason of the change in circumstances of the parties, in cases where alimony has been allowed, the court has, upon motion, modified the former order and allowed additional alimony, but we know of no case in Ohio where additional alimony has been allowed after the decree for permanent alimony, except by modification of the former order, and it seems to us upon principle that one should not be permitted to maintain a new and independent action for alimony, after having recovered a judgment for permanent alimony, and such alimony has been paid. 'If this might be done, litigation, almost endless, might result. The wife at any time, after having obtained a decree for alimony, might bring a new suit and again recover for alimony, and so on month after month and year after year. Bursler v. Bursler, 22 Mass. (5 Pick.) 427.

Holding as we do that the plaintiff below is not entitled to prosecute the action brought by her, it follows that the court erred in allowing alimony pendente lite, and because of this the judgment is reversed.

Winch and Henry, JJ., concur.


author: WALTERS, J.

text:
    RAILWAYS — STATUTES.
    [Jackson (4th) Circuit Court,
    January, 1909.]
    Walters, Cherrington and Jones.

      Detroit, Toledo & Ironton Ry. v. State of Ohio.
    1. State and Federal Statutes on Safety Appliance Acts not Inconsistent.
    Federal act 27 Stat. at L. 531, requiring automatic couplers on railroad cars moving interstate traffic, has not exclusive control and regulation of a car operated by a railroad over a track commonly used In Interstate traffic, in a train actually at the time so engaged; but such car, being then loaded with intrastate, as distinguished from interstate traffic, is within the control and regulation of act 98 O. L. 75, providing for automatic couplers on cars moving state traffic.
    2. Car is Unit upon Which Penalty for Violation is Based.
    “Car,” and not “train” is the unit in determining the subject of penalty in both acts 98 O. L. 75 and 27 U. S. Stat. at L. 531 requiring automatic coupler equipments.
    [Syllabus approved by the court.]
    Error to Jackson common pleas court.
    A. C. Smith and John Robbins, for plaintiff in error:
    A railroad engaged in interstate business, all of its business involving the use and operation of its railroad and equipment is subject to the exclusive power of the congress of the United States to regulate commerce among the several states; the power of the state of Ohio to regulate the railroad of the defendant or its equipment, is in contravention of the exclusive power of congress to regulate commerce among the several states and is unconstitutional and void. Crawford v. Railway, 10 Am. Neg. Rep. 166; State v. Railway, 133 Ind. 69 [32 N« E. Rep. 817; 18 L. R. A. 502]; Erl v. Morasch, 177 U. S. 584 [20 Sup. Ct. Rep. 819; 44 L. Ed. 897]; Crutcher v. Kentucky, 141 U. S. 47 [11 Sup. Ct. Rep. 851; 35 L. Ed. 649]; Chicago & A. Ry. v. Carlin-ville, 200 111. 314 [65 N. E. Rep. 730; 60 L. R. A. 391; 93 Am. St. Rep. 190];' Clark v. Railway, 64 N. H. 323 [10 Atl. Rep. 676]; Smith v. Alabama, 124 U. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508]; Nashville, C. & St. L. Ry. v. Alabama, 128 U. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 353]; New York, N. E. & E. Ry. v. New York, 165 U. S. 628 [17 Sup. Ct. Rep. 418; 41 L. Ed. 853]; Lake Shore & M. S. Ry. v. Ohio, 173 U. S. 285 [19 Sup. Ct. Rep. 465; 43 L. Ed. 702]; Leisy v. Eardin, 135 U. S. 100 [10 Sup. Ct. Rep. 681;. 34 L. Ed. 128]; Rahrer, In re, 140 U. S. 545 [11 Sup. Ct. Rep. 865; 35 L. Ed. 572]; Austin v. Tennessee, 179 U. S. 343 [21 Sup. Ct. Rep. 132; 45 L. Ed. 224]; Lake Shore & M. S. Ry. v. Ohio, 173 U. S. 285 [19 Sup. Ct. Rep. 465; 43 L. Ed. 702],
    O. E. Harrison and E. E. Eubanks, Pros. Atty., for defendant in error:
    Knowledge of the defect not an element of the offense. State v. Railway, 19 Dee. 285; Wellston Goal Go. v. Smith', 65 Ohio St. 70 [61 N. E. Rep. 143; 55 L. R. A. 99; 87 Am. St. Rep. 547] ; United States v. Railway, 160 Fed. Rep. 696; United States v. Railway, 135 Fed. Rep. 122; United States v. Railway, 149 Fed. Rep. 486; United States v. Railway, 150 Fed. Rep. 229; United States v. Railway, 154 Fed. Rep. 897.
    Has federal legislation withdrawn from the state its power to legislate for the regulation of purely domestic commerce. Yoelher v. Railway, 116 Fed. Rep. 873; Louisville & N. Ry. v. 'Kentucky, 161 U. S. 677 [16 .Sup. Ct. Rep. 714; 40 L. Ed. 849]; Chicago, B. & Q. Ry. v. Cutts, 94 U. S. 155 [24 L. Ed. 94]; Richmond & A. Ry. v. Tobacco Co. 169 U. S. 311 [18 Sup. Ct. Rep. 335; 42 L. Ed. 759]; Wisconsin, M. & P. Ry. v. Jacobson, 170 U. S. 287 [21 Sup. Ct. Rep. 115; 45 L. Ed. 194] ; Missouri, K. & T. Ry. v. Haber, 169 U. S. 613 [18 Sup. Ct. Rep. 488; 42 L. Ed. 878]; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 [20 Sup. Ct. Rep. 96; 44 L. Ed. 136]; Lord v. Steamship Co. 102 U. S. 541 [26 L. Ed. 224]; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204 [14 Sup. Ct. Rep. 1087; 38 L. Ed. 962]; Chicago, M. & St. P. Ry. v. Yoelher, 129 Fed. Rep. 522; Chilvers v. People, 11 Mich. 43 ; Carroll v. Campbell, 108 Mo. 550 [17 S. W. Rep. 884] ; Conway v. Taylor, 66 U. S. (1 Black) 603 [17 L. Ed. 191]; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365 [2 Sup. Ct. Rep. 257; 27 L. Ed. 419]; Houston v. Moore, 18 TJ. S. (5 Wheat.) 1 [5 L. Ed. 19] ; Harlan v. People, 1 Doug. (Mich.) 207; Fox v. State, 46 U. S. (5 How.) 410 [12 L. Ed. 213]; United States v. Marigold, 50 U. S. (9 How.). 560 [18 L. Ed. 257]; Hendrick’s Case, 5 Leigh (Va.) 707; Jett v. Commonwealth, 18 Gratt. (Va.) 933; Moore v. Illinois, 55 U. S. (14 How.) 13 [14 L. Ed. 306] ; United States v. Railway, 157 Fed. Rep'. 616; United States v. Railway, 156 Fed. Rep. 182.
    As to construction of statute. Cooley, Const. Lim. 200; 1 Bryce, Am. Com. 430; Probasco v. Raine, 50 Ohio St. 378 [34 N. E. Rep. 536]; Cooper Mfg. Co. v. Ferguson, 113 TJ. S. 727 [5 Sup. Ct. Rep. 739; 28 L. Ed. 1137]; Freight Discrimination Cases, 95 N. C. 428 [59 Am. Rep. 247] ; State, v. Railway, 19 Dee. 285; Missouri, K. & T. Ry. v. Barber,, 169 U. S. 613 [18 Sup. Ct. Rep. 488; 42 L. Ed. 878]; Addyston Pipe & Steel Go. v. United States, 175 U. S. 211 [20 Sup. Ct. Rep. 96; 44 L. Ed. 136]; Lord v. Steamship Co. 102 U. S. 541 [26 L. Ed. 224] ; Milnor v. Railroad & Transp. Go. 65 U. S. App. 1 [16 L. Ed. 799].

       Affirming, State v. Railway, 19 Dec. 285.

   WALTERS, J.

The state of Ohio brought this action in the court of common pleas of this county, against the railroad company, defendant below.

It was alleged in the petition that defendant was a corporation organized under the laws of the state of Michigan; that its road extended from Detroit, in the state of Michigan, to Ironton, in the state of Ohio; that it was engaged in the business of carrying freight and passengers as a common carrier, and that on ‘January 17, 1907, in violation of the statute of Ohio, it carried a car, No. 4661, doing state business and engaged in state traffic and belonging to said railroad company, which was not equipped with an automatic coupler, a device, which when used, renders it unnecessary for an employe, when desiring to couple or uncouple the cars, to go between the ends of. the same to do so.

The statutory penalty of $100 was demanded.

The railroad company, in its answer, admitted its incorporation; that it was engaged in the business of a common carrier, and alleged that as such it owned locomotives, engines, ears, equipment and rolling stock, all of which, together with its employes, were commonly engaged in interstate traffic and business.

It further alleged that the congress of the United States was empowered, under the commerce clause of the constitution, to regulate interstate traffic, which included automatic couplers upon cars commonly used in interstate commerce, and that the congress had exercised its power so given, and passed an act which was in operation at the date mentioned in the petition, and that the act of the general assembly of Ohio passed before that time, had thereby become superseded and was void.

The second defense contained a further allegation that this particular car in question was in a train composed of ten other cars, which were all loaded with freight and were then being transported from points within the state of Michigan, to plaees outside of said state.

A demurrer for insufficiency was interposed to' each of these defenses and sustained by the court. The exact point presented for decision is: Whether the federal law regulates or controls a car operated by a railroad which is, commonly, and was engaged in interstate traffic, over a track commonly' so used by employes commonly so engaged, in a train actually at the time so used and engaged, but which particular car, at the time, happens to be loaded with intrastate traffic, as distinguished from interstate traffic, and whether said car is so regulated and controlled by the federal law as to thereby withdraw it from the operation of state legislation?

Article 2 of the articles of confederation provides:

“Bach state retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States, in congress assembled.”

Article 10 of the amendment to the constitution of the United ■States provides:

“The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Article 1, See. 8 of the federal constitution grants to the congress, among other things, the power,

“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Under the power thus granted, the congress passed an act entitled,

“An act to promote the safety of employes and travelers upon railroads, by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with drive wheel brakes and for other purposes.”

Section 2 is as follows:

“That on and after the first day of January, 1908, it shall be unlawful for any such common carrier to haul, or permit to be hauled, •or used, on its line, any car, used in moving interstate traffic, not equipped with couplers coupling automatically by impact, and which ■can be uncoupled without the necessity of men going between the ends ■of the ears.”

The general assembly of the state of Ohio, 1906 (98 O. L. 75), enacted a law upon the same subject. Section 2 of this act, which the state claims in this case was violated, is as follows:

“That it shall be unlawful for any such common carrier to haul,, or permit to be hauled or used on its line, any locomotive, car, tender, or similar vehicle used in moving state traffic, not equipped with •couplers coupling automatically by impact, and which can be uncoupled, without the necessity of men going between the ends of the cars.??

In so far as these two acts refer to ears, and require automatic couplers thereon, the language used in each is identical.

The word “such” in Sec. 2 of the Ohio law, refers to the kind of a common carrier described in Sec. 1 of that act, which is as follows:

“•Any common carrier engaged in moving [state] traffic by railroad between points within this state.”
Placing this definition of a kind of carrier meant by the word “such” into Sec. 2, it would read as follows:
‘ ‘ That it shall be unlawful for ' any common carrier engaged in moving state traffic by railroad between points within this' state * * * to haul * * any car * * used in moving state traffic, etc.
The car must-be “engaged in moving state traffic between points, within this state.”

The Supreme Court of the United States has held that there are three general classifications of legislative acts, federal and state, under the commerce clause of the constitution, in one of which classes each enactment must fall :

First. Where the federal congress has exclusive jurisdiction.

Second. Where the state has exclusive jurisdiction.

Third. Where the state has jurisdiction to act until the federaL congress passes an act upon the same subject. ' ' ■

The object to be attained by the Ohio law would indicate that it fell within the second class. The safety, life and health of the employes, passengers and citizens of the-state, lie at the bottom of the-regulation. These objects are clearly within the police power of the-state, and unless such a law conflicts with a regulation of a federal law upon the same subject, over which the congress has delegated power to-act'and has acted, the state law is valid.

The states have a right to enact a law forbidding the consolidation of' parallel and competing lines engaged in interstate commerce. Louisville & N. Ry. v. Kentucky, 161 U. S. 677 [16 Sup. Ct. Rep. 714; 40 L. Ed. 849]. The state can regulate the speed of interstate trains within city limits; it can establish a rule of evidence ordaining the character of proof by which a carrier may show its liability to. be limited. Richmond & A. Ry. v. Tobacco Co. 169 U. S. 311 [18 Sup. Ct. Rep. 335; 42 L. Ed. 759]. It can enforce track connections between two railroads. Wisconsin, M. & P. Ry. v. Jacobson, 179 U. S. 287 [21 Sup. Ct. Rep. 115; 45 L. Ed. 194].

In all the cases upon the subject there is ah important distinction. and difference between regulation of commerce among tbe states, and a regulation of the instruments of commerce. The one is confided to the congress, the other the regulation of the instruments of such commerce is within the jurisdiction of the states under their police power. All police regulations of interstate traffic interfere indirectly more or less with commerce between the states, in the fact that they impose a burden upon the instruments of such commerce, by adding something to the cost of transportation by the expense in conforming to such regulations.

In Louisville & N. Ry. v. Kentucky, 161 U. S. 677, 702 [16 Sup. Ct. Rep. 714; 40 L. Ed. 849], Justice Brown says:

“It has never been supposed that the dominant power of congress over interstate commerce took from the states the power of legislation with respect to the instruments of such commerce, so far as the legislation was within its ordinary police powers. * * * In the division of authority with respect to interstate railways congress reserves to itself the superior right to control this commerce and forbid interference therewith; while to the states remains the power to create and te regulate the instruments of such commerce, so far as necessary to the conservation of the public interests. ’ ’

The state of Ohio having the right to legislate and regulate thereby for the safety and lives of its people, under’ its police power, and having done so, and employed language in the act that confines its. operations to a “common carrier engaged in moving traffic, by railroad,, between points within this state” it could not conflict, with a federal law upon the same subject and regulating the .same instrumentality when engaged in moving interstate traffic, among the several states, because to the state is reserved the exclusive right to regulate its own internal commerce.

The Ohio law instead of being in conflict with the federal law, as. to cars, is rather a harmonious supplement thereto, compelling the roads to have the safety device on all cars engaged in moving traffic between points within -this state, a subject without the jurisdiction of the congress, and the Ohio and federal law, each acting and operating within its own proper and constitutional sphere, bring about the intended result by requiring such safety device to be placed on all cars by all roads, whether such cars are being engaged in moving interstate or intrastate traffic.

Otherwise, without the force and effect of the Ohio law, all cars loaded with freight moving from point to point within the'state of Ohio, would be absolutely immune from the operation of the federal law, and all such safety couplers could be'omitted.

The national pure food and drug act has been supplemented by acts passed by the various states,' containing similar provisions, applicable to-dhe manufacture, sale and transportation of impure foods and drugs within the states, without which the national act would lose' much of its value.

The claim is made that, by reason of the peculiar situation of this car No. 4661, being as the answer alleges, nested in a train consisting of ten other cars, and all the other ten containing freight which was being transported from one state to a point in another; the equipment consisting of a locomotive, cars, track and train crew, all then being engaged in interstate transportation and commerce, it must be held that this particular car partook of the same characteristics as the other ten ears.

The Ohio as well as the federal act, designates a “car;” and not a .train ..of cars, as being .subject-to the penalty prescribed in the acts. The device is attached to each car and each as such, must be complained of separately in a petition asking for the penalty. The car. is thus made the unit, by the statute.

Each ear shall be provided with the coupler and any road hauling a car not so provided, is doing an unlawful act, prohibited and penalized.

The demurrer was properly sustained, and the judgment below is affirmed.

Cherrington and Jones, JJ., concur.


text:
    ERROR — EVIDENCE—NEW TRIAL.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    The Cincinnati Gas & Electric Company v. Mary Coffelder.
    1. Excluding Petition Filed in Another Court Held not Erroneous.
    Excluding as evidence a petition filed in another court substantially the same as that upon which the case is tried, and containing no admissions not found in the latter is not erroneous.
    2. Subsequent Specifications in Charge Curing Prejudice in General Statement Imputing Responsibility for Accident.
    A charge that the defendant “did dig the trench and is responsible for whatever result naturally grew out of that” is not equivalent to saying " that defendant is an insurer against accident, nor prejudicial, especially if the trial court subsequently specified the particular results for which responsibility attached.

      3. Reading Pleadings and not Preventing Jury from Taking Them to Their Room not Prejudicial.
    Neither reading, pleadings, before explaining them to the. jury, nor permitting the jury to take the pleading's to their' room constitutes' prejudicial error.

      4. Preponderance and Weight of Evidence Wrongly Define».
    Defining the “preponderance of evidence” as “that you believe and that influences your minds in arriving at the conclusion you made” is erroneous; it is not a question of what may, but what amount of evidence must, influence the mind. So, defining the “weight of evidence” as to exclude documentary evidence is prejudicial error.
    5. Appeals to Corporation Prejudice and Discrediting Witnesses Because of Employment Held Abuse.
    Blame for improper argument provoked by opposite counsel will not be apportioned on review, but where exception is made to such argument, failure of the court to rule on the same affirmatively is erroneous. Hence, assailing the credibility and integrity of witnesses because of their employment hy a corporation :and appealing to existing prejudice against corporations constitute gross abuse of the privilege of counsel and tends to defeat the administration of justice,-'and/reiteration; thereof after withdrawal upon exception, is reversible error.
    6. Proof of Diligence in Ascertainment of Pacts Essential to Grant New Trial After Term upon Discovery Thereof.
    Overruling a motion for new trial filed after term, based on newly discovered evidence which could not with reasonable diligence have been discovered before is not erroneous, in the .absence of proof of due diligence in ascertaining such facts.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    J. W. Warrington and Murray Seasongood, for plaintiff.
    A. W. Goldsmith and C. M. Cist, for defendant.
   GIFFEN, J.

The petition filed by the plaintiff, Mary Coffelder, in the United States Court was.substantially the same as the one upon which the case was tried in the common pleas court, and as it contained no admission not found in the latter, there was no error in excluding it as evidence.

The charge of the court that the defendant ‘ ‘ did dig the trench and is responsible for whatever result naturally grew out of that” is not equivalent to saying that the defendant is an insurer against accident. If the defendant took all necessary precautions to warn and protect the public, especially at night, and an accident nevertheless occurred through the negligence of the person injured, it was the natural result, not of digging the trench, but of such negligence as an abstract proposition of law, and without further explanation its tendency would be to mislead the jury; but in subsequent portions of the charge of the court specified the particular results for which, under the pleadings,, the defendant would be responsible, and it was not therefore prejudicial.

It was not error to read the pleadings before explaining them to the jury, and we are aware of no rule in this state preventing the jury from taking them to the jury room. •

The court erred in charging the jury that “by preponderance of' the evidence is meant * * * the evidence that you believe and that influences your mind in arriving at the conclusion you made.”

They may have been influenced by evidence that did not outweigh or overbalance the evidence that required a different conclusion. It is not a question of what may but what amount of evidence must influence their mind.

In the next paragraph of the charge “the weight of the evidence” is so defined as to exclude from consideration all the documentary evidence received, which was also error.

The first and third specifications of improper argument to the jury by counsel for plaintiff show that it was provoked by and made in answer to the argument of counsel for defendant, and the court, will not undertake to apportion the blame in order to inflict a penalty upon the-client. The second specification is as follows:

“Talking about railroads again, I have seen that demonstrated more than once, that one man wants to relieve himself of responsibility of want of discharge of duty. If there is a verdict in this case, you will find Mr. Kenan wanting to know who is responsible for this dereliction of duty. He will send for Mr. Miller and Mr. Franklin and Mr. Kruse and Mr. Reising, and they will try to put the blame on this dead man.
“Mr. Seasongood: I want to object to this; just because Mr. Goldsmith’s railróads do that is not reason why he should accuse us. of it.
“Mr. Goldsmith: I object to that.
“Mr. Seasongood:- Will Tour Honor instruct the jury to disregard that ?
“Mr. Goldsmith:' Very good. It may go out.
“Mr. Goldsmith: I have a right to charge that it is natural that these men who are in interest—
“Mr. Seasongood: That is entirely incompetent to argue that.
“Mr. Goldsmith: I say Mr. Franklin and Mr. Kruse and Mr. Reising are interested in this controversy as employes and subordinates in this gas company, just as much as this plaintiff and her sister and -father. ’ ’

There is no pretense that these remarks were supported by any evidence in the ease, bnt were confessedly based upon the experience of counsel in like cases against railroad corporations. To thus assail the credibility and integrity of witnesses, whose only offense is their employment with a corporation, is not only highly reprehensible,, but a gross abuse of the privilege of counsel, and if permitted to stand unrebuked will tend to influence existing prejudice against corporations and their employes and to defeat the general administration of justice as well as work an injury to the defendant in this case.

If counsel had been content to rest when, upon objection by counsel for defendant, he said, “It may go out,” we might assume that the withdrawal was made in the proper spirit and that no prejudice resulted; but when he immediately added, “I have a right to charge that it is natural that these men who are in interest,” it was in effect not only a reiteration of his remarks, but an assertion of the right to make •them, and an aggravation of the offense. The objection of counsel for •defendant and the failure of the court to rule on the same affirmatively appear in the record, thereby bringing the ease within the rule stated in the case of Hayes v. Smith, 62 Ohio St. 161 [56 N. E. Rep. 879], and State v. Young, 77 Ohio St. 529 [83 N. E. Rep. 898].

There was no prejudicial error in defining negligence or proximate •cause, nor in charging the jury to fully compensate plaintiff for injuries caused by negligence of defendant.

The petition for a new trial filed after term is based on newly-discovered evidence which the defendant could not with reasonable diligence have discovered before — misconduct and fraud of plaintiff, and false testimony. The misconduct and fraud consist in alleged false testimony of plaintiff, her family and physician, which is óf no avail until the guilty party has been convicted. Section 5354 Rev. Stat. Sub. 10.

It does not appear that the defendant could, not with reasonable •diligence have discovered the evidence bearing upon the question of plaintiff’s earning capacity before and after the accident, and as to the cause of a permanent lowering of her shoulder; while it is true that no amount of diligence or foresight would suggest that a brother would voluntarily furnish a clue to facts tending to prove the falsity of his ■sister’s testimony, yet there were many natural and easy sources of information leading up to proof of her earning capacity and the extent -of her injury to which the defendant did not resort.

No employer, officer or attorney of the defendant was called as a ^witness to prove due diligence in ascertaining the facts. Hence,- there was no error in refusing a new trial upon petition filed after term; but the judgment will be reversed for error in the charge and. failure of' the court to rule upon objection to improper remarks of counsel to the-jury, and the cause remanded for a new trial.

Swing and Smith, JJ., concur.


text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.

      Anna Louise Madden v. John E. Madden.
    Division of Property not Predicated upon Decree on Petition for Alimony-Alone.
    A court will not upon petition, filed under Sec. 5702 Rev. Stat., for alimony alone, anticipate a decree for divorce and consequent division of property unless required by the facts, and the decree must expressly show that the allowance made comprehends such division. Hence, granting a wife alimony in monthly installments and reserving the right of' modification thereof, conclusively tend to show that the allowance is support and maintenance alone, which, upon her marriage to another man abundantly able to support his wife, may be terminated as of the-date of remarriage. The mere fact that the petition alleged, and the court considered her assistance in the accumulation of her former-husband’s property, is not sufficient to show that division was intended.
    C. W. Baker, for plaintiff in error.
    W. Lindsay, Workum & Bowdle and C. B. Wilby, for defendant, in error.

      Reversing Madden v. Madden, 18 Dec. 167.

   GIFFEN, J.

The petitioner seeks to revise the decree for alimony entered February 7, 1906, and the chief question presented is whether the allowance was intended for the maintenance or support of the wife, or a division of the husband’s property. If the latter, it is final, but if the former, it may be revised or terminated according to the changed circumstances of the parties. The amended petition upon which the decree was granted was for alimony alone under Sec. 5702 Rev. Stat., but contained an averment that she materially assisted her husband in accumulating his property, which averment was denied in the answer.

The court found “on the issues joined in favor of the plaintiff’ and that the plaintiff is entitled to reasonable alimony out of the defendant’s real and personal property as prayed for.” It is claimed' that this finding includes the issue that the plaintiff assisted her husband in acquiring his property, and that the alimony was allowed, not for the support of the wife, but as a permanent division of the husband’s property. The only issues joined which entitled the plaintiff to reasonable alimony were such only as were based upon the statutory grounds for alimony. The efforts of the wife in acquiring the property were relevant only to the amount or reasonableness of the alimony and would have been considered by the court as well without as with the averment to that effect.

Suppose the court had found no statutory ground for granting alimony, would it nevertheless have proceeded to render a judgment in favor of the wife for her share of the property? We think not, as the very nature of the case requires such finding to support any judgment whatever.

In the case of Weidman v. Weidman, 57 Ohio St. 101, 104 [48 N. E. Rep. 506], it is said:

“The property of the husband is usually the result of the joint efforts of both husband and wife, and upon dissolution of the marriage she is entitled to her equitable share of the property as alimony.”

The dissolution of the marriage works a dissolution of a business partnership such as is averred in the amended petition; but a court will not, upon a petition for alimony alone, anticipate a decree for divorce and the consequent division of the property, unless the facts require it, and if they do then the judgment should expressly show that the allowance is made not for support of the wife, but as a division of the property.

Convincing evidence of the character of the alimony is found in the fact that no petition for divorce had been filed; in the provision for payment in monthly installments, and in the reservation by the decree itself of the right of the plaintiff or defendant, in the event of a change of circumstances, to apply to the court for a modification or termination thereof — all tending to show the allowance was intended as maintenance.

Whatever effect may have been given to the evidence tending to prove assistance of the wife in acquiring the property, was merged in the judgment for alimony and only increased the amount.

The changed circumstances relied on to terminate the allowance' are the divorce subsequently granted to plaintiff and her marriage to another man, who is abundantly able to support her as in her former state. It is also admitted that plaintiff claims nothing by way of support.

Our conclusion therefore is that the alimony be terminated as ■ of the date, of remarriage.

Swing and Smith, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — JUDGMENTS.
    [Hamilton (1st) Circuit Court,
    May 16, 1908.]
    Swing, Giffen and Smith, JJ.
    In re Est. Ottilia Seitz.
    Jurisdiction of Probate Court to Determine Lien of Judgment Against Heir in Proceeding to Sell Real Estate of Decedent.
    A judgment against an heir and the lien acquired under Secs. 5377, 5378 Rev. Stat. against real estate inherited by her are not improperly-set up in a proceeding in the probate court under Sec. 6145 Rev. Stat. to sell real estate of her deceased ancestor to 'pay debts; issuance of summons for the party against whom the lien was -obtained is not required,. nor can the order directing the administrator to pay the claim be collaterally attacked.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
   SMITH, J.

The judgment recovered against Minnie Flesher by William F. Wagner and the lien acquired upon her real estate inherited from her mother, Ottilia Seitz, under Secs. 5377 and 5378 Rev. Stat., were not improperly set up in the probate court in the suit to sell the real estate of Ottilia Seitz to pay .debts.

Section 6145 Rev. Stat. provides for the determination of the equities between parties as well as the priorities of liens, and the order of the probate court merely found that the judgment of Wagner was a lien upon the interest of Minnie Flesher in the premises to be sold, and the administrator was ordered to pay the same from the balance due Minnie Flesher.

This was not such a proceeding on a cross petition asking affirmative relief as would require the issuance of a summons to bring a party into court, nor on the other hand can. this finding or order be collaterally attacked.

Judgment affirmed.

Swing and Giffen, JJ., concur.


author: COOK, J.

text:
    ASSAULT — MAYHEM.
    [Ashtabula (7th) Circuit Court,
    September Term, 1908.]
    Burrows, Laubie and Cook, JJ.
    John O’Brien v. State of Ohio.
    Assault with Intent to Maim.
    Where an assault is committed by a blow upon the head with a blunt instrument under circumstances evincing an intent to permanently disable the person assaulted in respect to the use of some member of the body necessary in defense of his person or to annoy his adversary, the party committing the assault may be convicted of an assault with intent to maim.
    [Syllabus approved by the court.]
    Error to Ashtabula common pleas court.
    Boyd, Marvin & Lawyer, for plaintiff.
    C. L. Taylor, prosecuting attorney, for defendant.
   COOK, J.

John O’Brien was convicted, under Sec. 6819 Rev. Stat., of the crime of assaulting George Ryle with a dangerous weapon with the malicious intent to maim and disfigure. The indictment contained three counts: The first of assault with intent to kill and the second and third of assault with intent to maim and disfigure; the last two counts being substantially the same. The jury returned a verdict of not guilty on the first and third counts and guilty on the second count. He was sentenced by the court to the penitentiary and the case is now before us on error.

The circumstances as detailed in the evidence are briefly these:

A construction firm was putting up some structural steel work at Ashtabula Harbor, and the work, was being done with non-union labor which was objectionable to union men; and the union at Cleveland .sent several men to the harbor to look after the interests of the union men and to see if the nonunion men could not be induced to quit working. These special agents of the union were assisted by a number of other men at the harbor, so that there were quite a number of men, union and non-union on each side.

As ordinarily in cases of this character the controversy became quite hot and much bad blood was aroused. About six o’clock in the morning when the assault took place, Ryle was going to work and passed diagonally across the corner of two streets when four men came in the opposite direction, coming from behind a small building, and met Ryle about half way across the intersection of the streets. Each of the four, or at least some of them, had a piece of gas pipe about eighteen inches long and one inch in diameter, covered with heavy brown paper. They were closely huddled together, and one of them struck Ryle over the side of the head with his weapon making a serious and dangerous wound, but not of sufficient force to fracture the skull. The blow felled Ryle to his knees when he pulled his revolver and shot one of his assailants dead; the other three immediately fleeing in different directions. There is no evidence of any threats being made by 0 ’Brien or by either of the other three.

Two questions of error are made before us and are strenuously relied upon by counsel for plaintiff in error. First, that the evidence-does not sufficiently show that O’Brien was one of the parties that committed the assault. Second, that the evidence wholly fails to show that the assault was made with the malicious intent to maim or disfigure. We have examined the evidence and wé think the jury did right in finding from the evidence that O’Brien was one of the parties that committed the assault. The judgment therefore cannot be reversed upon that ground. The second ground of error presents a question of much more difficulty; and that is, whether the malicious striking of a person upon the head with a blunt instrument of the character and under the circumstances shown in the evidence is sufficient to show a. malicious intent to maim or disfigure, where the head only is injured. It must be conceded that whatever may be the holding in the different states — and the decisions are directly contrary — in our own state in order to convict of an assault with the malicious intent to maim or disfigure the act must be done with intent to permanently injure one of the members of the body specifically set forth in Sec. 6819 Rev. Stat., and to maim the assault must be made with the malicious intent to-injure a member that may be used in the defense of the person, or to annoy an adversary.

State v. Johnson, 58 Ohio St. 417 [51 N. E. Rep. 40; 65 Am. St. Rep. 769], the first section of the syllabus in that case is as follows:

“1. Maim and mayhem are, at common law, equivalent words, and mean the same thing; therefore, a count in an indictment charging the defendant with maliciously biting the ear of another with intent to maim, cannot be supported. as to the particular intent charged, as. the biting of an ear does not in law constitute a maiming.”

On page 423 in the opinion it is said:

“There is no question, we think, but that maim as a noun, and mayhem are equivalent words, or that maim is but a newer form of the word mayhem — the difference being in the orthography and not in the sense. Webster’s Unabridged Dictionary: ‘Maim,’ as a noun, is there defined the same as mayhem: ‘The privation of the use of a limb or member of the body by which one is rendered unable to defend himself or to annoy his adversary.’ This is the definition of mayhem at common law. 1 East, P. C. 393; 1 Wharton, Crim. Law Sec. 581. Hence the verb ‘to maim’ is accurately defined in Anderson’s Law Dictionary, as follows: ‘ To commit mayhem. ’ ’ ’

Again, on page 425, it is said:

“If the member be not one of use to the person in defending himself, an injury to it cannot be said to have been done with intent to maim. ’ ’

In this case it is not claimed by the state that there was any intent, to disfigure on the part of O ’Brien; neither could there be, as there is. nothing tending to show such intent by the. injury or by any circumstance in the case.

The question then arises, is the evidence sufficient to show, under the law as laid down in State v. Johnson, supra, an intent to maim; that is, such privation of the use of a limb, or other member of the body by which one would be rendered less able to defend himself or to annoy his adversary. The injury in this case produced no such effect, so that no implication of fact or law arises that the accused intended that which his act in fact produced, and a specific intent must therefore be shown from the manner of inflicting the blow, the part of the body struck and the circumstances under which the injury was inflicted.

Intent is a mental state and therefore very difficult of proof. The only manner in which it can be proven is by the circumstances of each particular case, and if the circumstances are of such- character as to satisfy the triers of the facts beyond a reasonable doubt not only that the act was done by the defendant, but that it was done with the-felonious intent charged in the indictment, that is sufficient.

The rule is well stated by Elliott, Evidence Sec. 2841:

“Intent — -Inferred from circumstances. While it is incumbent upon the state to prove the intent, yet the law, recognizing the difficulty of proving mental states, does not require proof of such intent by direct, evidence, but it may be established by proof of such facts and. circumstances from which the intent may naturally or reasonably be,inferred. One court very aptly stated the rule thus: ‘But it is generally true that the state is not expected and cannot be required to make proof, of felonious intejit, as a fact, by direct, and positive evidénce; for as a general rule, men who do or commit acts do not proclaim in public places the intent with which such acts are done. If the state were required to make direct and positive proof of the felonious intent which characterizes the act done as a public offense, the result would be that many persons, charged and guilty of public crimes, would go acquit ‘unwhipt of justice.’ Therefore all that the state is required to do in such cases is to introduce such evidence on the trial of the cause as will satisfy the triers of the facts, whether court or jury, beyond a reasonable doubt, not only that the act was done by ..the defendant, but that it was done with the felonious .intent charged in the indictment. ’ ’

The jurors and the trial judge were so satisfied in this case. Were they in error in being so satisfied? We think not. Here was a contention between two conflicting parties of large numbers. The question between the factions was which should do the work of construction, union labor or nonunion labor. There could be no reasonable object in killing Ryle; it would not accomplish their purpose and at the same time upon apprehension be attended with severe penalty.

The main object, no doubt, was to disable Ryle and not kill him. This is shown , by the weapon used and the manner of its use. It was wrapped with heavy paper so as to blunt the force of the blow. Why use an eighteen-inch piece of gas pipe so protected if the main intention was to kill ? Why not have used a revolver or other gun at a safe distance, at some secluded point; why go four together attracting attention leading necessarily to detection, apprehension and conviction? But it is said they did not maim Ryle. True, but what would have happened had he not shot one of the number down ? They were there to disable him; teach him a lesson, and had it not been for his revolver, no doubt numbers of blows would have fallen upon his arms, limbs and other members of his body. Who can say, under such circumstances, the assault was not made for the purpose of maiming ?

The case of Ridenour v. State, 38 Ohio St. 272, is a ease quite similar to the one we are considering. Ridenour was convicted of shooting with intent to maim. He shot Montgomery in the trunk of the body near the navel; a nerve was destroyed by the bullet in its course and paralyzed his right leg: In the second paragraph of the syllabus it is held:

“2. Where one shot another in the trunk of. the body, and the result was to produce paralysis of a leg,.»causing a permanent.disabling of that member, a verdict of guilty of shooting with intent to maim is supported by sufficient evidence. The accused might fairly be presumed to have intended the actual and natural result of his unlawful act.”

True, in that case an actual maiming took place and raised a presumption against Ridenour, but we think not stronger than the presumption raised by the circumstances in this case.

On page 274 in the opinion it is said:

“It further appeared, however, that a nerve was destroyed by the bullet in its course, and that although the patient has recovered, his right leg is disabled by paralysis, from which it is said he will never, in all probability, recover. From this it seems that the result of the shooting was actually to maim. Can it be said that the verdict finding that the accused intended the result of his criminal act was not warranted? We think not. The law presumes all persons to contemplate the natural and probable results of their actions; and we cannot say that the natural and probable result of such an injury as this is not to cause the loss of the use of some important member of the body.”

Mark the closing sentence: “The law presumes all persons to contemplate the natural and probable results of their actions; and we cannot say that the natural and probable result of such an injury as this is not to cause the loss of the use of some important member of the body."

So a blow upon the head made under the circumstances shown in this ease may be presumed to have been made with intent to cause the loss of the use of some important member of the body. Indeed, it is well settled by medical authority that a violent blow upon the head not fracturing the skull frequently does cause the paralysis of an arm or leg. American Text Book of Surgery, Principles and Practice of Surgery by De Costa.

The judgment of the court of common pleas is affirmed.

Burrows and Laubie, JJ„ concur.


author: SWING, P. J.

text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    December 5, 1908.]
    Swing, Giffen and Smith, JJ.
    Joseph Miller v. Mary Miller Donahue et al.
    Necessity oe Showing what it was Proposed to Prove by an Excluded Question.
    Where objection to a question propounded to a witness is sustained, but the record does not disclose what reply the witness would have made had he been permitted to answer, a reviewing court will not presume that the answer would have been material, or favorable to the plaintiff in error, or that the sustaining of the objection to the question was prejudicial, or that the rejection of the answer by the trial court was improper.
    Error to Hamilton common pleas court.
    J. D. Creed and Thorne Baker, for plaintiff in error.
    D. F. Cash and E. J. Babbitt, contra.
   SWING, P. J.

This case is here on error to the judgment of the court of common pleas. In that court it was an action to set aside the will of Mary Miller, deceased. The main ground of error relied on is the refusal of the court to permit plaintiff in error to have certain questions propounded to Dr. B. F. Beebe, a witness for the plaintiff, answered. The plaintiff in error excepted to the ruling of the court in refusing to permit said questions to be answered by the witness, but did not say what he expected to prove by the witness if he were permitted to answer the questions.

The sixth proposition of the syllabus in Bean v. Green, 33 Ohio St. 444, is as follows:

“Where a question put to a witness on the trial is excluded by the court as incompetent, to make such rejection a valid ground for error it must appear in the record what was proposed to be proved thereby, and that it was something material, the rejection of which would be prejudicial to the plaintiff in'error.”

The court in its opinion at page 447, says:

“It has been ruled in this state as often as the question has come before the Supreme Court,-that an exception to the overruling of questions in the form here made is insufficient. Where a question is asked of a witness which is objected to and rejected, the party taking an exception to the ruling should bring, upon the record, a statement of what is proposed or expected to be proved by the rejected testimony, and this must appear to be something material, the rejection of which as evidence would be prejudicial to the party excepting.”

In support of this the court cites numerous Ohio cases. The principle lying at the bottom of this decision is thus stated in the syllabus in Scovern v. State, 6 Ohio St. 288, which is cited by the court and which is as follows:

‘ ‘ In order to justify the reversal of a judgment; on error, the record must affirmatively show, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.”

The court may have erred in not permitting the questions put to Dr. Beebe to be answered, but how can the court say there was any prejudice to plaintiff in error in this ruling as long as the court cannot know what Dr. Beebe’s answer would have been to the questions. He may not have been able to have answered the questions or his answers may have been unfavorable to plaintiff in error, for we have no right to assume as a matter of fact that the answer would be favorable to plaintiff in error.

We find no other error in the record.

Giffen and Smith, JJ., concur.