text:
    INVALIDITY OF MUNICIPAL LICENSE FEES ON AUTOMOBILE USED FOR. PLEASURE.
    Court of Appeals for Butler County.
    W. C. Crane et al v. The City of Middletown, Jacob F. Heer, Mayor, and Andrew Mehl, Chief of Police.
    Decided, January, 1915.

      Municipal Corporations — License Fees for Use of Streets by Vehicles— Automobiles Used for Pleasure Can Not be Included — Section 3632.
    No power lias been delegated to municipalities by the General As_ sembly which authorizes the enactment of an ordinance requiring the owner of an automobile to pay a license fee to the city, in addition to the license paid to the state as fixed by statute, as a condition precedent to his use of a car on the streets for pleasure riding, and an ordinance imposing such a license fee is invalid.

      B. F. llarwitz, for plaintiff in error.

      W. Q. Palmer, City Solicitor, contra.
    Jones (O. B.), J.; Swing, P. J., and Jones (E. IT.), J., concur.
   The question to be determined is the validity of the ordinance of the city of Middletown known as Ordinance No; 461 to license and regulate the use of the streets of the city of Middletown, Ohio, by persons who use vehicles, passed July 11, 1912, so far as it requires the owner of an automobile to pay a license fee to the city in addition to the license paid to the state us fixed by statute, before he can use the streets of the city for pleasure.

The city claims the power to impose such a license by ordinance passed under authority of Section 3632, General Code. This section, which is one of the sections of the municipal code enumerating the general powers of municipalities, is made up of several clauses separated by semi-colons. It reads as follows ;

1 ‘ To regulate the use of carts, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the transportation of articles through such highways and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of interurban, traction and street railway cars within the corporation. ’ ’

The first clause authorizes cities “to regulate the use of carts” and other enumerated vehicles (among which are specifically included “automobiles”) “kept for hire or livery stable purposes.” This clause can not apply to plaintiffs, as their automobiles are used only for pleasure by the owners and are not kept for hire or livery.

The next clause is the one on which defendant city must rely for the power claimed. It is as follows: “to license and regulate the use of the streets by persons who. use vehicles, or solicit business thereon.”

It will be observed, that its meaning is not clear. To give it the broad meaning contended for by defendant would require the elimination of the words “or solicit or transact business,” and would permit the requiring of a license from all who use vehicles on the streets regardless of that use, or, giving these words a separate meaning, would provide three classes to 'be licensed; those who use vehicles on the streets, those who solicit business on the streets, and those who transact business thereon. In the opinion of the court these words were intended to provide for but one class, those who úse vehicles on the street for the purpose of soliciting or transacting business.

. The subject of city vehicle'licenses has been recently before the Supreme Court in cases of Pegg v. Columbus, 80 O. S., 367; and Frisbie v. Columbus, 80 O. S., 686.

In the first ease it was held that a license will not be imposed upon non-residents of the city who use vehicles on its streets for the purposes of pleasure or their own private business ana not for hire. This is a well considered case, and while it only decided the question of-the validity of. the ordinance as to nonresidents, the reasons given in the opinion would seem to apply equally to residents of the city.

The second case raised the'question of the validity of the ordinance of the. city of Columbus providing for vehicle licenses only as far as it applied to motor vehicles. The court held that the ordinance was annulled as to motor vehicles by the act found in 98 Ohio Laws, 320, and was not revived by its repeal by the act found in 99 Ohio Laws, 538. It failed to decide whether municipalities since the last named act might regulate and license automobiles.

It is contended that the General Assembly having, by general laws contained in Part Second, Title II, Chapter 21, of the General Code (Sections 6290 to 6310), undertaken to declare a general policy for the regulation of motor vehicles and to provide a state license, it has thereby withdrawn the power of a municipality to make any other regulation or to demand any further license. This clearly would not be the case in regard to a proper municipal ordinance under G. C. 3632, requiring a license for the use of automobiles kept for hire or livery purposes.

The strongest objection, however, to the validity of the ordinance under consideration is that it fails to impose any regulations whatever in regard to the use of the streets except the provision that as a prerequisite to their use the license fee must be paid. The ordinance provides an elaborate scale of fees for many classes of vehicles, fixes the time when due and payable, provides that the mayor shall issue the licenses and tags for the same, how these tags of different colors shall be numbered and displayed, and how licenses may be transferred. It exempts vehicles owned by non-residents which are transients on the streets and not used for hire. It provides that the owner of any vehicle, or any person who uses or even rides in any vehicle on the streets of the city, not properly licensed and taxed, shall be guilty of a misdemeanor, and prescribes the penalty, fixing a fine not to exceed fifty dollars and costs. It provides that the money arising from such license fees shall be paid into the city treasury, and after first paying expenses for printing licenses, tags, etc.,,the residue shall be used for equipment and machinery to repair the streets of the city, and for the actual repair of said streets.

It is clear on its face that the ordinance was passed purely as a revenue measure. Its purpose evidently was to levy a special tax on those who use the streets of the city. Such a tax, under whatever name it may be called, can not be upheld because it expressly- violates Article XII, Section 2 of the Constitution. Mays v. Cincinnati, 1 O. S., 269; Chicago v. Collins, 175 Ill., 445.

In this latter case the right of the general public to travel upon the public streets of a city is so well expressed in the opinion of the court, commencing on page 455, in the words which are quoted by Price, J., in Pegg v. Columbus, 80 O. S., at 391, that we call special attention to them.

The question of the power of the state in respect to automobile licenses has been fully discussed by ICinkead, J., in two decisions in Janes v. Graves, 15 N.P.(N.S.), 17 and 193. Many authorities are there collected and considered. This decision was affirmed, with some modification, by the court of appeals, 18 C.C. (N.S.), 488. That case involved the consideration of the amendments to the motor vehicle law found in 103 O. L., 763, and sections thereby found invalid have been since amended.

For the purposes of this ease it is not necessary to consider the extent of the power of the General Assembly in providing for vehicle licenses. It is sufficient to say that no power has been delegated by it to municipalities to enact an ordinance such as that under consideration here. And for the reasons given, this ordinance of the city of Middletown must be held to be illegal and invalid; and the court of common pleas erred m sustaining the demurrer to the petition and entering judgment for the defendants.

The judgment is therefore reversed and the cause remanded for further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    EFFORT TO INTIMIDATE JURYMAN GROUND FOR. A NEW TRIAL.
    Circuit Court of Summit County.
    The Northern Ohio Traction Company v. James J. Mitchell.

    Decided, October 8, 1903.

      Trials — Receipt of Anonymous Letter by Juryman — Misconduct.
    The receipt by a juryman of an anonymous letter in which' it is sought to intimidate him and influence his verdict, requires that a new trial should be granted, even though it does not appear that the juryman was influenced by the letter or that it was written by the successful party, his counsel, friend or anyone connected with the case.

      Rogers, Rowley, Bradley tD Roclnuell, for plaintiff in error.

      Bilim am- <0 Bill man anti Wilcox & Grant, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.

      Affirmed without opinion, Northern Ohio Traction Co. v. Mitchell, 74 Ohio State, 485.

   The Northern Ohio Traction Company was the defendant below and files its petition in error to reverse a judgment for $4,000 recovered against it by Mitchell for injuries sustained by him while traveling as a passenger on a ear of the traction company, and occasioned by another car of said company running into the car he was on.

At the hearing in this court it was conceded by counsel for the traction company that the latter was liable for the damages sustained by Mitchell, and that'the case was tried in the court below simply to determine the amount of said liability. It was further conceded before us that the judgment for $4,000 is not excessive. The only error complained of is the overruling of a motion for a new trial based upon misconduct during the trial on the part of counsel for defendant in error and the jury, and irregularity in certain orders of the court and abuse of discretion on the part of the court.

It appears that during' the trial one of the jurymen received an anonymous letter reading as follows:

“Akron, Ohio, March 19, 1903.
“Mr. Thompson (one of the jurymen) I was greatly surprised to hear’ you last Wednesday tell the lawyers that you had never done any work for the N. O. T. Co. This is base deception and should be exposed. I propose to tell Judge Kohler and Lawyer Billings all about it.
“From one who heard you make the statement and who has the proof that you have done work for the N. 0. T. Co.”

This letter the jurymen showed to the trial judge while the case was still on hearing, and continued in the jury, the trial judge making no order or public announcement with reference to the matter. Afer the verdict was rendered the jurymen exhibited the letter to counsel for the traction company, and no one but the trial judge had seen the letter prior to that time. Counsel for defendant in error was charged with writing the letter; and upon the hearing of the motion for a new trial the matter was exhaustively gone into, many affidavits were submitted, numerous exhibits were before the trial judge and oral testimony was produced at the hearing. The trial judge found that Mitchell’s counsel did not write the letter. With this finding we will not interfere, for the reason given by this court and other courts when asked to review the finding of certain facts by juries, especially such facts as juries must find from the testimony of witnesses who are before them, and whose manner and conduct while on the stand affect their credibility. But our conclusions in this case make it immaterial who wrote the anonymous letter received by the juryman, and it was also immaterial whether it was shown to have influenced the verdict in point of fact; for the letter speaks for itself and shows conclusively that it was intended to influence the juryman who received it and the verdict. It was well said by the trial judge that courts must guard the purity of trial by jury with the utmost jealousy. Any attempt to tamper with the jury must be immediately rebuked. This is a duty which the courts owe the public, which is paramount to their duty to litigants. The trial judge in this case knowing the juryman who received the letter, having watched the conduct of the case from beginning to end, believing the verdict was just and warranted by the testimony, fully convinced that the letter had in no wise affected the verdict, considering the expense, delay and annoyance inevitably resulting from the granting of a new trial, permitted the interest of litigants to have decided weight with him. In this respect we feel that he erred. Writing and mailing the anonymous letter received by the juryman in this case was so flagrant an attempt to intimidate him and influence his verdict that public policy requires that the verdict should be set aside, although it does not appear that the letter did in fact influence the verdict, and irrespective of whether it was written by a party to the case, his counsel, friend or an intermeddling or malicious stranger. Our views on this matter are so clearly and forcefully expressed by Judge Steele of the Supreme Court of Vermont in his decision of the case of McDaniels v. McDaniels (40 Vt., 363), that I quote his language:

“The motion for a new trial was properly granted. It was not incumbent upon the moving party to show that the verdict was in point of fact influenced by the unlawful conversations. It. is quite enough that in a doubtful case conversations were had with the jurors during the progress of trial for the purpose of influencing and directly calculated to influence them to render just the verdict they wanted. There is no practical method to so analyze the mental operations of the jurors so as to determine whether in point of fact the verdict would have been the same if the trial had been conducted as both parties had a right to c-xpect according to law and upon the evidence in court. If the court., in the instructions to the jury erred with respect to the same proposition of law, it is well understood that the right of the defeated party on exceptions to a new trial does not depend on his showing that the error actually influenced the verdict against him, and such may reasonably have been the result. The rigid to a direct charge from the court is no more sacred or important than, the right which in this ease was violated. The analogy might be carried further. -It is not essential to the right to a new trial on exceptions that the error of the court should have been intentional or by the fault of the prevailing party, so in this case the defendant was not any the less likely to be injured because the jurors did not appreciate the impropriety of listening to conversation intended to influence them, or because the plaintiff was unaware of the officious efforts of his friends in Ms behalf. The friends of the plaintiff who thus approached the jury were guilty of a flagrant violation of the> law, and the jurors who suffered themselves to be so approached, though they may have meant no wrong, were guilty not only of a violation of the law, but .also of the oath they had taken to say nothing of the business and matters in their charge but to their fellow jurors, and to suffer no one to speak to them about the same except in court. Both were liable to severe and summary punishment. The plaintiff, as he was unaware of these transactions, is not liable to punishment, but it does not follow from this that he can hold a' verdict which is the result of a trial corrupted, though without his fault, by a shameful disregard of the familiar rules which are necessary to a decent administration of the law. The court set the verdict aside, not as a punishment to any one, but in justice to themselves as well as to the defendant, that the trial might be conducted fairly, so that the verdict when finally rendered may be entitled to the respect of both parties and'the confidence of the court as the result of a trial substantially according to law and upon the evidence in court. It is true that a verdict should not be set asde for every trifling error of law by the court or for every trifling misconduct of a juror which occurs without the fault of the prevailing party, but it should be whenever the error or misconduct renders it reasonably doubtful whether the verdict has been legitimately procured.”

For error in overruling the motion for a new trial the judgment is reversed.


text:
    DETERMINATION AS TO BENEFICIARIES.
    Circuit Court of Cuyahoga County..
    Katherine Miller v. Andrew Miller et al.
    Decided, March 4, 1907.

      Death by "Wrongful Act — "Who are Beneficiaries "When Wrongful Act Occurs in Another State — Statutory Construction.

    1. Where an administrator, appointed by an Ohio court to administer the estate of a citizen of Ohio, recovers damages for the wrongful death of his decedent which occurred in another state, the beneficiaries to such fund are determined by Section 6135, Revised Statutes of Ohio, and not by the laws of the state where the act which caused the wrongful death occurred.
    2. Where the Legislature in the enactment of a law states that it is to supplement a certain statute, it thereby becomes a part of that statute, even though separately numbered, and another previously enacted law applying to cases arising under the original statute applies also to. cases arising under the supplementary section as well.

      Smith, Taft ■<& Arter, for plaintiff in error. .

      E. P. Strong and Smith, Taft & Arter, contra.
    Marvin, J.; Winch, J., and Henry, J., concur. _
   The facts in this ease are that one Anthony Miller, a citizen and resident of Cuyahoga county, Ohio, was killed on the 2d day of July, 1905, in Erie county, near Buffalo, N. T., by the wrongful act of the Buffalo & Depew Railway Company; he died intestate, without issue, leaving the plaintiff in error, Katherine Miller, .his widow, and the father, Andrew Miller, a man of property and not dependent upon said Anthony Miller for support. Katherine Miller was appointed administrator of the estate of her decéased husband by the Probate Court of Cuyahoga County; without bringing an action against the railroad company for the wrongful death of her husband she compromised the claim growing out of such death for the sum of $4,000. This was done with the approval of, and was confirmed by said probate court. Upon motion duly made in that court for an order of distribution of this fund, it was ordered by the court that one-half of the amount be paid to the said Andrew Miller and one-half to the said Katherine Miller. From this order an appeal was taken to the court of common pleas and upon the hearing the same order was made in that court, and to said last named order error is prosecuted here.

The statutes of the state of New York bearing upon the case, were introduced in evidence and are contained in the bill of exceptions filed in this court.'

The action of the court in making the order complained of is claimed to be justified, because it is said the order is in conformity with the distribution which would be required to be made under the laws of the state of New York; that an action for damages caused by this death could not have been maintained in the state of New York but for the statutes of that state authorizing such action, and that it follows that the distribution must be made in accordance with those statutes.

A large number of authorities are cited in support of the proposition that distribution of funds obtained in an action to recover damages for wrongful death, must be made in accordance with the statutes of the state in which the wrongful act was done.

Among these authorities are Nennick, Adm’r, v. Railway Company, 103 U. S., 11; McDonald v. McDonald,. Adm’r, 28 Southwestern, 471; Weaver, Adm’r v. Railway Company, 28 District of Columbia, 499.

There, are so many authorities in support of the proposition that it can not be denied that unless by reason of the statutes of Ohio, the rule that the distribution must be made in accordance, with the statutes of the state in which ’the death is caused is changed, the distribution must be made in accordance with the statutes of such state.

It is said, however, that even if this be the rule, still the distribution would be made as provided by the laws of Ohio in this particular case, because it is provided by Section 1903 of the statutes of New York, as appears by the bill of exceptions, as follows:

“1903. Id. For whose benefit.
“The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action and his commission upon the residue; which must be allowed by the surrogate, upon notice, given in such manner and to such persons as the surrogate deems proper.”

It is urged, as it does not appear from this section that the distribution is to be as of “unbequeathed assets” under the statutes of New York, that the administrator in Ohio having the funds in his hands, and being required by the statute of New York to distribute the same as “unbequeathed assets left in his hands after payment of all debts and expenses of distribution,” this may fairly be interpreted to be a direction to such Ohio administrator to distribute the fund as he would distribute “unbequeathed assets” under the law of Ohio, and therefore he could distribute this entire fund to the widow, and, in support of this contention, the case of Hartley v. Hartley, 81 Pacific Reporter, 505, is cited.

Whatever may be said as to whether the law is properly stated in this case, it does not support the contention of the plaintiff in' error, because it is further provided by Section 1905 of the statutes of New York that

“The term ‘next of kin’ as used in the foregoing sections (including Section 1903) has the meaning specified in Section 1870 of this act.”

And Section-1870 provides that:

“The term ‘next of kin’ as used in this title, includes all those entitled under the provisions law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband of wife. ’ ’

So that, when this Section 1905 and 1870 are read in explanation of the meaning of Section 1903, it is clear that the provision contained is the last named section requires that distribution be made to the, in this case, surviving wife, and those next of kin, who are defined in Sections' 1905 and 1870.

It follows that the order of distribution made in this case was the proper order to be made, unless our own statutes distinctly provide otherwise.

Attention is‘ called to Section 6134, Revised Statutes of Ohio, which provides for a right of action againts the person, natural or artificial, causing death by wrongful act, in Ohio.

Section 6135, Revised Statutes of Ohio, provides who shall be the beneficiaries of the fund derived from such action.

' On the 25th of March, 1851, the first statute of Ohio providing for an action against one causing death by wrongful act, was passed. This statute is found in Curwen’s Statutes, Vol. 2, at page 1673, and consists of two sections; the first is, so far as it has application to the case now under consideration, substantially the present Section 6134, and the second, substantially our present Section 6135.

These provisions were carried into the revision of 1880, with the present sectional numbers.

On the 21st of May, 1894, the Legislature enacted Section 6134a, found in 91 Ohio Laws, page 408. This Section 6134a was amended and placed in its present form on the 6th day of May, 1902, found in 95th Ohio Laws, page 401. The enactment of 1894 reads:

“An act to supplement Section 6134 of the Revised Statutes of Ohio.
“Section 1. Be it Enacted by the General Assembly of the State of Ohio, that Section 6134 of the Revised Statutes be supplemented as follows:
“Sections 6134a,” and then follows the supplementary section.

The amendment of Section 6134a is entitled an act to amend Section 6134a of the Revised Statutes of Ohio, and reads:

“Be it Enacted by the General Assembly of the State of Ohio:
“Section 1. That Section 6134a of the Revised Statutes of Ohio be amended so as to read, as follows:

And then follows the present Section 6134a, and this reads:

“Whenever the death of a citizen of this state has been or may be caused by the wrongful act, neglect or default in any other state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state, within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country. ’ ’

As has already been said, Section 6135 provides for the distribution of the funds obtained by such action, and the provision is:

“Every such action shall be for the exclusive benefit of the wife or husband and children,” etc.

Clearly then, if this wrongful death had been caused in Ohio, under the facts in this ease, the widow would, have been entitled to the entire amount collected, and it can hardly be doubted that if Section 6134a had been a part of the original act the distribution would have been to the widow alone in this ease.

It is urged, however, on the part of the defendant in error, that Section 6134a is to be treated as an independent section, and that therefore the words of Section 6135, “Every such action shall be for the exclusive benefit, ’ ’ etc., refer only to such action as is named in Section 6134. We do not understand it- so.

The Legislature in terms have said, in enacting Section 6134a, that it is a supplement to Section 6134. The word supplement is defined in Webster’s Dictionary as meaning: “To fill up or supply by additions; to add to.” And, in Anderson’s Law Dictionary, the word supplemental is defined in these words: “Added to a thing to complete it; supplying a defect in something that precedes,” etc. So that by the enactment of Section 6134a, the Legislature added to Section 6134, and Section 6134a became a part of the same statute as Section 6334, and unless we are to assume that the Legislature meant that although it was needed and added to Section 6134, yet that Section 6135 should not apply to Section 6134a, then it is clear that our own statute directs the manner of distribution of this fund; we think it will not do to say that the Legislature overlooked the provisions of Section 6135 when it enacted Section 6134a. The last named section has been before the Legislature twice, as already pointed out, and it can hardly be doubted that it intended to leave Section 6135 to apply to that section as well as Section 6134.

That being so, we have the case of an administrator appointed in this state, acting under the authority of a court in this state, and acting so far as the disposition of the funds in his hands is concerned, under the control of a court of this state, and we have a statute of this state directing the manner of the distribution of funds obtained (as these funds were), whether obtained by reason of wrongful death caused in this state, under Section 6134, or by reason of wrongful death caused in some other jurisdiction, under Section 6134a, yet by Section 6135, it is provided, that the funds arising from “every such action shall be for the exclusive benefit,” etc.

Entertaining these views we hold that the judgment of the court of common pleas should be reversed, and under the conceded facts in this case the order should have been that this entire fund be paid to the plaintiff in error, Katherine Miller, and it is so ordered here.


text:
    CLAIM FOR. DAMAGES FOR. INJURIES NOT ABATED BY DEATH.
    Circuit Court of Cuyahoga County.
    Anna M. Hayes, Administratrix, v. The Cleveland Electric Railway Company.
    Decided, March 11, 1907.

      Abatement — Action for Damages for Personal Injuries Does Not Abate by Death of Plaintiff.

    An action for damages for personal injuries caused by' wrongful act, does not abate by the death of the plaintiff, even though the wrongful act complained of was the direct cause of death, but may be revived in the name of tbe administrator.

      H. E. Parsons, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Edward Hayes brought a suit against the defendant for personal injuries which he claimed to have sustained through, the negligence of the defendant.

While that suit was pending he died and the action was revived in the name of the administratrix of his estate. The, railway company answered to the original petition denying liability.

When the case came to trial, counsel for the plaintiff admitted in open court that the original plaintiff died by reason of the injuries for which the suit was originally brought. The plaintiff then introduced a witness, and upon the motion of the defendant, all evidence on the part of the plaintiff was excluded, and a judgment was rendered for the defendant. The theory upon which the court acted was, that since provision is made by Section 6134, Revised Statutes, for the prosecution of an action for wrongful death, there could be no revivor of a suit in the name of the administrator, where the death resulted from the wrongful act for which the original suit was brought.

Error is prosecuted here to reverse this action of the court, and we are led to a consideration of certain sections of the statutes in order to determine whether or not error occurred.

Section 5144 reads:

‘ ‘ Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party. ”

If this section stood alone, and we find no section and there is none, providing that actions for personal injuries should abate by the death of the party injured, there could be no question, it would seem that this action did not abate, and that it could be revived in the name of the administrator, but it is urged that since Section 6134, Revised Statutes, provides for the bringing of an action for wrongful death by an administrator for the benefit of the widow and next of kin, and that if the action brought by the injured party in his life túne for injuries which finally resulted in his death is to survive such death, then we should have two actions, one for the benefit of the estate of the deceased, and another for the benefit of his widow and next of kin, both maintainable. We do not think this follows.

Damages can be recovered but once on the same cause of action, and the cause of action in either of the cases supposed, would be the wrongful act of the defendant at the time the injury occurred.

Section 4975, however, provides that:

“In addition to the causes of action which survive at common law, causes of action for mesne profits or injuries to the person or property or for deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of tbe person entitled or liable to the same.”

It can not be denied that there seems to be some difficulty in attempting to apply the provisions of these several sections of the statute; for, if the cause of action for the injury survives the death of the injured party, then after the death of the injured party an action could be brought for that injury by the administrator of his estate, and yet, by Section 6134, Revised Statutes, an action for the death may be brought if the death result from the injury, for the benefit of the widow and next of kin.

We think, however, tbe most reasonable construction to be placed upon Section 4975, Revised Statutes, is, that though the cause of action therein mentioned survives notwithstanding the death of the party injured, when the death results from the injury for which the party injured might himself maintain an action, the parties for whose benefit it may be brought after the death are fixed by Section 6134. It is said, however, that such construction should as well be given to Section 5144, Revised Statutes, and that, therefore, where death results from the injury, even though an action has already been begun by the injured party, such action must abate upon the death- of the injured party. This is not without force, yet it seems to us that the reason for construing Section 5144 literally is so great that, it is not overcome by the reasoning applied to Section 4975.

In the case of O. & P. Coal Co. v. Smith, Administrator, 53 Ohio State, 313, the language of the syllabus is:

“A pending action to recover damages for injuries caused by the negligence of the defendant, does not abate by the death of the plaintiff.”

There is no suggestion in this case that the cause of the plaintiff’s death will in any wise affect the proposition stated in the syllabus. There is nothing in the report which indicates whether the death in that case was the result of the injury or not.

In the case of Helman v. Railway Co., 58 Ohio State, 400, it is said, speaking of Section 6134 (at page 408) :

“While at common law the party injured by the negligence of another had a right of action against such party for damages, such right of action does not survive, but abates at his death. The effect of this statute is to pick up this abated right of acl-ion of the deceased, and permit it to be prosecuted by the administrator, for the benefit of the next of kin. It is not a new right of action that is prosecuted by the administrator, but it is the same right of action which the deceased had until his death. Upon the death of the injured party, the right of action by the force of the statute passes by succession to the administrator for the benefit of the next of kin.”

This supports what has already been said in this opinion, that there is'but one cause of action against the party causing the injury, whether that injury results in death or not, and it would seem, therefore, that if no. action were pending at the time of the death of the injured party, none could be commenced by his administrator for the benefit of his estate. It is further said in this same ease:

“The right of action to recover damages in respect to such act rests in the injured party alone, so long as he lives, and should he be compensated in his lifetime no action can be maintained by his administrator or next of kin for damages, even though it should be clear the next of kin sustained a great pecuniary loss by reason of the wrongful act.”

This same view is taken in the ease of Solar Refining Company v. Elliott, Administrator, 15 Circuit Court Reports, 581.

It seems a curious thing that a settlement made by the injured party in his lifetime of a suit brought by him to recover damages for the injury should cut off the right to maintain an action under Section 6134, but yet, if such action having been brought, the injured party fails to settle and his action is pending at the time of his death, the administrator of his estate might not continue that action.

It is said in Helman v. Railway Company, supra:

“In such cases the pecuniary loss sustained by the next of kin is deemed compensated by the increase of the estate of the deceased. ’ ’

We have read carefully the very able opinion of Judge Tilden in the case of Gallagher v. River Furnace & Dock Company, 2 N.P.(N.S.), 661, but fail to reach the conclusion reached in that case.

We hold that the action brought by the decedent in his lifetime did not abate by his death, but was properly revived in the name of the administrator, and he was entitled to have the same proceed to trial.

There was, therefore, error on the part of the court in excluding evidence on the part of the plaintiff, and the judgment is reversed and the cause remanded for such further proceedings as are authorized by law.


text:
    CONTRACT FOR. EDITORIAL NEUTRALITY OF A NEWSPAPER. INVALID.
    Court of Appeals for Scioto County.
    Miller v. Glockner et al.
    Decided, November 20, 1913.

      Contracts — Corrupt Practices Act Violated by Agreement Whereby Neutrality of Neiospaper Was Purchased and Paid for With Advertising —Acis of Agent — Principal Can Not Ratify and Recover, When.

    1. A contract providing for the editorial neutrality of a newspaper, relating to a policy to be voted upon at a public election, is void as being against public policy and in violation of the state corrupt practices act.
    2. An agreement to pay an agreed price per inch for advertisements on consideration that the newspaper would print the same for that price and remain neutral during the campaign is not divisible, but is an entire contract. In such case one of the considerations being illegal, the entire contract is void.
    3. Where the newspaper’s agent enters into such an agreement with another, without authority from his principal, the latter can not affirm a part of such contract and disaffirm the balance, and since recovery is predicated on such contract the principal’s action must fail.

      A. H. Bmnon, for plaintiff in error.

      Miller, Milner & Searl, contra.
    In the court of common pleas William M. Miller, the owner of a newspaper printed in Scioto county called the Blade, brought an action against the defendant in error and some two hundred others upon an account for space furnished the defendants for advertising purposes. The petition alleged that the advertising space was sold to the defendants at their instance and request, and they agreed to pay the price named in the account.
    In their amended answer the defendants allege that the actual contract between them and the newspaper was that they were to pay the price agreed upon and that, as, a part consideration therefor, plaintiff’s newspaper would be and remain entirely neutral during the campaign upon a wet and dry issue which was to follow..

      The facts, as appear from the record, show that the defendants had organized in the city of Portsmouth what was known as “the Business Men’s League of Scioto County, Ohio.” This league was conducting the wet side of the campaign, which was to end on October 26, 1911. A man by the name of Weaver solicited advertising matter from the Business Men’s League, and an agreement resulted by which the league was to furnish advertising matter to the Blade at the same price they were paying the Portsmouth Times, a newspaper of the same city. The newspaper also was to remain neutral during the entire campaign. For these two considerations the Business Men’s League agreed to advertise in the Blade and to pay the price agreed upon. No question is here made as to the price charged in the account, but it appears that about nineteen days before the campaign ended the Blade violated its obligations of neutrality and became an advocate of the dry cause.
    This case was tried to the court without the intervention of a jury, and the judgment below was on behalf of the defendant.
    Jones (Thomas A.), J.; Waeters, J., and Sayre, J., concur.
   The first question that arises upon the record is: Was the agreement upon the part of the newspaper to remain neutral during the campaign void?

The newspaper is an important factor in molding public opinion. .Tts patronage largely depends upon its advocacy of policies sanctioned by its readers. By reason of its high position in our political economy its views on questions of private and public morality are stamped upon the individual. Often it does the latter’s thinking, and very often its editorial policies find expression in the voter’s ballot. The public policy, therefore, would require that its conscience could not be subject to barter, especially on those questions affecting the electorate. Buying its neutrality on election issues is as reprehensible as a purchase of its active editorial policy.

There are á large number of authorities in cases analogous to this which hold that the purchase of newspaper influence outright in behalf of the candidacy of a particular person is void as against public policy. And there is all the more reason to hold judicially that the secret purchase of the editorial influence of a newspaper is void for the same reason.

This view has been'upheld by the Supreme Court of Vermont, in 1902, in the ease of Livingston v. Page, 74 Vt., 356 (59 L. R. A., 336).

We hold, therefore, that that portion of the contract between the parties which bound the Blade to observe neutrality during the wet and dry campaign was void at common law as against public policy. In addition to this, we are also of the opinion that it was in violation of the corrupt practices act of Ohio (102 O. L., 327, Section 26).

That act provides that any person is guilty of corrupt practices if he directly or indirectly promises to pay money or other valuable consideration for any other purpose than the matters therein stated. In relation to newspaper advertising one of the matters therein stated is for "the pay of newspapers for advertisements, pictures, reading matter and additional circulation.”

In the construction of this act the maxim “expressio unius ex-clusio altering est” may be applied in this case, and would seem to negative any other act in connection with the payment of money to the newspapers. However, the section closed with the provision that any payment whatsoever, except as therein provided, is declared to be corrupt practice.

The provision that the newspaper should maintain its neutrality being void, was the whole contract void? This depends on whether the consideration was divisible or entire. A consideration on the part of the defendants was the payment of the same rate as the Times charged for such printing. For this the newspaper was to prnt it for the same price charged by the Times and .was to remain neutral during the campaign. The plaintiff was to do both for the price promised. How much of the price was for the advertising and how much for its neutrality can not possibly be determined. It is impossible to separate them.

Authorities supporting this view in analogous cases are numerous. The following eases arose out of divisible contracts, and where the considerations were separable the actions were sustained (Widoe v. Webb, 20 Ohio St., 431; State, ex rel, v. Board of Education, 35 Ohio St., 519). Plaintiff in error relies' on the dictum of Scott, C. J., in the former case, where, on page 435, he says:

“When, however, for a legal consideration, a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful, and void for the residue. ’ ’

Counsel then argue that, since the promise of the defendants to pay was lawful, if one of plaintiff’s'acts was lawful and the other unlawful, the contract is good for so much as is lawful.

The weakness of this lies in the fact of inability to separate the lawful and unlawful acts which formed the inducement to pay.

The dictum just advocated must be construed in view of the case decided, where the price paid for the lawful and unlawful acts could be separated, for the jurist stafes the converse of the proposition as to entire contracts as follows:

“Whenever the unlawful part of the contract can be separated from the rest it will be rejected, and the remainder established. But this can not be done when one of two or more considerations is unlawful, whether the promise to be to do one lawful act, or two or more acts, part of which are unlawful; because the whole consideration is the basis of the whole promise. The parts are inseparable.”

That the neutrality illegally contracted for was a valuable inducement for the promise of the defendants is beyond question; but the value oE that neutrality was not fixed by the parties, nor can it be separated in the price contracted for.

One question presented in the case was whether the agent, Weaver, in acting for the newspaper acted without authority and without the scope of his employment. Touching this question various exceptions were taken by the plaintiff below, but in our view of the case this question becomes immaterial and it is unnecessary to decide, upon the record, whether the agent was in fact acting within the scope of his authority. The action was brought by his principal upon an express contract for1 an agreed price which the defendants promised to pay. The' amended answer concedes the agreement as to price, but alleges that a part of the consideration was that the newspaper should remain neutral during the entire campaign. The newspaper did accept the advertisements and remained neutral for the period of about one month, but on October 7, nineteen days before the end of the wet and dry campaign, it actively espoused the dry cause.

Since the action was predicated .upon an express contract made by the principal’s agent, and since a portion of the consideration passing under the contract to the defendant was legal and a part illegal, and the consideration inseparable, we are unable to see how the plaintiff can maintain his action upon the contract. There was no meeting of minds upon the part of the defendants in relation to any other contract than that made by the agent. It is this contract on which plaintiff has predicated his recovery, and in this character of a suit he will not be permitted to ratify a portion of it and disaffirm the balance, if the contract is entire.

"Whether plaintiff knew before the bringing of his action that his agent had made an illegal contract is only ■ inferentially proven by the record. If he had this knowledge when he filed his action this case would be upon .the same plane as that reported in one of the leading cases on agents, Shoninger v. Peabody, 57 Conn., 42. That case cites the case of Billings, Taylor & Co. v. Mason, 80 Me., 496, which comments on the right to predicate an action on a contract in cases of this kind. Whether plaintiff knew that part of the contract was illegal at the time of his action or not seems to us immaterial, for the reason that since the real contract was brought into the case by the amended answer of the defendants he is attempting to obtain the relief of the court, upon the facts related, by reason of an express contract made by his agent with the defendants.

Since one of the considerations which the newspaper was to perform could not be apportioned we are unable to see how the principal vcan obtain relief from this court by an attempted ratification of a portion of a contract of this character.

Por the reason stated it is not necessary to pass upon the question of fact whether the agent exceeded his authority in making the illegal stipulation in the contract and whether the court below erred in the rejection of testimony touching that issue.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.


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    LEASE OF PREMISES FOR. ILLEGAL USE.
    Circuit Court of Cuyahoga County.
    Rosa Bondi v. Antonio Gambino.
    Decided, November 6, 1907.

      Leases — Rescission•—When One Contracting for Lease of Premises May Not Rescind Because Use for Purpose Contemplated is Illegal.

    Where the owner of premises agrees to equip them in a certain manner and rent them to plaintiff, the discovery that it will be illegal to use them for the purpose contemplated because of the manner of equipment, furnishes no ground for rescission of contract by plaintiff, where he has had full and exclusive control of the mode and method of making the equipment.

      Harry F. Payer, for plaintiff in error.

      Myler & Turney, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   Bondi owned property on Orange street in the city of Cleveland and agreed to lease the cellar thereof to G-ambino for three years at a stipulated rental. Bondi also contracted to build in said cellar "an oven for commercial use,” and have the same ready for use as a bakery by January 1, 1904. Gambino deposited $100 with Bondi to apply on rent and Bondi went ahead, built the oven and expended $400 in fixing up the cellar. About four days before.the first day of January, both parties learned that-the laws of the state (Sections 4364-71 and 72) regulate the building' of bakeshops, and that the cellar did not comply with all the requirements of the statute, chiefly because it was only seven feet in height, instead of eight feet. Both parties appear to have been wholly ignorant of this law until the time mentioned and on the day Gambino says that Bondi refused to make the cellar any deeper, and Bondi says that Gambino refused to take possession of the place, and rented another shop across the street. The contract which was in Italian, and crudely drawn reads; "In case Mr. Gambino fails he will lose $100. -In case Mr. Bondi fails he will pay $200.” So G-ambino claiming Bondi had failed to comply with the contract, brought suit against Bondi for the $200 penalty, and the court limiting the recovery to $100 and interest, submitted the case to a jury, which brought in a verdict for the plaintiff.

The defendant below has brought the ease here on error, complaining of certain rulings on evidence, and the charge of the trial judge.

We think this charge a model as to clearness and brevity simplifying the issues to'the jury, so that they could understand -the dispute between the parties. The court advised the jury that the regulations of law regarding bakeshops should be read into the contract, it containing no specifications as to how the cellar should be fitted up. That the evidence showed clearly that on the 26th day of December, the cellar or basement was not completely equipped in accordance with the statute of the state, and that if on that day, the defendant refused to complete the cellar according to law, they should find for the plaintiff, but if they found that on that day the plaintiff had told the defendant that he had rented another bakery across the street and would not take the defendant’s cellar in any event, as was claimed by the defendant then they should find for him.

This was good law, so far as it went, but we think there was another element in the ease, which the judge failed to submit to the jury, principally because he had erroneously ruled out evidence upon it.

The construction put upon the contract by the court, that it provided for a bakeshop to be built according to the statutory requirements, was correct, unless the parties themselves had put a different construction upon the contract.

The defendant, in her third amended answer, alleged: “that from the very inception of performance thereunder and through out performance by defendant, the plaintiff assumed and exercised full and exclusive control of the mode and method of doing said work, as well as the character of said work. ’ ’ Evidence was offered by the defendant, tending to establish this allegation, but it was all either ruled out or withdrawn from the consideration of the jury. We think this was a mistake. If G-ambino directed the work, or by his conduct induced the defendant to believe that the cellar was being equipped just as he wanted it, so that’ the defendant expended his money upon a practical construction of the terms of this contract, it would amount to the same as if the contract in express words has said: “said cellar shall be seven feet in height.”

With such a clause in the contract, Gambino could not recover any money paid to Bondi on it, notwithstanding the place could not be used as a bakeshop, no more than he could from the mason, if he had hired one himself to do the work. There was nothing unlawful about building “an oven for commercial use” in that cellar. It might afterwards be unlawful to run a bakeshop there, but that would go to the executory part of the contract, with which this case has nothing to do. See Hooker v. De Palos, 28 O. S., 251; Patrick v. Littell, 36 0. S., 79.

Taking this view of the case, the judgment must be reversed for error in the charge and in excluding evidence offered by the defendant. .


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    KNOWLEDGE OF EMPLOYEE AS TO RISK INVOLVED.
    Circuit Court of Cuyahoga County.
    Charles H. Prescott et al v. Albertina Albrecht, Administratrix.
    Decided, October 27, 1905.

      Trials — Gross-Examination of Hostile Witness — Negligence—Assumption of Rislc Where Equal Means of Knowledge — Want of Knowledge in Employee Not Presumed.

    1. It is within the sound discretion of the trial court to allow, or refuse to permit the cross-examination of a witness upon the ground that he is hostile to the party calling him.
    2. The doctrine of assumed risk applies where an employee either has knowledge of his employer’s alleged negligence, or has equal means of knowing of the alleged dangerous .conditions, and it is error to charge that the doctrine does not apply unless he had both knowledge and equal means of knowing.
    3. An employee assumes the risks of which he knows or with which he is chargeable with knowledge, irrespective of whether they are ordinarily and usually incident to the employment.
    4. The mere fact that a certain condition is new to that locality raises no presumption that an employee is ignorant of its dangers.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is a proceeding in error whereby it is sought to reverse a judgment for $5,000 recovered March 1, 1905, by the defendant in error against the plaintiffs in error, partners as the Saginaw Bay Company, in an action for death by wrongful act.

The decedent, Albert Albrecht, was killed July 16, 1902, while in the employ of the Saginaw Bay Company, in whose service he had been engaged for many years, at their lumber yard at Cleveland. This yard includes a certain dock or docks, on the Cuyahoga river, alongside of which the schooner Oneonta lay discharging her cargo of lumber on said date. One of her lines was made fast by her crew to a lumber pile in said yard and slanted upwards from the edge of the dock to a point some distance away, and about 9 or 10 feet above the floor of the dock, being a foot or two below the top of the lumber pile.

The defendant’s duties were to assort the boards that were laid by the stevedores on the dock, in order that the workmen in the yard might put them into proper piles. These duties brought him from time to time under the schooner’s line and near the lumber pile to which it was fastened. It is claimed, however, that such was the urgency of his -work while the .schooner was being unloaded, and so constantly was his gaze directed downwards upon the lumber which he was measuring and marking, that he can not be presumed to have noticed the schooner’s line overhead, or the manner in which it was fastened. ■

While the decedent was thus occupied, a vessel moving rapidly along the river, by its wash, caused the Oneonta to strain at her moorings so that the top of the lumber pile was pulled down on Albrecht’s head and killed him, and it is claimed that his employers are liable therefor because they permitted the schooner to be thus moored.

The record which we are called upon to review exhibits all the evidence by means of a bill of exceptions. The first error alleged is that the court below erroneously ruled that one Fred Qlauser, a witness for the plaintiff below, was hostile to the party calling him, so that the latter was held entitled to cross-examine him; and that, in the cross-examination which ensued, the substance of the coroner’s previous examination of the same witness was gotten before the jury, and permitted by them to be considered as independent evidence of facts thereby disclosed, notwithstanding that some of it was originally opinion and hearsay, and was further incompetent because not reiterated by the witness under oath before the jury.

From our examination of the bill of exceptions we are not prepared to say that the trial judge, who had opportunity to observe the demeanor of the witness on the stand, was guilty of any abuse of discretion in permitting him to be cross-examined by the party calling him, notwithstanding that the record discloses but the meagerest grounds for ruling that he manifested hostility to the plaintiff below. Nor do we find anything prejudicial to the plaintiff in error in the disclosure to the jury of those portions of the coroner’s record concerning which the witness was interrogated. True, they were admissible' only as affecting the credibility of the witness and not as independent evidence of the facts so disclosed, and the court should so have instructed the jury as asked in the plaintiff’s fourth request (Henley v. State, 36 Ohio State, 320, 342). But the opinions and hearsay contained in the coroner’s examination, as well as the matters therein which, on the trial, 'the witness qualified, or refused to confirm, all related to uncontested or unimportant circumstances which, we think, could not possibly harm the defendants below before the jury.

The second assignment of error is upon the granting of the plaintiff’s first .request to charge as follows:

“If you find from the evidence that at or just prior to the accident which caused the death of the plaintiff’s decedent, a boat, steamer or vessel, passed through the river, going towards the lake, and opposite the Oneonta, and that the passing of said boat created a swash, or other disturbance in the river, which caused the Oneonta to swerve outward from the dock and thus pull down the lumber pile to which the one part of the Oneonta had been made fast by a rope, and that Albert Albrecht, deceased, had no notice and did not know that such vessel was then passing through the river outside and beyond-the Oneonta, and that the passing of such vessel would create a swash or disturbance in the river that would cause the Oneonta to swerve outward from the dock and pull down the lumber pile near which he was working, then I say to you that he did not assume the risk which was created by the passing of said vessel; and you must find from the testimony that the said Albert Albrecht just prior to his injury had knowledge and equal means of knowing with the defendant's that owing to the passing of a vessel opposite the Oneonta, as said Oneonta was then tied to said lumber pile, an unsafe condition would be created, and that said unsafe condition would endanger his life or limb, before he can be charged to have assumed the risk of working as he was working at the time he was injured, and in the place he was injured.

It may well be doubted whether the question of Albrecht's assumption of the risk of injury, from the wrongful conduct complained of, should be made to turn merely on his notice or want of notice of the fact that a vessel was passing along the river at the time of or just prior to the accident. That was an event which was likely to occur at any time, and he may have had notice of the likelihood of its occurring at any time without having notice that it then was in fact occurring. The real fact, on which this issue of assumption of risk should have been made to turn, is Albrecht’s notice or want of notice of all the circumstances which together constituted the continuing danger there menacing him. But, in any event, this request is technically erroneous because it exonerates Albrecht from the assumption of risk of defendant’s alleged negligence unless he had both “knowledge and equal means of knowing with the defendants” that such risk existed; whereas the law is that either actual knowledge or equal means of knowing, suffices to show such assumption in the case of an experienced employee. We hold that it was error to grant this request. Coal & Car Co. v. Norman, 49 Ohio State, 599; The Penna Co. v. McCurdy, 66 O. S., 138.

Tbe second request of plaintiff below, as given, is also complained of here. It reads as follows:

“Albert Albrecht, the plaintiff’s decedent, at and just prior to the time he was injured had a right to assume and rely upon the assumption that the defendants would discharge their duty towards him fully, as to keeping the place where he was working in a safe condition and free from danger, and he was only chargeable with such risks' as were ordinarily and usually incident to the business in which he was employed.”

This proposition is perhaps correct so far as it goes, but it lacks this essential qualification, viz: that risks, of which the employee has, or is chargeable with, notice, are also assumed by him, irrespective of their being ordinarily and usually incident to the business (Coal Co. v. Estievenard, 53 O. S., 43). And if particular risk- in controversy in this case was assumed by Albrecht, it was not because it was usual, but because it was obvious. We think this request was- misleading and that it should have been refused.

Error is predicated also of the allowance of plaintiff’s third request, which reads:

“Unless you find from the testimony that the conditions existing at and before Albert Albrecht was injured and killed were so obviously dangerous that with the use of ordinary care and skill, danger was so imminent that none but a careless and heedless man would incur it, then the defendant would be liable, if such dangerous conditions were created by them or permitted by them to exist at and before the time that Albrecht was injured and killed.”

This request is far from clear, but apparently it is an attempt to apply the doctrine of The Van Duzen Gas Gasoline Engine Co. v. Schelies, 61 O. S., 298, to the facts of this case, which do not admit of such application. In that, case, Schelies was1 injured while attempting to obey the peremptory order of his foreman, and without time or opportunity to reflect upon or realize the danger of such obedience. The doctrine does not apply to dangers encountered by an employee in the discretionary performance of duties, enjoined upon him by a superior, who is not personally present, directing the means and manner of such performance (The Northern Ohio Ry. v. Rigby, 63 O. S., 184). We hold that the charge thus requested was misleading and erroneous, and should have been refused.

A further claim of error relates to the granting of the fourth request of plaintiff below, viz:

“The plaintiff’s decedent, Albert Albrecht, assumed only the ordinary and obvious or known risks incident to the service in which he was engaged. lie can not be said to have taken all the risks of the service. Such as are usually incident thereto and such as he ought to have known were incident thereto, or such as came to his knowledge and of which he made no complaint, and to which he did not object'may fairly be said to" have been assumed by him.”

The law is that, as already stated, an employee of experience assumes the ordinary and obvious and known risks, including not only those which come to his knowledge but those of which he has equal means of knowledge with his employer. The granting of this request was also error.

The giving of the seventh request of plaintiff below is also alleged as error. It reads:

‘ ‘ If you find from the evidence that before the time the plaintiff’s decedent was injured by the falling of said lumber pile, boats discharging lumber had not been tied to the lumber piles on the dock, and you further find that the said Albert Albrecht was not aware that a vessel, was passing at the time or just before he was injured, and did not know that the passing of said vessel would cause the Oneonta to leave the dock and pull down the lumber pile upon him, then I say to you that the danger of the pile of lumber falling was not assumed rtók or hazard that can be charged against the said Albert Albrecht and I say to you further, if you find from the evidence that vessels were not before the day that Albrecht was injured, tied to the lumber piles of the defendant or fastened to them, and that tying or fastening a vessel or boat to a lumber pile created a new danger, such danger was not ordinarily incident to the business, and the fact that it has never before occurred, if you find that to be the fact, creates a presumption that the said Albert Albrecht had no knowledge and was not aware that said lumber pile would fall as it did upon the occasion that he was injured.”

What has been said as to the first request of plaintiff below, applies also to the first branch of this request. As to the second branch, we think no presumption of Albrecht’s ignorance of the 'effect of tying a vessel to a lumber pile arises from the- fact that he had never seen a vessel so tied before.

Iiis long experience there must have taught him that vessels must be securely tied, or else the swash of other passing craft will cause them to strain at their moorings, and perhaps break away. We hold that the charge thus requested was erroneous.

It is claimed further that the court erred in charging the jury, in substance (pages 70 and 71 of the bill), that If Albrecht, being aware of the dangerous conditions surrounding him, had reason to believe that defendants or their foreman would keep a lookout and give him timely warning of what was going on, at the time, in the river and upon the docks, he might recover notwithstanding his knowledge. There was no evidence to submit to the jury upon this theory of plaintiff’s right to recover, and it was a misleading test of the existence of such right. The charge of the court in this particular was erroneous.

And this brings us to the final assignment of errors, viz: the court’s refusal to grant the motion of the defendants below, made at the close of plaintiff’s evidence for the direction of a verdict in their favor. Defendants below offered no evidence whatever. The whole case presented by the evidence in this record turns upon the question whether Albrecht, an experienced and intelligent employee familiar with those docks, had equal means with his employers of knowing the source of danger to which he fell victim.

There is evidence that one of the defendants below was present on the dock, so that he must have seen the manner in which the vessel was tied. If the foreman, who was also there, was superior in authority to Albrecht, his knowledge of the situation, afforded them, through him, additional notice.

Had Albrecht equal means of knowing! There is no averment in the petition that he was without such constructive notice. But waiving that, we think he must have known as much about the situation as either his employers or their foreman. True, he was intent upon his work, but the schooner was tied to the' lumber pile for some hours. He could not have passed and repassed beneath the line during that period of time without observing it. He surely knew, quite as well as his employers, how much strain a lumber pile would stand. He must have known, too, that vessels strain at their moorings. Doubtless neither he nor his employers expected that he would be killed. But they had substantially equal means of knowing that he might be. AYe think the motion to direct a verdict should .have been granted.

For these reasons, the judgment below is reversed and the cause remanded for new trial.


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    PRESUMPTION AS TO CAUSE OF INJURIES.
    Circuit Court of Cuyahoga County.
    Thomas Jones v. J. S. Ankey.
    Decided, November 10, 1905.

      Presumptions — Infirmities Presumed to Result from Only Cause in Evidence.

    Where it is- shown that plaintiff was assaulted and that he aflter-* wards suffered infirmities which might have resulted either from ■ external violence or from disease, there being no evidence of plaintiff’s having been diseased, it will be presumed that his injuries resulted from the assault proven.

      Meyer <& Mooney, for plaintiff in error.

      Vessey, Davis é Manak, contra.
    Henry, J.; Wincit, J., and Marvin, J., concur.
   The parties here stood in the relation opposite,to that in which they stood in the common pleas, and this proceeding ivas begun to reverse a judgment for $1,100 recovered at the April, 1905, term of said court, for injuries sustained by the defendant in error, in consequence of being kicked by the plaintiff in error, in an altercation between them, March 4, 1902.

The medical testimony discloses that the defendant in error’s bodily infirmities may have been caused either by external violence or by disease. The defendant in error testified to the kick and to the subsequent bodily infirmities, but was not permitted to testify that the latter actually resulted from the former, and there was no direct testimony to that effect. On this state of the evidence it is claimed, that the rule of The L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 Ohio St., 426, applies, viz:

“In the'absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries1 were so sustained is not a more natural inference than any other.”

This rule might well be applied here if the evidence had shown that the defendant in error had suffered not only the external violence complained of, but also from disease such that the bodily infirmities in question might equally well have resulted from either alone. Then, indeed, it would have been necessary for the defendant below to show affirmatively that the former was the true cause rather than the latter. But in the absence of evidence that he had such disease, it is a legitimate and a more natural inference, that the external violence, of which there was proof, and which was proved to be an adequate cause, did, in fact, result in the bodily infirmities that ensued than that they were caused by disease, whereof there was no evidence.

It was therefore perfectly competent for the plaintiff after proving that he was kicked, and that the injury thus inflicted was adequate to produce the infirmities complained of, to give evidence further that, after the injury, he suffered from such infirmities. And it appearing that he had not so suffered before, and no other adequate cause thereof being shown, the jury were justified in concluding, as they manifestly did conclude, that the infirmities were caused by the kick. We find no error, either in the admission of evidence, or in the sufficiency thereof.

A further assignment of error is made upon the court’s charge to the jury, permitting them to award punitive damages if they found that defendant in error was maliciously injured by the plaintiff in error. No' exceptions was taken to the charge at the time and it is not now claimed that the rule was inaccurately stated by the trial judge. The claim is that as the evidence disclosed no malice, the court erred in interjecting the subject of punitive damages into the case.

’From an examination of the evidence, in which there is much conflict of testimony, we are not' satisfied that the defendant below used only such violence as was reasonably necessary to repel an assault. It is not enough that he did not pick the quarrel, if such was the fact, and we think the court’s .charge was not erroneous.

Judgment affirmed.


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    FAILURE TO STATE A CAUSE OF ACTION.
    Circuit Court of Cuyahoga County.
    The Lake Erie Iron Co. v. John Karpinski, Administrator.

    Decided, December 22, 1905.

      Pleading and Practiced-Negligence — Plaintiff Musi Plead Ignorance of Dangerous Conditions.

    In an action for death by wrongful act, caused by a defect in the appliances, places or ways which the employer has furnished for his employee, it is necessary to aver want of knowledge of such defect or danger on the part of the employee, and an averment that the employee did not know or appreciate the danger of the particular casualty by which he was in fact overtaken is not sufficient.

      Kline, Tolies Golf, for plaintiff in error.

      J. M. Pindras and Herrick <& Hopkins, contra.
    PIenry, J.; AVincii, J., and Marvin, J., concur.

         Affirmed without opinion, Karpinski v. Lake Erie Iron Co., 76 Ohio State, 621.

   This was an action for death by wrongful act, in which plaintiff below recovered a verdict and judgment.

We think it should be reversed because the petition does not state a cause of action.

The decedent, a boy, had been in the employ of the plaintiff in error but a few days, and, while on night turn at his employer’s factory, fell into a cistern between two buildings and was drowned.

Under the rule of Coal & Car Company v. Norman, 49 Ohio State, 598, “the plaintiff must aver want of knowledge on his part of the defects causing the injury,” instead of using the evasive language of this petition, to-wit, “not knowing or understanding nor appreciating the danger of falling into said tank.” The two forms of expression are not identical.

It is the settled law of this state that Avhere, in the appliances, places or ways, which an employer furnishes to his employee for the latter’s work, a defect exists, consisting either of an isolated condition or of a combination of related circumstances, which the employer negligently creates or continues, no recovery can, in general, be had for the injury, or death, of such employee, in consequence thereof, Avithout averment and proof that he was AAdthout knoAvledge of such defect' and that, by reason of youth, inexperience, or otherwise, he had not the means of' knowing thereof, or that, being aAArare of it, he complained to his employer and continued in the service on the faith of the latter’s promise, express or implied, to remedy such defect. It is not an equivalent to aver that he did not know or appreciate the danger of the particular casualty by which he was in fact overtaken.

For error in admitting any eAddence in support of this petition the judgment is reversed and the cause remanded.


text:
    INJURY TO AN AUTOMOBILE PASSENGER. IN COLLISION WITH AN ELECTRIC CAR..
    Court of Appeals of Richland County.
    Mary Harris v. The Mansfield Railway Light & Power Company.
    Decided, 1915.

      Negligence — Competency of Evidence Given by Motormen — Sending to Jury Room Instructions Given Before Argument — -Doctrine of Last Chance Not in the Case Unless Pleaded.

    1. In. an action for injuries to one riding in an automobile, suffered in a collision with an electric car, the evidence of motormen, with reference to running of the car and means for stopping it, is not rendered incompetent by reason of the fact that their testimony was in a sense that of experts involving quasi conclusions which it is the special province of the jury to deduce.
    2. It is not error to send to the jury room written instructions asked for and given before argument; and so doing is not inconsistent with the fact that where the charge given after argument is oral, it is impossible that instructions so given should also be sent to the jury room.
    3. The doctrine of last chance must be pleaded to entitle a party claiming its benefits to instructions upon it.

      Brucker, Voegele & Henkel, for plaintiff in error.

      McBride & Wolfe, contra.
    Grant, J. (of the Eighth District, sitting in place of Yoorhees, J.), Powell, J., concurs; Shields, J., dissents.
   This proceeding seeks the reversal ot' the judgment of the court of common p]eas, because certain errors, as is alleged, have . intervened and are shown by the record' to the prejudice of the complaining party.

The parties here, as to position, stand in the order of their standing below.

The plaintiff declared on certain acts and omissions amounting to alleged negligence - in the operation of one of its ears, whereby she without contributing fault on her part came to her injuries while riding as an invited passenger in an automobile, as was said by her.

The defendant denied the charging parts of the petition by its answer, and retorted certain acts and omissions by the plaintiff as the causes which proximately contributed to, if they did not directly occasion, the hurts received by her. Upon issue joined as to the latter by reply, the cause was put upon its trial to a jury. There'was a verdict for the defendant, upon which judgment was entered, after a motion for a new trial had been denied. To reverse that judgment is the prayer of this petition in error.

The main alleged grievances relied on to work such reversals are as stated in the brief of the plaintiff as follows -.

First. Evidence admitted for the defendant'and objected to by plaintiff; refusal to admit proper cross-examination of motorman.

Second. Upon the weight of the testimony plaintiff was entitled to recover.

Third. Error in giving special request to the jury.

Fourth. In sending to the jury the written request of the defendant below, given to the jury before argument.

Fifth. In refusing to instruct the jury to consider the oral charge in connection with the written resquest of the defendant below; in other words, allowing the jury to take the written request of the defendant below to the jury room and not instructing the jury to consider the same in connection with the oral charge given in this case.

Sixth. ‘ ‘ Error in generally charging the jury. ’ ’

In substance we are of th.e opinion that some of this rather formidable assignment of errors may be considerably abridged in the discussion of the principles and authorities involved, through the operation of the law of the survival of the fittest.

The first of these has to do with the admission of evidence from two motormen, which partook — necessarily—of the nature of expert information thus imparted to the jury. Equally necessarily, as we think, it carried with it something looking like quasi conclusions, which it is vehemently urged in argument was a clear invasion of what should always be the open and unshared field of the jury.

No inconsiderable part of the not inconsiderable brief of the plaintiff — in fact thirty-six out of its sixty-five pages — is devoted to this one question. A bead roll — it might be called the long roll — of 542 cases are cited in support of this one contention. The brief is quite a misnomer. It is not brief. In this array, bristling with citation, five times the roll of this Union, from Alabama to 'Wisconsin, is- called and then the briefer invades England by running the blockade or sailing in judicial Zeppelins. Lest complaint should be made of want of good measure, a lot of eases from the Supreme Court of the United States are thrown in to make the scale beam kick high. In all this ransacking of the armories of case law for weapons to work a reversal, scant attention is paid to a state still on the legal map — to-wit, Ohio. It would, perhaps, be over-putting it to say that in this brief without brevity, Ohio has not been paid “the cold respect of a passing glance, ’ ’ but the fact is pretty near that. The ease upon which in our opinion this allegation of error must decisively torn, is not mentioned in the main brief of the plaintiff. It is only when it is brought forward under a vigorous claim of being a binding authority here, in the defendant’s brief, that some attention is paid to it in the reply brief of the plaintiff. It is the case of Bellefontaine & Indiana R. R. Co. v. Bailey, 11 O. S., 333, the syllabus whereof is as follows:

“In an action to recover damages against a railroad company for the killing of plaintiff’s horses by means of the negligence of the servants of the company in running and management of a locomotive and train, the engineer in charge of the locomotive at the time of such killing, who saw the horses when they came upon the track, who is showm to be acquainted with the business of running railroad locomotives and trains and had been engaged in such business for five years, is competent to testify as an expert upon questions- in respect to the management of locomotives and trains, and to give an opinion whether, in view of the distance between the engine and the horses when the latter came upon the track, it was possible to avoid the injury complained of.”

Because of the long roll referred to, we have examined this ease with unusual care, to see if it is to be distinguished to any material effect from the-case at bar, and we do not see why it can be. We do not see why it should be. The reasoning that must, coercively as we think, be brought to bear upon its application to this case, appears to us to be conclusive. The motormen witnesses were conversant, technically as well as actually, with the workings of their ears and the foundation in this respect for the introduction of expert and opinion testimony was sufficiently laid. The fact that these experts led what may be called a dual life in ¡this particular — that is, that thejr were expert mechanicians and at the same time practical motormen should not, we think, detract from the value of their testimony. Rather, it should seem, it would add to it in its application to a concrete ease in hand, if they were truthful men. They can not divorce themselves from this two-fold relation. The fact that it is double is but an accident of the particular situation. There is nothing disclosed by the record looking like dishonesty in their testimony. If they testified under the fear of losing their employment with the defendant company, it is not apparent here. And if it was, it would be a matter of weight and not competency. And in such case a plaintiff almost never fails to get the benefit of the fact by inveighing to the jury against witnesses who swear with the customary halter of fear of losing their jobs around their necks.

So much for the underlying principles involved.

We have examined the matter also in the light of Judge Brinkerhoff’s rather informing opinion in the case cited. His reasoning and the authorities marshalled by him to support it are cogent and convincing. They seem to put the decision on such satisfactory grounds that it has not since been disturbed, though often invoked and often challenged, no doubt, and as we must think' followed in cases to which it has been thought properly to appertain.

In any event, if applicable to the case in hand, it is conclusive on.us. We think it- is so applicable, and applying it we find that the ruling of the trial court in admitting the testimony in question was not obnoxious to the complaint lodged .against it in this proceeding. We are confident that the weight of authority really bearing on this precise question supports and reinforces this conclusion.

The next assigned error is in substance and effect — although differently worded in the brief — that the verdict and consequent judgment is against the manifest weight of the evidence and is not supported'by the evidence.

That question, in this case, was so peculiarly a matter for the jury to determine when properly instructed by the court, that we do not feel justified in canvassing it in much detail. Each side had its view of the ease, and each accordingly directed its evidence to that view of the facts which sustained its contention. That this resulted in narrations radically in conflict with one another, was to be looked for. It was for the jury to say with which side they found the truth to reside, when they applied the law the court gave them to the facts before them. By their verdict they have spoken and we can find nothing in their verdict that is manifestly against the facts the jury might appropriately have found in sifting the testimony brought before them and applying the law to these. We are not a jury nor a substitute for a jury. If we were, we are not prepared to say that upon the facts disclosed by this record we should have found differently.

In regard to the next assignment of error, to the effect that the requests to charge before argument should have been refused, our opinion is that the point is not well taken. To our apprehension they state the law of Ohio appertaining to the issue.

The fourth allegation of intervening error is that the court sent the written requests to instruct before argument to the jury in their retirement, to be used by them when they should consider of their verdict. In so doing the court did only what we understand to be the bidding of the statute in that respect. Otherwise the right to have the instructions framed in writing and given without change in verbiage would, it should seem, be a rather barren right. There was no error in this. -

It is next complained — seemingly—that the court sent the written instructions to the jury, but did not send the general charge, so that the two might be comparatively considered in connection with each other — which it is said should have been done.

As the general charge was wholly oral, as is said, how it could have been thus sent, except through the friendly aid of a dictograph, is not perceived. The fact seems to be that counsel for the plaintiff were taken by surprise by the oral charge and did not think of asking to withdraw a juror — not till now. Counsel were wrong about this. They should not be surprised at anything. “8-emper paratus” is, or should be, their slogan, instead of “Onward, Christian Soldiers” — to a. job, or in this case a verdict.

The last assignment is- leveled at the generally bad character of the charge as given to the jury.

The complaint is a little nebulous in our estimation, when we come to details. AYe do not care, therefore, to discuss the matter very minutely. AYhat the trial court should have done if requested to .give'instructions in charge to the jury, if those given were deemed insufficient, need not be discussed where no such request was made. AYhat should have been charged without request, because it was in the case, is another matter. Our attention in this respect is challenged to the claim that the doctrine of the last chance, and possibly other matters, was in the case and should in fairness have been dealt with by the court below in its charge to the jury. To this it is answered that the doctrine of the last chance must be pleaded to entitle a party claiming its benefit to an instruction upon it, and that without so pleading it, it is not to be considered. The reply to this proposition is that the office of pleadings is to present in an orderly form the issues to which all the relevant evidence in the case must be directed, so that — such is the argument — the whole issue consists of what arises from the evidence adduced, the evidence constituting the real issue, the function of the pleadings being to conform the latter to the former, as it may be developed upon the trial. Upon a rational footing, we should think the latter view to be the true view. Even the opinion of the Supreme Court, in Drown v. Traction Co., 76 O. S., 234, does not seem to be to the contrary. It is true that the syllabus there says:

“3. Since the plaintiff can recover only upon the allegations of his petition, he can not recover upon negligence which warrants the application of the rule of ‘last chance’ without alleging it in his petition. ’ ’

Yet Judge Davis seems to flinch from so guarded an interpretation as this, for in the opinion in the same case, page 249, he explains:

It is clear, then, that the last chance rule should not be given as a hit or miss rule in every ease involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff’s peril could have avoided injury to the plaintiff and there is no testimony to support such charge, the giving of such charge would be erroneous. ’ ’

Here we have the Supreme Court of Ohio v. the Supreme Court of Ohio, in the same ease. But, as the syllabus is supposed to state the law rather than the opinion, in case of conflict between the two, perhaps we should follow the former.

However, later, in Palmer v. Humiston, 87 O. S., the syllabus says:

“1. The issues of a case are defined by and confined to the pleadings.”

If words level to the comprehension of lawyer and layman alike go for anything at all, it would seem that this last deliverance is fatal to the contention made here.

But hold! In Ryland Coal Company v. McFadden, Admr., first appearing in print January 18th, 1915, the same Supreme Court is in the syllabus made to say:

“In such case the issue of contributory negligence is not made by the pleading, but is raised by the evidence properly offered by the parties in support of their respective claims as made in the pleadings. The issue of contributory negligence thus raised is to be determined by the same rules as to burden of proof and otherwise as if made by the pleadings. ’ ’

If one issue may be raised by the evidence in a negligence case, by the same token it is hard to see why another issue may not be so raised.

And there you are! This time it is the Supreme Court of Ohio v. the Supreme Court of Ohio against the Supreme Court of Ohio in two cases, but with the same judges deciding in each. When that law suit comes off we want to be there to see which side wins. Until then, we must be content to be no wiser than the sages of the law who are put in high places over us. And until then we must leave this much mooted question where those same sages have left it — in nubibus — very much so.

Upon what we have tried to make an impartial survey of the record before us, we feel that we ought to adhere to the former judgment in this court in Traction Co. v. Jenkins, 19 C.C.(N.S.), 602, of which the syllabus1 is as follows:

“Nor will the judgment based upon such a finding be disturbed for technical errors in the admission of evidence or the charge of the court, where it appears from the entire record that substantial justice has been rendered under all circumstances.”

In closing this opinion it may not be amiss to say an after word, lest from what has been said in respect of a brief in this case, more may be inferred than was intended, and lest the implied criticism thereupon be thought too harsh.

We are told in the good book that “All scripture is . * * * profitable for doctrine, for reproof, for correction, for instruction in righteousness.-” In what was said and will now be said, all thought of “reproof” or of “correction” in a penal sense is disclaimed. Something “profitable” by way of “doctrine” and “righteousness” is not despaired of.

The mere mechanic-at-law, as Theodore Parker used to call him, and his work by the yard, or hundred, or on the piece-price plan, should distinctly lack encouragement by the profession, no matter how sharp his tools are or however conveniently arranged these may be in the tool box. One case decided by the court of last resort in the state of the forum which is in point, shall chase a thousand cases somewheres near in point, and a like number from other states brought forward to overthrow it. The latter are apt to have an effect on the judicial mind, charged with too much work to delight in listening to the roll call of the states, akin to that produced by a catswamp on agriculture — the ground is too overloaded with underbrush to bring good crops.

Out of the “six hundred” and odd cited cases, on which the Light Brigade have ridden into the jaws of death, in the brief we have two, the titles of which are very suggestive. One is Radam v. Microbe Destroyer Co.” The other is Union Painless Dentists v. Dement.” If the “microbe” for using the scissors on a digest and asking people to read the scissorings could be reached by the “Destroyer Company,” the first case would be in point. If the citer had to use his jaws instead of a typewriter, the work of the “Union Painless Dentists” would be in point, or else another syllable would have to be added to the name of the defendant, “Dement.”

We observe also a case in which the “Highland Boy Co.” is a party and one in which Mr. “Pepper” is plaintiff. Neither of these reconciles a tired man with briefs that are anything — almost — but brief.

My brethren are not responsible for this comment, although it is to be hoped that they may share in the usufruct, if so be any briefer is exercised thereby.

We find no material error to the prejudice of the complaining party, in this record, nor are we able to say that substantial justice has not been done by the judgment complained of. For which reason it is affirmed.