text:
    HARDSHIP IN THE PUBLIC UTILITIES ACT.
    Court of Appeals for Fairfield County.
    Hocking Glass Co. v. Ohio Light & Power Co. et al.

    Decided, June 2, 1918.

      Rates for Electric Current — Public Utilities Act Permits Advance — • Notwithstanding Existing Contract Obligations with Customers — • Courts Unable to Give Relief.

    1. It is not within the province of the courts to afford relief from the drastic provisions of the public utilities act, which change or modify the ancient rule as to contract, the remedy against the inconvenience and hardship caused thereby being in the lawmaking branch of the government.

      2. Injunction does not lie against an electric company, which threatens to cut oft the current supplying the plaintiff’s plant because of refusal to pay therefor under a new and higher schedule, approved by the Public Utilities Commission subsequent to the entering into a contract with plaintiff at the lower rate and the arranging of its plant on the faith thereof and .at considerable expense for the exclusive use of said current.

      T. 8. Hogan and Ben B. Dolson, for plaintiff.

      M. A. Daugherty, M. F. MüWcin and J. P. Van Der Voort, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 26, 1918.

   Houck, J.

This case is here on appeal from the common pleas court of Fairfield county, Ohio.

The conceded facts, as presented by the pleadings in the case and agreed to by counsel in oral argument, are:

That plaintiff is a corporation duly organized, incorporated and existing under the laws of Ohio, with its principal place of business at Lancaster, Fairfield county, Ohio. The defendant, the Ohio Light & Power Company, is a public utilities corporation organized under the laws of Ohio, and is made up by the consolidation and combination of a large number of separate and formerly independent electricity producing and distributing companies. The defendant, Edward Matt, is the superintendent of the said the Ohio Light & Power Company. The defendant has constructed its service lines and has established its service distributing equipment and facilities in and through Fairfield county, Ohio, and is now engaged in selling and distributing electricity- to its consumers and customers in various municipalities and localities in said county. Plaintiff is the owner of and is engaged in operating a plant and factory for-the manufacture of glassware, the same being located in Hocking township, Fairfield county, Ohio, and contiguous to the city of Lancaster. In September, 1915, the Hocking Glass Company and the Ohio Light & Power Company entered into a contract for the purchase and sale of electric energy, under the terms and provisions of the schedule at that date on file and in effect with the Public Utilities Commission of Ohio. Said contract was made upon what is known as Schedule No. 11, applicable to wholesale power, and appears in P. U. C. O. No. 3, of the Ohio Light & Power Company’s schedule for Lancaster, covering electric service, issued May 1st, 1915, and becoming effective June 1st, 1915. On May 29, 1917, the Ohio Light & Power Company filed Supplement No. 2, P. U. C. O. No. 3, this supplement becoming effective June 30), 1917. This supplement sought to cancel and supersede Schedule No. 11 of the Ohio Light & Power Company, set forth in P. U. C. O. No. 3. On August 1st, 1917, the Ohio Light & Power Company rendered the plaintiff a bill for electric energy used during the month of July, 1917, at the rates and under the terms and conditions set forth in the new schedule. The plaintiff refused to pay the bill as rendered, but in place thereof forwarded the Ohio Light & Power Company a check for the electric energy delivered to it during the month of July preceding, at the rates set forth in Schedule No. 11, in effect at the time of the making of the contract, as aforesaid, and stipulating that it was in full payment of all electric energy delivered during the month of July, 1917. The Ohio Light & Power Company refused to accept this check, and notified the plaintiff that unless payment of its account was made in accordance with the terms and provisions of its claimed new schedule that it would, at the expiration of ten days from date of such notice disconnect its lines from the property of plaintiff, and would no longer furnish the plaintiff electric energy under'existing conditions.

Under the provisions of the franchise by which the Ohio Light & Power Company operates in the city of Lancaster, Ohio, there are no provisions as to the rates which' may be charged by the company, and further, the city of Lancaster has enacted no rate regulating ordinances establishing the rates which may be charged by public utilities operating electric light, heating and power plants, in said city.

The relief sought by plaintiff in its petition is that said defendants be enjoined from shutting off the service of electricity from plaintiff’s plant and factory, and from disconnecting the service lines and service distributing facilities of defendants from plaintiff’s motors, air-compressors, and other equipment and machinery in plaintiff’s plant and factory, and from withdrawing from or depriving plaintiff of said service of defendants, and from doing any act or thing, directly or indirectly, that would operate, or would tend, directly or indirectly, to deprive plaintiff of a sufficient supply of electricity to maintain plaintiff’s said plant and factory in full operation; and upon final hearing that' a permanent injunction be granted; and for such other relief as may be proper in the premises.

Learned counsel for plaintiff lay down three propositions which they claim are decisive of the present case, and fully authorize the granting of the relief prayed for in plaintiff’s petition :

1. That the Legislature of Ohio has not conferred upon the Public Utilities Commission of Ohio authority to fix basic rates, saving and excepting in cases of appeal to that body, thereby leaving it entirely open and free for parties to fix their own rates for service by agreement.

2. That the parties hereto had a right to enter into a private contract, and that such contract is valid, and can not be set aside or abrogated by the filing of a future schedule or schedules with the Public Utilities Commission of Ohio.

3. That under the facts and the law, defendants and each of them are estopped from setting up the defenses claimed by them to be a bar to the relief sought by plaintiff.

To us there is but one question involved in this suit, namely, did the filing of the new schedule with the Public Utilities Commission of Ohio, by the Ohio Light & Power Company, after the making of the contract between it and the Hocking Glass Company, set aside and abrogate the previous contract? It therefore follows that in order to properly solve this question it is necessary to determine the purpose, scope and extent of such parts and provisions of what is known as the public utilities act of Ohio as may be applicable to the facts in this case, and which are contained in Sections 614-14 and 614-20 inclusive.

It is maintained by counsel for plaintiff that a proper and legal adoption of a new schedule of a public utility, by the Public Utilities Commission of Ohio, does not supersede or supplant a contract previously entered into.

It must be conceded that when the Legislature of Ohio passed the public utilities act, it did so for some reason, and that it had some object in view at the time. This leads us to inquire what it was. The public utilities in our state had become numerous, and there was almost endless litigation resulting therefrom. Our courts had become clogged with this class of litigation, and the Public Utilities Commission was created by law as and for a clearing house through and by which the rights of public utilities and those dealing with them could be properly determined, settled and disposed of, without burdening our courts with that kind of litigation, which in many instances lasted for years, and in the end the conclusion reached seemingly failed to satisfy either litigants or the public. The process of reaching these conclusions was entirely too slow. True, the act in question is what may be termed progressive legislation, but we are living in a time and age of advancement and we must be prepared to meet such, and conform our business affairs to same.

An examination of the provisions of this act leads us at once to conclude that in many ways it is most drastic, and especially wherein it changes or modifies the ancient rule as to contract, but to this we must accede, because it is the law and was the law when the contract upon which plaintiff relies was entered into. ¥e are bound to know the law, and it being statutory and in full force at the time of the making of said contract, the statute must and does govern.

After the_ initial filing of rates, as required in Section 614-16, the further provision is found.in Section 614-20 that such rates so established are not to be changed unless ordered by the Public Utilities Commission, save and except by thirty days’ notice to said commission, or by the filing of new schedules thirty days prior to the time they are to take effect. By the conceded facts it is shown this procedure was clearly followed by the Ohio Light & Power Company.

Plaintiff further urges that defendants,- having induced it to act to- its substantial and irreparable injury and damage in changing its plant so as to permit of the defendants’ service exclusively, that they, the defendants, are estopped from maintaining their alleged defenses.

We do not feel inclined to discuss this question at length, but we will content ourselves by saying that upon the facts and law of the case this claim of plaintiff is not well founded.

Courts are not authorized to add to or take from the powers, duties, etc., created by legislative enactment. The right and authority to do just what plaintiff complains of here was delegated by the Legislature of Ohio to the Public Utilities Commission, under and by virtue of the provisions of the public utilities act. By virtue of that act the defendant company had full and complete authority to do just what it has done in the premises, and the courts can not legally take from it this right.

Mr. Justice Day, of the United S'tates Supreme Court, has laid down a rule of law clearly applicable to this case, and we hold that it is decisive of it. While the rule was applied to an act of Congress, yet it is clearly applicable to a law enacted by a state legislature. We refer to the ease of Western Union Telegraph Co. v. McCall Publishing Co., 181 U. S., page 92, in which Justice Day, speaking for the court, says:

“It may be, as urged by petitioner, that this construction renders impossible the making of contracts for the future delivery of such merchandise as the petitioner deals in, and that the instability of the rate introduces a factor of uncertainty destructive of contract rights heretofore enjoyed in such property. This feature of the law-, it is insisted, puts the shipper, in many kinds of trade, at the mercy of the carrier, who may arbitrarily change a rate upon the faith of which contracts have been entered into. But the right to make such regulations is inherent in the power of Congress to legislate respecting interstate commerce and such considerations of inconvenience or hardship address themselves to the law-making branch of the government. New Haven Railroad Company v. Interstate Commerce Commission, 200 U. S., 399. It may be that such contracts should be recognized, giving stability to rates for limited periods; that the contracts being filed and published, and the rate stipulated known and open to all, no injustice would be done; but, as we have said, such considerations address themselves to Congress, and not to the courts. It is the province of the judiciary to enforce laws constitutionally enacted, not to make them to suit their oivn views of propriety or justice.”

The rule is well known that courts are bound to construe and interpret laws as they come from the Legislature, and can not modify or change them at will, although such laws may seemingly work a hardship.

If the public utilities act of Ohio, as it now stands, is found-inadequate, or does not fully meet the demands of the people, the remedy is with the Legislature and not the courts.

Under the facts, and the law governing them, we find for the defendants. Petition of plaintiff dismissed.

Powell, J., and Shields, J., concur.


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    ALLEGATIONS AS TO OBSTRUCTION LEFT IN THE STREET.
    Court of Appeals for Summit County.
    Howard McMillen v. City of Akron.
    Decided, October, 1918.

      Pleading — Allegations of Special Facts — Sufficient in a Negligence Case, When — Action for Damages to Automobile Caused by Obstruction in Street.

    1. Where a petition alleges specific facts which constitute -a prima facie cause of negligence, demurrer does not lie on the ground that the negligence is not alleged in terms.
    2. Allegations to the effect that an iron standard, four feet high, weighing fifty pounds and of the kind sometimes placed near the outer ■ rail of a street car line for the purpose of regulating traffic, was left in the street near an intersection on a very dark night and while plaintiff was driving his automobile slowly along said street he ran into said obstruction -and damaged his car for which he asks judgment against the municipality, states a cause of action and the petition is not open to- demurrer.

      Jonathan Taylor, for plaintiff in error.

      Owen 31. Roderick, contra.
   Lawrence, J.

Error to the court of common pleas.

The plaintiff in error, who was plaintiff below, commenced an action against defendant in error, the city of Akron, before a justice of the peace, wherein a default judgment was rendered in his favor. The ease was appealed to the court of common pleas 'by defendant, in which court a demurrer was sustained to the petition of plaintiff on the ground that it did not state facts showing a cause of action; and the sole question presented here for our consideration and determination is, did the court below err in sustaining said demurrer.

The petition, in substance, alleged that South Main street is one of the main thoroughfares of the defendant city, and that there is a double track street car line running through its center ; that the city had placed on* both sides of said tracks, near the intersection of Main street with Market street and within a couple of feet from the outer rails of said tracks, iron standards weighing approximately fifty pounds and of a height of about four feet; that these standards are placed on and removed from, the line of traffic as the city considers proper for the regulation thereof; that at or about 9 o’clock p. m., May 5, 1917, the plaintiff was driving his automobile northerly in a proper, careful and lawful manner at a speed of about 5 miles per hour at the right hand side of Main street; that the evening was extremely dark; that near the intersection of said streets his automobile crashed into one of the standards which had -been left standing through failure of defendant city to remove the same, and damaged and injured his automobile in the sum of $250; that there were no lights, warning or marking of any kind on said standard and the presence of the same was unknown to plaintiff, and that because of the failure of the defendant city to light -the same or indicate in some way or by some warning the presence of the standard, plaintiff’s automobile was damaged as aforesaid.

We are of the opinion that the petition alleges specific facts making a prima facie case of negligence and is not demurrable because negligence is not alleged in terms, and we therefore hold that the demurrer to the petition was improperly sustained in the court below, and its judgment will be reversed and the case remanded for further proceedings.

Grant, J., and Dunlap, J., concur.


text:
    WOMAN INJURED IN A PICTURE THEATER.
    Court of Appeals for Cuyahoga County.
    Elizabeth Fox v. The Bronx Amusement Co.

    Decided, June 17, 1918.

      Negligence — Failure to State Cause of Action to Jury — Not Ground for Dismissal — Where the Facts Recited Warrant Application of the Doctrine of Res Ipsa Loquitur — Specific Grounds of Negligence Not Required in Such a Case.

    Where a woman after purchasing a ticket enters a motion picture theater during a performance and-takes' one of the seats provided for patrons, and during the performance the seat upon which she is sitting gives way, causing her to fall upon the floor and to suffer a miscarriage, the doctrine of res ipsa loquitur applies; and in an action for damages resulting it is error, after counsel for plaintiff has stated the case to the jury, to grant a motion to dismiss on the grcuund that the said statement did not embody a cause of action against the defendant.

      Henderson, Wickham cfe Maiden, for plaintiff in error.

      Eerruish, Eerruish, Hartshorn & Spooner, contra.

       Motion to certify record overruled by the Supreme Court on November 19, 1918.

   Lawrence, J.

This case is here on error to the court of common,pleas, and is an action brought by plaintiff in error, who was plaintiff below, against defendant in error, to recover damages for injuries which she claims have been sustained by her by reason of the negligence of defendant.

The plaintiff in her petition alleged that on the 28th' day of October, 1916, that the defendant company owned . and operated a theatre, known as the Jewel Theatre, located on St. Clair avenue, Cleveland, Ohio, in which theatre public exhibitions were had and admission charged' therefor; that on that day she purchased a ticket and entered said theatre; that she was shown to or took a seat that defendant had provided among others for the nse and occupancy of its patrons; that shortly after she had occupied said seat, the bottom part of it broke, throwing her to the floor and injuring her in certain particulars specified therein, and alleging that said accident was solely and proximately caused by the defendant’s negligence and specifying the particulars thereof.

The defendant by* answer denied all the allegations of the petition, except that it is an Ohio corporation; that on the day of the alleged accident it operated the Jewel Theatre and charged admission; that plaintiff was a patron at said theatre and had entered it for the purpose of viewing the picture exhibited; and that it provided all of the seats'that were in said theatre at said time.

After the empannelling of and statement of plaintiff’s case to the jury, the defendant made a motion to' dismiss the petition for the reason that plaintiff did not state a cause of action against the defendant. This motion was sustained, plaintiff’s petition dismissed and exception noted by the plaintiff. Motion for new trial was overruled, and error is now prosecuted in this court to reverse the judgment of the court below.

The opening statement of the case to the jury is as follows:

“If Your Honor please, and gentlemen of the jury, the facts in this case are brief so far as a statement of them is concerned.
“Along about the latter part of October, possibly along about the 27th or 28th, Mrs. Fox, the plaintiff,' with her husband, who are living in Cleveland, and were at that time living in Cleveland near the Jewel theatre on St. Clair street, near 118th street, went to see the pictures in the theatre on that night; bought tickets, paid their admission, whatever it was, five cents possibly, and took seats in the theatre. Mrs. Fox at that time was pregnant with child, probably three months, and during the performance, and not very long after they had taken seats, the bottom of the seat fell almost completely out, letting her fall to the floor and upon her knee, which was partly under the seat. One side of the bottom of the seat broke away from the fastenings; the other side was held up partially by an iron or steel brace, so the bottom of the seat did not fall completely down, one end was stuck up, but she fell clear down to the floor on her knee. She stayed thereuntil almost completely recovered, and then she was taken out by Mr. Fox. On the way out they spoke to one, who appeared to be in charge of the theatre, whom we will prove to be Mr. Kalafat. She was taken home, and in two or three days after that began to feel the effects so far as her pregnancy was concerned, having pains m her batík and began meanstrating, and was taken care - of as well as her husband could take care of her. She-had relatives in Youngstown, and was taken there, and was attended by a doctor in Youngstown, who is here and will tell you the exact extent of her injuries. She lost the child, with which she was pregnant at«the time she fell; and she has now, in her left leg, what is known to the medical profession as phlebitis of' the blood vessels, that is a clot that is formed there, and she now has to wear a rubber bandage, and is under almost constant pain, especially when she walks, and it is, as the doctor will testify, a permant injury.
“We claim that under her contract of admission to the theatre it was the duty of this defendant company to furnish her with a proper seat to see the exhibition which she paid to see; and that these injuries are directly and only caused by their failure to furnish her a proper seat; and that her injuries, through that, will go with her as long as she lives; and in addition the loss of the child, to which in all probability she would have given birth.
“Upon these facts, if we prove them, we will ask damages at your hand in an amount which will fairly compensate her for the injuries she sustained by reason of the negligence of this company in that respect.”

It will be seen that the sole question presented for our determination is, does the foregoing statement to the jury state a cause of .action against the defendant ?

Plaintiff had alleged in her petition specific grounds of negligence; however, such were not included in the statement to the jury. In the view we take of the ease it was unnecessary to either allege or state the specific grounds of negligence causing the injury. This theatre was under the management of the defendant, and in the ordinary course of things such accidents do not happen if proper care is used. The plaintiff was lawfully in this theatre, had an implied invitation not only to enter the theatre but to occupy a seat provided by the management thereof, and she had a right to rely upon the safe condition of the seat provided for her, and the breaking of the seat itself affords reasonable evidence, in the absence' of explanation by the defendant, that the accident arose from want of care.

Without further comment, this court is unanimous in - the view that the doctrine or principle of res ipsa loquitur should apply to the ease under consideration.

For error in dismissing plaintiff’s petition, the judgment of the court of common pleas is reversed and the case remanded for further proceedings.

Grant, J., and Dunlap, J., concur.


author: Hamilton, J.

text:
    CHARACTER OF WARRANTY UNDER WHICH GOODS ARE SOLD.
    Court of Appeals for Hamilton County.
    The Talge Mahogany Company v. John N. Quinn, Doing Business as Quinn & Company.

    Decided, May 27, 1918.

      Warranty — Express or Implied — Refusal to Admit Exidence Tending to Establish an Express Warranty — Constitutes Error, When — Application of Section 8392 — Sales—Efficiency of the Apparatus Sold.

    Where the plaintiff has declared upon a written contract for certain . equipment sold to the defendant at a specified price, and the defendant by way of counter-claim sets forth certain representations in the nature of guaranties or warranties as to the economy which would be effected by the use of said equipment, which representations were not realized but on the contrary the new equipment proved to be more expensive to operate than the old, the section of the statutes relating to express warranty (8392) applies and it is error to limit the introduction of evidence tending to prove an implied as distinguished from an express' warranty.

      Howard N. Ragland and Horace A. Reeve, for plaintiff in ■error.

      Burch, Peters & Connolly and Walter D. Murphy, contra.

      Reversing in part Talge Mahogany Co. v. Quinn, 21 N.P.(N.S.), 221.

   Hamilton, J.

This action was brought in the municipal court by John N. Quinn, doing business as Quinn & Company, against the Talge Mahogany Company, defendant below, to recover the price of what is known as a “Dutch oven” which had been installed in the factory of the defendant at Indianapolis.

As disclosed by the evidence, a “Dutch oven” is an attachment to a furnace under a steam boiler for the purpose, of lessening the amount of fuel required, and to increase the steaming capacity of the boiler.

The ease was' tried to a court and jury and resulted in a verdict in favor of the plaintiff for the amount claimed. A motion for a new trial was overruled, and judgment was rendered upon the verdict.

The Talge Mahogany Company thereupon prosecuted error to the court of common pleas, where the judgment of the municipal court was affirmed. Thereupon this proceeding was brought by the Talge Mahogany Company to reverse the judgment of the court of common pleas and of the municipal court of Cincinnati, and for a new trial.

Plaintiff in error urges three points of error upon which it bases grounds for reversal: first, that the verdict is against the weight of the evidence and contrary to law; second, that the court erred in excluding evidence concerning an express warranty — holding that an express warranty can not exist at the same time as an implied warranty; and, third, that the court erred in its charge to the jury.

Plaintiff below declared ujjon a wuitten contract or order as set forth in exhibit “A” in the record, which is in the form of a written proposition from Quinn & Company for the furnishing of the equipment at a specified price of $482 delivered f. o. b. Cincinnati, and in which they agree to furnish a man to install the furnaces, the Talge Mahogany Company to pay him $5 a day and expenses. This proposition was accepted by the Talge Mahogany Company, and is as of date September 17, 1912.

The defendant by its answer admits that the plaintiff’s claim was for the goods, merchandise and services as itemized in plaintiff’s bill of particulars, but denies every other fact claimed, and by way of counter-claim sets np certain representations and statements which it claims constituted guaranties and warranties to the effect that the installation of the “Dutch ovens” would effect a great economy of fuel used under said boilers and would add greatly to the capacity and efficiency of the boilers in said plant, and that said Talge Mahogany Company relying upon suc'h statements, representations, guaranties and warranties so made by the said plaintiff, which they believed to be true, gave the order for the ovens as above stated. The defend» ant further in its counter-claim stated that said “Dutch ovens” failed in every respect to do the things claimed for them, but instead of effecting a saving in the amount of fuel required, it was necessary and the defendants did use — until the furnace equipments were removed by them — a large quantity of coal and fuel in excess of that required prior to the installation of the furnaces and equipment, and that they were put to great trouble and expense on account thereof, for which they ask damages in the sum of $875.26; that after making every possible effort to use said furnaces in its plant with economy and efficiency the said defendant wras compelled to and did cause same to be removed ; and that they lost much time and were compelled to expend a large sum of money on account thereof.

Plaintiff in error contends that the court erred in refusing to permit the defendant below to introduce evidence tending to prove an express warranty, and restrictin'g it to the proof of an implied warranty.

On page 29 of the record, the court says:

“The court will not permit the introduction of evidence tending to prove an express warranty, but it will admit evidence tending to prove an implied warranty, ’ ’ etc.

And, further, the court charged the jury that the inquiry should be limited to the question of whether or not there was an implied warranty in the case.

In this ruling on the introduction of evidence, and in its charge to the jury, the court was in error. Section 8392 of the General Code is as follows:

“Any affirmation of fact or any promise by the seller relating 'to the goods is an 'express warranty if the natural tendency. of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.”

It is urged by defendant in error that this section does not apply in this case as it would contravene the rule that oral evidence can not be admitted to vary the terms of a written contract.

The language of the statutes is clear and unambiguous. The section defines what shall constitute an express warranty and nowhere limits its application to any special class of contracts. We are therefore of the opinion that Section 8392 applies to the case at bar and the defendant was entitled to put in evidence of an express contract, and to have the consideration of the jury on that question.

Section 8395, sub-section (6) of the General Code, provides:

“An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith. ’ ’

Evidence offered by the defendant which in effect tended to show an express warranty was admitted, but was restricted by the court in its application to the purpose of deciding whether or not there was an implied warranty of fitness under all the circumstances of the ease. This evidence may have clearly shown an express warranty and being admissible under the statute as above stated should have been admitted for that purpose also, as an express and an implied warranty are not inconsistent in this ease.

We are further of the opinion that the verdict and judgment were manifestly against the weight of the evidence. Mr. Talge, president of the defendant company, testified that Mr. Quinn twice before the “Dutch oven” was installed came and examined his plant: that he stated to Talge and represented to him that the company was burning entirely too much fuel and that with the oven installed it would save twenty to thirty per cent, of the fuel and the boilers would then have sufficient capacity to carry the load required and it would be unnecessary to install another boiler, which had been contemplated by the company, and that the capacity of the boilers would be largely increased. These statements and representations were denied by Mr. Quinn, who was unsupported by any other witnesses. Mr. Talge was supported in his testimony by three witnesses — the engineer, the fireman and the stenographer — who were at that time in the employ of the Talge Company, but who had some time prior to the trial' in the municipal court severed their connections therewith and had no interest in the matter so far as the record shows.

Mr. Talge testified that all these statements and representations and affirmations of fact were made to him prior to the ordering of the ovens and induced him to purchase the goods, and that he purchased the goods, relying upon these affirmations, statements and representations.

It appears further from the evidence that the defendant made every effort to use the ovens which had been installed by the man sent by the Quinn Company, and after ten days’ trial notified Mr. Quinn that the ovens had been a disappointment and had failed to do the work as represented. Mr. Quinn some time later, after the receipt of this letter, visited the plant,'and after looking it over, attributed the failure of the ovens to an opening in a brick wall between the boilers which he claimed interfered with the drafts and further suggested the raising of the stack of the boilers some twenty feet to give the furnaces more draft. The Talge Company was not bound to make these changes, as the conditions were just as they were when Mr. Quinn first visited the plant at Indianapolis and after examination made the representations with reference to the working of the ovens.

These are the salient points in the evidence as shown by the record, and as we view it this evidence did not warrant the verdict and judgment rendered in the municipal court. '

For the errors above stated the judgment of the common pleas court and of the municipal court will be reversed and the Cause remanded for a new trial.

Jones, P. J., and Wilson, J., concur.


text:
    VALIDITY OF STREET ASSESSMENT.
    Court of Appeals for Summit County.
    Augusta W. Kasch, for Herself and Other Interested Property Owners, v. City of Akron et al.
    Decided, November 12, 1918.

      Assessments for Public Improvements — Action to Enjoin Collection of, Barreé When — Character of Work Done Not Open to Attack by Abutting Owner, When.

    Where the officer or board, designated in a municipal contract as the one -to determine whether the terms of the contract have been complied with and the work done in an acceptable manner, has reported that the work has been completed in a satisfactory manner and it is accepted and the final estimate paid, an action can not be thereafter maintained, in the absence of fraud or mistake, by an abutting owner to enjoin collection of assessments remaining unpaid and thereby save such owner and others from further payments toward an improvement which has been declared to be good and substantial.
   Lawrence, J.

Appeal from the court of eommou pleas.

This is an action to contest the validity of an assessment levied by the defendant city for the improvement o! West Exchange street and Dodge avenue by grading, curbing, paving and constructing sidewalks.

The plaintiff brings the action for herself and other interested owners of property abutting on said street and avenue.

The relief sought is asked upon the sole ground that the work and material for the concrete sidewalk, curb and gutters were not supplied in accordance with the contract therefor, the allegations of plaintiff’s petition in that regard being as follows:

"That plaintiff avers for herself and all other abutting lot owners on said portions of said avenue and street interested in like manner with herself that in the construction of the said concrete sidewalks, gutters and curbing, the said contractor was grossly negligent in permitting the same to become frozen so that the concrete sidewalks, gutters and curbs became broken and cracked in many places on said portion of West Exchange street and Dodge avenue, so that the said contract was not executed as required, and the sidewalk so broken and cracked were of little or no value. Plaintiff repeatedly called the attention of the director of public service of said city and its other officers to the character of this defective work, but the said city failed and neglected to require the said contractor to re-construct said defective work and allowed the contractor estimates for the full contract price which were paid to him regardless of the protests of said plaintiff. Said defective work has never been re-constructed.”

The improvement was made in the year 1912, and the assessments therefor were to be paid in ten equal annual installments with the taxes for the years 1911 to 1920, inclusive. Six of said installments were paid before this action was begun, the action having been commenced in the court of common pleas on the 24th day of January, 1918.

'Some complaint was made to defendant city in the years 1914 and 1915 relative to the condition of the sidewalk, curb and gutter, a'ncl some negotiations between certain property owners and officers of the city of Akron were had relative thereto and some repairs were made thereon.

After the completion of this improvement by the contractor, the city accepted the same, a final estimate was made and paid ¡by the city, less an amount provided in the contract’to be re: tained by the city for a period of two years, all of which amount, except $40]0, was after the expiration of two years paid the contractor, said amount of $400 being sufficient as then determined by the city to repair all defects complained of.

The evidence discloses that some parts of the sidewalk, curb and gutters are not now, six years after the improvement was completed, in a good state of repair, and were not in such repair a year or two after the completion of the work; however, only a comparatively small portion of this improvement is in such condition.

Without going further into the evidence, we are of the opinion that where a municipality enters into a contract for an improvement such as this, and by tbe terms thereof, as in the contract in question, a certain person or official board of the municipality is selected by the parties thereto to determine whether the terms of the contract have been complied with, and the work thereunder properly executed, that when such facts are ascertained and fixed ¡by the person or official board selected, and in the manner provided by the contract, and -the work is accepted by the municipality, final estimate made and paid, a suit instituted thereafter to enjoin the collection of the assessments levied to pay the cost and expenses of'such improvement can not be maintained on the ground that the work done and material furnished for said improvement were not in accordance with the contract, in the absence of fraud or mistake. No fraud or mistake is alleged" or proven herein.

Furthermore, by far the greater part of this improvement is good and substantial; yet the court is asked for an order restraining the collection of all unpaid assessments to the full extent of the improvement. If the prayer of the petition should be granted, the result would be that many property owners would escape paying anything further for work the evidence discloses is good and substantial. •

Our attention has been called to the case of Shook et al v. City of Akron et al, decided by this court in 1916, and the claim is made that that case should be decisive of the case at bar. With this contention we can not agree. The improvement of the streets in the Shook ease, for which assessments were enjoined, was practically of no account at all except possibly the grading thereof, and consequently was not of any benefit to the property assessed, while in the case under consideration, the improvement was of substantial benefit, as above stated, with slight exceptions to the property assessed, and consequently the Shook case can have no controlling effect in the ease at bar.

Holding these views, we feel that the relief sought for in plaintiff’s petition should be denied, and the petition is dismissed at the cost of the plaintiff.

Grant, J., and Dunlap, J., concur.


author: Washburn, J.

text:
    WOMAN AUTOMOBILE PASSENGER KILLED BY TROLLEY CAR.
    Court of Appeals for Cuyahoga County.
    William G. Baus, Administrator of the Estate of Mary Baus, Deceased, v. The Cleveland, Southwestern & Columbus Railway Company.
    Decided, December 9, 1918.

      Negligence — Approach of Interurban Gar Concealed by Station Building —Woman on Bade Seat of Automobile Killed — Claim, of Contributory Negligence Withdrawn — Liability of Traction Company Arises —If Negligence of Motorman United with that of the Chauffeur Combined to Cause the Accident.

    Where in the trial of an action for the wrongful death of a woman, who was a passenger on the rear seat of an automobile passing over a public crossing, she not 'being engaged in a joint enterprise with the driver, and who was struck and killed by one of defendant’s traction cars, and the charge of contributory negligence has been withdrawn, the defendant will be held liable if its negligence, combined with that of the driver of the automobile, caused the accident; and where there is evidence to support that view of the case, it is reversible error for the court to charge that the jury should simply determine whether the death was caused by the negligence of the driver or by the negligence of the defendant company.

      Mathews, Orgill & Maschhe, for plaintiff in error.

      Tolies, Hogsett, Ginn & Morley, contra.
   Washburn, J.

Error to the Court of Common Pleas.

Plaintiff sued defendant for damages for wrongful death, and the trial resulted in a verdict and judgment for defendant.

The case is in this court on error proceedings.

The facts as disclosed by the record are, for the most part, undisputed and are as follows:

'At the place of the accident, defendant operated an interurban railway on a private right-of-way and across a country highway leading to a summer resort, said highway being used much more extensively in the summer than in winter. At the intersection of the highway and railway, the defendant maintained a building, used as a sub-station and waiting room, which building was located close to the track and close to said highway, which crossed the track at right angles; and said building, to-’ gether with outbuildings, poles, trees and foliage almost completely obstructed the view of a traveler on the highway, going easterly, of a car approaching the intersection from the north, which car, when two thousand feet away, was in a valley, and came in full view of one close to the track at said intersection when about twelve or thirteen hundred feet distant therefrom.

On the day in question, which was in June, plaintiff’s decedent was a passenger in an automobile, she and several other persons in said machine being on their way to the lake on a fishing and picnic expedition. Decedent was in the rear seat and had nothing to do with the operation of the automobile, and no question is made of her being engaged in a joint enterprise with the driver and other occupants of the automobile. As the automobile approached said intersection, it passed along the end of said building and stopped with the front wheels of the auto as close to the track as safety would permit, but said building obstructed the view of the track to the northward of the decedent and others in the rear seat of the auto, except for a short distance.

The testimony is uneontradieted that the occupants of the ear looked and listened, and that the driver leaned over the steering wheel and looked north. The testimony is in conflict as to how far down the track the driver could see past the building, but it is apparent that the decedent, after the automobile stopped, could not see the car as well as the motorman could see the front end of the automobile, and it is apparent also that the street car was not where it could be seen by the occupants of the auto before they drew along the side of the building. The auto started ahead and when the rear wheels were in the middle of the track it was hit by a limited car traveling from the north at a speed conceded by the defendant to be thirty-five miles an hour, and claimed by the plaintiff to be at least fifty miles an hour, and the decedent was instantly killed in said collision.

There was a conflict in the testimony as to whether the whistle of the car was blown, but the verdict of the jury compels this court to consider the case on the theory that the whistle was blown when the car was from twelve to fifteen hundred feet away, and again when from one hundred to one hundred and 'fifty feet from the crossing; but there is no evidence on the subject of the sounding of any gong.

The negligence charged was excessive and reckless rate of speed; neglect to “sound any whistle or gong”; and failure to maintain proper lookout, failure to stop the car and failure to provide guard or flagman or automatic bell at said crossing, and also failure to stop or abate the speed of the car after those in charge of the car knew “ or in the exercise of ordinary care ought to have known of the dangerous predicament of the decedent.”

The defense was denial of negligence of the defendant and the claimed contributory negligence of decedent.

We find that there was no prejudicial error in the admission .or rejection of evidence.

The claimed error which is most strongly argued here arises upon the charge of the court before argument, given at the request of the defendant, and upon the general charge of the court

Plaintiff’s decedent was not charged in the answer with being engaged in a joint enterprise and therefore chargeable with the negligence of the driver.

The contributory negligence charged in the answer against the decedent who was riding as the guest of the driver of the auto, although not specified in the answer, was, under the law,, her failure to exercise ordinary care for her safety and to reasonably use her faculties of sight and hearing to observe and avoid the dangers incident to crossing such track. Toledo Railways & Light Co. v. Mayers, 93 O. S., 304.

Under these circumstances the negligence of the driver was important only in tire event the jury should find that the accident was due solely to his negligence; and if plaintiff’s decedent was not guilty of contributory negligence plaintiff was entitled to recover if defendant was negligent, and the driver’s negligence combined with the negligence of the defendant to cause the injury.

This view of the law is expressed in the general charge of the court near the bottom of page 221 of the record, and before argument and as a part of the general charge also the jury was told that the negligence of the driver could not be imputed to said decedent. But complaint is made that this statement of the law is in conflict with statements of the law contained in special requests given before argument at the request of the defendant, and also with later statements in the general charge of the court. At the request of the defendant, the jury was charged before argument as follows:

“4. I instruct you that as between a person about to cross over an interurban. railroad at a crossing, and an interurban car approaching such a Crossing, the interurban ear has the right of way. This is because a person can stop within a few feet and the car can not.
“5. If you find from the evidence that that obstructions at and about the crossing and the noises of the moving automobile in which Mary Baus was riding were such that she could not without stopping have heard the approach of the car, coming from the direction from which the one with which she was struck came, and that she knew or in the exercise of ordinary care on her part ought to have known that such were the conditions, and if you further find that if she had stopped, looked and listened first before riding onto the tracks of defendant company, she would have heard and seen the car which struck her and avoided the collision; and if you also find that the said Mary Baus, without reasonable excuse therefor, did not stop, look and listen, but drove onto the tracks without taking this precaution and was killed, then the said Mary Baus ivas guilty of contributory negligence and the plaintiff can not recover in this action but your verdict should be for the defendant,”

And in the general charge, the court used this language:

‘ ‘ So the question is, gentlemen, when we come back to that, did the plaintiff exereise ordinary care, or did the defendant exercise ordinary care, or were they guilty of want of ordinary care when they drove upon that crossing, and if so, was +hat the proximate cause of the injury to the decedent, the wife of the plaintiff in this action?”

These instructions of the court were given, notwithstanding the fact that all of the testimony was to the effect that the driver of the automobile stopped the same just before going upon the track, and that he and all the other occupants of the car looked and listened, and we feel that these instructions ignored the position of plaintiff’s decedent as a guest in the automobile; charge her with the duties of the driver and visit upon her the consequences of his negligence. In addition to the foregoing the duties of the driver were repeatedly referred to and emphasized in the defendant’s requests given before argument and in the general charge of the court, and in such a way as to probably lead the jury to confuse the duties of the decedent with the duties of the driver; and then when the court had finished the general charge, counsel for the defendant withdrew the charge of contributory negligence against the decedent, and the court Said to the jury:

“That simplifies it. You are simply to determine, gentlemen, whether it was caused by the negligence of the driver of the automobile, or by the negligence of the railroad company.”

This instruction assumes that the accident was due either solely to the negligence of the driver, or solely to the negligence of the defendant, whereas it might have been caused by the combined negligence of the defendant and the driver of the automobile ; and in view of all that had been said, the jury may have understood that plaintiff could not recover if the accident was caused by the driver’s negligence combined with the negligence of the defendant, and in the light of the facts which are undisputed we are inclined to the opinion that the jury must have so understood it.

For the reasons stated, we regard the charge as a whole as misleading, to the prejudice of the plaintiff in error. Judgment reversed and new trial granted.

Grant, J., and Dunlap, J., concur.


author: Grant, J.

text:
    DENIAL TO A COLORED MAN OF EQUAL RESTAURANT ACCOMMODATIONS.
    Court of Appeals for Summit County.
    The Puritan Lunch Company v. Leonard H. Forman.
    Decided, November 12, 1918.

      Civil Rights — Negro Patron of Public Restaurant — Asked to Nat His Meal in a Room, of Inferior Accommodations — Jury "Warranted in Concluding the Discrimination Was Based on Race or Color— Leaving the Place Without Eating After Accepting Repayment of Money — Not a Waiver of His Civil Rights by One so Discriminated Against.

    1. A requested instruction, made before argument, which applies a principle of law to an incorrect statement of facts, tends to mislead and bewilder the jury and should be refused.
    2. Where a negro patron pays for and is served with a meal at a public restaurant and is then requested by an employee thereof to withdraw to a place by himself in a room of inferior accommodation and separate from the white patrons, he may accept repayment of his money and leave the premises without waiving his cause of action against the proprietor, notwithstanding by not remaining he did not ascertain what would have been the result, if any, of his refusal to comply with the request.
    3. A back room of a public tavern, where the tavern dishes are washed and its ice stored and in which some dining room chairs have been placed, is not of equal accommodation in all respects to the regular dining room where there are chairs 'and tables and no dishes are washed or ice stored.
    4. Where the reason assigned for requesting said negro patron to eat his meal in the back room was that “the people have been putting up so much kick against it that we are losing a great deal of business,” the jury is justified under the circumstances in concluding that the discrimination was based on race or color.

      Otis, Beery <& Otis, for plaintiff.

      Smoyer & Glinedimst, contra.
   Grant, J.

Error to the court of common pleas.

The parties will be designated here as they were in the court below — being in the reverse order of their present standing.

The plaintiff declared as for a violation by the defendant of Sections 12940 and 12941 of the General Code, statutes once called and still commonly known as the civil rights act.

The specific thing aimed at by this enactment is the unlawful discrimination against patrons and customers and guests of taverners and others holding themselves out to the public as performing like functions, based on the prejudices of race, color or previous condition of servitude and not on merit or the want of it.

To make such laws effectual, they are made quasi-penal in the consequences denounced upon offenders against them.

The trial was to a jury;- there was a verdict for the plaintiff, upon which the judgment called in question here was entered, a motion for a new trial having been overruled.

Three principal grounds of error are alleged and argued in the brief and at the bar. The first involves a question of pleading, and has to do with the granting of a motion 'by the trial court, made by the plaintiff, to strike from the amended answer certain words.

The words occurred in the third defense, the entire paragraph as it first stood being as follows:

“Further answering, this defendant for its third defense herein adopts all of the allegations and averments of its foregoing first and second defenses, and makes the same a part hereof the same as if again rewritten, and says that it specifically denies that it ever refused to serve plaintiff with food in its restaurant. That on the contrary, it did serve him with the food which he desired to purchase and it says that in refusing to .avail himself of the privileges extended to him by the defendant to eat said food in its restaurant and in demanding and receiving money which he had paid as the purchase price of said food, plaintiff voluntarily waived his right to be served with food in said restaurant, and also waived any cause of action he might have had against the defendant herein.”

The words which the court censored out of this answer were the following:

“* * # And it says that in refusing to avail himself of the privilege extended to him by the defendant to eat said food in its restaurant.”

The material thing to the now complaining party in that paragraph, was to plead as a defense to the action a waiver of its cause by the plaintiff. This defense, this alleged waiver, was sufficiently pleaded by the answer as it was left after the words were stricken out. It was proper certainly, if not necessary, that the facts relied on to establish the waiver should appear in the pleading somewhere. We think they did appear in what had gone before in the answer, and that this was what was referred to when a. refusal was alleged by the words eliminated on motion. If they did not appear in the pleading in so many words, the testimony supplied them, abundantly. All the facts tending to prove what was claimed to be a waiver were finally before the jury, and the defense to establish which they were addressed still remained in the answer, intact, ready for the jury to deduce from them the consequence of a surrender by the plaintiff of his cause of action, if the jury should conclude that such consequence flowed from them. So it appears to us that the defendant got, or could have had, had it so urged to the court and jury, the full benefit of the deleted words — even upon the hypothesis that they were properly in the pleading in the first place, which we assume now only causa argumentó. It need not, however, be admitted.

Without much question, what the court below saw in the words which made them obnoxious to destructive criticism was the assertion that the plaintiff refused to avail himself of the privileges of the restaurant. It was a conclusion and not a fact. The plaintiff’s theory of the case was that when the only choice left to him by the keeper in charge was to eat in a room aparted to inferior uses not shared by white customers, a declining to eat the food was not a refusal to eat it. A refusal requires volition on the part of the refuser. It must be voluntary and not under compulsion, and 'a requirement or even a request to eat in a room implying the ignominy or humiliation of being herded as a being of an inferior race, might work a giving back of the food tendered on such conditions, without carrying with it, necessarily, the consequence of a waiver at law. We can see no merit in this assignment of error.

It is next complained that the court below erred in refusing to give in charge to the jury the defendant’s requested instructions Nos. 2 and 3, made before argument.

Request No. 2, was in the following language:

“The court says to you as a matter of law that the mere statement made by the employee of the defendant to the plaintiff that the plaintiff would do said employees a favor if he would eat his lunch in the rear room of said restaurant, unaccompanied by any demand expressed or implied, is not sufficient to constitute an unlawful discrimination, and does not make the defendant liable in this case.”

An instruction before argument is regarded as giving to .the jury the last word as to the law of the case. It must state the law exactly, because it can not be modified or explained or otherwise adapted to the facts by the court, and in that unaided state it is taken by the jury when they retire to consider of their verdict. Of course it can not state the law correctly except in its application to the facts disclosed by the evidence. If, therefore, it assumes as a fact proved that which has not been proved, it contains the double vice of mis-stating the law and misleading the jury. Because it can be good law only so far as the facts to which it refers and is addressed and applied, are good facts — that is, facts in evidence and from which its application arises. This requested instruction is bottomed upon a fact which it assumes bat which did not exist. The man in charge of the restaurant and with whom the plaintiff dealt, did not request, the latter to go into the back room to 'eat his meal, as a favor to himself. His own testimony is that if the black man would go out into that room to eat, “he would be doing us a great favor.” This he repeats in another answer, and still again, all in the same words. This talk was had in the presence of Henderson, the manager, to whom the matter was at once referred by Calhoun, the employee, and by Henderson’s direction the plaintiff was given back the money he had paid for his uneaten meal. Beyond all controversy, Calhoun’s use of the word “us” in this matter was understood both by the plaintiff and himself and also by Henderson, as meaning the proprietor, the restaurant, the concern with which the plaintiff alone was dealing or had any present business. Calhoun was in no shape to be asking favors from a negro, and if he had been taxed with such an unseemly thing, such a low-down thing, then and there— where, as Calhoun says, the guests of the Howe Hotel were accustomed to eat and may have been- looking on — if, we say, such a thing as requesting a great favor personally from a black man, had been then imputed to one who was perhaps a lineal descendant of the great South Carolinian, the latter would have resented it hotly.

The request did not state the law because it did not state the facts upon which it was predicated and to which it purported to apply. As it did not state the facts as the jury had them, its tendency, had it been given, would have been to bewilder and mislead the jury in their consideration of the ease.

. It was, for both reasons, properly refused and there is no error at this point.

Request No. 3 — the refusal to give which in charge to the jury is claimed to be error — reads as follows:

“Unless you find from the evidence in this case that what was said to the plaintiff by defendant’s employee, together with the facts and circumstances in connection with their conversation, amounted to something more than a request and furnished reasonable ground for the plaintiff to believe that if he did not comply with the request, he would be denied the full enjoyment of the accommodations, advantages, facilities, and privileges of the restaurant, then your verdict must be for the defendant in this case.”

We are unable to see how the plaintiff could have tested the soundness of this request otherwise than by standing his ground vi et armis, and in that way finding out whether the defendant’s servants would follow up their invitation for him to eat where the How,e hotel people would not seen him, by force and arms also. It seems clear that the law was not made to invite or encourage breaches of the peace in order to interpret it.

That the request might by suitable additions and modifications have been made to state the law correctly, is likely true, but is nothing to the purpose, since it was beyond the power of the court to make an incomplete instruction complete and so proper. Had the request been to add its purport and effect to the general charge, the court might have moulded it into a form by which it would have wholly, instead of partly, stated the rule; perhaps it would, in that ease, have been the court’s duty to do so. But this is not that case; it is a request which, unless it propounds the entire rule of law as to its subject, without comment, addition or subtraction, is nothing and should not, and can not be given.

The point is overruled.

The last charge of error in the record appears in the brief of the complaining party in the following language:

“Third. The verdict and judgment are contrary to the evidence and the law in that defendant in error failed to show an unlawful discrimination which was authorized or was within the scope of the authority of plaintiff in error’s servant who dealt with the defendant in error.”

.We shall not review the evidence in detail. It was for the jury and not us, if — there being a conflict in it — the tendency of it was such as to support that view of it and that result of it which the jury’s verdict says is the right view and which for that reason may be held to support and not negative the verdict.

It is our sole business then to see if there was such tendency or not.

The thing to be proved under the statute which is the enabling act of this class of litigation, is a discrimination in service by one holding itself out as a public taverner, and which discrimination must be based in this case on race or color. These qualities are wholly adventitious and accidental; they are not under the control of their possessors, and discriminations on account of them are not founded on merit or the want of it, but spring from prejudice or contempt, undeserved by those upon whom it is visited. Such discriminations are peculiarly galling to their victims. They carry with them a sense of ignominy because they are an injustice which the subject' of it can neither resent nor remedy, and they publish him to the world as one who, without fault on his part, is to be gibbetted at the cross-roads of public scorn and contumely. The height of this unmerited social outlawry was reached when the Supreme Court of the United States declared judicially that the ostracized race could not be citizens and were regarded when our Constitution was framed as having no rights which a white man was bound to, respect.

To correct this judgment of barbarism was the purpose of what is generally known as civil rights legislation, of which the statute being considered is a part. Its history is so well known that more particular reference to it is unnecessary.

This class of legislation has received various interpretations by the courts, varying much with the color line. South of Mason and Dixon’s line — where under federal compulsion there are such laws at all — they have received a grudging construction, and even the federal courts, with more acuteness than candor, have gone a long ways towards emasculating them so far as securing the rights meant to be created by them is concerned.

We need attempt no reconciliation of these variant and often grotesquely incongruous holdings. And we may, for the purposes of this case, accept the pro-S'outhern view as the rule of law applicable. It is, perhaps, as well laid down as anywhere in Chilton v. St. L. & I. M. Ry. Co., 114 Mo., 88. It goes of course only to the extent of the discretion necessary to bring the fact within the denunciations of the statute; the motive inspiring the fact is quite another matter.

That case holds as follows:

<!A passenger may not dictate where he will sit, or in which ear he will ride. If he is furnished accommodations equal in all respects to those furnished other passengers on the same train, he can not complain. ’ ’

This rule of requirement does not call for identity of accommodation, but it does mean substantial equality of service, and by that measure of duty we may test the defendant’s obligation of service to the plaintiff in this case — the former being admittedly a publican in conducting the restaurant in question.

The evidence material to the determination of both questions— that of equality of accommodation and the motive of the defendant in’'excluding the plaintiff from the front room of its establishment — may be found in the testimony of Calhoun, the man in immediate charge at the time. So much of this as can be brought to bear upon the real issue of the ease, is the following :

“A. I told him he would be doing us a favor if he would eat in the next room. He asked me why.
“Q. Yes. Now, then, after you made this request or when you made this request of Mr. Forman, to carry his food to this room, what did he say, as you recall it? Give the conversation that took place between you, as nearly as you can. A. He asked me what was in that room. I explained to him that there was an electric dishwashing machine in there, an ice box, and chairs provided for them, just the same as they were Out in front. Then, he wanted to know why he could not eat out there; wasn’t his money as good as anybody else’s? I told him it was, but he would be doing us a great favor by going out there. He would not go out there, and we gave him his money, and he went out.
“Q. When this man came up to the counter, Mr. Calhoun, and bought these articles, you sold them to him? A. Yes, sir.
“Q. Took his money? A. Yes, sir.
‘ ‘ Q. Put it in the cash register ? A\ I did.
“Q. Where did he go? Did he go to one of these enamel-covered, white tables, or to a chair? A. He went to a chair.
“Q. Arm chair, did he? A. Yes, sir.
“Q. What did you do then? • A. I went around and told him he would be doing us a favor if he would eat — •
“Q. Tell this jury what you said to him. A. I said: ‘You would be doing us a great favor if you would eat your dinner in the rear room, there. ’
“Q. What did he say, to that? A. Wanted to know what was the matter with eating out there. I told him, I said the people had been putting so much kick against it, we were losing a great deal of business about that, explained to him, the Howe Hotel were all eating there. I asked him if he would go back there. He said, no, he would not go out there. He said: ‘If you will give me back my money, I will go out.’
“Q. What did you say? A. I said: “Shall I give him his money, Mr. Henderson?’ He said ‘Yes.’ I gave him the money.
“Q. What instructions, Mr. Calhoun, did you have, on the subject of serving colored people that came in that restaurant? A. Only that Mir. Henderson instructed me—
“A. —that I should say — ask them, in a manly way, if they would go back there to eat.”

\

This, we think, sufficiently exhibits the character or quality of the room to which the plaintiff was asked to go to eat the food he had bought and paid for, to put the question to the jury for determination. Upon Calhoun’s own showing the jury had a right to find — as by their verdict they did find — that the accommodations in the latter room were not identical with those of the front room, that they were not equal, but were inferior. It was a back room; it was the place for washing dishes and for storing ice. The only things it had in common with the other room — the only dining room — were chairs. Upon the whole case, it was not intended to be the equal of the other room; if it had been, there would have been no point, in inviting the plaintiff into it and he would not have been so invited; this, in tendency at least, may be gathered from the testimony as a whole. The question remains, was this invitation to the plaintiff to segregate himself into the gitasi-kitchen while eating his bought meal, purposeful on the part of the defendant? "Was it from an intention to discriminate against the plaintiff, not from necessity, but because he was black ?

We may be sure that a white man bearing the great name of Calhoun would not be likely to be asking a negro for “a favor,” or “a great favor,’’ unless some ulterior motive lay behind the request. Unless there was such motive, very different language would have been used, we think. We can think of no such motive, nor can we suppose that the jury could think of any, unless it was the statute, with its apprehended pains and penalties, under which this action was brought. This inference is more than strengthened; it rises nearly to the level of demonstration, when we apply to it what Calhoun said as to the reason of the invitation to the rear room. He says: “I told him, I said the people had been putting so much kick against it, we( were losing a great deal of business about that; explained to him the Howe Hotel were all eating there.” That Calhoun, the factotum, had been instructed to notify black customers that they were of an inferior, race by telling them to eat apart from the ‘ ‘ man and the brother ” of a lighter visage, in “ a manly way,” is inconclusive as to the compulsory element of the message. Prize fighters call their bruising methods “the manly art,” and the newspapers also, so characterize it.

Upon no reasonable hypothesis could the guests of the Howe Hotel put up “a kick” against Forman’s eating in the front room, unless he was in some way personally offensive to them, and in no way could he personally offend them, consistently with the record, unless he was in some way deemed to be their inferior. He was not personally known to them. How was he inferior ? For aught that appears he was cleanly, of good manners and decent demeanor, used no bad language, and it does asppear that he had paid for what he got — something that could not be said of all the offended ones, we take no risk in supposing.

No line of cleavage that we can think of remains, except that of color — meaning race.

It is enough that this is the very thing which the statute we are administering denounces and forbids. There is sufficient history behind it — and indeed in its presence — to admonish the courts why and how it became necessary and commended its prohibitions to the law-making power, and to administer it in the light of that history. Its purpose was to contradict the pitiless affront to a being created in the image of a common and impartial Maker, embodied in the rather coarse but still accurate translation which a large and influential section of the country made of Judge Taney’s dictum — “A nigger ain’t a man.” The unthought design, the perhaps unconscious purpose, of this discrimination — and certainly its effect — is to constantly remind the black man that his is an inferior race, whereas our constitutions, our legislation, our avowed public policy, all say it is an equal race in the eye of the law. Historically speaking, of course, our constitutional and legislative declarations and our loud professions of being “the land of the free and the home of the brave,” are right. The race over which the shield of the statute extends its protection, is not an 'inferior race; it is a belated race — made late in the race for success by the systematic and legalized robbery lor two hundred and forty years of that which alone makes a man ennobled — his right to labor and eat the bread which in the sweat of his own face he has 'earned.

Insensibly, of course, but not the least less, Calhoun’s invitation to Forman to adjourn to the semi-kitchen was to the latter a reminder of the inferiority of his race which many, perhaps most, white men still in opinion maintain, but which the law in this manner and in such places, does not allow, but expressly denies.

It is not for courts to argue for the wisdom of the law they are sworn to administer in its integrity. But there is reason for reminding litigants that the spirit of law should be observed in courts, when elsewhere there is a general disposition to ignore and condemn it.

Assuredly, the newspapers of our cities do not mean to prejudice their readers against those of whom the laws are tender because of their inability to take their own part effectually, but unconsciously they are doing this every day. Whenever a black man is arrested, the fact that he is a black is faithfully recorded. If Pompey is caught shooting craps, risking no money but his own, it is always printed “Pompey, a negro.” If Bill Smith shoots a man, intending to get the latter’s money, it is plain “William Smith,” if so be his title of “Mister,” or “Colonel,” or “Judge” is inadvertently omitted.

This is spoken of only to call attention to how many ways there are to remind the under dog that he is under, and that without fault of his own he belongs to a race of under dogs. That he is so regarded by many is nothing to the purpose when it comes to the point that their idea is not to be indulged in places held out as places of public entertainment for which black money is taken indifferently with white money; this is the very thing the law forbids.

It may have been disagreeably reminiscent for some of the white “uncles,” guests at hotel, to be served in the same room with men of the exact complexion of the late Daniel Webster or Thomas Corwin, the one a Senator from Massachusetts and the other a Senator of Ohio, but if they are to be catered to in this respect as well as in that of food and lodging, it must be at the caterer’s risk of a lawsuit by the Webster or Corwin, as the case may be. It is.commonly thought that Webster got the better of Calhoun in the constitutional argument, when they tried conclusions with each other some years ago.

And that is exactly the kind of lawsuit we have here.

We have no difficulty in finding that in this case there was evidence which justified the jury in concluding there was a discrimination attempted when Calhoun told Forman to eat in the back room; that such discrimination was based alone on Forman’s color, evidencing his race; that it was purposeful in its intent; that, therefore, it was an unlawful discrimination, not permitted by the statute, and subjecting Calhoun’s principal, the defendant here, to this action.

In so holding we are not departing from our opinion in Anderson v. State, determined in Cuyahoga county at our last term.

It follows that there is no error apparent in the record under review and the judgment complained of, doing substantial justice between the parties, is, for those reasons, affirmed.

Dunlap, J., and Lawrence, J., concur.


author: Jones, P. J.

text:
    NOTICE UNDER A LIABILITY POLICY OF THE OCCURRENCE OF AN ACCIDENT.
    Court of Appeals for Hamilton County.
    The Fischer Auto & Service Company v. General Accident Fire and Life Assurance Corporation, Ltd. of Perth, Scotland.
    Decided, June 9, 1917.

      Indemnity Insurance — Covering a Motor .Vehicle — What Constitutes Immediate Notice to the Company — Where Bodily Injuries do Not Develop for Sometime After the Accident.

    1. In an insurance policy covering tire operation of a motor vehicle, wherein liability is limited to bodily injuries, a provision that “the assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office in New York City or to its duly authorized agent,” does not require the giving of notice to the insurance company of an accident in which the machine covered by the policy was involved but which did not result in bodily injuries; and in an action upon such a policy the use of language in the charge of the court from which the jury might infer that notice to the company was necessary under the 'policy on the occurrence of any accident whatever, regardless of its resulting in bodily injuries, constitutes prejudicial error.
    2. In an action on such a policy, where it did not appear at the time but developed later that bodily injuries were sustained, it is error to refuse to instruct the jury that the giving of written notice of the occurrence of said accident, within a reasonable time after it became known to the assured or his chauffeur that bodily injuries had been sustained, is a sufficient compliance with the stipulation that such notice must be “immediate.”

      Betting er, Schmitt (& Kreis, for plaintiff in error.

      Clore <& Clayton, Nelson Schtuab and John M. McCaslAn, contra.
   Jones, P. J.

The parties here stand in the same position in which they stood in the trial court, and for convenience they will be referred to as plaintiff and defendant, the verdict and judgment having been given in favor of the defendant.

The action below was brought upon a policy of insurance by which the defendant agreed to indemnify plaintiff as the assured,

“Against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered while this policy is in force by any person or persons by reason of the ownership, maintenance or use,”

etc., of plaintiff’s automobile which was described in the policy.

Suit was brought by Daniel W. Smith for injuries received by him in the collision between plaintiff’s said automobile and the one in which Smith was riding. Defendant refused, upon notice, to defend plaintiff in the suit brought by Smith, and denied liability thereunder on the ground that notice had not been given of the occurrence of the accident in accordance with the terms of the policy.

This action below was brought to recover from defendant the amount of the judgment and expenses in said suit brought by Smith. The insurance policy contained the following condition :

“0. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof. If thereafter any suit is brought against the assured to enforce such a claim the assured shall immediately forward to the corporation every summons or other process served on him.”

Defendant denied liability and refused to defend the action brought by Smith, on the ground that plaintiff had wholly failed to comply with • said conditions, in that no notice was given as provided in said condition until January 14, 1914, although the accident took place on July 18, 1913.

The record shows that plaintiff’s truck was being operated by a driver who had no knowledge of any bodily injury to either of the occupants of the other automobile, and understood that the extent of the damages caused by the collision was the property damage to the other automobile consisting of a broken lamp and windshield, and the driver made such a report. The first knowledge had 'by plaintiff of any bodily injury caused by the accident was brought to it by a letter from Smith’s attorney dated December 3, 1913, on receipt of which Mr. Fischer called upon the attorney, and went from his office to the office of the Heister & Huntington Company, the agent for the insurance company, and reported same, and secured from said agent a blank form on which a report was then made to the insurance company.

On December 6, 1913, the attorneys of defendant advised plaintiff of the receipt of this report and stated:

“* $ * This n0£ jn eonipiiance with the policy of insurance, which required an immediate report upon any accident that may happen, and for this reason we hereby notify you that the General Accident F. & L. Assurance Corporation, Ltd., denies liability for this accident, and declines to make any investigation of the alleged accident, or to defend you in the event an action is brought against you growing out of the injuries to Mr. Smith.”

Upon suit being filed by Mr. Smith summons was sent to the agents of the insurance company in compliance with the terms of the policy.

The real question in this case is whether the assured must, under clause C above quoted, give notice of every “accident” that may occur in the use of the automobile insured, or only of such accidents as occasion bodily injuries.

The policy of insurance has nothing to do with injuries to property, but is only concerned with bodily injuries to the person. In this case it appears that Mr. Smith at the time of the occurrence immediately left the scene of the accident without in any way having communicated to plaintiff’s driver the fact that he had been injured, and it was not apparent to such driver that any bodiiy injury had been inflicted. It appears that Smith’s injury did not develop to be anything but a trifle .until some time after the collision, when it was discovered that a piece of glass from the broken lamp or wind-shield had worked its way into his knee and afterwards occasioned a serious injury.

In the opinion of the court this ease is ruled by- the principles laid down in Chapin v. Ocean Accident & Guarantee Corporation, 96 Neb., 213, the third syllabus of which is as follows:

“In a case where no bodily injury is apparent at the time of the accidental occurrence, and there is no reasonable ground for believing that a claim for damages against the owner of the automobile may arise therefrom, he is not required to give the assurer notice until the subsequent facts as to injury would suggest to a person of ordinary and reasonable prudence that a liability to the injured person might arise. In such case the ¡¡^ duty of the assured is performed if he gives notice within a rea- ' ^sonable time after the injury presents an aspect suggestive of a possible claim for damages.”

To the same effect are: Lucas v. Amsterdam Casualty Co., 162 N. Y. Supp., 191; Schambelan v. Pref. Acc’d Ins. Co., 62 Pa. Superior Court, 445.

It could well be claimed that if plaintiff’s driver had known of even a slight injury to Smith, the stipulation of the policy would require notice of such injury even though plaintiff might deem it unnecessary. Such is the rule laid down in Travelers Ins. Co. v. Meyers, 62 O. S., 529.

No doubt it is proper to submit to the jury the questions of fact whether the circumstances of the accident were such as would have made it apparent to the plaintiff that bodily injuries might result from the accident, and whether the terms of the policy as to notice had been complied with. Crane v. Standard Ins. Co., 4 N. P., 309 (affd. 59 O. S., 617). In this view of the law the trial court erred in refusing to give the two following special charges requested by plaintiff before argument to the jury:

“The provision in the policy sued upon, that the assured upon the occurrence of an accident shall give immediate written notice, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent, does not require a notice of all- accidents, but only such accidents as result in bodily injuries.
“If you find that neither the plaintiff nor the driver of its truck prior to the receipt of the letter from Carl Rankin, on December 4, 1913, knew or had reasonable grounds to believe that Mr. 'Smith received a bodily injury in the collision on July 18, 1913, and that within a reasonable time thereafter communicated said written notice to the ITeister Huntington Company, then I charge you that the giving of that notice was a compliance with the provision of the policy requiring the insured to give immediate written notice of the accident.”

And the court erred in its general charge in the use of language from which the jury might infer that a notice was necessary to be given the defendant company under the policy on the occurrence of any accident whatever, even though bodily injury did not result therefrom.

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

Gorman, J., and Hamilton, J., concur.


author: Farr, J. (orally).

text:
    AUTHORITY OF TRIAL JUDGE TO SUSPEND SENTENCE.
    Court of Appeals for Mahoning County.
    Frederic D. Antonio v. T. E. Milliken, as Sheriff.
    Decided, March 12, 1918.

      Courts — Right to Stispend Sentence in Certain Criminal Cases — In Whole or in Part During Term.

    In misdemeanor cases the trial court has power under favor of Section 13711, General Code, to suspend, in whole or in part, the execution of a sentence, at any time during the term at which sentence was passed, even though the defendant had entered upon the imprisonment ordered by the sentence.

      John Buffalo, for plaintiff in error.

      J. P. Iluxley, Prosecuting Attorney, and II. II. Hull, Assistant Prosecuting Attorney, contra.
   Farr, J. (orally).

Error to the Court of Common Pleas of Mahoning County.

In February of A. D. 1918, one Antonio was charged in the municipal court of the city of Youngstown, this county, under Section 12428, General Code, with torture. He was found guilty and sentenced by the judge of said court, to pay a fine of twenty-five dollars and the costs of prosecution, and to be imprisoned in the jail of Mahoning county for a period of thirty days, and until his fine and costs were paid.

Antonio was committed to the county jail on the thirteenth day of February, A. D. 1918, and a little later paid said fine of twenty-five dollars and costs of prosecution, whereupon the judge of the municipal court suspended said sentence as to further punishment and issued an order for his release from said jail, which order the sheriff of said county declined to honor or to release plaintiff in error.

An application or petition was filed in the court of common pleas of this county for a writ of habeas corpus. The writ was allowed and duly served. In obedience to the same Antonio was produced in court and upon the hearing the court held that the judge of the municipal court, having sentenced and committed Antonio to the county jail, and the sheriff having taken charge of him under such sentence, that the court had lost jurisdiction and could not, therefore, suspend or modify the same. ' j|; ]

There are two sections of the General Code which relate to suspension of sentence. The first is Section 13706, which provides that certain prisoners may be put upon probation. This is the general section which applies in case of first offenders. The next section, and the one involved here, is 13711, General Code, and provides in part:

“When the sentence of the court or magistrate is that the defendant is imprisoned in a workhouse, jail or other institution, except the penitentiary or reformatory, or that the defendant be fined and committed until such fine he paid, the court or magistrate may suspend the execution of said sentence and place the defendant on probation, and in charge of a probation officer named in such order, in the following manner:”

And then follow paragraphs one and two, which relate to the manner in which a defendant is placed on probation.

As above stated, upon payment of fine and costs by Antonio and two days after he had been committed to the county jail, the judge of the municipal court issued an order directed to the sheriff, which order reads as follows:

“Please release Frederic Antonio sent from this court on the 13th day of February, 1918, on charge of torture, to serve out $25.00 fine and $4.00 costs and thirty days.
“This release is made and given after good cause shown to the court that the said Frederick D. Antonio should have his sentence suspended, as provided for ■ in Section 13711, of the General Code, and for the further reason that the court is of the opinion that the said Frederic D. Antonio should be placed upon probation for this crime.
“Witness my hand this 15th day of February, 1918.
“George H. Gbssner,
“Judge of the Municipal Court of Youngstown, Ohio.”

It was this order for release that the sheriff declined to honor or recognize, upon the theory that the municipal court had lost jurisdiction of the defendant, and also that the making of such order was the exercise of the pardoning power. It is plainly indicated in this order that it was given under said Stection 13711, General Code, so that the only question to be determined here is whether or not the judge of the municipal court had such control over the, judgment, as he sought to exercise by the order.

The statute' provides that the municipal court of the city of Youngstown shall have four terms of court each year, beginning on the first day of January and continuing for a period of three months each, so that it is clearly disclosed that the charge, sentence, commitment and the order for release, were all made during the first term of said municipal court in this year A. D. 1918; therefore there is no question but that the court sought to modify or suspend the sentence during the term at which the judgment was entered.

A case somewhat in point and of some value Jiere is Lee v. State of Ohio, 32 O. S., 113. This is a case where a-party was convicted of a misdemeanor and sentenced to pay a fine of ten dollars and the costs of prosecution, but the sentence was not put into execution. Later the party was taken into court on a subsequent, charge, and the question arose as to .the right of the court to revise the former sentence which had not yet gone into execution, and upon review it was held as follows in the first paragraph of the syllabus:

“Where a court, in passing a sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in the furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has -been had upon it, revise and increase or diminish such sentence within the limits authorized by law. ’ ’ > .

It is urged by the state that this case is scarcely in point for the reason that the sentence had not gone into execution. However, that seems not to have been known by the court which imposed the sentence, as it is disclosed by the facts that the court was not aware that its sentence had not been put into execution, and the court assumed the right to and did alter -or change its former judgment upon the theory that it had originally acted under a misapprehension of the facts.

Johnson, J., in speaking for the court at page 114, observes as follows, and quotes from Lord Coke (Co. Litt. 260a), and it is well known this is a leading authority upon this question, somewhat ancient, indeed, but well in point here:

“It is said by Lord Coke that during the term wherein any judicial act is done, the record remaineth in the breasts of the judges of the court, and in their remembrance, and therefore the roll is alterable during that term, as the judges shall direct; but when that term is past, then the record is in the roll, and admitteth of no alteration, averment or proof ~f the contrary.”

The foregoing is authority for the view that the court,-because the term had not yet passed, had control over its own orders and judgments, and it was held in said case that the court had. a right not only to modify but to extend the sentence, and declare that the defendant, instead of paying a fine of ten dollars, should pay one of thirty dollars and costs. Bearing upon the question involved in the foregoing, is the case of Tracy et al v. State, 8 C.C.(N.S.), 357, 358; 28 C. D., 454.

Another case of some interest in this connection is Ammon v. Johnson, Gdn., 2 C. D., 149; 3 C. C., 272. This, too, was an application for a writ of habeas corpus. In the eighth paragraph of the syllabus it is held that:

“Where the court has imposed a fine upon the witness refusing to answer, and ordered her to be imprisoned until she answers and pays the fine, it is within the power of the court during the same term of court, and while the action in which she refused to answer is still pending, and after her imprisonment is commenced, to remit the fine and that part of the sentence of imprisonment relating to it.”

It is observed by Baldwin, J., 2 C. D., at page 154, 3 C. C., 272, in which the ease of Lee v. State is cited with approval in support of the view that a court has control of its judgments during the term, that such right exists as well in criminal as in civil eases, as follows:

“In none of the cases cited in Lee v. State, is any reason given why there should be any difference in the extent of power of the court during the same term over a civil case or one criminal or g-Msi-criminal. ’ ’

However, the case of Webber v. State, 58 O. S., 616, is practically decisive of the issue here. It is held as follows:

“In a criminal case the court has the power to suspend the execution of the sentence, in whole or in part, unless otherwise provided by statute; and has power to set aside such suspension at any time during the term of court at which sentence was passed. Whether such suspension can be set aside at a subsequent term is not decided.”

In accord with the foregoing case of Lee, Ex parte, 3 N.P.(N.S.), 531; 16 O. D., 259.

A ease well in point is Bassett v. United States, 9 Wallace, 38, in which error was prosecuted to the judgment of the Circuit Court of the Northern District of Ohio, and the fourth paragraph of the syllabus reads as follows:

“It is competent for a court, for good cause, to set aside, at the same term at which it was rendered, a.judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence.”

In the foregoing, the defendant was charged with a misdemeanor, so that it is especially in point with the ease at bar. Another, is Ex Parte Lange, 18 Wallace, 163, involving the same question at issue here, and it cites the above case of Bassett v. United States in 9 Wallace, 38. In the second paragraph of the syllabus it is held:

“The general principle as asserted as applicable to both civil and criminal cases, that the judgments, orders and decrees of the courts of this country are under their control during the term at which they are made; so that they may be set aside or modified as law and justice may require.”

The reason for the foregoing is obvious; the court passing sentence and entering judgment as in the instant case, should have the power, within a reasonable time, to so alter the same as to meet the demands of justice; if for any reason, either by mistake or fraud, the court, in passing sentence, acted under a misapprehension of the facts, then the opportunity to exercise sound judicial discretion has been denied and by every principle of right should be exercised by way of revision of sentence to secure the furtherance of justice and the due administration of the law. It was urged that this is a dangerous power; if so, the same may be said'of all judicial discretion, and which, if shorn of the right to modify or suspend a judgment within a reasonable time limit, would be much more dangerous. The “time limit” has been held to be the term at which judgment is entered and this for the cnief reason, that after term time a record is presumed to h|av«. been made of all orders and judgments of the preceding term; that such record is complete, and the term having been adjourned formally or by operation of law, the record imports absolute verity, and is unalterable except as specifically provided by law. The power to revise judgments in such cases during term, as under discussion here, and to correct errors and mistakes, is for The protection of the defendant and the public alike; the principles which support it rest in reason and it comes easily within the spirit of the statute under discussion here.

It will be observed that the judge of the municipal court in issuing said order, states in it “for good cause shown.” It was a modification óf the original sentence or a suspension of a part of the same, and not the exercise of the pardoning power as urged in argument, because the defendant had complied with a part of the terms of said sentence.

Therefore, for the reasons above given and upon the theory that a court has control over its judgments and orders during the term at which they are made, the judge of the municipal court had a right in the ease at bar to direct the release of the prisoner.

The judgment is therefore reversed, and the defendant discharged.

Pollock, J., and Metcalfe, J., concur.