text:
    INJURIES CAUSING A MISCARRIAGE.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Irene Holliday.
    Decided, December, 1909.

      Negligence — Resulting in Injuries and Miscarriage — Competency of Evidence.

    In an action for damages resulting in injuries alleged to have resulted in a miscarriage, evidence relating to the miscarriage in order to he made competent must connect the miscarriage with the accident.

      Smith Hickenlooper, for plaintiff in error.

      Darby & Benedict, contra.
    The plaintiff below was awarded $300 damages on account of injuries sustained by her in being thrown to the ground by the premature starting of a summer car, from which she was attempting to alight. She alleged that she sustained a miscarriage in consequence of her injuries.
    Smith, J.; Hipeen, P. J., and Swing, J., concur.
   While the evidence as disclosed by the record in the above case is quite conflicting we can not say that the verdict and judgment if the court is not sustained by the weight thereof, nor do. we think that the verdict of the jury is a compromise. There is nothing in the record to indicate this except the question asked by a juror, and the court distinctly told him that anything of this bind would not be allowed to go them and that the question was entirely immaterial.

We see no error in the court admitting evidence as to the question of miscarriage, as he stated he would not permit it to go to the jury unless it was connected up with the accident, and we think this is sufficiently done, as the doctor testifies that, the first miscarriage would more than likely have some effect, on plaintiff in error, having the second miscarriage, and that the-second "miscarriage can be attributéd to the first one so far as the. accident caused the first and thus was created the "habit or tendency to miscarry again. There was no error in the court overruling the motion to make the petition more definite and certain in regard to the nature and extent of the serious internal injuries of a permanent nature alleged in the petition.

We find no error in the general charge of the court and believe that the case, as submitted thereon and the special charge asked by defendant in error was properly decided by the jury.

.Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SALE OF PLEDGED CHATTELS.
    Circuit Court of Hamilton County.
    Frank F. Hellman v. Province M. Pogue et al.
    Decided, June, 1909.

      Notice of Sale of Pledged Chattels — Contract of Pledge Not Terminated When Notice of Sale is Inadequate — Right of Surety to Subrogation to Rights of Pledgee — Section 12194, providing when a judgment may be Revived by a Surety.

      J. M. Dawson, for plaintiff;.

      C. B. Matthews and Pogue & Pogue, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   A sale of pledged chattels by the pledgee upon notice given only to such persons as he deems liable to be interested in the property and at his private office is not a public sale; and, in the absence of express agreement, if the property be bid off by bim the contract of pledge is not thereby terminated, nor the relations of the parties changed. Bank v. Richardson, 156 Mo., 281; Glidden v. Bank, 53 O. S., 588.

A certificate by the pledgor of such sale subsequent' to' the payment by a surety of two of the judgments secured by the .pledge does not defeat the right of the surety to be subrogated to the fights of the judgment creditor or pledgee in the property pledged. Sec. 5386, R. S.; Hill v. King, Executor, 48 O. S., 75.

Decree for plaintiff.


author: Parker, J., Wildman, J.,

text:
    LIABILITY FOR ASSAULT UPON A RAILWAY TRESPASSER.
    Circuit Court of Huron County.
    New York, Chicago & St. Louis Railway v. Henry Fiebach.
    Decided, April 19, 1910.

      Assault — Liability for, Where the Assailant was Acting in a Dual Capacity — Railway Policeman May Also Act as Agent for the Company, and Company Become Liable for Assault Committed by Sim While Acting as Agent — Driving People From Railway Yard Not the Duty of a Policeman — Evidence as to Intention — Witness Will Not be Permitted to Testify to the Purpose Which Controlled Sim, When.

    1. A detective employed by a railway company, wbo has. been duly commissioned as a policeman by the governor, may act as the agent of the company for some purposes and not within the scope of his authority as a policeman, and the company is liable for his acts as such agent, but is not liable for acts done within the scope of his authority as a policeman.
    2. When an employe of a railway company, who is duly commissioned as a policeman by the governor, drives people from the company’s yards who are not committing or threatening to commit crime, and has done so for a long period with the knowledge of the company, he does so as the agent of the company and not as a policeman, and the company is liable for his acts as such agent.

    3. It is not error for a court to exclude the testimony of an employe of a railroad company, who acted at times as a duly commissioned policeman and at other times as the agent of the company, as to whether in doing a certain act he intended to act as a policeman or as the agent of the railroad company.

      C. P. (& B. D. Wickham, for plaintiff in error.

      Jesse Vickery, contra.
    Kinkade, J.; Parker, J., concurs; Wildman, J., dissents.
    Error to Huron County Common Pleas Court.

       Judge Wildman dissents from the second paragraph of the syllabus,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Parker, J.,

concurring.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wildman, J.,

dissenting.

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

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

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

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

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

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

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

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

General Code, 12522 (Revised Statutes, 6880e) provides a penalty for trespassing upon lands of another:

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

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

We have another statute, General Code, 12543 (Revised Statutes, 6982), which reads as follows:

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

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

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

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

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

Tolchester Beach Imp. Co. v. Steinmeier, 72 Md., 318, is a ease partly in point:

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

In Jardine v. Cornell, 50 N. J. L., 485, 486:

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

In Brill v. Eddy, 115 Mo., 596, 605:

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

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

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

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

I do not agree with one of my associates that this was one continuous fracas from beginning to end. I think that according to all the testimony, not only that of Beatty, but that of Fiebach and the by-standers, there was a cessation of hostilities in which the parties separated and after which it was resumed in such manner that there can be no possible claim that as to subsequent transactions the witness Beatty was acting as the agent of the company. However, it is possible that the court sufficiently, in one of the instructions given, guarded the jury from blending all the elements of damage arising from the transaction before the renewal of the fracas with -those which arose afterwards. The most serious injury was done to plaintiff after the fight was re-mewed by the plaintiff himself.

I am not prepared to say that the court erred in not sufficiently separateing the transactions in this regard, or that the damages, if permissible at all, were so excessive as to show passion or prejudice on the part of the jury.

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


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    JUDICIAL NOTICE OF THE RESULT OF A LOCAL OPTION ELECTION.
    Circuit Court of Columbiana County.
    Emma Geisse v. The State of Ohio.
    Decided, November 5, 1910.

      Liquor Laws — Prosecution for Selling Intoxicating Liquor in Dry Terri- ° tory — Failure to Prove the Toting of the Territory Dry — Of What Facts a Court May Take Judicial Notice.

    An election which, resulted in voting a county “dry” under the Rose local option law is a matter of such common notoriety that a judge, before whom one is afterward brought for trial on the charge of violating the law thus rendered operative in the county, may take judicial notice of the holding of the election and its result; and in such a case a conviction will not be set aside for failure to specifically prove the holding of the election and its result.
    W. F. Lones, for plaintiff in error.

      W. A. O’Grady, contra.
    Fillius, J. (orally); Laubie, J., and Metcalfe, J., concur.
   This case is here upon a petition in error to reverse the judgment of the mayor of the city of Wellsville finding and adjudging Emma Geisse guilty of the charge there preferred against her of selling intoxicating liquors contrary to the local option law. Upon that trial a bill of exceptions was taken setting forth all the evidence, and error was thereupon prosecuted to the court of common. pleas where the judgment of conviction was affirmed, and this proceeding in error is to reverse both judgments.

The main contention of counsel for plaintiff in error is that there is no evidence in this' record warranting the conviction of Emma Geisse, and specifically that there is no evidence in this record that Columbiana county had been voted “dry,” and inasmuch as the charge against her was for violating the “dry” statute she can not be convicted. We have read this record through with great care from beginning to end, with a view to ascertaining whether there is any testimony tending to show that Columbiana county had voted “dry” prior to the commission of the offense and so given validity to the local option law within its boundaries.

There are some fragments of testimony in the case that would point towards Wellsville being a “dry” town, but nothing seems to point towards the county being a “dry” county. Under our statutes, a town may vote itself dry and the county outside of it remain “wet.” These fragments of testimony occuring in the record referring to the town as being “dry” may as well be ref erred, to-the town of Wellsville being “dry” as to the fact that the county is “dry.” So we find ourselves unable to say that there is evidence in the record showing that Columbiana county voted ‘‘dry. ’’

This necessarily leads to a reversal of these judgments, unless the contention of counsel for the state be correct, that the trial court may have taken judicial notice of the fact that Columbiana county was a “dry” county, and that for the purpose of sustaining this conviction this court will take judicial notice of what the trial court might have taken notice of and so sustain this conviction.

This contention leads to a discussion of that proposition. Now, of course, whatever courts may take judicial notice of needs no proof. The statute of the state especially so provides, and beyond that it has so been repeatedly held by courts of last resort everywhere. Early in Ohio, in the ease of Brown v. State, 11 Ohio Report, page 276, the Supreme Court of the state held that the court would take judicial notice of general, local and special acts.

‘‘ The doctrine of judicial notice is that there are certain facts of which the court will not require evidence, because they are so well known, so easily ascertainable, or so related to the official character of -the court, that it would not be good sense to do so.” McKelvey on Evidence, page 18.

Within the doctrine of judicial notice thus stated, it seems to us the trial court may have taken judicial notice of the election and .its result. The facts leading to the election, the campaign preliminary to the election itself, were in their very nature well known to every citizen and every inhabitant of Columbiana county. It is not unreasonable to say that perhaps no fact of any kind was better known by all the people, old and young,, male and female, ignorant and educated, than the fact 'that an election had taken place in Columbiana county upon the question whether the sale of intoxicating liquors should be prohibited or continued in this county. Nor was the result of that election less well known to every person within the county. Those ivho were in favor of voting the county “dry,” Avho supported that side and worked for it, and those who voted against it and labored to bring about its defeat, constituted practically the entire community. If the county voted “dry” as this county did, then followed immediately important consequences. A large number of places that were occupied as places for carrying on the traffic became closed. The public revenues became diminished by the amount of income that was cut off from this source of tax. The various towns and communities in the county immediately recognized a complete change in the condition of things in the places of business, so that the fact that an election of that sort Avas held and the fact resulting in consequence of the election were facts so well known and so easily ascertainable that there would seem to be no doubt but that they belong to a class of facts coming within the rule above stated.

It is to be understood that within the class of facts that courts will take judicial notice of there is a 'certain class that a court is bound to take judicial notice of, and a certain other class of facts of which it may, in its discretion, take notice.

Without stopping now to inquire Avhich class the question before us falls Ave content ourselves Avith discussing the question Avhether the case falls Avithin the class'of facts of which the court may at its discretion take notice of.

The rule relating to the class of facts of which the court may, at its discretion, take notice is thus stated:

“The range of facts of -which the courts may, in their discretion, take judicial notice, is very extensive; but underlying it is the single principle of common notoriety, as distinguished from universal recognition.” McKelvey on Evidence, page 33,

It is sometimes said that courts may require proof of the very facts concerning which they may take judicial notice. This is said not to be a correct statement. The court can not require proof; but it may inform itself, or may require counsel, in their capacity as officers of the court, to assist it in obtaining the requisite information from the .proper sources. McKelvey on Evidence, page 36.

Applying that doctrine to this case, if the court wished to doubly satisfy itself respecting the fact established bjr common notoriety, it could advise itself or ask counsel to advise it whether the public record of the results of the election required to be made to the clerk .of court of the county had been made, and what it showed. Indeed, it would seem as though this ought to be the proper course to pursue, in view of the fact that if proofs were required to be made and if made by the production of the certificate, it could have no effect in the case beyond informing the court, as will be hereinafter shown.

Clearly, within the rule last above stated, it seems to us that both the fact of the election and the result of it were facts of common notoriety, established by such public acts, that the court would be entirely justified in taking judicial notice thereof.

We are aware that there is much contrariety of view upon this subject, but within the rule stated and upon the better reason, we are compelled to the conclusion that the court should take judicial notice.

In discussing the rule last above referred to, the author says:

‘ ‘ The court is intelligent. It is cognizant of what is notorious in the community, and it will not always shut its eyes to such notoriety, when it becomes material in the trial of a case. While common notoriety is not sufficient to place a fact in the category of things of which notice must be taken, the cases show that courts have frequently considered themselves justified by reason of it, in dispensing with proof.” McKelvey on Evidence, page 33.

And, the author speaking directly to this subject and with reference to the contrariety of view existing, says:

“The limits which the courts have laid down to the application of this principle are not always consistent, and an attempt to reconcile the many decisions would prove as impracticable as useless. Judicial notice is not a substitute for proof, nor a means to strengthen a weak case. There are doubtless instances of its too extensive as well as too narrow application, but in the main the decisions may be said to follow^ the lines above laid down.” McKelvey on Evidence, page 36.

In the case of Urmston et al v. The State, ex rel Kuehn, the Supreme Court of Indiana said that the court knew judicially that a township election was held on the second Tuesday in October, 1875, at which a successor to a constable ought to have been elected and the court presumed that he was elected. 73 Ind., page 175.

Now, what is the situation here ? Here is a state law that became effective in Columbiana county only when the county voted to make its provisions operative within its boundaries. It then became a criminal statute of the state providing pains and penalties against anybody who may violate its provisions. In this case upon an affidavit charging Emma G-eisse with violating its provisions a warrant was properly issued for her arrest, and she was put on trial for violating this criminal law of the state become effective in' Columbiana county by the will of its electors. And it is said that before she can be convicted by the state, the state must, upon her trial, make proof that the law is in force within the county, because it does not, by .its terms, become a criminal statute as to Columbiana county affecting the sale of intoxicating liquors until adopted, so to speak, by a majority of the electors of the county voting that it shall so apply.

It is conceded that when Columbiana county voted “dry” ipso facto, the provisions of the Rose local option law became operative within the county and thereby the traffic in intoxicating liquors within it vms prohibited, and that every person within the county became thereby bound by its provisions and subject to its pains and penalties upon their violation, whether he participated in the election, or whether he knew or had notice of it, or whether he knew or had notice of the result of that election.

In view of this effect upon a .person within the county, why does it become necessary to make formal proof of the election and its result? and when made, what is its effect? It is obvious that the proof is not made for the purpose of bringing home to the person charged with the violation of the law either knowledge of the election or its result, for as already observed, he is bound to know what the law of the county in this respect is, however that law becomes effective within the county. It is also, obvious that the proof when made, if it be a certified copy from the county clerk of the result of the election, can not be contradicted by the .person charged. He will not even be permitted to contradict it. It is also obvious that the .proof when so made is absolutely conclusive upon the jury. Indeed it would seem that while the election becomes necessary to make the lew effective within the county, it becomes thereby part of the law itself providing when it becomes effective, and is binding upon every person irrespective of notice or knowledge of the election.

If these observations be correct, why make formal proof at all ? The person charged is conclusively presumed to know the law is effective within the county, and what the person charged is conclusively presumed to know in this respect may not the trial court properly take judicial notice of. It seems to us to be quite within established rule for the court to take judicial notice of the existence of the criminal statute with which the prisoner is charged with violating, and which he is conclusively presumed to know is in force.

The Rose local option law requires that the result of the election shall be certified to the clerk of the court of common pleas and spread upon the records of the court where everybody may learn about'it, if they choose. It thus becomes a public record. Of this record the court may take notice, and from it he, too, may advise himself if he chooses to do so. And inasmuch as the only possible effect which the proof tendered upon trial of the election and its result could have in the case would be to advise the court of it and thereby enable him upon that proof to direct the jury accordingly, what principle of law or public policy or reasonable limitation applied to what a court may property take judicial notice of is violated, if the court assumes to take and does take judicial notice of the fact that this law .is in operation within this county? The conclusion that we have arrived at is that it was the duty of the trial court to take, as he evidently in this case did take, judicial notice of the fact that this law was in operation within this county, and that what he properly took judicial notice of this court in reviewing this judgment may likewise take judicial notice of. Indeed, the mayor of Wellsvilie would properly take judicial notice of a passage of an ordinance by the municipality and that it was in force and effect within the municipality by its proper legal advertisement. If this be so, why should he not as well take notice of the fact that there had been a public election within the county and of its result when carried forward as such elections are, whereby a statute is made operative within a county? Surely if whether the court •may take judicial notice of a fact depends upon the public character, public approval and public authentication of that fact, then it would seem that no fact of which a court may take judicial notice could be better verified or authenticated or more generally known, than the fact and result of such an election.

Now, we are not without authority upon this matter, and in a very well reasoned case where the statute is as near like ours as two statutes in two states so widely different and so widely separated as Georgia and Ohio, might likely be, the Supreme Court of Georgia held that the court should take judicial notice of the fact that the statute had become operative within a county as a result of an election held for that purpose.

In the Georgia statute the act provided that:

“If a majority of the local votes of the county shall be for prohibition, the clerk of the superior court of the county shall file a copy of the notice issued by him, with his certificates showing the date of the publication thereof, in his office, which notice and certificate shall be entered on the minutes of the superior court of said county and the record or a certified copy thereof shall be competent evidence to show when this act went into effect. ’ ’

The question was directly before the court, whether or not the court would take judicial notice of the election. The judge giving the opinion just preceding what I am about to read refers to the fact that the court would take judicial notice of a local statute, and he proceeds: “But it is argued that, while this may be true the act itself may be recognized without proof.”

‘ ‘ This act provides that the managers of the election shall consolidate the votes of the different precincts in the county, and make a return to the clerk of the superior court, and that the clerk shall announce the result by publishing the same in a newspaper, and that the act shall take effect on the day of the publication of the result by the clerk. It provides, further, that this notice shall be entered on the minutes of the superior court, and it shall be competent evidence to show when the act took effect. ‘Courts are created to administer and enforce the law. Therefore they do -and must take judicial cognizance of all laws. Whether the law was in existence is for them to say, just as fully as .it rests with them whether the indictment is good or bad, or that the evidence to prove the offense alleged is legally admissible, or otherwise.' To the courts alone belong the right of saying whether a statute is in force or not. The law itself having provided that the result of the election should be placed upon the minutes of the superior court, .and that that entry should be competent .evidence -to show when the act went into effect, and the judge below having these minutes before him, there was no error in his reading from said minutes, and instructing the jury, as matter of law, as to when the act went into effect. It is the duty of the judge to know the law, and especially to know the law 'in his own circuit. If he should be ignorant of the local law enacted by the Legislature for any county in his circuit, or a.ny county where he may preside, it would be his duty to inform himself of what the law is. If the act of the Legislature does not inform him as to when it went info effect, then he can look to the means provided by this act to inform himself. If the act provides that the clerk so announces the result of the election, and place it on the minutes of the court, he may look to that. If the act provides, as many of them do, that the return should be made to the ordinary of the county, and he should issue his proclamation declaring the result, then he may look to the proclamation, or have it introduced, if necessary, in evidence before him, but not before the jury. The proclamation of the clerk or ordinary is conclusive that the law has been accepted by the people, and has become effectual as a law. It being conclusive for this purpose, there would be no use or propriety in submitting the matter to a jury, because the defendant would not be allowed to controvert it, and it would be useless to submit any evidence in a criminal case to the jury which the defendant would not be allowed to controvert. ’’ Combs v. State, 8 S. E., 318 (81 Ga., 780); Oglesby v. State, 121 Ga., 602.

It seems to us this is the correct view to be taken of this question, and while courts in some other states hold otherwise, still we think the better reason is in favor of holding that the eonrt will take judicial notice of a question of this character.

We are not unmindful that the Rose local option law provides what shall be prima facie evidence of the results of such an election, but we are of opinion that that provision does not prevent the court taking judicial notice of the result of the election, if otherwise it may properly do so.

Accordingly the judgment is affirmed.


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    EFFECT OF APPEARANCE OF CO-DEFENDANTS.
    Circuit Court of Hamilton County.
    Louisa C. Wilson v. Louisa C. Wilson, Executrix, et al.
    Decided, October 15, 1910.

      Appearance — Of Go-Defendants in an Error Proceeding — Lack of Unity of Interest Shown, When.

    Appearance under a petition in error is not effected by the voluntary appearance of co-defendants, where a lack of unity of interest is shown by the hostility of the co-defendants in requiring the defendant not served to defend against them as well as against the plaintiff in error.

      Stanley Matthews and E. H. Matthews, for motion.

      1. L. Huddle, contra.
    Giffen, J.; Smith, J., and Swing, J., concur.
   The exceptions filed by Charlotte M. Bonnell in the probate court to the account of Louisa C. Wilson, executrix, were by that court overruled and upon appeal to the court of common pleas were in part sustained and in part overruled. To that part of the judgment sustaining the exception to the payment of $1,-649.11 to Louisa C. Wilson, error is prosecuted by her.

Charlotte M. Bonnell filed a motion in this court to strike the petition in error from the files upon the ground that no summons has been issued for her and no appearance entered, although more than four months have elapsed since the judgment was rendered.

It is claimed that her appearance was effected by the voluntary appearance of her co-defendants, Robert K. Wilson and Julia Irwin, because united in interest with her.

Under the will of their father they were in law originally united as legatees; but this did not prevent them from.afterwards severing their joint interest by one .or more of them conveying their respective interests to their mother, the executrix.

There is nothing in the record directly showing any such disposition of the interest of Robert K. Wilson and Julia R. Irwin, but their hostility toward their co-defendant, Charlotte M. Bonnell, is distinctly shown where they appear in the case while pending in the c.ourt of common pleas for the sole purpose of excepting, and do except to the decision of the court in favor of Charlotte M. Bonnell and against the executrix. In the absence of any pleading showing the relation of the parties to the subject-matter of the suit this hostile act shows not only a .want of unity in interest, but that Charlotte M. Bonnell will be required to defend the judgment of the common pleas court against her co-defendants as well as the plaintiff in error. They can not therefore be united in interest within the meaning of Section 4987, Revised Statutes, whereby the appearance of one effects the appearance of all. The motion to strike the petition in error from the files wall be sustained in so far as it affects the defendant in error, Charlotte M. Bonnell.


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    PROSECUTION FOR. BEING A KNOWN THIEF.
    Circuit Court .of Hamilton County.
    William Coakley v. City of Cincinnati.
    Decided, July 2, 1910.

      Criminal Law — Conduct and Reputation with Reference to a Particular Class of Ojfenses-Put in Issue, When.

    In a prosecution for being a known thief, it is sufficient to charge the defendant with being then and there a known thief without setting forth the facts upon which the charge is based.

      Louis B. Sawyer, for plaintiff in error.

      Chas. H. Urban, for the city.

      Giffen, P. J.; Smith, J., and Swing, J., eoncnr.
   The charge in the affidavit that the defendant “being then and there a known thief” is sufficient without setting forth the facts from which he is known as a thief. His general course of conduct or reputation with respect to being a thief is thereby put in issue.

The evidence of his conviction, inprisonment at St. Louis and subsequent parol by Gov. Polk was hearsay and erroneous; but there could be no prejudice, as it was also shown by his own admission.

The information conveyed by the police department .of St. Louis concerning his general reputation was not hearsay, the rule as stated in Greenl. Ev., Section 101, and quoted in the ease of Upthegrove v. State, 37 O. S., 662, being as follows:

“Upon the same principle it is considered that evidence of general reputation, reputed ownership, public rumor, general notoriety and the like, though composed of the speech of third persons, not under oath, is original evidence and not hearsay.”

We find no prejudicial error in the record, and the judgment will be affirmed.


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    DOW TAX NOT A LIEN UPON PROPERTY OF AN INNOCENT NON-RESIDENT.
    Circuit Court of Ashtabula County.
    William G. Haas v. P. C. Remick, Auditor, and B. E. Thayer, Treasurer of Ashtabula County.

    Decided, September, 1910.

      Taxation — Property of a Non-Resident Not Subject to Lien for Dow Tax —Where Brought Into the State and Used Without Owner’s Knowledge in Furtherance of the Liquor Traffic in “Dry” Territory — Laws at Time and Place of Making a Contract Control — Sections 6011-8-9.

    H, a resident of the state of Pennsylvania was the owner of a boat which he leased to D to be used exclusively on the waters of Erie Bay within said state. D, without the hnowledge or consent of H, brought said boat within the jurisdiction of a county in Ohio which had voted “dry” under the -provisions of 99 O. L., 35, known as the “Rose law” where he used it for the sale of intoxicating liquor.

      Held: Such boat can not be levied upon and sold under the provisions of Section 4364-12, Revised Statutes (General Code, 6077-3-9), to pay the tax assessed against D.

      Allen M. Cox, for plaintiff.

      Fred. R. Hogue and Wayne B. Wheeler, contra.
    Metcalfe, J.; Fillius, J., and Marvin, J. (sitting in place of Laubie, J.), concur.

       For previous opinion in same case, see ante, page 1.

   The plaintiff seeks by injunction to restrain the sale of his property for the payment of Dow tax levied thereon by the defendants. The plaintiff is a resident of Erie, Pennsylvania, and is the owner of a gasoline launch known as the Ah-go-on. In the summer of 1909, .the plaintiff granted to Doering & Huster the right to use his boat on Erie bay, but it does not appear that there was any written lease or other agreement executed between them. There are in evidence two copies of a written lease •in form from Haas to Doering & Huster, but neither of these copies were signed by any of the parties. The -petition alleges that'there was a lease from Haas to Doering & Huster, and it seems to be regarded by counsel in argument as of some importance whether there was or was not a written lease, but in our judgment it is entirely immaterial whether the boat got into Doering’s possession by virtue of a written lease or by verbal permission only. The extent of the power granted by Haas to Doering & Huster was limited to the right to use the boat within the waters of Erie bay, and wholly within the state of Pennsylvania.

After Doering & Huster had been in possession of the boat for some time Doering loaded it with intoxicating liquors and ran it out of Erie bay into the lake two or three miles from Conneaut, Ohio, and proceeded to dispose of his cargo to the thirsty souls of Conneaut and vicinity who were unable to solace themselves on shore. It is conceded that Ashtabula county had voted “dry” under the provisions of the Rose county local option law prior to the visit of the Ah-go-on, and the waters of Lake Erie where Doering was operating are within the jurisdiction of that county.

When knowledge of Doering’s proceedings came to the prosecuting attorney he caused the Dow tax to be placed upon the duplicate of the county, and a levy was made in pursuance of the statute upon the boat, its fixtures and cargo, and the property was advertised for sale. Thereupon the plaintiff brought this action to restrain the sale of the boat alleging his ownership of the property; his residence in the state of Pennsylvania; his contract with Doering & ITuster, permitting them to use the boat in Erie Bay; and that the property was taken out of his possession and out of the state of Pennsylvania against his wishes, and without his knowledge or consent; and that he had no knowledge of the purpose to which the boat was devoted by Doering. And these allegations we find are sustained by the evidence.

The question thus arises, can the collection of the Dow tax assessed against Doering be enforced by a levy upon and sale of the property of-the plaintiff, which had been brought in to'the state of Ohio from .a neighboring state without his knowledge or consent, and devoted to a business made illegal by the laws of Ohio? We must answer this question in the negative. The claim of the right of the defendants to sell this boat regardless of the rights of the plaintiff is founded on language found in Section 4364-12, Revised Statutes (General Code, 6078). Without quoting the entire section which provides the course to be pursued when property has been levied upon for the payment of a Dow tax, the statute reads:

“Nor shall any claim of property by any third -person to such goods and chattels so used in carrying on such business avail against such levy so made by -the treasurer.”

On the one hand it is urged that this section absolutely precludes the owner of property used in an unlawful sale of intoxicating liquors from asserting any claim thereto even though he had no knowledge of such sales or his property be brought from another state without his consent. And on the other hand it is claimed that the quoted portion of Section 4364-12 is unconstitutional in that it deprives an owner of his property arbitrarily, and without due course of law, or that if not unconstitutional it can have no extra territorial application, and can not affect the rights of a citizen of another state where the property is brought within the state of Ohio without the owner’s knowledge or consent.

The simple question here is, where a resident of the state of Pennsylvania gives to another, by contract or otherwise, the right to use his property within the state of Pennsylvania, and the renter without the knowledge of the owner brings the property into the state of Ohio and devotes it to an illegal purpose, can the property itself be taken to discharge a tax or fine imposed upon the wrongdoer who has taken it away? The act of taking the property out of the state of Pennsylvania and bringing it into the state of Ohio was an act of trespass (20 Am. & Eng. Enc. L., 571). It is said that the levy upon this property while an exercise of the taxing power, is also an exercise of the police power of the state, made necessary in dealing with the traffic in intoxicating liquors in consequence of the great evils that flow from that traffic and the difficulty in enforcing the law. We do not question that the dealing with the traffic in intoxicating liquors is a proper subject of the exercise of the police powers of the state, but the exercise of that power must not be unreasonable and oppressive, and it must be viewed in the light of those constitutional provisions which protect and safeguard the rights of the individual citizen, especially if that citizen be innocent of wrongdoing. In any event the police laws of a state have no extra-territorial effect.

If the plaintiff had brought his property voluntarily within the state of Ohio, or had perrmited it to-be brought here, then it would at once become amenable to the police laws of the state, but that is not the case here. The property was brought within the state of Ohio without the owner’s consent. The situs of the property at the time it was- taken from the plaintiff was the state of Pennsylvania. The plaintiff granted the right to Doering to use it within the state of Pennsylvania. Can it be said that when the plaintiff made his contract with Doering that the police laws of the state of Ohio entered into and formed a part of that contract? Certainly not unless that contract was to be performed within the state of Ohio. He was only bound to take notice of the laws of the state where his contract was made and to be performed. A contract is made with reference to the laws of the place where it is to be performed, and those laws enter into and become a part of it. So that the laws of the state of Ohio, which deal with the traffic in intoxicating liquors, enter into every contract which a man makes with reference to his property within the state of Ohio, and this is the basis on which the cases dealing with questions relating to priority of liens or the priority of the tax over the rights of lessors and lienholders rest. In Sampson v. Servise, 2 C. C. Dec., 246, it is said:

“The lien for the assessments and penalties prescribed by the act entitled ‘an act providing against the evils resulting from the traffic in intoxicating liquors’ attach to the real property on and in which the business of such traffic is conducted, by a lessee, although the lease forbids sales on the premises; * * * it is a universally recognized principle that laws which exist at the time of making a contract and in the place where it is made and is' to be performed enter into and make a part of it. ’ ’

In Mullen v. Peck, 49 O. S., 447, the lessor of premises was held for the payment of. damages caused by unlawful sales of intoxicating liquors without her knowledge or consent, where the sale was made contrary to an express stipulation in the lease, but “where the premises on which the liquors were sold were occupied by the seller under a lease from the owner of a life estate therein, the estate in remainder can not be held for the damages caused by such sales. ’ ’ On page 462 the court say:

“We are satisfied it is only her (Mrs. Peck’s) estate in the property that can be subjected to the payment of the plaintiff’s judgment and that the estate in remainder can not be taken * * * nor can with propriety be said that the owners of the estate in remainder permitted the premises to be used for the sale of liquors, for during the continuance of the life estate they had no control over them and their estate in the property could not be made liable by any act of the owner of the estate for life. ’’

In Stick v. State, 71 O. S., 463, the court say:

“The laws in force at the time and place where a contract is made and where it is to be performed which in their nature are applicable, enter into .and become a part of the contract. And the contract as well as subsequent legislation is to be construed with respect to its efficacy as well as its meaning in the light of all such statutes as are applicable.”

So in this case the contract of the plaintiff with Doering which permitted the latter to use his property in the state of Pennsylvania was made with reference to the laws of that state and not Ohio, and the act of Doering in bringing the boat into Ohio was not .anticipated in the contract with Haas nor was it in accordance with its terms; and the unlawful act of a trespasser in bringing the property into Ohio and using it for an allegal purpose would not affect the right of the owner to reclaim it.

We are not going so far in this case .as to say that the clause in Section 4364-12 above quoted is unconstitutional. Such a holding is unnecessary. We simply say that it has no application in this case, that -it can not apply where the property is brought by .a trespasser from another state into this state. While we may sympathize with what has been said by distinguished counsel in this ease about the necessity for drastic measures in enforcing the laws relating to the liquor traffic, yet zeal for the enforcement of righteous laws should not override the rights of the citizen who is innocent of wrongdoing.

Arriving at this conclusion we deem it unnecessary to discuss other questions in the case arising from the former holding of this court on demurrer to the petition. The decree in this case must be entered for the plaintiff.


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    SPECIFIC PERFORMANCE OF A CONTRACT TO CONVEY PROPERTY.
    Circuit Court of Hamilton County.
    St. Xavier College v. Frances F. Briggs et al.
    Decided, December 3, 1910.

      Specific Performance — Description of the Property Involved — Sim-plus Discovered Toy Survey — Notice of Intention to'Exercise Privilege of Purchase — Payment and Delivery of Deed Concurrent,

    1. Under a lease containing a privilege of purchase notice by the lessee of intention to purchase is sufficient to bind the lessor to sell, and in exercising the privilege it will be presumed that payment and delivery of the deed will be concurrent.
    2. No hard and fast rule has obtained .in this state requiring specific performance to be in the very letter of the contract, and where the contract renders it obvious what land it was proposed to convey a pertinent description will be inserted by the court in its decree.

      Denis F. Cash and Worthington & Strong, for St. Xavier College.

      Rufus B. Smith, Chas. A. Groom and Black & Black, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The plaintiff seeks specific performance of a contract to convey certain real estate, under a lease with privilege of purchase executed by the defendants’ testator and delivered to Geo. F. Meyers for the use of plaintiff. Two parcels of land are involved, each being a part of in-lo't No. 72, as known upon the original plan of the town, now city, of Cincinnati, one being the west half .of the west half of the in-lot, and the other being a strip thereof fronting twenty-five feet on Sixth street. The parties supposed at the time the lease was executed and the plaintiff was put in possession, that the two pieces were adjacent, one to the other; but it developed by survey that there was a surplus in the original in-lot, part of which lay between the two parts described in the lease.

When the plaintiff elected to purchase it demanded a deed with a description by metes and bounds, including such surplus, and made a tender -of the purchase money ($30,000) ; but the defendant refused to execute- such deed, and tendered one with the same description as contained in the lease.

The privilege of purchase is as follows:

“Said lessor will on the first day of January, A. D. nineteen hundred and eight (1908), convey the said premises to said lessee his -heirs and assigns by a good and sufficient deed of general warranty with release of dower upon the payment to her by said lessee his heirs or assigns of the sum of thirty thous- and dollars ($30,000), provided said lessee his heirs or assigns gives sixty days notice in writing to said lessee her heirs or assigns of his intention to purchase the fee of said premises for said sum of thirty thousand dollars ($30,000).”

The notice of election to purchase was duly served on the defendants October 12th, 1907.

It is claimed by counsel'for defendants that the service of this notice did not make a contract binding upon the parties, because the payment of the consideration -as well as the notice was a condition precedent; but we think it a strained construction to hold that the lessee was bound to pay the money first, and to rely solely upon the covenant of the lessor to deliver a good and sufficient deed of general warranty. A more reasonable construction is that payment and delivery of deed were to be concurrent. It is further' claimed that the notice of intention io purchase created no obligation to pay the money; but we think it did. It implies a promise to pay just as an express acceptance of an offer would. Were it otherwise there would be no substantial advantage in such notice, as'the lessor could not act upon it except at his own peril -or risk. This notice itself was in effect an acceptance -of the offer to sell. Gilbert v. Port, 28 O. S, 276.

Even though a contract did not thus arise, it was. completed by the tender, on the day appointed, of the consideration money, unless such tender was made upon a condition not warranted by the lease. The only condition attached.was that the plaintiff received a deed with a plain and pertinent description by metes and bounds of the land purchased, and it is now admitted that such deed would convey the same land, less 10¾ inches in -width, that would be conveyed by the deed tendered by the defendants which contained the same description as did the lease. The objection to the latter description is that upon its face the surplus land between the two parcels is not included, and the deed would not convey title to such strip of ground except when aided by external evidence of adverse possession for the statutory period and by judicial construction. It was not the purpose of the plaintiff to acquire any land not intended by the defendants to be conveyed; but the very purpose was to make definite and certain upon the face of the deed the intention of the parties to the lease.

We do not consider this a conditional or equivocal acceptance of the offer, nor a modification of the contract, but enduring evidence of what the contract was as understood by the parties.

When the defendants by their counsel admit that the deed tendered by them would convey all the land embraced in the proposed description of plaintiff they place themselves in the position of insisting on mere form and ignoring substance, and especially so when the effect of their deed is not apparent on its face.

In the case of Maud v. Maud, 33 O. S., 147, it is said in the syllabus:

“The contract, specific performance of which is sought, must so far describe the premises claimed, as that the court may be able to ascertain what they are.”

And at page 148 Wright, J., says:

“Under such a contract if proved, it would be difficult for a court to determine what particular farm or tract of land Wm. Maud claimed or was entitled to, and it would be quite as difficult to determine what metes and bounds could be put in a decree for specific performance.”

It is apparent from this case that no hard and fast rule, requiring specific performance to be in the very letter of the contract, prevails in this state, and that the court in its decree may insert a pertinent description of the land which the contract clearly entitles the plaintiff to have. The land intended to be conveyed being once ascertained the description becomes mere matter of form. The plaintiff may have a decree prayed for without terms other than the payment of the consideration money with, interest.


author: Per Curiam.

text:
    AGREEMENT OF LANDLORD WITH TENANT AS TO REPAIRS.
    Circuit Court of Hamilton County.
    Caroline Mouliet v. Emma M. Anderson.
    Decided, June 1, 1907.

      Landlord and Tenant — Agreement to Repair Premises Does Not Inure for the Benefit of a Servant of the Lessee — Negligence—Proximate Cause.

    The agreement of a property owner with his lessee to repair the premises occupied, does not inure for the benefit of others toward whom the owner sustained no relations growing out of the agreement.

      C. B. Smith and J. B. Schroeder, for plaintiff in error.

      Worthington & Strong, contra.
   Per Curiam.

The action below was to charge defendant as owner of leased premises for injuries received by a servant employed in the family of the lessee in manipulating a cellar door in a sidewalk adjacent to the leased building, upon the theory that the hinges of the cellar door being defective when the lease was made and the owner having promised to repair, the facts created an obligation toward plaintiff.

The court below directed a verdict for the defendant. That an obligation toward the party injured, and that its violation was the proximate cause of the injury must be shown, is well settled. (Railway v. Cox, Admr., 66 O. S., 376.)

But this the testimony failed to show. The premises were leased entire to one Griesling, and were under his sole control. He may have been liable to her as master in not furnishing her a safe place to work, but an owner’s contract to repair, made with a lessee, does not innure to the benefit of others toward whom the owner sustained no relations growing out of the contract. (Burdick v. Cheadle, 26 O. S., 393; Langebaugh v. Anderson, 68 O. S., 130, at 150.)

We find no error in the judgment and proceedings below.

Judgment affirmed.


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    UNLAWFUL SALES OF INTOXICATING LIQUOR.
    Circuit Court of Trumbull County.
    The State of Ohio v. John A. Fuller.
    Decided, October Term, 1910.

      Liquor Laws — Knowledge of Sales Contrary to the Bose Law Not Necessary on the Part of the Proprietor of the Place, When — Section 6108, et seq.

    In a prosecution under Section 2 of the act of March 5, 1908 (99 O. L., 35), for keeping a place where intoxicating liquors are sold contrary to the provisions of said section, it is not necessary to prove actual knowledge on .the part of the keeper of the premises of unlawful sales of liquor made thereon, where such sales were made by one placed by him in charge of the premises.

      G. P. Gillmer and W. G. Baldwin, for plaintiff.

      Warren Thomas, contra.
    Metcalfe, J.; Taggart, J. (of the Fifth Circuit sitting in place of Fillius, J.), and Laubie, J., concur.
   The defendant, John A. Fuller, was charged before a magistrate with the offense of keeping a place for the sale of intoxicating liquors contrary to the provisions of what is commonly known as the “Rose county local option law.” He was convicted before the magistrate. The judgment of the magistrate was reversed by the common pleas court on error and error is prosecuted in this court to that judgment of reversal. The journal entry in the common pleas court does not state the ground upon which the reversal was made, so we assume generally that it was either upon the weight of the evidence or upon the law as applied by that court to the case.

Mr. Fuller was the keeper of the Park Hotel in Warren at the time this charge was made. There is a room in the hotel which was formerly used as the bar room, and at the time the alleged illegal sales were made it was used as a pool room and for the sale of soft drinks, .and was in charge of a man named Goldie. Two detectives testify in the case that they purchased liquor of Goldie upon several different occasions, and that the liquor which they purchased was drank upon the premises by them and others. We think from the exidence that the magistrate was fully warranted in finding that the sales were made by Goldie at the time and place charged, but we are not prepared to say that the evidence shows beyond a reasonable doubt that Mr. Fuller had knowledge of those sales. The conclusion we have reached, however, is that it is immaterial whether or not he had actual knowledge of sales made on the premises by the person placed by him in charge thereof, for we are convinced that it is the intention of the law to charge the keeper of the premises where unlawful sales of liquor are made by a person placed in charge thereof with knowledge of the sale, and to make him responsible therefor.

Section 2 of the “Rose law” contains the following provision:

“From and after thirty days from the date of holding said election it shall be unlawful for any person, personally or by agent, within the limits of such county to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished for beverage purposes; and whoever from and after thirty days aforesaid violates any of the provisions of this act or in any manner directly, or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating liquors as a beverage or keeps a place, structure or vehicle either permanent or transient for such selling, furnishing or giving away, or in which or from which intoxicating liquors are sold, given away or furnished, or otherwise dealt in .as aforesaid, shall be guilty of a misdemeanor. ’ ’

It may be doubted whether the words “personally or by agent” are sufficient to charge the defendant with the responsibility for the acts of Goldie done without the defendant’s knowledge, for the word “agent” in this connection might well refer to one employed for the express purpose of making sales on behalf of his principal. However that may be the subsequent provision "keeps or uses a place, structure or vehicle * * * in which or from which intoxicating liquors are sold” seems to indicate a clear intention on the part of the Legislature to place upon the keeper of the place where intoxicating liquors .are sold a direct responsibility for the acts of his agent in charge of the place when such liquors are sold. See Huffcutt on Agency, page 324, latter part of Section 265.

Mr. Puller was the keeper of the Park Hotel-; he put a man in charge of a room therein, and in that room intoxicating liquors were sold by the person placed in charge of it, and consequently the defendant is liable under the provisions of Section 2. The judgment of the court of common pleas- is reversed and that of the magistrate affirmed.


text:
    CONSEQUENTIAL DAMAGES FROM THE ESCAPE OF WATER FROM MUNICIPAL MAINS.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Anna M. Renner.
    Decided, December 3, 1910.

      Municipal Corporations — Liability of, for Injuries Resulting From Acts Authorised by the Legislature — Water Pipe Breaks in Street — Negligence.

    1. The principle that one who collects and keeps anything likely to do mischief if it escapes, does so at his peril, is not -applicable to a municipality acting under legislative authority and without any showing of negligence.
    2. Where a break in a water pipe in the .street is immediately repaired, the municipality is not answerable to a pedestrian who fell on a sheet of ice which formed on the sidewalk from water which had escaped from the broken pipe.

      Walter M. Schoenle, Assistant City Solicitor, for the city.

      Jas. R. Jordan and Frank M. Coppock, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   This was an .action in the court of common pleas by Anna M. Renner against the city of Cincinnati for damages for an injury to said plaintiff. The gist of the action is thus set forth in the petition:

“That on the 3d day of February, 1905, the defendant had wrongfully permitted the water from one of its pipes of its water works system to run out and over the sidewalk * * * and to become frozen on said said sidewalk so as to make a coating of ice on said sidewalk, and to make said sidewalk dangerous to persons lawfully using the same, and of which dangerous condition of said sidewalk the defendant had due notice * * * and while plaintiff was lawfully passing -along said sidewalk, not knowing its dangerous condition, she slipped upon the ice on said sidewalk.” * * *

There is really no conflict in the evidence. In brief it is as follows: One of the water pipes of the city, in Hamilton avenue, burst, by reason of which the water from said pipes overflowed the immediate sidewalk and became, frozen on said sidewalk, and the pl-aintiff walking on the same slipped and fell and broke her leg.

Within an hour or so after the pipe burst the city had a gang of men repairing the pipe in the street, but took no means to ■remove the water that had flowed onto the sidewalk; nor did the city use -any means to notify persons-using said sidewalk that the same was dangerous. There was no defect in the sidewalk. There was no evidence to show that the city had notice of the ice on the sidewalk and the ice did not form until a few hours before the accident. The jury found that the city shut off the water in a reasonable time and that the break in the water main was not caused by any negligence of the city. The water was caused to flow -on the sidewalk by the bursting of the pipe.

It follows therefore, that if the plaintiff can' recover on the ground of negligence on the part of the city, that it must be from the negligence of the city, if any, in permitting the water to remain on the sidewalk and become frozen. The evidence does not show that the city had actual notice of the icy condition of the -sidewalk, or that it was dangerous to foot travel; nor do we think that under the circumstances of this case that the city was bound to know of its condition. From these conclusions it follows that no recovery can be had against the city on the ground of negligence.

In argument in this court counsel for Mrs. Renner said that they based their ground for recovery on the principles announced in the case of Fletcher v. Rylands, 3 English & Irish App., 330. In refering to this case Bradbury, Judge, at page 539, 54 O. S., quotes with approval from Blackburn, J., the following, as showing the true principle on which that decision rests:

“We think the true rule of law is, that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.”

We are not aware that this principle has been applied to a case of this kind. No decision has been cited to us and we have not been able to find any in which a municipal corporation has been held answerable in damages execept on the ground of negligence.

The Supreme Court of Ohio has quoted with approval the following from Wharton on Negligence, Sec. 869:

“When the Legislature has sanctioned and authorized the use of a particular thing and it is used for the 'purpose for which it was authorized and every precaution has been observed to prevent injury the sanction of the Legislature carries with it this consequence, that if damage results from the use of such thing, independently of negligence, the party using it is not responsible.”

Mr. Wharton quotes the above language from the opinion of Lord Cockburn in the case of Vaughan v. R. R., 5 H. & N., 685. No further authority need be quoted by us to sustain this proposition. If it were not the law we may assume that it would not have been so stated by Mr. Wharton.

The Legislature authorized the city of Cincinnati to construct and maintain water pipes in the streets of the city, and it can only be answerable in damages for their construction and maintenance by reason of some negligent act committed or omitted. No negligence having been shown the court should have directed a verdict for the city at the conclusion of the evidence.

Judgment reversed and judgment for the city.