text:
    TRESPASS — VERDICT.
    [Huron (6th) Circuit Court,
    October 5, 1912.]
    Kinkade and Richards, JJ.
    (Wildman, J., not sitting.)

      Mildred G. Houran v. Charles Whitney, et al.
    Finding on Interrogatory in Malicious Trespass on Real Estate that Defendants were not Guilty of Intentional Wrongdoing or Actual Malice not Inconsistent with General Verdict for Plaintiff, Including Punitive Damages.
    In an action to recover damages for an alleged -wanton and malicious trespass on real estate, in which the jury returns a renoval verdict for the plaintiff, and 'assesses the actual damages and the punitive damages separately, and further states, in answer to an interrogatory submitted, that it does not find the defendants were guilty of intentional wrongdoing or actual malice, the plaintiff is entitled to a judgment for the full amount of the general verdict, as such special finding does not exclude a conclusion that the defendants acted wantonly, or in reck- ■ less disregard of the rights of the plaintiff, and it is not, therefore, irreconcilable with the general verdict.
    [Syllabus by the court.]
    Error to common pleas court.

      G. P. & E. D. Wickham, for plaintiff in error.

      A. V. Andrews, for defendants in error.

       Affirmed, no op., 89 O. S. 000; 59 Bull. 78.

   RICHARDS, J.

In tbe court of common pleas, Mildred G. Houran brought an action against the defendants to recover damages for an alleged wrongful, wanton and malicious trespass committed upon her premises. Issues were made up between the parties and the case tried to a jury, resulting in a general verdict in favor of the plaintiff for $210.

The trial court, at the request of the defendants, submitted to the jury certain special interrogatories to be answered by them in the event they returned a general verdict. The jury in response to the first interrogatory answered that they returned $10 as actual damages caused by the trespass; and in answer to the second interrogatory that they returned the sum of $200 by way of punitive damages.

The fourth interrogatory submitted reads as follows:

“4. Do you find that any of the defendants on the evening of March 16, 1908, were guilty of intentional wrongdoing or actual malice toward the plaintiff,?
Answer: No. ’ ’

After the rendition of the verdict, the case came on to be-heard in the trial court upon the motion of the plaintiff for a judgment in her favor on the general verdict for the sum of $210 and costs, and the motion of the defendants that the court render a judgment on the general verdict, as modified by the special findings and the answers of the jury, in the sum of $10 only. The court found and adjudged that the general verdict to-the extent of $200 was inconsistent with the special findings and irreconcilable therewith, and rendered judgment for $10 only, thus eliminating the amount of $200, allowed as punitive damages.

The plaintiff insists in this court that the answers to the interrogatories are not so irreconcilably inconsistent with the general verdict as to justify the action of the trial court in refusing to enter a judgment for $210 and in entering a judgment for $10 only.

It will be noted that by the answer of the jury to interrogatory No. 4, they find only that the defendants were not moved by “intentional wrongdoing or actual malice towards the plaintiff. ’ ’ It is insisted by counsel for the defendants that this answer precludes the allowance of any punitive or exemplary damages.

Many fine distinctions have been drawn between actual malice, express malice and malice in fact on the one hand, and implied malice, imputed malice, constructive malice and malice-in law on the other hand, but into this fruitful field of discussion it will not be necessary to enter.

A careful examination of the question raised by the record in this case leads us to the conclusion that interrogatory No. 4 is too restricted in its language to forbid the allowance of' exemplary damages.

During the argument, reference was made to Mauk v. Brundage, 68 Ohio St. 89 [67 N. E. Rep. 152], but the Supreme Court was passing only upon the phrase “express malice” in that ease, and was not considering whether exemplary damages could be allowed in eases of the kind under consideration upon a finding of any circumstances other than express malice.

Reference was also made during the argument to the case of Young v. Telephone & Telegraph Co., an unreported case tried in the court of common pleas of this county, affirmed by this court and affirmed by the Supreme Court, without report, in American Tel. & Tel. Co. v. Young, 78 Ohio St. 399. An examination of the record in that case, which was one of alleged wanton and malicious trespass upon real estate, shows that the charge ox the court authorized the jury to award punitive or exemplary damages, if they found the acts were done “wantonly or maliciously or with a reckless disregard of plaintiff’s rights. ’ ’ While it may be true that neither the circuit court nor the Supreme Court passed- upon that language, we believe it to be a correct statement of the rule under which a jury would be justified in allowing exemplary damages in a case like the one now before the court. It seems to be in accord with 1 Sutherland, Damages 716, where the author says:

“There is much authority for allowing damages beyond compensation for torts whenever a case shows a wanton invasion of the plaintiff’s rights or any circumstances of outrage' or insult; whenever there has been oppression or vindictiveness on the part of the wrongdoer; whenever there is a willful malice or reckless tort to person or property.”

The Century dictionary defines “wanton’ as characterized by extreme recklessness, also recklessly disregardful of rights or consequences.

The scope of this interrogatory is not broad enough to cover a case in which the jury find that although the defendants may not have been moved by actual malice, yet they may have acted wantonly and with a reckless disregard of the rights of the plaintiff. It appears to the court, therefore, that interrogatory No. 4 and the response thereto of the jury are not so irreconcilably in.conflict with the general verdict as to have justified the court in refusing to enter a judgment for the plaintiff for the amount of the general verdict. Well established practice requires that it must appear that the special findings are in a legal sense irreconcilable with the general verdict and that this conflict must be clear before a court will be justified in disregarding the general verdict. Davis v. Turner, 69 Ohio St. 101, 102 [69 N. E. Rep. 819].

The judgment of the court of common pleas will be reversed and, proceeding to render the judgment which that court should have rendered, judgment will be entered in favor of the plaintiff upon the general verdict.

Kinkade, J., concurs.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    August 3, 1912.]
    Swing, Jones and Smith, JJ.
    Louis Smith v. State of Ohio.
    1. Admission of Guilt to Magistrate Conducting Preliminary Examination Competent at Subsequent Trial.
    The testimony of the magistrate, before whom the accused was brought for his preliminary examination, that he privately admitted his guilt, is competent evidence at his subsequent trial before the common pleas.

      2. Admission of Incompetent Evidence in Criminal Trial not Ground for Reversal when Verdict Established by Competent Evidence of Guilt.
    While a letter written by one accused of theft to the prosecuting witness is not competent evidence against him, yet its admission is not sufficient to reverse a verdict of guilty, if accused failed to deny its authenticity and his guilt was established beyond a doubt by competent testimony and his own admission.
    Error to common pleas court.

      Dudley P. Wayne, for plaintiff in error.

      Thos. L. Pogue, Pros. Atty., for defendant in error.
    - The plaintiff in error was convicted of larceny in the theft of jewelry from the residence of Miss Bertha Oettinger, where he had been employed to repair some window screens. His preliminary examination occurred before Justice Muller, who testified at the trial in the common pleas that Smith admitted to him that he took the jewelry.
   JONES, J.

"We can not see that it was error for the trial court to have admitted the evidence of witnesses as to the admission by Smith of his guilt made at the 'time he appeared before the examining magistrate.

The admission of the letter written to Miss Oettinger was not in accord with the rules of evidence, but in view of defendant’s admissions and other convincing evidence we think this was not reversible error. The defendant did not embrace his opportunity to deny having written the letter. Although that omission should not weigh against him, we must decline to reverse the case for such error alone when the competent or admissible evidence in the ease clearly establishes guilt beyond a reasonable doubt.

Judgment affirmed.

Swing and Smith, JJ., concur.


author: JONES, O. B., J.

text:
    UNFAIR COMPETITION.
    [Hamilton (1st) Court of Appeals,
    January 31, 1914.]
    Swing, Jones and Jones, JJ.
    Safe-Cabinet Co. v. Globe Wernicke Co.
    Manufacturing “Cabinet Safes” of Size, Shape, Design and Color of One on Market Unfair Competition.
    A manufacturer of office furniture taking up the manufacture of “cabinet safes,” so similar in size, shape, design and color to the “safe-cabinets” of another manufacturer, who had created a market for such cabinets, as to easily confuse persons of ordinary intelligence as to whose product they are purchasing, is guilty of unfair competition, especially since it appears that the former purchased one of the latter’s cabinets, caused it to he sent to the former’s factory and dissected, and orders were given to manufacture one as nearly like it as possible without infringing the patent, and injunction lies to prevent the continuance of such unfair competition.
    Error to common pleas court.

      James L. Sleuart, Gideon G. Wilson and John Emory Gross, for plaintiff in error.

      Robertson & Buchwalter, for defendant in error,
   JONES, O. B., J.

The action below was brought by plaintiff in error as plaintiff against the defendant in error as defendant, claiming that defendant had wronged and was wronging plaintiff by unfair business competition in the manufacture and sale of eértain metal fireproof containers for papers, books and other articles, and in the use of the peculiar trade name which plaintiff had originated for such manufactured articles. Plaintiff sought an injunction against the use of such trade name and the continuance of such unfair competition, and prayed for an accounting and payment of all profits made by reason thereof.

On the hearing by the court of common pleas a decree was entered finding in favor of the defendant below and dismissing plaintiff’s petition. To this decree and the proceedings below plaintiff prosecutes error in this court.

The entire record, embracing a volume of testimony containing almost 500 pages, together with a very large mass of exhibits consisting of newspaper and magazine advertisements, catalogues, circulars, cards, folders and numerous other forms of advertising matter, as well as the safe-cabinet manufactured by the plaintiff and the cabinet safe manufactured by the defendant, were submitted to the court.

After a careful consideration of this record and these exhibits the court finds that the plaintiff is a'corporation organized under the laws of Ohio, about January 31, 1906, having then succeeded a partnership composed of Willis V. Dick and George D. Shad, of Marietta, who traded under the firm name of the Safe-Cabinet Company, and who 'founded the business now owned by plaintiff, in February, 1905, and then commenced the manufacture and sale of the goods known as safe-cabinets. This safe-cabinet was a novelty, manufactured from sheet metal in such a way as to leave an air space between two thin sheets of metal in which space was placed fireproof material in such manner as to become what is known as fireproof construction.

This partnership and its successor, the plaintiff corporation, were the pioneers in the manufacture and sale of goods of this character, and prior to their beginning in 1905 there was nothing known to the trade of the same character. ' The words “safe-cabinet” were applied to the article from its original construction, and have been so continued to the present time, and it has been known to the trade by such name during the entire period covered by its manufacture. During the early years of its manufacture, prior to 1909, the word “Dick” was used in different ways in connection with the name safe-cabinet, but the words “safe-cabinet” or “safe-cabinet company” appeared on all of these different products, and from and after the year 1909 the name-plate simply called it the safe-cabinet, putting on also the date of the patent, the name of the company and its place of manufacture.

These safe-cabinets were originally painted several different colors, but after numerous experiments and considerable expense the standard shape, finish and size for its product was finally adopted by plaintiff, and for several years prior to tbe filing; of the petition, except in cases of special order, its safe-cabinet bad been painted an olive green color with a decoration in imitation of paneling with gold or yellow lines. Plaintiff made large expenditures of money in advertising and creating a market for said patented novelty and its product so patented, decorated and labeled bas been sold and resold under tbe designation of the “safe-cabinet” in domestic, interstate and foreign commerce. Tbe public know and recognize said goods under such trade name, and because of tbe merit' of tbe article and tbe extensive advertising plaintiff bas built up a valuable trade and good will in tbe manufacture and sale of said patented novelty, painted an olive green and decorated in imitation of paneling with gold or yellow lines and bearing designation of “safe-cabinet.” Tbe special name of safe-cabinet bas thus become a trade name, and bas in this manner come to have a special or secondary meaning implying that the article with reference to which it is used is of plaintiff’s manufacture, tbe combination of name, color and decoration becoming of value as appurtenant to the good will of plaintiff’s business.

Tbe defendant is an Ohio corporation which together with its predecessors bas been continuously engaged in the manufacture and sale of office furniture, sectional bookcases, files and equipment, for many years, but did not manufacture an article similar to that manufactured and sold by plaintiff, prior to February, 1911. Before defendant engaged in tbe manufacture of said article there was no competition whatever between the goods manufactured by the plaintiff and those of the defendant, and tbe same agent represented both plaintiff and defendant in many cities throughout the United States.

In February, 1911, tbe defendant began tbe manufacture and sale of a fireproof container of practically the same shape and size as that of plaintiff, and likewise painted an olive green color and decorated in imitation of paneling with gold or yellow lines, and labeled the same “Globe Cabinet Safe.” Plaintiff contends that the use of the name cabinet safe and the decoration of its goods with an olive green color and gold or yellow lines in imitation of paneling, is a simulation by defendant of the goods of the plaintiff, and is a fraudulent attempt on the part of defendant to deceive and mislead the public and the customers of the plaintiff into the belief that the goods manufactured by the defendant emanated from the same source as those manufactured by the plaintiff, and that such acts amount to unfair competition in trade, the liability of deception being further enhanced by the fact that defendant also imitated the shape and most popular size of plaintiff’s goods.

Plaintiff further claims that defendant’s article is of inferior workmanship and design and insufficient as a fire resistant, and that while in outward appearance both articles are the same there is a wide difference in their respective merits, the plaintiff’s article offering a resistance to a high degree of heat which the defendant’s could not withstand.

The defendant claims that there has been no attempt on its part to mislead or to confuse or deceive anyone, and that no fraud or unfair competition has been shown as against the defendant. The defendant denies the right of plaintiff to the use of the words “safe-cabinet” as a trade name, claiming that such a name is merely descriptive of the characteristics of the article, and that no one can acquire exclusive right to such a trade name, and therefore claims the right to use the words in the manner in which it has been using them, to wit, “cabinet safe.”

Counsel for defendant admits, however, that grammatically construed these words would appear to have the same meaning, arguing that the first word should be taken as the adjective or qualifying word and the last word as the noun; that in the-name used by the plaintiff “safe-cabinet” the cabinet would be the main feature qualified by the word “safe,” while in the term used by the defendant “cabinet safe” the safe would be the main feature qualified by the word ‘ cabinet. ” It is hardly necessary to analyze the meaning of the words as has been done-, by counsel for defendant, as such analysis shows no difference-in their meaning. It might, however, be noticed that their use-by the plaintiff was with the hyphen between the two words, ■using therefore both words as nouns and neither as an adjective, indicating in that way possibly the name of a particular thing that combines in an equal degree the qualities of the- object inown as a cabinet with the object known as a safe. ^

The evidence shows that the words had not been used together in such a way as to become known .to the trade or to indicate any particular article, prior to their use by plaintiff or its predecessor/ In this view of the facts it appears to the court that the name is one which might well be adopted and used by the company which first manufactured such an article, and that its subsequent use by a new competitor would be looked upon at least as a ground of suspicion, and taken in connection with ■■other matters might lead to a finding of unfair competition.

It is contended also by the defendant and shown by the evidence thp,t the use of olive green paint as a decoration for steel articles was a matter that had been common to the trade for many years, and defendant contends that because plaintiff, and its predecessor had orginálly used other colors as well as that ünally adopted; by it as its standard that therefore there could 'be no objection raised by it or any claim made as to its exclusive night to use the color, which the evidence shows it has adopted .and used as its standard some time before the defendant entered -the field of competition.

It may be well said that no one can have an absolute monopoly of a particular color, but it has been shown by the evidence that prior to the commencement of the manufacture of the Globe safe cabinet” by defendant, its standard color for file «ases and other products had been colors in imitation of finished ■oak or mahogany wood, and for steel file cases that were not so ■colored it had used a maroon paint, and had been using other •colors only on special orders.

These facts taken in connection with the fact that it disregarded its previous standards of wood imitations and made olive green its standard color for its new product, with gold or yellow lines to imitate paneling, and the fact that in its catalogue of mew goods it carried on the margin a miniature safe-cabinet, or cabinet safe, printed in green, ink, making its catalogue similar to that of plaintiff 'company, and also that it took as the size of its-, product the most popular size that was used by the plaintiff" company, shows too many matters of similarity to be altogether-accidental and not to show that it was actuated by the desire to-gain the benefit of the expense and effort that had been borne by plaintiff in stimulating and creating a market for its product.

The court is compelled to reach the conclusion that the defendant has been guilty of those acts which constitute unfair-business competition, especially when it is further considered, as. shown by the testimony of the president of the plaintiff company,, that prior to the commencement of the manufacture of its: cabinet safe, a safe-cabinet manufactured by the plaintiff was purchased by the defendant and was taken to its factory and dissected by its operatives with instructions from the president of the company to manufacture an article as near like it as possible, in such a way as to take in the file case units made by, the defendant, and not to infringe on the patent of the plaintiff! company.

Such a conclusion is further sustained by the fact that the-evidence shows that agents who had been previously .handling-goods manufactured by both plaintiff and defendant were required by defendant to handle its goods alone, and to give up-the agency for the plaintiff’s goods or to lose the exclusive agency for the defendant’s goods.

The case of Yale & Towne Mfg. Co. v. Alder, 154 Fed. Rep. 37 [83 C. C. A. 149], is almost directly in point, the facts being so similar. The syllabus of this case is as follows:

“A manufacturer of locks who deliberately and intentionally copied a higher-priced lock made by another manufacturer-in form, size, coloring, lettering and details of finish, so that the-two were substantially identical in appearance to a casual observer, and retail purchasers were likely to mistake one for the-other, is chargeable with unfair competition, although the parts, of the lock separately may have been open to his appropriation. ’ ’

Upon an ocular inspection by the members of the court, the similarity of the appearance of the two articles made respectively by plaintiff and defendant and shown as exhibits in court was'. .sufficient almost of itself to convince the court that one was a “Chinese” copy of the other. While if critically examined together points of difference might be discovered, it would be impossible for anyone not having first so studied them and memorized these differences, to properly describe them and identify the product of either party with that of the other party not then before him.

On such a state of facts it is clear that the casual ordinary buyer at retail, not having both articles before him and not knowing the points of difference or, possibly, even that there are two distinct manufacturers, but having read plaintiff’s advertisements and having decided to buy a safe-cabinet would easily be induced to buy defendant’s cabinet safe, feeling that he was .-securing what he had intended to purchase.

The plaintiff contending that the similarity of the two products is sufficient to confuse or deceive purchasers, defendant •undertook to point out certain differences. For instance, that -the plaintiff’s article had a cornice around the front and both ¡.sides at the top, while defendant’s has none at the sides because •of its desire to carry out its idea of elastic furniture by adding, if occasion demands it, other cabinets at the side without leaving ¡any space between the two. This furnishes a reason for omitting the cornice at the sides, but does not give a reason why when omitting the cornice on the sides it should be still retained on the front.

A difference in the hinges was also referred to by one of defendant’s witnesses, but when he was asked to explain wherein the difference lay he was unable to do so without again referring to them and then making comparison between the two articles ¡then in court. And the court was impressed with an incident -which took place during the argument, when counsel for defendant undertook to point out the difference between defend .ant’s article and that of plaintiff in court, and himself pointed ■out plaintiff’s article as the product of defendant. If such confusion could arise with a witness and counsel, who had both prepared for trial and were clearly advised of all points of difference in the two articles, how can it be said that no confusion or deception will arise with the ordinary ca'sual purchasers in the market, who after all are the persons to be protected, and whose trade plaintiff is entitled to receive if he has legitimately secured it.

In the ease at bar it is clear .that the demand for plaintiff’s goods was created before the defendant entered the field, and being in a similar business this demand was brought to the attention of the defendant by its agents and salesmen, and it did not hesitate to at once take advantage of the opening thus created to embark in the same business that had been made so successful by the plaintiff. We have stated above how the defendant first dissected the safe-cabinet of the plaintiff and commenced the manufacture of its cabinet safe in close imitation of it. While the defendant strenuously insists that its article is superior to that of the plaintiff, the plaintiff as strongly contends that its own article is the superior. For the purposes of this case, which is the better is not material. The real question becomes, who was the pioneer in this manufacture? There is no dispute in the record but that the plaintiff had an established business before the defendant commenced, and there can be no question but that the marked similarity of defendant’s product was for the purpose of availing itself of plaintiff’s trade and securing a part of its good will, and that the conduct of the defendant comes within what is known as unfair competition.

Defendant, however, contends that it has put out no goods except with the name “Globe” upon them, that is, the nameplate carries the words “Globe Safe Cabinet.” Such use of defendant’s name is not in itself a sufficient affirmative distinction where, as here, there are sufficient points of similarity to constitute unfair competition.

In Menendez v. Holt, 128 U. S. 514 [9 Sup. Ct. Rep. 143; 32 L. Ed. 526], the Supreme Court says in its opinion, at page 521:

“It is no answer to their action to say that there was no invasion of that right because the name of S. O. Ryder accompanied the brand upon flour sold by appellants, instead of the name of Holt & Co. That is an aggravation and not a justifieation, for it is openly trading in the name of another upon the reputation acquired by the device of the true proprietor. ’ ’

See also to the same effect: Shaver v. Heller, 108 Fed. Rep. 821 [48 C. C. A. 48; 65 L. R. A. 878]; Jacob v. Beecham, 221 U. S. 263 [31 Sup. Ct. Rep. 555; 55 L. Ed. 729]; Rushmore v. Screw & Stamping Works, 163 Fed. Rep. 939 [90 C. C. A. 299; 19 L. R. A. (N. S.) 269]; Enterprise Mfg. Co. v. Landers, 124 Fed. Rep. 923:

“Any manufacturer has the right to copy an article made by another which is not protected by patent, but he has not the right to so imitate it in shape, design, color and number as to deceive purchasers of average intelligence and cause them to mistake his product for that of the prior manufacturer. ’ ’

28 Am. & Eng. Enc. (2 ed.) 410:

“An exact copy of another’s trade-mark or name or the dress of his goods is not necessary to constitute infringement or unfair competition. Similarity, not identity, is the test. There is some little confusion in the cases as to the standard to be applied, but the general rule seems to be that infringement or unfair competition exists whenever the resemblance is so close that ordinary purchasers, buying with ordinary caution, are likely to be misled. The resemblance need not be sufficient to deceive experts or persons specifically familiar with the trademark or goods involved, nor such as would deceive persons seeing the two trade-marks or articles placed side by side. A similarity sufficient to make it likely that unwary purchasers will be deceived, has been deemed sufficient. ’ ’

38 Cyc. 779:

“No inflexible rule can be laid down as to what conduct will constitute unfair competition. Each case is in a measure a law unto itself. Unfair competition is always a question of. fact. The question to be determined in every case is whether or not, as a matter of fact the name or mark used by defendant has previously come to indicate and designate plaintiff’s goods, or, to state in another way, whether defendant, as a matter of fact, is by his conduct passing off his goods as plaintiff’s goods, or his. business as plaintiff’s business. The universal test question is. whether the public is likely to be deceived. ’ ’

38 Cyc. 783, 784, 785:

“ It is often said that a fraudulent intent on the part of defendant to pass off his goods or business as and for that of plaintiff is necessary to constitute unfair competition, and infringement of trade-marks has been distinguished upon this ground. But the reasons for not requiring proof of a fraudulent intent in cases of infringement of trade-marks apply equally well to unfair competition cases, for the basis of the remedy is. substantially the same in both eases. Unfair competition involves trading upon another’s reputation and good will, and the injury is the same regardless of the intent with which it is-done. Accordingly the better view is that an actual fraudulent-intent need not be shown where the necessary and probable tendency of defendant’s conduct is to deceive the public and pass, off his goods or business as and for that of plaintiff, especially where only preventive relief against continuance of the wrong-is sought or granted. Even if the resemblance is accidental and. not intentional, plaintiff is entitled to protection against its injurious results to his trade. ’ ’

38 Cyc. 789, 790, 791:

“ It is the duty of a subsequent trader coming into an established trade not to dress up his goods or market them in such a way as to cause confusion between his goods or business and. that of a prior trader. Even conceding that the later trader-has an equal abstract right to use particular words, names or-marks, yet if his unexplained use of them will cause confusion, and deception, he must accompany such use with affirmative-distinguishing features sufficient to render deception improbable. This rule applies to all classes of names, including descriptive, generic, personal and geographical names, which, although primarily publici juris, have acquired a secondary meaning. Where a name has acquired a secondary meaning and come to indicate the source of particular articles, the mere use-of such a name by another, unaccompanied by adequate distinguishing statements, in itself amounts to an artifice calculated and intended to deceive, and constitutes unfair competition.
“It is a question of fact in each case whether or not the goods or business of the subsequent trader have been so distinguished as to prevent any actual or probable confusion and deception. All the circumstances of the particular case must be considered. It is presumed that the public uses its senses and takes note of differences which are thus disclosed. But on the other hand it must be remembered that similarity, not identity, is the usual recourse when one party seeks to benefit himself by the good name of another so that the mere existence of differences does not necessarily show honest and sufficient differentiation. A nice discrimination is not to be expected from the ordinary purchaser. Although differences between the respective labels and packages exist, and are readily apparent upon comparison, yet if the ordinary purchaser is liable to be deceived by the similarities which also exist, an injunction will be granted. Where the distinctive part of a name or mark is taken, minor differences afford no defense. Similarity in the main distinguishing features will usually be sufficient to constitute infringement or unfair competition. ’ ’

While the subject of trade-names and unfair competition is not altogether new, it has not arisen as frequently in the courts of Ohio as in those of many other states, yet in the federal courts and in England the cases are numerous and the doctrine has become well settled.

In our Supreme Court it was considered in Brill v. Manufacturing Co. 41 Ohio St. 127 [52 Am. Rep. 74], where the court found the facts did not make out a case of unfair competition. In the later case of Drake Medicine Co. v. Glessner, 68 Ohio St. 337 [67 N. E. Rep. 722], the question is well considered, and the opinion by Daivs, J., shows that the law of Ohio in regard to this subject is in accord with that of the federal courts and the other states. This case upheld the rule that if the simulation is clearly shown, positive proof of fraudulent intent is not required, but may be presumed; that if the similarity be such that persons exercising ordinary caution are liable to be misled into purchasing one article when they intended to purchase the other an injunction will be allowed.

The ease of French Bros. Dairy Co. v. Giacin, 31 O. C. C. 395 (12 N. S. 134), affirming the lower court decision found in French Bros. Dairy Co. v. Giacin, 20 Dec. 638 (8 N. S. 549), involves this doctrine. It was affirmed by the Supreme Court without report. Giacin v. Dairy Co. 84 Ohio St. 483.

The following nisi prius decisions also discuss the subject: Backus Oil Co. v. Grease Co. 8 Dec. Re. 93 (5 Bull. 546); Richardson v. Westjohn, 6 Dec. Re. 1043 (9 Am. L. Rec. 723); Cohn v. Kahn, 8 Dec. Re. 472 (8 Bull. 154); Lloyd Bros. v. Chemical Co. 11 Dec. Re. 236 (25 Bull. 319); Reeder v. Brodt, 6 Dec. 248 (4 N. P. 265); Feder v. Brundo, 8 Dec. 179 (5 N. P. 275); Cincinnati Vici Shoe Co. v. Shoe Co. 9 Dec. 579 (7 N. P. 135); Ironside v. Chemical Co. 14 Dec. 193.

It is not necessary to refer at length to the numerous cases cited by plaintiff and defendant. The objection made by defendant that many of plaintiff’s cases are where a registered trade-mark was being used and therefore did not apply, is not well taken, as the difference between the cases of the registered or technical trade-mark and cases merely of trade names is in regard to the manner of proof — fraud being presumed in the first class of cases, while it must be proved in the latter class. The existence of infringement or unfair competition as dependent on the sufficiency of the resemblance between the name, ensemble and the goods of the respective parties is a question of fact to be determined upon the evidence in each particular case,

It is determined by this court that the court below committed error in finding for the defendant and in entering a decree dismissing plaintiff’s petition.

The judgment is therefore reversed and a decree will be entered in this court granting the injunction as prayed for in plaintiff’s petition.

Swing and Jones, JJ., concur.


author: NIMAN, J.

text:
    BILLS OF EXCEPTIONS^ — EMINENT DOMAIN — NEW-TRIAL.
    [Summit (8th) Circuit Court,
    1912.]
    Marvin, Winch and Niman, JJ.

      Christian Reusch v. Northern Ohio Trac. & L. Co.
    1. Motion for New Trial Need not Follow Exact Lánguage of Statute..
    A motion for a new trial need not follow the exact language of the statute, if the causes enumerated as grounds for a new trial be such as are embraced within the meaning of the statute.
    2. Bill of Exceptions in Condemnation Proceedings to Preserve Review-on Preliminary Hearing Taken in Time if Computed from Overruling New Trial.
    In an action by an interurban railway company for the appropriation of land, a bill of exceptions is taken in time to preserve the case for review as to the preliminary hearing, if the time, allowed for such filing has not expired when computed from the overruling of the motion for a new trial.
    3. “Construction” Comprehends Such Alteration as Will Empower Interurban Company to Appropriate Land to Relocate Tracks to, Avoid Curves and Grades.
    When it becomes necessary for an interurban railway company-to make changes in the construction, of its road, or to relocate its tracks in order to avoid dangerous or difficult grades or curves or to shorten its line, the word “construction” as used in the statute will be held to include such alteration and to empower the company to appropriate land therefor.
    4. “Necessity” to Authorize Railway to Condemn Private Property is-Reasonable not Absolute Necessity.
    The “necessity” required under the statute to authorize an appropriation of private property for railway purposes, is a reasonable, as distinguished from an absolute necessity, and such ■ reasonable necessity is established when it is shown that dangerous curves and grades will be thereby eliminated and the road made safer and, its service to the general public rendered more efficient!
    Error to common pleas court.

       Affirmed, no op., Reusch v. Traction & L. Co. 89 O. S. 000; 59, Bull. 35.

   NIMAN, J.

This proceeding in error had its inception in an action begun by the defendant in error, the’ Northern Ohio Traction & Light Company, in the probate court of Summit county, to appropriate land belonging to Christian Beuseh, the plaintiff in error, for a right of way. A preliminary hearing was had in the probate court as required by law and the questions at issue in that hearing having been decided in favor of the plaintiff in that action, a jury was called to assess the damages for the land taken. After the jury had returned a verdict assessing the damages for the taking of the land, the defendant in the action filed a motion for a new trial, which was overruled by the probate court and judgment entered for the plaintiff.

Error was then prosecuted by said defendant to the court of ■common pleas to reverse the judgment of the probate court. In the court of common pleas the petition in error was dismissed •and the judgment of the lower court affirmed, and it is to review the action of the court of common pleas that .the plaintiff in ■error brings this proceeding in error.

At the outset, it is urged by' the defendant in error that the plaintiff in error is without standing in this court to ask for a review of any errors which the probate court may have committed in the preliminary hearing, for the reason that the bill of exceptions was not taken in time to preserve the case as to the preliminary hearing for review. A determination of the merits of this contention is therefore necessary at this time. Section 11046, G. C., provides:

“On the day named in a summons first served, or publication first completed, the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, ■and the necessity for the appropriation. Upon all these questions the burden of proof shall be upon the corporation, and .any interested persons shall be heard. ’ ’

Exceptions were duly taken by the plaintiff in error to the findings of the probate court on the preliminary questions, which said court was required to determine under the section of the statutes quoted, to the overruling of a motion for a new trial and to the entry of the judgment for appropriation. The bill of exceptions was allowed, signed and filed within the time required by law if the time is to date from the overruling of the motion for a new trial; bnt if, on the contrary, the time is to be computed from the day upon which the preliminary and jurisdictional questions were determined, it was not filed in time, and, in the latter event, there could be no review of the matters involved in such preliminary hearing.

In Pittsburgh, C. & T. Ry. v. Tod, 72 Ohio St. 156 [74 N. E. Rep. 172], it was held:

“In proceedings for the appropriation of property by a pri-' vate corporation, the determination of the preliminary questions by the probate judge, as required by Sec. 6420, R. S., may be reviewed on error.
“A motion for a new trial, or rehearing, of such preliminary questions is not necessary.
“The time within which a bill of exceptions on such hearing should be taken is to be computed from the day on which said questions are determined, if no motion for a new trial is-filed, and if a motion for a new trial is filed, from the day the motion for a new trial is overruled.”

In Dayton & Union Ry. v. Traction Co. 72 Ohio St. 429, the syllabus reads as follows:

“Although it may not be necessary to file a motion for a new trial at the time of the hearing of the preliminary questions in an appropriation proceeding, under Sec. 6420, R. S., in order to bring upon the record errors occurring upon such hearing; yet if such errors come within any of the causes for a new trial as defined in Sec. 5305, R. S., the aggrieved party may include the same in a motion for a new trial to be filed within ten days-after the verdict is rendered in such appropriation proceedings, as provided in Sec. 6432, R. S. Weaver v. Railway, 55 Ohio St. 491, approved and followed.
“If such motion for a new trial should be overruled, the time for filing a bill of exceptions must be reckoned from the date of the overruling of the motion for a new trial.”

If, therefore, the errors sought to be reviewed by motion for a new trial were such as came within any of the causes for anew trial, as defined in Sec. 5305, R. S., now Sec. 11576, G. C., the time within which the bill of exceptions should be filed to secure a review of such errors should date from the overruling of the motion for a new trial, because by such motion the matters governed by it and embraced within the provisions of See. 11576, G. C., while having once been passed upon by the trial court were nevertheless by such motion again brought to the attention and review of the court.

The motion filed in the probate court by the plaintiff in error specified the following grounds:

. First, the petitioner has no right to make the appropriation sought to be made herein.

Second, there is no necessity for the appropriation herein sought.

Third, the court is without authority to impanel a jury in this case.

These grounds in the language stated are not found in See. 11576, G. C.; but, in our opinion, the questions raised by this motion could have been raised equally as well if the plaintiff in error had resorted to the language of the sixth subdivision of Sec. 11576, G. C., which is “that the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law”; or if he had made subdivision eight of said section the ground of his motion for a new trial, which reads: “Error of law occurring at the trial and excepted to by the party making the application.”

It is not necessary that a motion for a new trial follow the exact language of the statute. If the causes enumerated as grounds for a new trial are such as are embraced within the meaning of the statute, it is sufficient.

We conclude, therefore, that the bill of exceptions was filed within the time required by law, and that it preserved for. review the errors alleged to have occurred in the preliminary or jurisdictional hearing, embraced within the motion for a new trial.

The errors alleged to have occurred on the preliminary hearing in the probate court are: ,

First, that the court erred in determining that the plaintiff there had the right to make the appropriation sought; and

Second, that the court erred in determining the question of the necessity for the appropriation in favor of the plaintiff.

Third, that the findings of the probate court are insufficient.

Section 9119, G. C., as amended May 10, 1910 (101 O. L. 322), reads as follows:

‘ ‘ Street, interurban or suburban railroads using other than steam as motive power, when necessary may enter upon and use private property in the construction, alteration and operation of its road or any part thereof and for such purposes shall'have all of the rights and powers of appropriation, outside of municipalities, that steam railroad companies possess.”

The Northern Ohio Traction & Light Company is a corporation organized under the laws of the state of Ohio and authorized by its charter to operate street railroads. It is the owner of a line of interurban street railroads, a part of which passes through the township of Northfield, in Summit county, Ohio. The land sought to be appropriated is in the township of Boston, in said county. The appropriation of this land is sought for the purpose, as stated in the petition, of altering the location and grade of the company’s interurban street railroad -in order to •change and avoid dangerous and difficult grades and curves, render its said line of interurban street railroad more safe for public travel, facilitate the movement of traffic in the operation of its interurban street railroad, and to enable said company to perform more efficiently and satisfactorily its duty to the public as a common carrier of freight and passengers.

As originally constructed, that portion'of the company’s road between Cuyahoga Falls, in said county, and Chittenden’s Corners in said Boston township, was constructed on a private right of way except about one mile. The balance of the line running toward Cleveland was on the public highway. The plans of the company now involve the taking of the tracks from the public highway and relocating and reconstructing the same from Chittenden’s Corners northerly to a point near Bedford in Cuyahoga county, and as a part of these plans the taking of the land of the plaintiff in error. The result of the carrying out of these plans will be to place the entire track from Cuyahoga Falls to Bedford on a private right of way, except for a distance of about one mile northerly from the power house at Cuyahoga Falls. The proposed new location will be easterly of the present one and the remotest point thereof will be about ■one mile from the present location.

It is argued on behalf of the plaintiff in error that Sec. 9119, G. C., above quoted, confers no right upon a street railroad or an interurban or suburban railroad company, to make such a change of its track as is contemplated in this case; and that the purpose of this section of the statutes is simply to regulate the manner of exercising the powers of appropriation when the right of appropriation is elsewhere conferred. It is further contended that no such right as is claimed on behalf of the company is anywhere conferred under the statutes of this state, and that therefore the company is without right to make the appropriation in question. The language of said section, however, is clear and unambiguous. A railroad of the class enumerated therein, “when necessary may enter upon and use private property in the construction, alteration and operation of its road or any part thereof.”

It was held in Lorain County (Comrs.) v. Railway, 12 Dec. 805 (11 N. S. 419), that:

“The word ‘construction’ as used in Sec. 3284, providing that a railroad company in the construction of its roadbed may divert a road or stream of water when necessary, is not limited in its application to the original building of the railroad, but gives the right, in making a change of grade as authorized by Sec. 3277, to divert the course of a highway for the purpose of avoiding annoyance to the public and dangerous or difficult curves or grades.”

Following the principle of this decision, the word “construction” in Sec. 9119 should not be limited in its application to the original building of the company’s road; but should be considered as1 relating also to the making of the road, or parts thereof, in such new location as necessity may require, conforming, of course, to the general route prescribed in the articles of incorporation.

We are of the opinion also that the word “alteration” should not be given the limited meaning contended for on behalf of the plaintiff in error. The necessity of an alteration of the company’s line having been shown, it would be inconsistent with the language and clear purpose of the statute to require the alteration to be confined within the limits of the existing location of the road. The power conferred by the express ferms of the statute upon railroads of the kinds enumerated to enter upon and use priváte property when necessary in the alteration of their roads, necessarily implies that such railroads have the right to change their route to the land so appropriated, otherwise the power conferred would be useless.

In State v. Burgeson, 108 Wis. 241 [84 N. W. Rep. 241], the court said:

“The alteration of a highway, as the word itself indicates, means the change of course of an existing highway, leaving it substantially the same highway as before, but with its course in some respects changed. While the alteration will necessarily require the > condemnation of additional lands, and will result in the vacation or discontinuance of that part of the former highway not included within the limits of the altered course, the proceeding to alter a highway does not thereby become a proceeding to lay out a new highway or to discontinue an old one. The proceedings are separate and distinct, and intended so to be, and a new and separate highway can not be laid out upon an application to alter an existing highway.”

If, therefore, it becomes necessary for a railroad company, of the kind named in the statute, to make changes of construction in its road, or to alter its line of tracks, it seems clear that the language of the section of the statutes under consideration is comprehensive enough to authorize the company to appropriate private property for that purpose, the rights and powers of appropriation outside of municipalities being exercised in the same manner as by steam railroads.

The fact that a change of location of a portion of the company’s track results, is no objection to the exercise of the right conferred, the necessity being shown therefor, provided there is no departure from- the general route of the said railroad as prescribed in the company’s articles of incorporation. Whether any public authorities can object to the change of location of the road, or whether the plaintiff in error can so object by some other method, is not the question to be considered here.

We think, therefore, that the probate court committed no-error in, determining the right of appropriation in favor of the plaintiff in the action.

To decide whether the probate court erred in finding in favor of the.necessity of the appropriation, requires a consideration ,of the meaning of the word “necessary” as used in the statute. We think that when the word “necessary” is used in a statute of this kind, conferring the right to take private property for the uses specified, a reasonable and not an absolute necessity is intended.

This was the interpretation placed upon the word “necessary” in Wayzata v. Railway, 67 Minn. 385 [69 N. W. Rep. 1073], where it was held:

“Under a law which authorizes a railroad company to construct its road along and over any public or private way, if it shall ‘be necessary,’ a practical and not an absolute necessity is intended; and the burden of proof would be upon the company to show this practical necessity, if questioned when originally locating the line. ’ ’

A similar construction was placed upon the word “necessary” in Aurora & G. Ry. v. Harvey, 178 Ill. 477 [53 N. E. Rep. 331], where it was held (quoting from syllabus):

“The word ‘necessary,’ used in Horse and Dummy Bail-roads act of 1874 (R. S. at 1874, page 571) with reference to the right of a street railway company to condemn private property for the construction, maintenance or operation of the road, does not mean ‘absolutely necessary,’ but ‘expedient, reasonably convenient’ or ‘useful to the public.’ To avoid a dangerous grade crossing with a steam railroad, or a dangerously steep grade terminating at the bottom in a sharp curve, a street railway company may leave the highway and condemn a right of way around such obstacles over private property, in order to conserve the safety, comfort and convenience of the public. ’ ’

This case, from its similarity to the one under consideration, and the thorough discussion of the principles involved, is an important one, and is of material assistance in disposing of the question to be decided here. The statute there relied upon, conferred power upon a street or horse and dummy railroad to take private property and declared that "when it is necessary for the construction, maintenance or operation of such road, or the necessary sidings, side tracks or appurtenances, to take or damage private property, the same may be done. ’ ’

The company in that case proposed to leave the highway and construct its road over private property for a distance of about a mile and a half for the purpose of passing under a railroad, and, failing to obtain all of the necessary property by purchase, brought its action to appropriate some of the property desired for carrying out its purpose.

Mr. Justice Wilkin, in delivering the opinion of the court, said:

"Counsel for appellees contend that the ‘necessity’ required by the statute in relation to horse and dummy railroads, means an ‘absolute necessity,’ a necessity so great that in the case at bar, if it is physically possible for appellant to construct and maintain its railroad upon the highway there is no right to condemn. We do not think such a strict -interpretation should be placed upon the language of the statute. In the former opinion herein referred to we said: ‘If, in the construction of the road in the highway, difficulties or obstructions were encountered which rendered it impracticable to construct the road in the highway, a necessity might arise, within the meaning of the law, which would authorize the company to leave the highway and go upon private property.’ And again: ‘In the construction of the road, if a necessity existed for making a deflection from the highway in order to avoid a heavy grade which would prevent a successful operation of the road, defendant in error would no doubt have the right to take and condemn private-property to obviate the difficulty. ’ The safety, comfort and convenience of the traveling public require protection, and the-policy of the state must be to compel railroad companies to so build their roads as to conserve the safety of its citizens to as-high a degree as is reasonably attainable in view of the character and exigencies of that mode of transportation. In the construction of statutes relating to the taking of private property the-, word ‘necessary’ should be construed' to mean ‘expedient,’’ ‘reasonably convenient’ or ‘useful to the public,’ and can not be limited to an absolute physical necessity. This, we think, was certainly the intention of the legislature when the act was passed. The view here expressed seems to be well supported by the authorities. ’ ’

See also Buck v. Seymour, 46 Conn. 156; Milwaukee & St. Paul Ry. v. Milwaukee, 34 Wis. 271; Commissioners of Parks v. Moesta, 91 Mich. 149 [51 N. W. Rep. 903].

The necessity which the Northern Ohio Traction & Light Company was required to establish being a reasonable and not an absolute necessity, we are of the opinion that the probate-court committed no error in determining this branch of the-preliminary hearing in its favor. The evidence on this issue was sufficient to establish the reasonable necessity of the appropriation of the land of the plaintiff in error described in the petition filed in the probate court, for the purpose of eliminating dangerous grades and curves in the company’s road, rendering it safer for those who had to travel thereon, and furnishing more efficient and satisfactory service to the general public.

There remains for consideration the contention of the plaintiff in error that the findings of the probate court are insufficient. The insufficiency is asserted to consist in the failure of the court to find, as required by Sec. 8754, G. C., “that the property and rights of those owning real estate along the portion of the road to be affected by the change will not be unreasonably affected. ’ ’

The journal entry in the probate court contains a finding that the allegations of the petition are true, and the petition contains the allegation, “that the property rights of said defendants will not be unreasonably injured by said change. ’ ’

The finding of the court on this subject, therefore, was sufficient.

As a result of the conclusions announced on the errors assigned, the judgment of the court of common pleas must be affirmed.

Marvin and Winch, JJ., concur.


author: WILDMAN, J.

text:
    ERROR — PARTIES.
    [Lucas (6tli) Circuit Court,
    January 23, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Samuel S. Ricard v. George F. Porter.
    (Defect as to Party Defendant in Error not Cured by Amendment After Time for Beginning Error Proceedings.
    Failure to name as the defendant in error the executor of the deceased defendant below can not be cured by amendment of the petition in error after time has run for the beginning of proceedings in error.
    Motion to dismiss petition in error.

      ‘William A. Gill, for plaintiff in error.

      Totter <& Potter, for defendant in error.
   WILDMAN, J.

This ease in the court below was begun by Samuel S. Ricard against George Porter, but, Porter having died pending the suit, it was revived as against his executor, Henry E. Fletcher. Instead of bringing the proceeding in error in this court against The" executor as defendant in error — the judgment having been in his favor in the court below upon his substitution for the ■original party who had died — a proceeding was instituted in this ■court bearing the same title that the case had borne in its inception in the court of common pleas, to wit, Samuel S. Ricard •against George F. Porter. Counsel seem, by some inadvertence, lo have overlooked the fact, that a proceeding in error is essentially a new ease, requiring a petition and service of summons, or waiver thereof by the defendant; that it is not like an appeal case which goes into the appellate court bearing the same title that it had in the court below, and without the necessity of service of process of any kind upon the defendant.

The ease, in some of its features, is very similar to one which we had in the circuit court of Huron county, where a proceeding in error-was presented to us against a party who had died after the rendition of a judgment in the court below. The action to reverse was brought in the circuit court with the same title that the case below had, and the attorney who waived the issue or service of summons in error was not the attorney for the legal representative of the deceased. In the present case, the attorney who waived summons was in fact an attorney for the executor. We think, however, that the cases are not essentially different in principle. The waiver of service is of no more importance or effect than a service of summons on the attorney would have been. It is but a waiver of service, or waiver of issue and service, and the question is substantially as if a man who had been attorney in the court below for the executor were served with summons in a proceeding in which the executor was not named as a party. To cure this trouble, plaintiff in error asks leave to amend his petition by adding or substituting the name of the executor for the name of the decedent.

We have not before us the question as to what the court might do if the statute of limitations as to petitions in error had not run against the beginning of such a proceeding, the statutory time having elapsed since the judgment of the common pleas court. We have examined the authorities — which are somewhat meager — bearing upon the question, to determine whether we have jurisdiction upon which we can base any authority to permit the amendment of the petition — which we should be glad to do if we had the power to do it — but we are confronted with the case of Kennard v. Kennard, 35 Ohio St. 660, where a situation arose not precisely the same, but so near it as to throw great light upon our duty. The syllabus is as follows:

“Proceedings in error can not be instituted in the name of a deceased party; if the heirs or legal representatives of such party seek to institute such proceedings, they must do so in their-own names. ’ ’

The petition in error in that case- — a case which went up from Butler county to the Supreme Court — was filed on September 22, 1879, to reverse a judgment rendered by the district court of Butler county, April 21, 1877, in favor of George F.. Kennard against George G. Kennard. At, the time- of the-filing of the petition in error the nominal plaintiff in error was. deceased he having died on April 8, 1878. It will be noticed that 'he died before the rendition of the judgment in the court, below — he died on April 8, and the judgment was not rendered, until April 21. Mary Ann Bartlow and others, his heirs at law, now moved the court to revive the proceedings in error in their-names. The decision is per curiam. It is very short and I will read it:

‘ ‘ George G. Kennard, the alleged plaintiff in error, "having-died before the filing of the petition in error, the attempt to-institute a proceeding in his name was ineffectual. To constitute a proceeding in error, there must be a plaintiff in error.. If there is no plaintiff in error, the court acquires no jurisdiction of the cause. If the heirs or legal representatives of a deceased party seek to institute proceedings in error, they must do so in their own names and not in the name of the deceased.. Motion overruled and cause stricken from the docket. ’ ’

This was a ease where the nominal plaintiff in error was the-person deceased. In the case before us it is the nominal defendant in error, but the language of the Supreme Court and the reason for it manifestly are as -pertinent to the one case as to the other. It is as essential that there should be a defendant as that there should be a plaintiff, and if there is no defendant in error, then upon parity of reasoning, the court has no jurisdiction of' the case. The court there refused the application of the .legal representatives to reverse the proceeding in error in their names, and that is substantially the same as the attempt which is made here to amend the pleading by substituting the name of tho-executor for that of the decedent. We see no escape from this case, and indeed, before discovering it, we felt strongly impelled by our own reasoning to arrive at the same conclusion.

The case of Kennard v. Kennard, supra, which I have just read, was approved, no op., Kemper v. Martin, 62 Ohio St. 633. The case of Smetters v. Rainey, 14 Ohio St. 287, is somewhat in point and it was approved in Burke v. Taylor, 45 Ohio St. 444 [15 N. E. Rep. 471], and should be read in connection with the ease to which I have referred. The case of Abair v. Bank, 2 Circ. Dec. 165 (3 R. 290), decided by the circuit court of this, circuit, the opinion being pronounced by Judge Scribner, is also to some extent in point. I cite it without reading it.

Our judgment is that the motion for leave to amend the petition should be overruled and that the motion filed by the executor for a dismissal of the petition in error should be sustained.

Parker and Kinkade, JJ., concur.


author: POWELL, J.

text:
    ERROR — JUDGMENTS.
    [Licking (5th) Circuit Court,
    February Term, 1912.]
    Voorhees, Shields and Powell, JJ.
    John J. Fullerton v. Brandt G. Smythe.
    Overruling Motion to Set Aside Default Judgment not Reviewable in> Absence of Showing in Record of Reason for Failure to Answer or-Demur.
    The action of a trial judge in overruling a motion to set aside a judgment granted by default will not be reviewed, where the bill of exceptions discloses no reason for the failure of the. defendant to file an answer or demurrer.
    [Syllabus by the court.]
    Error to common pleas court.

      Kibler & Kibler, for plaintiff in error.

      Smythe & Smythe and J. M. Swartz, for defendant in error..
   POWELL, J.

The defendant in error recovered a judgment against the plaintiff in error and Louisa Fullerton, upon a promissory note signed by said parties, in the cburt of common pleas of thjs county, on November 12, 1910, as upon a default. Before said last named date, the defendant, John J. Fullerton, by his attorney, filed a motion to strike the petition from the files for want of proper verification, which motion was overruled. On said date, an application for leave to file an answer was also overruled and refused. Judgment was rendered upon said note as by default. No exceptions were taken to the action of the court in overruling this motion and in refusing leave to file an answer. Afterwards, on November 25, 1910, the defendant, John J. Fullerton, filed an answer to the petition of the plaintiff in the court of common pleas, and at the same time filed a motion to set aside the judgment rendered on said November 12, 1910, and that the court grant leave to file such answer, and make an issue thereon in said court. On December 17, 1910, the said motion was presented to the court upon a hearing, and was found by the court to be without merit, and ought to be overruled, and leave was again refused the defendant to file said answer. Thereupon, the plaintiff in error took a bill of exceptions to the action of the court in refusing to set aside said judgment and grant leave to file an answer. The ease is brought into this court upon a petition in error to review and reverse the judgment of the said court of common pleas.

The question to be decided is, whether or not the court of common pleas abused its discretion in refusing' to sustain said motion to set aside the judgment rendered on November 12, and grant leave to the plaintiff in error to file his answer.

The record discloses that the defendant was in default for answer, after the overruling of his motion to strike plaintiff’s petition from the files, and that no exceptions were taken to the action of the court in that behalf. The bill of exceptions does not disclose any reason whatever for the defendant being in default for answer or demurrer; and, unless the record discloses some good and sufficient reason why plaintiff in error was in default at that, time, we think we are not authorized to review the action of the court below in a matter of discretion, unless the record further shows that such discretion has been abused.

It is said by Judge Hitchcock, in the case of Fowble v. Walker, 4 Ohio 64:

‘ ‘ The only question which can now be examined is, whether the court erred in refusing to sustain this motion. Motions of this description, or those somewhat similar in -their nature, are frequently made, and are always addressed to the sound discretion of the court. By sound discretion, I do not mean an arbitrary discretion, but such a discretion as may be exercised without the violation of any principle of law. Parties, not unfrequently, in the progress of a cause, lose advantages in consequence of their own negligence or laches, to which they may or may not be restored on motion, at the discretion of the court. If restored, it must be upon such terms as the'court think proper to impose. Motions to set aside nonspits or defaults, for new trials, to amend pleadings, etc., are within every day practice, and it is discretionary with the court to grant or refuse them. "Where, however, an advantage has been lost to a party in consequence of sheer negligence, it is rare indeed, that a court will on motion, grant relief. For instance, a defendant neglects to plead, and suffers judgment to go by default. It must be an extraordinary case that will induce the court to set aside the default, unless the defendant offers some .plausible excuse at least for his neglect.”

We think that this dictum of the higher court is applicable to this case; that until the plaintiff in error, Fullerton, shows, by evidence embodied in a bill of exceptions, some plausible excuse for failing to have his answer on file, or why he was in default, we are not authorized, without such showing, to reverse the judgment of the court below. It is true that the answer attached to his bill of exceptions, and made a part of it, sets out what would be a complete defense if sustained; but it is simply as any other answer would be in raising an issue and while it states a good defense, we are not aware of any reason why an issue should not be ioined on it as upon any other answer.

The judgment of the court of common pleas is affirmed.

Voorhees and Shields, JJ., concur.


text:
    MASTER AND SERVANT.
    [Stark (5th) Circuit Court,
    March, 1912.]
    Voorhees, Powell and Niman, JJ.
    (Judge Niman of the 8th circuit sitting in place of Judge Shields.)
    Massillon Iron & Steel Co. v. John Wiegand.
    1. Evidence as to Changes Made After Accident Competent to Define.,
    Permitting safety of appliances a witness to reply- to a question as to whether changes were not made after the accident in the appliances in which plaintiff was injured is no.t erroneous, where the court expressly admonishes the jury that the answer-is to be considered only for the purpose of testing the accuracy and weight of the opinion given by the witness, a foreman, as. to the safety of these appliances.
    2. Assignment by Foreman of Servant to Superintend Setting up Appliance is' not a Delegation of Responsibilities of Former to Relieve Employer from Negligence of Foreman.
    A foreman by appointing an inferior to superintend the setting up. of an appliance does not relieve the employer from responsibility for negligence in the discharge of the duties of such foreman so as to charge such inferior with the fault of setting up the-device in an improper or unsafe manner; hence an instruction that such servant would not be a fellow servant with his co-laborers but a foreman is inapplicable and properly refused.
    3. Unfamiliar Surroundings and Dangerous Proximity to Defective-Apparatus Coming in Contact with Simple Appliance Constructed not Chargeable against Servant Injured in Setting up Appliance.
    An employe engaged in superintending'the setting up of a heavjr appliance in an iron and steel mill, in a place with which he was not familiar, and within such close proximity to the place of operation of a traveling crane and shaker that it was likely to and did come in contact with such appliance, causing it to-fall and injure him, notwithstanding the construction and appliances were simple, does not come within the rule applying to-cases of ordinary labor with tools of simple construction with which the servant is familiar and understands and comprehends as fully as the master, and a request to instruct the jury, that such employe would not be a fellow servant with his colaborers but would stand in the same relation as a foreman, is properly refused.
    4. Equipoise Doctrine Charged.
    An instruction, that “whenever all the evidence upon a disputed point is in equipoise, the party who affirms the fact has failed to prove it,” sufficiently instructs the jury upon what is termed “the equipoise doctrine.”

      5. Failure to Request Instruction Precludes Complaint for Failure of Court so to Charge.
    Failure of defendant to request the court to charge that if both plaintiff and defendant were negligent and the negligence of both contributed to produce the injury and plaintiff would have no right to recover, precludes the defendant from claiming error for failure of the court so to instruct if the charge given be unexceptionable.
    '6, Verdict of $8,000 not Excessive for Injuries Crippling Molder for Life.
    A verdict of $8,000 in favor of a molder by trade, who is crippled for life and suffers and must continue to suffer pain, and who was receiving $3.10 a day at the time of the accident and could earn only $1.10 at the time of the trial, is not so excessive as to appear to have been given under the influence of passion or prejudice.
    Error to common pleas court.

      Welty <& Albaugh, for plaintiff in error.

      Pomerene, Ambler & Pomerene, I. H. Taylor and George Bratsch, for defendant in error:
    Cited and commented upon by tbe following authorities: Turner v. Cincinnati, - 5 Dec. 97 (7 N. P. 331); Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Neifeld v. .State, 13-23 O. C. C. 246 (3 N. S. 551) ; Ohio & Ind. Torpedo •Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437] ; State v. Terminal Co. 24 O. C. O. 321 (1 N. S. ■513) ; Ohio Oil Co. v. McCrory, 7 Circ. Dec. 344 (14 R. 304); jSell v. Ernsberger, 4 Circ. Dee. 100 (8 R. 499) ; 1 Elliott, Evidence Sec. 25, p. 815; Jones, Evidence Secs. 361, 362; "Wigmore, Evidence Secs. 1974, 1975; Baltimore & O. By. v. Schultz, 43 ■Ohio St. 270 [1 N. E. Rep. 324; 54 Am. Rep. 805] ; Little Miami By. v. Stevens, 20 Ohio 416; Cleveland, C. & C. By. v. Eeary, 3 Ohio St. 202; Mad Biver <& L. E. By. v. Barber, 5 Ohio St. 541 [67 Am. Dee. 312] ; Whaalan v. Bailway, 8 Ohio St. 250; Pittsburg, Ft. W. <& C. By. v. Devinney, 17 Ohio St. 198; Pitts-burg, Ft. W. & C. By. v. Lewis, 33 Ohio St. 196; Lake Shore & M. S. By. v. Lavalley, 36 Ohio Et. 221; Bailway v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11] ; Hartman v. Kloeppinger, 6 Circ. Dec. 393 (9 R. 433); Toomey v. Stamping Co. 11 Circ. Dec. :216( 20 R. 183) ; Lake Shore & M. S. By. v. Feller, 11 Circ. Dec. 799 (21 R. 605) ; Andrews Bros. Co. v. Burns; 12 Circ. Dec. 305 (22 R. 437) ; Spielcer v. Ferguson, 25 O. C. C. 671 (7 N. S. 13) ; Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857] ; Wellston Coal Co. v. Smith, 65' Ohio St. 70 [61 N. E. Rep. 143; 55 L. R. A. 99; 87 Am. St. Rep. 547] ; Davis v. Turner, 69 Ohio St. 102 [68 N. E. Rep. 819] ; Columbus, H. V. é T. Ry. v. Shannon, 2 Circ. Dec. 644 (4 R. 449) ; Jones v. Pipe Co. 8 Circ. Dec. 168 (15 R. 26) ; Strabler v. Bridge Co. 11 Circ. Dee. 87; McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705] ; Cleveland, C. C. & St. L. Ry. v. Hadley, 170 Ind. 204 [82 N. E. Rep. 1025; 84 N. E. Rep. 13; 16 L. R. A. (N. S.) 527; 16 Ann. Cas. 1].
   NIMAN, J.

The-parties to this proceeding in error stand in the reverse order-to that occupied by them in the court of common pleas, and when the terms “plaintiff” and “defendant” are used, reference is made to the parties as they stood in the court below.

The original action was brought by the plaintiff to recover damages for personal injuries suffered by him while in the employ of the defendant on March 9, 1906, and resulted in a verdict in his favor for $8,000. The defendant’s motion for a new trial having been overruled, and judgment entered on the verdict, it is sought in this proceeding to secure a reversal of the judgment of the court of common pleas.

Numerous errors are assigned in the petition in error, and among others it is urged by the plaintiff in error that the verdict is not sustained by sufficient evidence, and that the trial court erred in overruling the motion for a new trial. This contention requires a consideration of the facts constituting the plaintiff’s cause of action and the proof in support thereof, as well as the defense interposed by the defendant and the evidence in support of such defense.

The plaintiff, in his amended petition, in substance alleges that he was in the employ of the defendant on or about March 9, 1906, in the defendant’s plant in the city of Massillon; that on said day he was directed by a foreman of the defendant to go from a part of said plant where he was then working, and had been in the habit of working in the business of molding, to another part of said plant with which he was not familiar as a place to work, and there, with others, erect and construct a large and heavy cope and flask; that the cope weighed at least five tons and was used by the defendant for the purpose of casting iron flasks made by the defendant; that he was directed by said foreman to construct said cope upon four upright pillars, called “reducers,” and to place upon said reducers iron rails, upon which he and other employes were instructed by said foreman to place said cope for the making of iron pipe; that the plaintiff, obeying and relying upon the instructions and orders of said foreman, • proceeded to the point designated to carry out said instructions and orders, and was so engaged in the business of carrying out said instructions and orders, and in constructing and erecting said cope upon the reducers and rails as aforesaid, and doing the work in and about the same, and relying upon said foreman, and believing that the place wherein he was so directed to go and was so engaged in said work was a safe and secure place wherein he could, with safety, carry on said work, and that the said four upright pillars called reducers, and.the said iron rails upon which the plaintiff was directed and instructed to place said cope, were reasonably safe materials and appliances for said places, proceeded to place said eope upon the iron rails and reducers aforesaid as furnished by said foreman, and proceeded to do the work in and about the same, and as directed by said foreman; that while he was so engaged, a large and heavy crane was being operated near thereto, and large and heavy flasks, weighing at least three and a half tons, belonging to said defendant and used by it in the operation of said plant were, by order of the defendant, shaken out in the pit adjoining and near to the place where plaintiff was so engaged, and said flasks were being moved from place to place, and by reason of the shaking out of said heavy and ponderous flask containing iron pipe, and the same striking the ground at and near said pit, and said flasks being moved and let fall upon iron skids and other supports near thereto, and by reason thereof causing a vibration and shaking of said ground, and by reason of said shaking out of said flasks and moving and letting same fall, and thereby causing a vibration and shaking of the ground near the place where the said cope was being constructed, and by reason of the fact that said reducers and said rails were unsafe and unfit for said purposes, the aforesaid cope upon which the plaintiff was then working under said direction of said foreman, was caused to slide from the iron rails and from the reducers as aforesaid, and was precipitated over upon and against the plaintiff.

The plaintiff, in his amended petition, further avers that a part of the machinery'in said shop consists of a heavy electric crane, which is used in the moving, among other things, of the heavy wooden and iron flasks and castings, and in shaking the same out; that said flasks and castings variously weighed from three' to six tons or more; that in the usual operation of said crane in moving said flasks and castings, the same necessarily swayed and vibrated, all of which was well known, to the defendant company, its officers and servants superior to the plaintiff; that the defendant, its officers and servants superior to the plaintiff, were negligent towards the plaintiff in that, while knowing said facts, they placed the said cope and track upon insecure supports as aforesaid, and within such close proximity to said traveling crane and the space within whidh it was necessary to operate the same, that the flask and castings, while being moved by said crane, were likely to and did come in contact with said cope, and while plaintiff was working in, upon and around and about said cope and track, and in the exercise of proper care on his part, and while said crane was being operated and was moving, a heavy flask, weighing about six tons, did so sway and vibrate as aforesaid, and one end thereof came in contact with a pillar, which turned said flask about, and the other end thereof came in contact with the cope upon which and near which plaintiff was then working as aforesaid, and threw the same down and upon the plaintiff; that the defendant, through its officers and servants superior to the plaintiff, negligently selected the place where the said plaintiff was working, and directed him to work there, well knowing that the same was insecure and unsafe because it was in. too close proximity to said crane and the operation thereof, and the plaintiff says that by reason thereof and the other acts of negligence complained of, he was injured in the manner and form as herein averred.

Other allegations are set forth in the amended petition at considerable length, for the purpose of showing the alleged negligence of the defendant and the plaintiff’s consequent■ injury. Reduced to its simplest form, the plaintiff’s case, in substance, rests upon the contention that the defendant failed to use ordinary acre to furnish plaintiff with a reasonably safe place in which to do the work required of him, and reasonably safe appliances with which to do such work.

The defendant, in its answer to the plaintiff’s amended petition, in substance, denied all of the alleged acts of negligence on its part, and further averred that at the time of the plaintiff’s injury, and for more than five years prior thereto, the said1 plaintiff was in the employ of the said defendant as a molder, and was otherwise engaged by the defendant in its business; that he was thoroughly familiar with the works and machinery ■of said defendant, and with the construction of flasks and appliances of the said defendant; that part of the time during his .said employment, he was the foreman in the construction of flasks and other appliances of said defendant, and that on or ■about March 9, 1906, the said plaintiff had in charge a gang of men, employes of the said defendant, who were under the orders and direction of the said plaintiff in and about the construction of certain flasks to be used by the said defendant in its said business; that the plans for the construction of said flasks were made by the said plaintiff, with the assistance of other persons who were under the said plaintiff’s charge, and under his orders and direction; that the plans for the pillars and the selection of said pillars, the cope and the track, and all other things necessary for the construction of said flasks, were formulated and made by said plaintiff and said employes under his orders and direction; that the foundation upon which said flask and the parts thereof were constructed and rested was made under the orders and direction of the said plaintiff, as well as the position which the parts of said flask occupied thereon at the time of said accident.

Further averments are made in said answer t® the effect that it was the duty of the plaintiff himself to construct a proper foundation upon which said flask was placed and rested, as well as the selection of the pillars upon which said foundation was placed, and that it was his further duty to so place said foundation as to secure the safety of himself as well as other employes, and that whatever defects there were, if any, in the plans and construction of said flask, which produced the injury of said plaintiff, were the direct result of the plaintiff’s own carelessness and negligence, and not that of the defendant, and that if the appliances described in the amended petition were unsafe and unfit for the purpose for which they were intended, and that by reason thereof the plaintiff was injured as alleged, is due to his own carelessness and negligence.

The affirmative allegations of this answer were contradicted by the plaintiff’s reply thereto, and to support their respective sides of the issues thus made up, the parties called numerous witnesses, and a large mass of testimony was taken.

Without entering into any extended review of the evidence, it is sufficient for us to say that a careful reading of all the testimony convinces us that this court would not be justified in saying that the verdict was manifestly and clearly against the weight of the evidence. Upon the issues presented by the pleadings, there was a conflict of the evidence, and the jury found for the plaintiff.

The rule which should control reviewing courts in interfering with a verdict because not sustained by sufficient evidence, is stated in a part of the syllabus of McGatrick v. Wason, 4 Ohio St. 566, in the following language:

“A mere difference of opinion between the court and the jury does not warrant the former in setting aside the finding of the latter; that would be, in effect, to abolish the institution of juries, and substitute the court to try all questions of fact. It must be clear that the jury has erred before a new trial will be granted on the ground that the verdict is against the weight of the evidence, or unsupported by it.- and if this is the rule, as it undoubtedly is, even in the court where a cause is tried and before whom the witnesses appeared and testify, a fortiori, ought it to be the rule, when another court decides the motion for a new trial, with no other knowledge of the facts than is derived from the imperfect medium of a written statement?”

We think that the trial court, therefore, did not err in refusing to grant a new trial on the ground that the verdict is not sustained by sufficient evidence.

Another assignment of error is based upon the fact that on the cross-examination of William Thee, one of the defendant’s witnesses, the plaintiff was permitted, against the objection of the defendant, to inquire of him, in substance, whether or not changes had been made immediately after the accident in the reducers and other appliances for doing the work in which the plaintiff was injured. The witness was the foreman of the defendant, and had in his testimony expressed the opinion that the-reducers and rails were proper appliances to use for setting up-a cope, if they were properly put down, and the court permitted the question objected to to be answered, but expressly limited its; purpose in the following language addressed to the jury:

“I say now to the jury, that this testimony is considered only for the purpose of testing the accuracy and weight of the opinion given by the witness as to the safety of these appliances. ’ ’

Testimony of this character would not have been admissible for the purpose of proving the acts of negligence complained of by the plaintiff, nor for the purpose of raising an inference of an admission of such negligence, but as limited in its scope and purpose by the trial court, we think it was properly admitted, and that it falls within the spirit of the decision in Ashtabula v. Bartram, 2 Circ. Dec. 372 (3 R. 640).

It is also contended that there was prejudicial error in the refusal of the trial court to give the seventh request of the defendant to charge before argument. This request is in the following language:

‘ ‘ If you find from the evidence that William Thee, the foreman of tbe molding room, assigned to tbe plaintiff, John "Weigand, the duty of superintending and directing the several men in the work while working with him in the work he was doing at the time he was injured, and whilst so engaged in said work he, plaintiff, is injured, as set forth in his -petition, and because of either or any of the negligent acts of defendant, as .set forth in his petition, I will say to you that, under such circumstances, the plaintiff would not be a fellow-servant with his colaborers on said job of work, but would stand in the same relation to them as William Thee, the foreman, and he could not recover herein and your verdict should be for the defendant. ’ ’

It is claimed that the law embodied in this request is sustained by Wellston Coal Co. v. Smith, 65 Ohio St. 70 [61 N. E. Rep. 143; 55 L. R. A. 99; 87 Am. St. Rep. 547], but as we interpret that decision, the real point established therein is that ■a foreman of an employer cannot delegate his duties to one under his employ so as to relieve the employer from responsibility for negligence in the discharge of the duties of the foreman, whether such negligence arises from the acts or omissions of the foreman, nr of some one under his employ and by him directed to perform •the duties of such foreman, and that the foreman is chargeable •with whatever notice such a person so delegated by him has, or ought to have, while performing the duties of foreman himself. Moreover, we think the charge requested is not applicable to the facts and issues involved in this action. We do not understand that the fellow-servant doctrine is involved in this case, .and if it were, the charge requested would not be applicable. "We understand the claim to be that plaintiff had been delegated iby his superior to act as foreman in setting up the appliances with which he was working when injured, and therefore, was himself guilty of negligence if they were placed or constructed 'in any improper or unsafe manner.. In this view of the matter, the refusal of the trial court to give the request under eonsider.■ation was proper.

It is also claimed by the plaintiff in error that the court -erred in certain portions of his ehárge in not adhering to the principles of law laid down in Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709], where it was held that “in an action by an employe against his employer to recover damages for personal injuries, an instruction that the employer owed to his employe the duty to provide him a reasonably safe place in which to work, is erroneous, in that it imposes upon the employer a higher degree of.' care than the law requires or exacts of him, and that the limit of' the employer’s obligation and duty is to exercise reasonable and. ordinary care, having due regard to the hazards of the service,, to provide his employe with a safe place in which to perform his. work. ’ ’

An examination of the charge, however, discloses that where-the court used the language complained of by counsel for plaintiff in error, he was merely stating the alleged negligence set forth in the plaintiff’s petition, and was, in substance, following the language of the petition in stating the issues; but that in stating he law to the jury, the court exactly Mowed the law as laid down in said case, using this language:

“The limit of defendant’s obligation and duty to plaintiff in that behalf was to exercise reasonable and ordinary care, having due regard to the hazards of the service in which plaintiff was then engaged ,to provide him with a safe place in which to-work, and reasonably safe appliances' and materials with which-to do said work. It was not bound to provide the best and the-most improved applianecs and materials, but only to exercise ordinary care to provide such as were reasonably fit for the purpose. ’ ’

There was, therefore, no error in this portion of the' charge.

It is claimed by the plaintiff in error that it was prejudiced by the alleged failure of the court to properly charge what is termed “the equipoise doctrine,” and it is said that this error1 is shown by the following language of the court:

“But if you find that plaintiff has proven, by a preponderance of the evidence, that defendant was negligent in any or all of the respects heretofore stated to you as the specific acts of negligence complained of, and that such negligence on the part of defendant was the proximate cause of such injury, and no inference of contributory negligence upon Ms part arises from the evidence introduced by him in support of his case, and such contributory negligence on his part is not proven by defendant by a preponderance of the evidence, as hereinafter stated, then you should return a verdict against the defendant for compensatory damages. ’ ’

It is argued that the defendant might not have made out its defense by a preponderance of the evidence, but yet that evidence, taken in connection with the evidence of the plaintiff, might have been sufficient to have placed the evidence in equipoise, and if so, the verdict should have been for the defendant, and that the defendant was deprived of this right by the language of teh charge above quoted.

This contention overlooks another portion* of the charge where the court, in defining the term “preponderance of the evidence,” used this language:

■ “By a preponderance of the evidence, I mean the weight of the evidence. Generally speaking, whoever affirms a fact must prove it, and whenever all the evidence upon a disputed fact is in equipoise, the party who affirms the fact has failed to prove it.”

Considering that part of the charge under consideration, to which objection is made, in connection with the court’s statement of the equipoise doctrine, we are of opinion that no error was committed by the court in the respect claimed.

Another alleged error in the charge of the trial court is based upon the contention that the court deprived the defendant of the doctrine laid down in Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844], where it was held:

“Where both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff has no right to recover; and in such case, when the defendant asks the court to so instruct the jury in unambiguous terms, a refusal to so instruct is error. ’ ’

While the court did not, in express terms, charge the law of the last -above-mentioned case, he did very fully charge that if the plaintiff failed to prove by a preponderance of the evidence that the defendant was guilty of negligence in the respects complained of, or some one of them, and that such negligence was the proximate cause of the plaintiff’s injury, there could be no recovery; and that if the evidence introduced by the plaintiff raised a presumption of contributory negligence on his part, and he had failed to remove such presumption, or that the plaintiff’s injury was caused wholly by an accident without the fault of any one, or was caused by the plaintiff’s own negligence alone, and not by the negligence of the defendant, or that in the event the defendant had proved by a preponderance of the evidence that plaintiff was himself guilty of negligence which contributed directly as a proximate cause of his own injury, then the verdict should be for the defendant.

If the defendant had requested the court to charge that if both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff would have no right to recover, it would have been the duty of the court to give such charge; but no such request was made, and we think the principle of Smith v. Railway, 23 Ohio St. 10, should control in this matter. It was there held:

“If the charge as given be unexceptionable, it is no ground for error that the court failed to give other instructions which might properly have been given, unless such other instructions be specifically requested and refused.”

It is claimed by the plaintiff in error that the trial court erred in no applying to this aese the doctrine of McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705], where it was held as follows:

‘ ‘ The rule that a direction of the master to continue the use of a defective instrument or tool, coupled with a promise to replace it with one not defective, relieves the servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to eases of ordinary labor with a tool of simple construction with which the servant is entirely familiar, and which he understands and comprehends as fully as the master. ’ ’

If this principle is applicable to the case under consideration, the verdict would be contrary to law, and it is so contended by plaintiff in error. It is argued that the appliances in this case and the reducers and the rails were as simple in their construction and application as the stepladder in the case above referred to, and that the plaintiff could see and know as much about them and the manner of their use as could the defendant.

We think that the' trial court was .justified in not accepting-this contention, in view of the allegations of the petition ánd the proof in support thereof concerning the traveling crane and the-shaking outfit, the new place in which the work was being done,, and all of the other circumstances surrounding the construction and use of the reducers, iron rails and other appliances. There would seem to be a wide difference between the means employed, in doing the work in which the plaintiff was engaged, in the surroundings and in the location shown by the evidence, and the-defective instrument which caused the injury to the plaintiff in McGill v. Traction Co. supra, and we therefore hold that there was no error in the refusal of the trial court to apply the' doctrine of that case to this one.

Another assignment of error is founded on the contention that the verdict is excessive.

It appears'that at the time of his injuries, the plaintiff was. a molder by trade and was receiving $3.10 a day; that at the time of the trial, and for some time before, he had been receiving only $1.10’ a day; the according to the undisputed evidence, he has been crippled for life, and has suffered and will continue to suffer pain. While the verdict is large, we are unable to say that it is so excessive as to appear to have been given under the influence of passion or prejudice.

Numerous cases have been cited us where parties apparently suffering no greater injuries than that sustained by the plaintiff,, have obtained verdicts in excess-of the verdict recovered by him, which have been sustained by reviewing courts.

' The principle which we conceive should be adhered to in interfering with a verdict on the ground that it is' excessive, is stated in Lake Shore & M. S Ry. v. Schultz, 9 Circ. Dec. 816 (19 R. 639), in the following language: \

“A verdict should not be set aside simply because it is'excessive in. the mind of the court, but only when the excess is shocking to a sound judgment and a sense of fairness to the defendant. Where there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury rather than the contrary. ’ ’

Various other errors are assigned in the petition in error, but the ones herein considered are those relied upon by counsel for plaintiff in error in their argument and briefs for a reversal.

We find no error prejudicial to the plaintiff in error in any of the matters complained of, and it therefore follows that the judgment of the court of common pleas must be affirmed.

Voorhees and Powell, JJ., concur.