text:
    WHEN IT IS THE DUTY OF THE COURT TO DIRECT A VERDICT FOR THE DEFENDANT IN A NEGLIGENCE CASE.
    Circuit Court of Cuyahoga County.
    John Gutt v. Pennsylvania Company.
    Decided, May 27, 1912.

      Construction of Section 9018, General Code — Negligence and Contributory Negligence for Jury — No Evidence of Defendant’s Negligence— Duty to Direct Verdict.

    The requirement in Section 9018, General Code, that in all actions brought against a railroad company for personal injury to. an employee, all questions of negligence and contributory negligence shall be for the jury, assumes that there must be evidence tending to establish negligence on the part of the defendant, and if the undisputed facts in the case do not tend to show that the defendant has been guilty of negligence, there is no question of fact to be submitted to the jury, and it is the duty of the court in such case to apply the law to the undisputed facts and direct a verdict for the defendant.

      S. Doerfler and G. W. Dille, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The action, out of which this proceeding in error arises, was begun in the court of common pleas by John Gutt to recover damages from the Pennsylvania Company on account of personal injuries sustained by him while a brakeman in the company’s employ.

On the trial of the ease in the court below, the court on motion of the defendant directed a verdict for said defendant at the close of the plaintiff’s evidence.

The plaintiff’s motion for a new trial was overruled and judgment entered against him on the verdict.

A reversal of this judgment is now sought by the plaintiff in error on the ground that the court erred in directing a verdict in the manner indicated.

The only witness who testified on behalf of the plaintiff was the plaintiff himself. It appears from his testimony that on the night of July 25, 1910, he was in the performance of his duties as yard brakeman for the defendant, assisting in the work of taking a train of coal cars out of the defendant’s Bedford yard, seven or eight miles from Cleveland; that his duties in general were to couple up cars, pass signals and assist in the switching of cars; that on this particular occasion he was instructed by the conductor in charge of the train that was being switched, to station himself near the head end of the train, and await a signal to be given by the conductor, who then went to the other and of the train, composed of about forty cars, to see that the right-of-way was clear; that the plaintiff then sat down on a switch stand about fifteen or twenty feet from the end of the engine, and about two feet and a half from the track on which the train was to be moved; that the head end of the engine was coupled to the train, and the headlight attached to the back of the engine; that while the plaintiff was sitting on the switch stand he became unconscious and while in a state of unconsciousness his hand rested upon or close to one rail of the track; that the train was started by the engineer while the plaintiff was in this position, resulting in his hand being run over by the train and causing the injuries for which he sought to recover damages in the court below.

There was no evidence tending to show that the engineer knew of the plaintiff’s position of peril, but there was evidence tending to show that if the engineer had looked ahead on the track he might have discovered the plaintiff’s situation. A rule of the company was also introduced in evidence‘whereby an engineer is required to keep a constant lookout on the track for signals and. obstructions.

On this state of facts it is contended for the plaintiff in error that the case should have been submitted to the jury.

In Erie Railroad Co. v. McCormick. 69 O. S., 45, a case identical in principle with the one before us, it was held, quoting from the syllabus, paragraph 3:

“In an action against a railroad company by one who, by his own fault, is upon its tracks and in a place of danger, to recover for a personal injury caused by the failure of its employees operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company.”

Unless the law, thus laid down by the Supreme Court, has been modified by the enactment of the statute of February 28, 1908 (99 O. L., 25), it must control the decision in this case. Section 2 of that act, which is Section 9018, General Code, provides:

‘ ‘ In all actions hereafter brought against a railroad company operating a railroad in whole or part within this state, for personal injury to an employee or where such injuries have resulted in his death, the fact that he was guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer greater, in comparison. But the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employee. All questions of negligence and contributory negligence shall be for the jury.”

The effect of this statute is to relieve the plaintiff who seeks to recover damages from the defendant on account, of the latter ’s negligence, .of the consequences of his own contributory negligence. All questions of fact relating to negligence and contributory negligence are to be submitted to the jury. The statute does not, however, attempt to define negligence, nor to take from the court the power of passing upon questions of law. The requirement that all questions of negligence and contributory negligence shall be for the jury, assumes that there must be evidence tending to establish negligence on the part of the defendant. If the undisputed facts do not tend to show that the defendant has been guilty of negligence, there is no question of fact to be submitted to the jury, and it is the duty of the court in such ease to apply the. law to the undisputed facts and direct the verdict for the defendant.

Referring again to The Erie Railroad Co. v. McCormick, supra, we find in the opinion on page 53, this language:

“The concrete rule upon this subject is, that if one is upon the track of a railway company by his own fault, and in peril of which he is unconscious, or from which he can not escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not impose the dirty to exercise care to discover that one so upon the track is in a place of danger, but it does impose a duty to be exercised upon actual discovery. ’ ’

Under this rule of law laid down by the Supreme Court, there is not any duty imposed upon a railroad company of exercising care to discover one who is by his own fault upon the tracks of the company and in a place of danger, of which he is unconscious, and from which he can not escape. There being no such duty, a failure to use such a care is not actionable negligence. The duty of using ordinary care, to avoid injuring such a person begins only with actual discovery, and for the violation of such duty a' right of action would exist in favor of the one injured.

This being the law announced by the Supreme Court, we are, of course, bound to follow it, whatever may be our views as to what we think the law on this subject ought to be.

Applying the principle of the case of The Erie Railroad Co. v. McCormick, supra, to the facts in this case, it is apparent that, since there was no evidence tending to show actual knowledge imputable to the company of the plaintiff’s presence on the track, there was as a matter of law no actionable negligence on the part of the company shown, and no question of fact to be submitted to the jury.

If it should be admitted that the plaintiff was upon the track in an unconscious condition without fault on his part, as is claimed on his behalf, and therefore not guilty of contributory negligence, the evidence would still fail to disclose a situation tending to establish negligence on the part of the defendant company. His position in that event would be analogous to that of a mere licensee, and the company’s duty to use reasonable care to avoid injuring him would begin only upon discovery of his position by some one whose knowledge would be imputed to the company. Such is the holding in The Cleveland, Akron & Columbus Railway Co. v. Workman, Admr., 66 O. S., 509.

The trial court committed no error in directing a verdict for the defendant, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PROSECUTION FOR PROCURING A MISCARRIAGE.
    Circuit Court of Lucas County.
    Mary Bridge v. State of Ohio.

    Decided, February 24, 1912.

      Criminal Law — Proof of Negative Averment Under the Statute Relating to the Procuring of a Miscarriage — Newly-Discovered Evidence Not a Ground for a New Trial, When.

    While it is incumbent on the state in order to convict in an indictment under General Code 12412, for procuring an abortion, to prove that the same was not necessary in order to preserve the life of the mother, the state is not required to prove that such act was not advised by two physicians to be necessary for such purpose, as this latter negative averment may be easily shown by the defendant, while it would be very difficult, if not impossible, to be established by the state.

      Tilery $ Merrill, for plaintiff in error.

      Holland G. Webster, Prosecuting Attorney, and Boy Stuart, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Court of Common Pleas of Lucas County.

       Affirmed without opinion, Bridge v. State, 87 Ohio State, 464.

   The plaintiff in error was convicted in the common pleas court under General Code, Section 12412, of procuring a miscarriage upon the body of one Minnie Parrish, and was sentenced to the penitentiary for a period of five years. The bill of exceptions contains all of the evidence upon the trial of the case, and all of the evidence which was offered upon a motion for a new trial, filed in the common pleas court.

It is contended by counsel for Mary Bridge that the conviction was wrong and that she is entitled to have the same reversed by reason of the fact that the record contains no evidence to substantiate the negative averments contained in the statute and in the indictment. The statute to which reference has been made authorized a conviction “unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof.”

Of course this provision which has just been quoted may be sustained by any competent evidence, and with a view to ascertaining whether it is sustained, we have very carefully examined the evidence and find abundance of evidence warranting the jury in so concluding. Indeed, there is nothing in the evidence relative to the condition of Minnie Parrish at the time of the operation that in any wise tends to show any necessity for the performance of the operation in order to preserve her life.

It appears from the evidence that she, at some time before the operation, consulted with two physicians and she states in her evidence that they had not advised her to have a miscarriage performed for the purpose of saving her life. We think no error was committed by the trial court in allowing that evidence. While the duty devolved upon the state, under authority of Moody v. State of Ohio, 17 O. S., 111, to prove the negative averment, yet the burden of proving that branch of it which relates to the advice of physicians would not, by the language of the case just cited, be cast upon the state.

The defendant in the common pleas court, within three days after the verdict of guilty was rendered, made a motion for a new trial, one ground of which was based upon the claim of certain newly-discovered evidence! Upon the hearing of that motion, she called to the stand one of the assistant prosecuting attorneys and sought to show by him that he was present before the grand jury when Minnie Parrish testified and that she had there given a -different version of the case from that testified to by her on the trial. The bill of exceptions contains a statement of the evidence expected to be shown, and it is not of such a character as would have justified the trial court in granting the motion. The evidence, if introduced, would have a tendency to impeach the testimony of Minnie Parrish, and to have cast upon her testimony the suspicion that attends the statements made by an accomplice, as indicated in State v. McCoy, 52 O. S., 157. Such evidence would not, in view of the other evidence contained in the record, have required a different verdict upon a retrial of the case. It seems to us, on the contrary, that if there had been a re-trial, and if upon such re-trial this impeaching evidence had been introduced, that the same result would necessarily have been reached. The rule that a new trial will not be granted on the ground of newly-discovered evidence, unless such evidence would require a different verdict, has often been laid down by this court, and is sustained by many reported eases. We cite only, Cincinnati Traction Co. v. Fesler, 31 C. C. Reports, 631, and C., C., C. & St. L. Railroad Co. v. Long, 24 O. S., 133.

The record in this case fails to disclose any act of diligence on the part of plaintiff in error in seeking to discover the evidence upon which she relied for the granting of her motion for a new trial.

For the reasons given, and finding no error to the prejudice of plaintiff in error, +he judgment of the court of common pleas will be affirmed.


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    EMPLOYEE RELIEVED FROM HIS AGREEMENT BY HIS WRONGFUL DISCHARGE.
    Circuit Court of Cuyahoga County.
    The Jewel Tea Company v. Wm. J. Wilson.
    Decided, June 18, 1912,

      Agreement Not to Engage in Business — Employee Wrongfully Discharged — Agreement Not Enforced.

    Where an employee under agreement not to engage in the same business in the same city for one year after leaving his employment, is wrongfully discharged by his employer, his .agreement will not be enforced against him.

      White, Johnson & Cannon, for plaintiff.

      H. C. Boyd, contra.

      Metcalfe, J. (sitting in place of Winch, J.); Marvin, J., and Niman, J., concur.
   The plaintiff and defendant entered into a written contract, by the terms of which the defendant became the employee of the plaintiff for the sale of teas and coffees, etc. The contract was entered into on the 19th day of August, 1911, and about the 13th of January, 1912, the employment was terminated, and the defendant entered into the employment of the Grand Union Tea Company, which is said to be a rival concern.

The contract between the parties contained the following stipulation :

“The party of the second part further agrees as a condition precedent he will not engage for himself or any other person or company in the tea and coffee business, nor offer for sale any teas, coffees, etc., during the life of this contract, nor during a period of twelve months after leaving the employ of the first party for any cause, whether before'or after the termination of this contract, in the city of Cleveland, Ohio.”

By virtue of this provision the plaintiff seeks by injunction to prevent the defendant from continuing in the employ of the Grand Union Tea Company, and from selling teas and coffees and other products dealt in by the plaintiff.

The defendant claims that he was wrongfully discharged from the employment of the plaintiff, and for that reason is not bound by the clause above quoted. He also claims that he has not in any way violated the.terms of the contract by disclosing any of the trade secrets acquired by him while in the plaintiff’s employment or by dealing with any of the plaintiff’s customers.

So far as this is concerned, that is to say, whether the defendant has or has not disclosed the trade secrets of the plaintiff, or dealt with any of the plaintiff’s customers, we think that is immaterial. The contract binds him for a period of one year not to engage for himself or others in the tea and coffee business after leaving the employ of the plaintiff within the city of Cleveland, Ohio. That such a contract is binding upon the parties and will be enforced, is too well established to require discussion. Lange v. Work, 2 O. S., 520; Gage v. State, 1 C.C.(N.S.), 221; 57 O. S., 596; 35 O. S., 666; 11 O. S., 349; 3 O. S., 274.

And it is equally well settled that such a contract must be construed reasonably and can not be used oppressively, or extended beyond its plain terms. See the authorities above cited and other Ohio cases.

The defendant in this ease claims that hé ivas wrongfully discharged. It appears that he was called into the office of the company by the manager and informed that his services would no longer be needed.

There is a provision in the contract allowing either party to terminate it upon giving two weeks’ notice to the other. Mr. Wilson inquired if he would be permitted to have two weeks’ notice, and was informed that he would. The following week when he came to the office, he had made no report for the week; the manager inquired why he did not do so, and was informed that he had been sick. The manager refused to accept his explanation and immediately discharged him.

He testifies, however, that he offered to continue Wilson in the employment of the company on commission but not on a salary.

The evidence of Wilson is undisputed as to the fact of his sickness during the week, and the action of the manager in discharging him immediately seems to have been rather hasty and ill-considered, and suggests the idea that he was seeking an opportunity to discharge Wilson from the employment, so we are inclined to think that the evidence in this case is insufficient to show that the defendant was rightfully discharged, or rather, that he was discharged for sufficient cause under this contract.

We think it would be both oppressive and unreasonable that an employer should discharge an employee without cause and at the same time hold the employee to the literal terms of the contract, and for that, reason a decree in this case will be for the defendant.


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    AS TO APPLICATION OF THE COMPARATIVE NEGLIGENCE STATUTE.
    Circuit Court for Lucas County.
    Margaret Hill, as Administratrix of the Estate of John E. Hill, Deceased, v. The Pere Marquette Railroad Company.

    Decided, January 13, 1912.

      Negligence — Switchman StrucJc'by Locomotive — Engineer Had Been on Duty More than Fifteen Hours — Contributory Negligence of the Decedent — Restriction in Application of the Comparative Negligence Statute.

    1. Where the evidence shows that the decedent switchman met his death through his own contributory negligence, the fact that the engineer of the locomotive which struck him had been on duty for more than fifteen consecutive hours without an interval of eight hours rest, in violation of Section 9007, General Code, does not operate to render the railroad company liable.
    2. Section 9018, General Code, introducing to a limited extent the doctrine of comparative negligence, is not applicable to an accident occurring before its passage, notwithstanding it contains the provision that the statute shall apply to all actions “brought” after its passage.

      O. S. Brumback, for plaintiff in error.

      J. H. Tyler, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Common Pleas Court of Lucas County.

      Judgment of Court of Appeals affirmed by Supreme Court (no opinion), 88 O. S., 599.

   The plaintiff in this case was plaintiff in the court of common pleas and brought the action in that court for the purpose of recovering damages by reason of the death of John E. Hill, alleged to have been caused by the negligence of the railroad company.

The injury resulting in the death of Mr. Hill occurred at 1:15 o ’clock in the morning of November 16, 1907, in the railroad yards of the defendant company in the city of Toledo. Hill was a switchman in the employ of the railroad and on the occasion under consideration he was riding upon a foot-board at the rear of the tender while the engine was proceeding forward down the lead track for the purpose of doing some switching on siding No. 13. The switch being open to siding No. 9 the engine ran in on that siding a short distance — the error being promptly discovered and the engine stopped. Whereupon, it seems that Hill stepped off immediately behind the tender. The engineer, without being signalled so to do and without giving any warning by ringing the bell or otherwise, started the engine backward and it ran over Hill and killed him.

It appears from the admissions of the answer to the amended petition that the engineer, whose name was Howell, began work at seven o’clock in the morning of November 15, 1907; that he continued at work until noon; that he took one hour for rest and luncheon; that he began work at one o’clock in the afternoon and continued at work until six o’clock of that evening; that he took one hour for rest and supper and began work at seven o’clock in the evening; that he continued to work until midnight at which time he took one hour for rest and luncheon; and that he again began work at one o’clock in the morning of November 16, 1907, and that the injury and death of Mr. Hill occurred some fifteen minutes later.

The court of common pleas at the conclusion of the evidence offered in behalf of plaintiff, directed a verdict in favor of the defendant. It is insisted in this court by counsel for. plaintiff that the railroad company is shown to have permitted the engineer to work for fifteen consecutive hours and to then again go on duty without at least eight hours rest, and that such conduct constituted a violation of Section 9007, General Code, and that this resulted directly in the injury of which complaint is made. If it be conceded that the company was violating the section to which reference has been made, it is not apparent from the record under review that such conduct produced the injury and resulting death of Mr. Hill.

It appears from the testimony of William L. Woodling, who was fireman upon the switch engine, that the engineer during the night was active and on the lookout and attentive to his duties, and this evidence does not seem to be controverted.

The act of Mr. Hill in remaining upon the track immediately behind the tender when, from all the circumstances, he must have known that the engine would immediately back up in order to get on the main lead and proceed forward to siding No. 13, manifests such negligence as would bar a recovery by his administratrix. It is urged, however, in argument that Section 9018, General Code, is applicable to this case, and that therefore the plaintiff should be allowed to recover although Hill was guilty of negligence, his negligence being slight and that of the employer greater in comparison. That section was intended to introduce to a limited extent the doctrine of comparative negligence in actions of employes against their employers, but by its terms is only applicable when the negligence of the employe is “slight” and that of the employer “greater in comparison.” It does not appear from the record that the contributory negligence of the employe was “slight” and that of the employer “greater in comparison.” Indeed, we do not find any evidence tending to show that the railroad company was guilty of negligence. It is conceded that the engineer was the fellow-servant of the switchman, so that the company would not be liable for any negligence of which the engineer alone may have been guilty.

The section to which reference has just been made, namely, Section 9018, was enacted by the General Assembly of Ohio on February 28, 1908, 99 O. L., 25, while the injury and death of Mr. Hill occurred upon November 16, 1907. We think for that reason the section can not be applied to. this case. If the railroad company immediately after the injury had a good defense under the then existing law by reason of the negligence of Hill having contributed directly to his death, the right to that defense was a vested right which could not thereafter be taken away by statute. It is true the section by its terms purports to apply to all actions brought after its passage, but it must, in order to avoid the constitutional inhibition against retroactive laws, be held to apply only to such causes of action as may arise after its passage. Constitution of Ohio, Article II, Section 28; Commissioners v. Rosche Bros., 50 O. S., 103; Cooley on Constitutional Limitations, 6th Edition, 455; Black’s Constitutional Law, 543-544; Black on Interpretation of Law, 256, and following.

We find no error of the trial court in the admission or rejection of evidence. Counsel for plaintiff in argument dwelt upon the claimed negligence of the railroad company in failing to have the bell ringing attachment in order; it being claimed by him that the attachment was intended to work automatically, but was so defective that it would not work in that manner. It is sufficient to say that the amended petition contains no allegation that the company was negligent in that respect, and that while the bell would not ring automatically, it was in such condition that it could readily be rung by the hand with the use of a rope supplied for that purpose.

The circumstances of the ease as disclosed by the evidence preserved in the record indicate to our minds that if the case were re-tried and the issues submitted to a jury, the result would not be different, and therefore that substantial justice has been done to the plaintiff in error.

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


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    RIGHTS OF ATTORNEY CLAIMING INTEREST IN JUDGMENT.
    Circuit Court of Cuyahoga County.
    Harry Koblitz v. Lizzie Bartlett et al.
    Decided, June 17, 1912.

      Attorney Claiming Interest in Judgment — Not a Party — Can Not Prosecute Error.

    An attorney claiming an interest in a judgment rendered in favor of his client, but not a party to the action in which it was recovered, can not prosecute error proceedings in his own name to any order of the court made in said action.

      F. A. Henry, for plaintiff in error.

      Wing, Myler & Turney, contra.
    Niman, J.; Marvin, J., and Metcalfe, J. (sitting in place of Winch, J.), concur.
   The action out of which this proceeding in error arises was begun by the defendant in error, Lizzie Bartlett, to recover from the defendant in error, Theodore Poplowsky, administrator of the estate of Andrew Besenz, deceased, on a claim for caring for the said Andrew Besenz during the period extending from March 10th, 1904, to September 16th, 1907, while he was incapable of caring for himself.

Such proceedings were had in the original action, that the plaintiff recovered of said administrator a judgment for $1,-141.80.

Thereafter the plaintiff, herself, made application for leave of court to remit all her judgment in excess of $500. This application was granted and she was given leave to, and did remit from the amount of her judgment all in excess of $628.50. The discrepancy between the amount mentioned in her motion and that contained in the journal entry authorizing the remittitur is probably due to the fact that interest was calculated on the sum of $500 from the time it became a claim against the estate of Andrew Besenz, deceased. At the time the plaintiff was given leave to remit from her judgment, a former order of the court •ordering a remittance- from the judgment' in like amount on the ground that the judgment was too large, was vacated and set aside as being erroneous.

Harry Koblitz, the plaintiff in error, was not a party to the action below, but it appears from the journal entry that an exception was noted in his behalf, to the action of the trial court in granting leave to the plaintiff to make the desired remittitur.

From the bill of exceptions filed by him, it appears that he was present, by counsel, at the hearing and resisted the plaintiff’s application, not on behalf of any party to the action, but on his own behalf. The ground of his objection was that the plaintiff had previously assigned to him as compensation for legal services in obtaining the judgment, that portion thereof which she sought to remit.

In his petition in error he sets forth the recovery of the judgment for $1,141 by Lizzie Bartlett against Theodore Poplowsky, administrator of the estate of Andrew Besenz, deceased, and avers the subsequent assignment to him by the plaintiff below of the judgment in excess of $500 and the action of the trial court in allowing said plaintiff to remit from the judgment all in excess of $628.50.

lie assigns as error the action of the trial court in permitting the plaintiff to remit from her judgment, and states as follows:

“1. That the said Lizzie Bartlett was not the real party in interest in said judgment at the time of the making of the application and of the making of said remittitur.
“’2. That the said Hfarry Koblitz,-plaintiff in error herein, was the real party in interest, and was in fact and in law the owner of said judgment.
“3. That the said order allowing and entering said remittitur is contrary to the evidence introduced in said hearing.
“4. That the granting of said order allowing said remittitur is contrary to law.
“5. That there are other errors in the proceedings apparent in the record, to all of which the said plaintiff in error duly excepted.”

It is made to appear that there was no controversy between the original parties to the action over the plaintiff’s application. She was anxious to remit from her judgment all in excess of $500. The defendant coiild not consistently resist the application, and did not in fact do so.

The plaintiff in error claiming to be the owner of that portion of the judgment sought to be remitted was present in court at the hearing, but the record fails to show that he ever obtained leave to become a party to the action, or that he ever in fact in any way became a party thereto.

We have therefore before us a bill of exceptions, containing the evidence taken at a hearing on an application by a party to the action, and resisted by one claiming an interest in the judgment by assignment, but who was not a party to the action so as to be entitled, as matter of right, to be heard.

We are asked to review a decision, of the trial court by one who was a party to the action in which the decision was rendered, and who has no other rights than those possessed by him at the time of the hearing of the court below.

In Mindock v. Kramer, 20 C. C., 665, it was held:

“Where a judgment is rendered affecting the interest of a party not a party to the suit, such party is not authorized to institute error proceedings to such judgment.”

We are of opinion that the plaintiff in error, not having been a party to the action in which the decision complained of was made, can not bring the decision here for review.

Even if the plaintiff in error had become a party to the action below, it seems doubtful whether or not he would have accomplished what he desired in the hearing on the plaintiff’s application to remit. His controversy is with the plaintiff over the validity of an assignment of that part of the judgment sought to be remitted, a subject entirely foreign to any issue involved in the original action. If that .assignment is valid the plaintiff had no power to remit. She could not relinquish rights in something she did not possess, and her act would be a mere nullity. In such event the plaintiff in error still has an enforcible judgment against the defendant below, to the extent of the amount assigned to him. If the plaintiff had the right to remit from the judgment, she needed no assistance of the court to enable her to do so.

The controversy between plaintiff in error and defendant in error, Lizzie Bartlett, would seem to be the proper subject-matter of an independent action rather than one to .be settled upon hearing of a motion.

This furnishes an additional reason for holding that the question sought'to be raised by this proceeding in error can not be considered on its merits.

The petition in error will, therefore, be dismissed.


text:
    THE PROVISION FOR APPEAL WITHOUT BOND VALID.
    Circuit Court of Cuyahoga County.
    Ernest J. Hull v. Abraham Kaufman et al.
    Decided, June 17, 1912.

      Municipal Court Jurisdiction — Appeal Without Bond from. Justice Court —Constitutional Laio.

    Section 11 of the act creating the municipal court of the city of Cleveland and providing for appeal without bond from a court of a justice of the peace to said municipal court, in certain cases, is constitutional.

      11. .Preusser, for plaintiff in error.

      Joseph Morgcmstem, contra.
    Niman, J.; Marvin, J., and Metcalfe, J., (sitting in place of Winch, J.), concur.
   The plaintiff in error recovered a judgment against the defendants in error in the court of R. T. Morrow, a justice of the peace in and for Cleveland township, Cuyahoga county, Ohio. Within five days after the rendition of this judgment the defendants filed notice that they desired to appeal from said judgment to the municipal court of the city of Cleveland. Thereupon said justice of the peace transmitted to the clerk of the municipal court the papers in the action and a transcript of the docket showing the proceedings in the action.

The plaintiff then filed a motion to strike the original papers and transcript of the docket entries in the action, transmitted from the court of said justice of the peace, from the files. This motion was overruled by the municipal court and on error proceedings in the court of common pleas, brought to reverse the decision of the municipal court, the overruling of said motion was sustained. The plaintiff in error now seeks by this proceeding in error to secure.a reversal of the judgment of the court of common pleas, affirming the action of the municipal court in overruling said motion.

The facts before us, and the error assigned, call for a determination of. the constitutionality of Section 11 of the act creating the municipal court of the city of Cleveland (101 O. L., 364), as amended 102 O. L., 158.

The first paragraph of Section 11 reads as follows:

“In an action in a court of a justice of the peace which is appealable to the municipal court any party thereto may file with said justice, within five days after the rendition of a judgment or the making of a final order therein, a notice in writing that he desires to appeal from said judgment or final order to the municipal court, and forthwith all further proceedings in such action in the court of the justice of the peace shall cease, and the appeal shall be considered as perfected, and the appellant shall not be required to file bond. Said justice shall thereupon immediately transmit to the clerk of the municipal court all papers in said action, a transcript of his docket showing the proceedings and the costs of his court, and any moneys held by him in the action and the justice shall order the constable to turn over any property held by him in the action to the bailiff of the municipal court to be by him held as in like cases originating in the municipal court.”

It is contended for the' plaintiff in error that this section is unconstitutional, because it authorizes an appeal without bond, and therefore his motion should have been granted.

The section under consideration is claimed to be unconstitutional because, it is said, the subject of appeals from the judgment of a justice of the peace is of a general nature, and all laws dealing therewith must have uniform operation throughout the state, and since this section does not have uniform operation throughout the state, but applies to the municipal court, it violates Article II, Section 26, of the Constitution.

There can be no question of the power of the General Assembly to establish such a local or special court as the municipal court (State, ex. rel. v. Bloch, 65 O. S., 370). The constitutionality of the act creating the municipal court of the city of Cleveland is conceded.

' Having power to create such a court,' it-necessarily follows that the Legislature has power to define its jurisdiction. In exercising this power the Legislature has provided for appeals from the judgments of justices of the peace to the municipal court, and has authorized the taking of such appeals from the jirdgments of justices of the peace to the municipal court, and has authorized the taking of such appeals without bond. This in no way interferes with the jurisdiction of justices of the peace from whose courts actions may be appealed. It pertains solely to the jurisdiction of the municipal court, and the jurisdiction of that court is not a subject of a general nature. The fact that in appeals from justice courts to the court of common pleas, bond is required of the party appealing, imposes no obligation upon the Legislature to require bond to be given in appeals to the municipal court.

In omitting to require bond of the party appealing from a judgment of a justice of the peace to the municipal court, the Legislature doubtless had in mind the correction of certain evils believed to exist in the justice court system and to facilitate the appeal of cases to the municipal court. It was a proper exercise of power to provide for appeals without bond, and Section 11 of the act creating the municipal court, as amended 102 O. L., 158, is not unconstitutional.

The argument that the party who has recovered a judgment in the justice court is deprived of his right to have execution on his judgment without security of a bond, in case the losing party appeals to the municipal court, is one more clearly addressed to the justice or policy of the law than to its constitutionality. Moreover, the judgment in such ease is not a finality. It is obtained in contemplation of the law relating to appeals and the party obtaining it must be deemed to know that the jurisdiction of the municipal court may be invoked by the losing party.

Judgment affirmed.


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    SET-OFF DISALLOWED WHERE CLAIMED AGAINST THE ASSIGNEE OF AN INVOICE AND BILL OF LADING.
    Circuit Court of Cuyahoga County.
    The F. T. Peitch Company v. The Hattiesburg Trust & Banking Company.
    Decided, June 17, 1912.

      Assignment of Bill of Lading — Consignor, Retaining Control of Shipment — Off-Set by Consignee of Claim Against Consignor, When Not Allowed.

    Where an invoice and bill of lading made out in the name of the consignee for goods sold the consignee are assigned by the consignor to a bank for an advance of 80 per cent, of the face value of the invoice, in an action thereon by the bank against the consignee, the latter can not off-set a claim against the consignor of which the bank had no notice, the course of dealing between the parties showing that the consignor reserved the right to control the goods shipped.

      Hauxhurst & Saeger, for plaintiff in error.

      Pattison & Austin, contra.
    Niman, J.; Marvin, J., and Metcalfe, J. (sitting in place of Winch., J.), concurs.
   The plaintiff in error was defendant, and the defendant in error was plaintiff in the court of common pleas. A jury was waived in the court below and the cause tried to the court. Judgment was rendered against the defendants there.

This proceeding in error is prosecuted to secure a reversal of said judgment.

On the 14th day of June, 1909, the F. T. Peitch Company placed with the Forest Lumber Company an order for lumber which was duly accepted and the lumber ordered was delivered to the carrier at. Columbia, Miss., on July 15, 1909, by the Forest Lumber Company, through the agency of the Marion Lumber Company, which acted for the Forest Lumber Company. The lumber was consigned to the F. T. Peitch Company, at Cleveland, Ohio. After the lumber was delivered to the carrier, the Forest Lumber Company assigned the invoice therefor and the bill of lading to the Hattiesburg Trust & Banking Company and then received therefor a sum of money equal to eigthy per cent. (80%) of the face value of said invoice.

On the 19th day of July, 1909, the Hattiesburg Trust & Banking Company mailed the invoice, with an assignment written thereon by the Forest Lumber Company, together with the bill of lading, to the F. T. Peiteh Company, requesting a remittance therefor. The invoice and bill of lading were received by the F. T. Peiteh Company before the lumber reached said company. The F. T. Peiteh Company refused to remit for the amount of said invoice to the Hattiesburg Trust & Banking Company for the reason that it claimed to have a set off against the Forest Lumber Company on account of the failure of said company to deliver a certain shipment of lumber under a former order accepted by it, whereby the F. T. Peiteh Company was compelled to go into the open market and purchase lumber at a figure claimed to be $239.27 in excess of that which the Forest Lumber Company had agreed to furnish the lumber.

After the refusal of the F. T. Peiteh Company to pay the invoice, the Hattiesburg Trust & Banking Company brought suit against it to recover thereon, and said the F. T. Peiteh Company thereupon, in its amended answer, set up the damage it claimed to have suffered on account of the failure of the Forest Lumber Company to fill the said former order and prayed that the amount of said damage be set off against the plaintiff’s demand. This set-off was refused by tie trial court and judgment rendered in favor of the plaintiff for the amount representing the advance made by it on the assignment of said invoice and bill of lading together with interest thereon.

At the time the banking company took an assignment of said invoice and bill of lading and .advanced eighty per cent, of the face value of the invoice, it had no knowledge of any set-off in favor of the F. T. Peiteh Company against the Forest Lumber Company.

We are therefore called upon to decide what-rights the Hattiesburg Trust & Banking Company acquired in the assignment of the invoice and the transfer of the bill o'f lading to it and the advancement thereon Of eighty per cent, of the amount called for in the invoice, without notice on its part of any set-off in favor of the consignee of the lumber against the Forest Lumber Company.

It is claimed on behalf of plaintiff in error that the title to. the lumber passed to it upon its delivery to the carrier by the Marion Lumber Company, and that the Hattiesburg .Trust & Banking Company became a mere assignee of an account which is subject to the equity which the plaintiff in error had against the Forest Lumber Company on account of the set-off mentioned.

It is contended by the defendant in error that the bill of lading was the symbol of the property described in it and by the transfer of such bill of lading to the banking company, it in effect acquired a special ownership of the property as security for the advancement made by it.

We consider the ease of Emery’s Sons v. Irving National Bank, 25 O. S., 360, decisive of the question under'consideration. In that case it was held:

“1. By the rules of commercial law, a bill of lading is regarded as the symbol of the property therein described; and in case the shipper reserves to himself the jus disponendi, he can transfer the title, at any time before the property is delivered by the carrier to the consignee, as effectually by the delivery of the bill of lading as by the delivery of the property itself.
“2. If the consignment be made by a vendor to a vendee, the question whether the consignor reserved the jus disponendi is one of intention, to be gathered from all the facts and circumstances of the transaction.
“3. If the right to control the property be-reserved by the shipper, the carrier must be regarded as his agent; if not, then as the agent of the consignee.
“4. On.such question of intention, the terms of the bill of lading are to be taken as-admissions of the consignor, and are entitled to great weight, but are not conclusive.
“5. Nor is the fact, that the consignee had contracted with the carrier for special rates of freight, conclusive that the goods were delivered by the consignor to such carrier as the agent of the- consignee.
“6. Where the vendor of goods consigns them to the purchaser, taking a bill of lading from the carrier, and intending to reserve the right of control over them, at tbe same time draws upon the purchaser for the price, and delivers the bill of exchange, with the bill of lading attached, to an indorsee,- for a valuable consideration, the consignee upon receipt of the goods, takes them subject to the right of the holder of the bill of lading to demand payment of the bill of exchange, and can not retain the price of the goods on account of a debt due to him from the consignor. ’ ’

In the opinion, on page 366, it is said:

“By the rules of commercial law, bills of lading are regarded as symbols of the property therein described, and the delivery of such bill by one having an interest in or a right to control the property, is equivalent to a delivery of the property" itself. A consignor who has reserved the jus dispon'endi may effectuate a sale or pledge of the property consigned, by delivery of the bill of sale to the purchaser or pledgee, as completely as if the property were, in fact, delivered. If such transfer of the bill of lading be made after the property has passed in to the actual possession of the consignee, the transferee of the bill takes it subject to any right or lien which the consignee may have acquired by reason of his possession.- But if the bill of lading be transferred by way of sale or pledge to a third^person, before the property comes into the possession of the consignee, the consignee takes the property subject to any right which the transferee of the bill may have acquired by the symbolic delivery of the property to him.”

■We think the course of dealing between the parties here in previous transactions show that the right to control the lumber shipped was reserved by the Forest Lumber Company even though the bill of lading was made out in the name of the F. T. Peiteh Company.

On two previous occasions, the Forest Lumber Company had shipped lumber to the F. T. Peitch Company and had assigned the invoice and bill of lading therefor to the Hattiesburg Trust & Banking Company. These invoices and bills of lading were mailed by the Hattiesburg Trust & Banking Company to the F. T. Peitch Company for collection and remittances were made.

Those transactions were sufficient to justify the trial court in reaching the conclusion that the right of control over the lumber shipped was reserved to the Forest Lumber Company. The transfer of the bill of lading, together with the assignment of the invoice, was made to the banking company before the lumber shipped had passed into the actual possession of the consignee and the consignee had notice of this fact before it received the lumber.-

We think the necessary conclusion from these facts, applying the principles laid down in the ease referred to, is that the F. T. Peitch Company took the lumber when it arrived subject to the right which the Hattiesburg Trust & Banking Company acquired by the symbolic delivery made through the transfer of the bill of lading.

The trial court, therefore, committed no error in refusing to allow the defendants set-off, and the judgment is affirmed.


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    SUFFICIENCY OF CHARGES UPON WHICH POLICE OFFICER WAS DISMISSED.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Charles Savage, v. The City of Cleveland and F. G. Hogen, as Director.
    Decided, June 17, 1912.

      Police Officer — Trial Toy Civil Service Commission — Review Thereof.

    If charges upon which a member of the police force of a city was tried by the director of public safety and the civiL service commission and discharged from the force, are indefinite or trivial, or not such as are recognized by law or the rules made by the police department in pursuance of the' law as causes for which an officer may be suspended, the judgment of suspénsion is void; but if the charges, or any of them, are of the kind and character which the law recognizes as sufficient to authorize the discharge or suspension of the officer from the police "department, then the court will not inquire into the question whether the charges were sustained by the evidence or not, unless fraud is alleged.

      F. F. Genisch and M. B. Excell, for plaintiff.

      E. K. Wilcox and John A. Stockwell, contra.

      Metcalfe, J. (sitting in place of Winch, J.); Marvin, J., and Niman, J., concur.
   This action comes into this court by appeal from the court of common pleas.

The plaintiff in his petition claims that he was a member of the police force of the city of Cleveland, and that he was wrongfully discharged therefrom by the action of the defendant, the director of public safety, and of the civil service commission, and he seeks reinstatement upon the ground that the charges upon which he was tried and the order of suspension made were insufficient in law to sustain the judgment of suspension.

No evidence was introduced in this case, but the case was subonitted to us upon the pleadings, and the only question that we have for determination is whether or not the charges which the plaintiff sets forth in his petition, and upon which he was tried before the director of public safety, and upon appeal from his decision, before the civil service commission, are sufficient in law to sustain the action of the commission.

The plaintiff claims that on the 28th day of April, 1911, he was suspended by the chief of police, and that thereupon the director of public safety caused certain charges to be filed against him, upon which he was tided. Upon the trial on appeal before the civil service commission, he was acquitted on the third, fourth and fifth of those charges and found guilty upon the others.

We think the same rule would apply in this case that would apply in a civil action, that is to say, that the charges upon which the plaintiff was tried must be of such a character as would sustain the judgment. If they were so indefinite or trivial, or were not such as were recognized by the law or by the rules made by the police department in pursuance of the law, as causes for which an officer might be suspended, then the judgment of suspension upon those charges would be void; but if the charges, or any of them, are of the kind and character which the law recognizes as sufficient to authorize-the discharge or suspension of the officer from the police department, then this court can not inquire into the question whether those charges were sustained by the evidence or not unless fraud is found. The only question for us to determine is, were the charges sufficient.

The first charge reads as follows:

“Violation of Article XX of Rule 30, conduct subversive to good order and discipline of the department.”

This charge does not inform the defendant of any specific act that he is charged with, and we think it is entirely insufficient.

Charge 2 is as follows:

“Violation of Rule 43, by being a member of the Forum Club, a club organized for the purpose of giving social entertainments among the members of the police department.”

In the answer filed in this case we have a copy of Rule 43 and in it we find this provision: # ,

“No member of the department shall * * * be connected with any club or other association or organization whose objects or purposes may have reference to the nomination or election of any candidate for office, or for the purpose of giving any social entertainments whatsoever amongst the members of the police department.”

The charge in question charges the plaintiff with having become a member of the Forum Club, a club organized for giving social entertainments among the members of the police department.- This is the only specification that it contains but so far as that specification is concerned, it corresponds with the provisions of the rule in question, so that the defendant would have full notice from that charge that it was plain that he was a member of such club in violation of the rule. Therefore we_ think that charge 2 is sufficient.

The sixth charge reads as follows:

“Conspiracy against the good order and discipline of the police department by conspiring with others to bring about the formation of a club known as the Forum Club, contrary to the rules and regulations of the police department. ’ ’

This part of the charge we think is definite and certain enough to notify the plaintiff that he was charged with the violation of a rule of the department, and to definitely notify him what he would be expected to meet.

The remainder oí the charge is entirely too indefinite and we quite agree with the judge rendering the opinion in the court below upon the demurrer to this petition, that it seems to have been framed rather with the purpose of concealing information than in giving it. We think also that the other charges are entirely too indefinite and do not accuse the plaintiff with any offense with sufficient particularly to notify him with what he was •charged. But finding as we do that the second and sixth charges are sufficient, we think the judgment should be for the defendant dismissing the petition in this case.

It is urged on behalf of the plaintiff that the rule 43, so far as it prohibited members of the department from attending any dub for the purpose of giving social entertainments amongst the members of the police department, is arbitrary and beyond the powers of the department to enact.

Power, however, is given to the department to enact such rules for the government of the officers as may seem necessary to the chief of police and the director of public safety, and we can not see that the promulgation of such a rule is beyond the power of the department; with its wisdom we have nothing to do.

It is also urged here that the defendant, upon his trial before the civil service commission, was denied the privileges of a separate trial. Admitting that this is true, the civil service commission seems to have been made, under the law, a court of final jurisdiction in the determination of charges against members of the police department involving their conduct and which may result in their dismissal. This'court can not act as a court of review of the action of that court. If it abiised its discretion or its powers, we do not see that we have any power to remedy that in an action of mandamus. All that we have the power to determine is whether the charges preferred were of such a character that they would sustain the action of that tribunal.