author: DUSTIN, J.

text:
    RAILROAD COMPANY’S LIEN FOR DEMURRAGE CHARGES.
    [Franklin (2nd) Circuit Court,
    May 4, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Pittsburgh, C. C. & St. L. Ry. v. H. L. Mooar Lumber Co.
    1. Demurrage — Lien for Same.
    A railroad company has a common-law lien upon the property in a car, for its proper demurrage charges against such car, and may enforce the same by refusing to deliver such property until payment of the demurrage charges has been made.
    2. Lien Exists Independently of Stipulation in Contract of Shipment.
    Such lien exists independently of any stipulation therefor in the contract of shipment, and, in ah action to enforce the same, it is not necessary to aver or prove a special contract with reference thereto.
    Error to Franklin common pleas court.
    Henderson & Livesay and K. E. Burr, for plaintiff in error.
    A. E. Addison, for defendant in error, Huston.
    M. E. Thrailkill, for defendant in error, H. L. Mooar Lumber Co.
    On June 23, 1902, Southern Railway car No. 8,022, loaded with lumber consigned to the defendant'in error, the H. L. Mooar Lumber Company, arrived in the yards of the plaintiff in error, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company at Columbus, notice of the arrival of the car being sent to the defendant in error by the plaintiff in error on the same day.
    On the following day the defendant in error sent its men to the railroad yards to inspect the lumber, and the drivers, after looking about the yards and being unable to find the car, returned to the lumber company’s office and reported the car not there. The drivers made other trips to the yards from time to time in search of the car, consuming from twelve to fourteen days in this way, bnt they failed to go to the railroad offices and ask whether the car had arrived or to make inquiry for the car of the railroad yard men, who knew and could have told them its location.
    On July 5 the drivers went to the railroad offices and there paid the freight on the car, but during the interim between June 23 and July 5, demurrage charges to the amount of eight dollars had accrued and the railroad company refused to place the car where it could be unloaded until these charges had been paid.
    The lumber company refused to pay the demurrage, and the railroad company, declining to allow the car to be unloaded, continued to hold it until December 23, at which time the demurrage amounted to $138 and the lading of the car was turned over to the defendant in error, Archibald H. Huston, for storage, Mr. Huston advancing the company’s charges in accordance with the usual custom existing between himself and the railroad company.
    On December 24, while the lumber was being unloaded and hauled from the car to the storage warehouse, the lumber company seized the lumber under a writ of replevin, and in February, 1904, the case was tried to a jury, the jury, under instructions from the court, rendering a verdict against the railroad company for its demurrage, the court’s charge being, in substance, that, in the absence of a contract, no lien in favor of a railroad company for its demurrage charges exists.
    The following was the trial judge’s charge upon this point:
    “ # # # Upon receipt of the notice (of the arrival of the ear) it was the duty of the plaintiff to go to the office of the railway company and pay the freight or tender the same. It was not sufficient for him to send his man to the railway yards to hunt for the car of lumber. * * * The plaintiff, therefore, could not object to a charge for demurrage on this car 8,022 after the two days, as he did not pay the freight and demand that the' car be turned over to him to be unloaded.
    “But the company could not demand, on its part, that this demurrage should be paid as a condition of turning over the car, unless it had a lien for the demurrage. Now in the absence of any contract for such a lien, it does not exist at law and the company must collect its claim for demurrage as ordinary debts are collected and cannot hold the property for the demurrage. I find there is no evidence in the case of such a contract as to this ear, and the defendant, the railway company, does not state 'in its answer that there was a stipulation in the bill of lading that such charges should be a lien. It follows, therefore, that as to this ear 8,022, the plaintiff having paid the freight, was entitled to the possession of the lumber and your verdict should be in his favor. ’ ’
    A motion for new trial having been overruled and judgment rendered against the railroad company, a reversal of the’judgment is here sought on the sole ground of error in the court’s charge to the jury.
   DUSTIN, J.

“We think under the authorities cited in the brief of plaintiff in error that the railway company had a common-law lien on the lumber for ‘ demurrage, ’ and that it was not necessary to aver or prove a special contract with reference thereto. It was therefore error for the court to charge that in absence of averment and proof as to the lien it did not attach, and that the verdict as to car 8,022 should be for the lumber company.

‘£ The special findings of fact were not inconsistent with the general verdict.

’“The judgment of the common pleas court on the first cause of action will therefore be reversed and remanded for n'ew trial.

“As to the second and third causes of action the case is not before us, a new trial having been granted below, and no final order or judgment rendered.”

Wilson and Sullivan, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    February 7, 1905.]
    Jelke, Swing and G-iffen, JJ.
    Charles Boldt Glass Co. v. George Harris.
    1. Who ábe Fellow Servants.
    Where the duties of- a laborer required him to wheel brick and mortar to ' the foot of a stack and fasten a bucket to a rope when directed to do so by the bricklayers and their helpers on the stack and the bricklayers and their helper had no other authority or control over the laborer, the latter and the former are fellow servants.
    2. No Recovery for Injury Unless Proof Shows how Caused.
    If. a laborer sustain an injury by reason of a brick falling from the top of a stack he cannot recover from his employer for his injury in the absence of proof showing who caused the brick to fall or that it fell through the faulty construction of a scaffold by defendant, his employer.
    Error to Hamilton common pleas court.

      Jones & James and G. B. Groesbeck, for plaintiff in error.
    Seneca Behmyer, for defendant in error.
   SWING, J.

Harris brought an action in the court of common pleas of Hamilton county against the glass company for damages for injuries received while working for said company. The negligence alleged in the petition was the negligent construction of a platform and the negligent conduct of the bricklayers working thereon. By this negligence it is alleged a brick was thrown down the shaft or chimney which struck the plaintiff, Harris, on the head producing a great injury to him. A verdict and judgment was rendered in favor of the plaintiff and the action in this court is to reverse this judgment.

The undisputed facts are: That the glass company was building a-brick stack; at the top of the stack, some sixty feet from the ground, one or two bricklayers and a helper were working. Harris was what witnesses call a “common laborer.” He was ordered by the superintendent of the company to “attend them masons with mortar and brick just as they called for it. ’ ’ His duty under this command was to wheel brick and mortar to an arch-way of the stack, and attach a hook to buckets of mortar or brick whichever was called for by the parties working at the top of the stack. This hook was attached to a rope, which by means of a horse and pulleys, hoisted the brick and mortar to the top of the stack where it was detached by the helper, who in turn handed it to the bricklayers, who worked on a platform just above the platform on which the helper stood.

The only authority that the bricklayers or helper had over Harris, or at least in this case exercised over him, was to direct the time at which either brick or mortar was to be hooked to the rope to be sent up. Under this state of facts, Harris and those working at the top of the stack were fellow servants. Pitts. F. W. & C. Ry. v. Lewis, 33 Ohio St. 196; Railway v. Ranney, 37 Ohio St. 665; Clev. L. & W. Ry. v. Shanower, 70 Ohio St. 170 [71 N. E. Rep. 279],

The petition alleged that Harris was struck by a brick, which was thrown from the platform. The evidence fails to show what Harris was struck with. That he was struck with something and that his head was cut and that he was quite seriously injured is shown; but what it was that hit him is not shown, and that would probably be immaterial if it were shown that the injury was caused by the negligence of defendant. But what set the substance in motion that hit Harris is not shown. The evidence clearly shows the presence of two men working at the top of the stack, Whitaker, a bricklayer, and Davis, a helper. It further tends to show the presence of another, McCoy, a bricklayer, although McCoy says himself that he was not there at the time; but whether he was or not, we think it may be assumed that one of these parties set the object in motion which hit Harris. But we are unable to see any reason to conclude which one of these set the object in motion. There is absolutely no evidence on this matter, except Whitaker, testified that he did not, and to the same effect was McCoy’s, and Davis died before the day of trial. So that it must be pure conjecture for the jury to say that Whitaker or McCoy caused it, rather than Davis. Davis was a helper and it is admitted was a fellow servant of Harris, and if he did it, Harris could not recover.

While the petition alleges negligence in the construction of the platform,, there is no proof to substantiate this allegation, and no proof that the object was set in motion by reason of anything pertaifiing to the platform.

In our opinion, the judgment is contrary to law, and is not sustained by sufficient evidence, and should therefore be reversed.

Jelke and Giffen, JJ., concur.


author: WILDMAN, J.

text:
    CONSTITUTIONAL LAW.
    [Lucas (6th) Circuit Court,
    July 8, 1905.]
    Hayues, Parker and Wildman, JJ.
    David T. Davies, Jr., Aud. v. State ex rel. J. L. Boyles.
    J. The “Blind Pension Law,” 97 O. L. 392 (Lan. R. L. 2955) not Unconstitutional.
    The act of April 25, 1904, 97 Ó. L. 392, (Lan. R. L. 2955 et seq.), providing for the payment of $25 per capita quarterly to certain worthy blind persons, is not unconstitutional in that it is violative of See. 2, Art. 4, and Sec. 1, Art. 14 of the federal constitution, and Sec. 26, Art. 8 of the Ohio constitution.
    2. Section 1, Art. 7, Ohio Const, a Recognition that Blind Should be Provided for.
    While the word “institution” found in See. 1, Art. 7 of the Ohio constitution. which provides that institutions for the benefit of the blind shall always be fostered and supported by the general assembly, may not admit of such a broad construction as to authorize directly the legislature to aid the blind, it is, nevertheless, a recognition that the blind as a class should be considered and provided for. Said constitutional provision does not impose a limitation upon the power of the legislature to provide for the blind in any other way than that therein specified.
    3. Rule for Determining Constitutionality of Legislative Enactments under Ohio Constitution.
    The Ohio constitution does not grant powers to the legislature except by general grant, and in determining whether any particular enactment is constitutional or not the courts must determine whether the constitution contains any express or implied inhibition upon the power of the legislature to make the enactment.
    Error to Lucas common pleas court.
    W. G. Ullery and J. S. Martin, for plaintiff in error.
    Cole, Whitlock, Milroy & Mallow, for defendant in error.
   WILDMAN, J.

This is an action in error, brought to reverse the judgment of the court of common pleas in overruling the demurrer of the plaintiff in error — the defendant below — and in rendering judgment against the plaintiff in error in favor of the defendant in error. The proceeding below brought on the relation of James L. Boyles, by the state against the auditor of Lucas county, Ohio, was for mandamus to compel the defendant to obey the provisions of a certain aet providing for the payment to blind persons of an allowance from the public funds of $25, quarterly. The only question presented for the consideration of this court is as to the constitutionality of the law providing for this allowance. The statute is found in 97 O. L. 392 (Lan. R. L. 2955 et seq.), and its provisions are, substantially and so far as concerns the questions which here arise, as follows:

“That it shall be the duty of every county to contribute such sum or sums of money from the poor or general expense fund toward the support of every worthy blind person free from vicious habits, as hereinafter provided.
“That all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who are declared blind in the manner hereinafter set forth, and have no property or means with which to support themselves, shall be entitled to, and receive, not more than twenty-five dollars per capita quarterly, and that the probate judge shall authorize the auditor to issue warrants for the amounts due such persons.”

The statute further provides:

“The said blind persons must be hona fide residents of the state of Ohio for five years, and in their respective county one year. ’ ’

There are other provisions in the state for the purpose of carrying out. the general provisions which I have recited, but it is unnecessary to read them. The act is attacked upon the ground that it violates certain .provisions of the constitution of the United States and also certain provisions of the constitution of the state of Ohio. The special .sections of the federal constitution are See. 2, Art. 4; Art. 5 — one clause in it — ■ and Sec. 1, Art. 14; and as to the Ohio constitution, See. 2, Art. 1, and Sec. 26, Art. 8.

It is urged that not only does this act provide an allowance for one special class of indigent people, but that it unjustly discriminates among persons of that class; it sets off the blind as recipients of the public bounty and then among the blind excludes from the benefits of the act those, who are unworthy, or of vicious habits and those who have not been residents of the state for five years or who have not been residents of the county for one year and it excludes all who are not adults.

The defendant, on the other hand, insists that not only does the act not violate the state constitution, but that it has express warrant to sustain it in Sec. 1, of Art. 7 of the state constitution, or, if that section is not broad enough to justify the legislature in the enactment complained of, that the legislature, under its general police power, might have made the same enactment.

Without spending very much time upon the claims of the plaintiff in error, that the law makes an unjust discrimination among classes, it is sufficient to say that the blind have been from time immemorial, perhaps, recognized as a class entitled, not only to the sympathy of those not so afflicted, but also to some degree of aid to be accorded by the public, which is a recognition of the Biblical maxim, that, “The strong should bear the infirmities of the weak. ” It is impossible for human beings who are strong and who do not need such aid, to shut their eyes to the infirmities of the weak or to turn coldly away from them and say they will not give aid. The question, of course, will arise in all such cases as to whether the allowance is a reasonable one or not; whether it is capricious or arbitrary; whether it is an act of unjustifiable paternalism on the part of the legislature, or whether, being not capricious or unreasonable, it finds warrant in the sense of reasonable people that the aid should be given. Nor does it seem to us that the act is amenable to criticism because it makes some discrimination among the blind, by withholding its benefit from those of vicious habits, or found to be unworthy, or who have not had the required residence in the state or county, or who are not adults. There is another provision made by the legislature in Ohio for the benefit of blind persons who have not reached the age of majority. We have institutions provided for their education, in order that they may be better able to maintain and support themselves in later life; but there is no such provision upon our statute books for institutions, technically so called, wherein adult blind persons may be maintained, so that they would seem to be some reason found in this fact for the giving of aid to those who, not being sustained in any public institution, are still at the disadvantage of not having the sense of sight to aid them in obtaining a livelihood and so keeping them from becoming a public charge. The objection to the statute that it gives its benefits only to those who have acquired a certain residence in the state, might be urged with equal force against all of our poor laws. There must be an acquired residence in the county. It might be urged with equal force against the bestowal of the elective franchise upon those who have acquired a certain residence in the state, county or voting precinct. It might be urged with equal force against the statute which provides that 'a person when bringing an action for divorce must have had a residence in the state a year and must be a bona fide resident of the county where the action is instituted.

We think, then, that this statute is not open to criticism upon any of those grounds.

But it is claimed that it is the taking of private property by taxation and using it for a private and not for a publie purpose. It seems to the court, however, that public interests are subserved by the aiding of persons who might become a public charge, if left to their own resources, to such an extent that, by combining the small fund given them by the state with what they may be able to earn in those limited vocations which blind people may find, they might be able to maintain themselves and avoid becoming a charge; just as our infirmary directors are permitted to give out-of-door relief to many people instead of forcing them within the walls of the infirmaries. This law may be wise, or unwise ; expedient, or inexpedient; it may not be good policy to grant any sort of out-of-door relief to the poor; it may not be good policy to select among the many classes of the helpless, the blind, and say that a special fund shall be set apart for them, and yet this law does not stand alone in this respect. We have statutes providing for the relief of indigent soldiers; we have a soldier’s relief commission which apportions and distributes the fund. The theory of the legislators may have been that the mere fact that a person is blind, raises a presumption of some degree of helplessness entitling the person to relief.

On the other hand, it is urged that the special provision of our constitution, Sec. 1, Art. 7, that “Institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly,” is a direct authorization of the legislature to give aid to the blind, and a broad construction is contended for this word “institution, ’ ’ as used in the constitution. Definitions of the word as given by our lexicographers, Webster and the Century dictionary, are cited; and also the case of Gerke v. Purcell, 25 Ohio St. 229, 244, and the case of Humphries v. Little Sisters of Poor, 29 Ohio St. 201, 206.

It is urged that no technical limit to the scope of this word, “institution” should be given by the court, but that it should be treated broadly as applying to the method or manner of aiding persons included in the three classes mentioned in this section of the constitution; the insane, the blind and the deaf and dumb. For myself, I am not fully persuaded that this word, institution, will bear this broad construction; but that this section is a recognition that the blind, as a class, should be considered and provided for by the legislature, may well be argued. In other words, it is a recognition by the constitution makers that the setting apart of the blind, just as the setting apart of the insane, is not a capricious selection, not an arbitrary selection, but that it is founded upon some reason, and whether any special legislation which is enacted for the benefit of such a class is wise or unwise, it still is not open to criticism simply because such a class has been set apart for the protection of the state.

It is also urged in behalf of defendant in error that even if this term, institution, is not to be so construed, and if the power for this particular act is not to be found in the section of the constitution referred to, that still, under the broad police power of the state, it should be upheld. It seems to us, however, that this case is one in which we may very properly refresh our memories with an examination of the distinction between the federal constitution and the constitution of the state of Ohio in regard to the rules of construction. The constitution of .Ohio does not grant powers to the legislature except in so far as the power is broadly granted in an express provision, that “The legislative power of this state shall be vested in a general assembly, which shall consist of a senate, and house of representatives,” found in Sec. 1, Art. 2 of the constitution of 1851, a provision very slightly altered from the constitution of 1802, in Sec. 1 of Art. 1 which provided, that “The legislative authority of this state shall be vested in a general assembly. ’ ’ The distinction is very marked between this language and that used in the federal constitution, where, at the very beginning of this supreme law of the land, we have the provision: “All legislative powers herein granted shall be vested in a congress of the Unitecl States.” I do not believe — and I voice here the views of the other members of the court— that any one of the provisions of the federal constitution to which reference has been made, touches this question. It is not our view that there is any violation of the fourteenth amendment, or of Art. 5, or of the other sections and articles of the federal constitution to which reference has been made, in this classification or in this use of the public funds, because it is not, in our judgment, a use of public funds for private purposes, but for a public purpose, to provide for those classes of its citizens who require this sort of relief.

It might be argued with some degree of plausibility, perhaps, that the constitution makers having provided that “Institutions for the benefit of the blind” should “always be fostered and supported by the state,” that it might be a limitation upon the power of the legislature to provide for the blind in any other way. The constitution of the state, as I have said, does not grant powers to the legislature except by a general grant, and in determining whether any particular act is constitutional, or otherwise, we must ascertain whether the constitution contains any express or implied inhibition upon the power of the legislature to make the enactment. But the examination of this Sec. 1 clearly indicates that it is not even a grant — a special grant — of a power to establish institutions for the blind, deaf and dumb, or insane. It is a provision that such institutions for these classes shall always be. fostered and supported by the guate, and be subject to such regulations as may be prescribed by the general assembly, but it is not a grant of power.

We have one case in the state where there was, in terms, a grant of power, and yet the Supreme Court in construing it, has held that it did not operate as such. The case referred to is Mason v. State, 58 Ohio St. 30 [50 N. E. Rep. 6; 41 L. R. A. 291], the syllabus of which is as follows:

“The provisions of the act of April 8, 1896, entitled ‘An act to prevent corrupt practices at elections,’ (92 O. L. 123), which direct the commencement of an action by the prosecuting attorney, at the instance of the attorney-general, for the purpose of inquiring into the title to an office of a successful candidate who is charged with acts made unlawful by any law of this state, and which authorize the court, upon finding any of such charges true, to render judgment declaring the election void, the office vacant, and excluding the incumbent therefrom, are not in conflict' with the constitution, and are valid. ’ ’

And that is notwithstanding the fact that there was a special provision in the constitution o.f the state as to the loss of franchise and the loss of the right to hold office by certain persons convicted of crime. I read from page 48 and certain other pages:

‘ ‘ The people in framing the constitution committed to the legislature the whole law-making power of the state, which they did not expressly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.”

And a number of cases are cited showing the policy of our Supreme Court along this line. Judge Gholson, used this language in one case. Baker v. Cincinnati, 11 Ohio St. 534, 542.

“It will be observed that the provision is not that the legislative power as conferred in the constitution, shall be vested in the general assembly, but that the legislative power of this state shall be vested. That includes all legislative power which the object and purposes of the state government may require, and we must look to other provisions of the constitution to see how far, and to what extent, legislative discretion is qualified or restricted.”

On page 54 is certain language of Judge Mellvaine, from the case of State v. Covington, 29 Ohio St. 102.

“If the fr-amers of the constitution had intended to take away from the legislature the power to name disqualifications for office, other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.” (That is to say, the conviction of a crime or felony.) “The power under the general grant being ample and certain, a statute should not be - declared void because in conflict with an alleged implication unless such implication be clear and indubitable. ’ ’

We find no such clear and indubitable implication from this provision of our constitution that the state shall foster and support institutions for the blind, the insane and the deaf and dumb.

All legislative power being broadly conferred by the constitution, it is not essential for us to inquire whether this particular enactment is under the police power, or whether it is under any other special power; it is under the general legislative power to make provision for any legitimate class recognized by a sense of justice and the common reason of the people of the state, or recognized by the constitution itself as a class legitimately requiring attention.

The blind have been recognized by another statute of our state as a class requiring special treatment and consideration, and the act in which they have been so recognized has been declared constitutional by the Supreme Court in the case of State v. Hogan, 63 Ohio St. 202 [58 N. E. Rep. 572 ; 52 L. R. A. 863; 81 Am. St. Rep. 626]. I read from the syllabus:

“Section [Lan. 10689] 6995 Rev. Stat., commonly known as the tramp law, whereby punishment is prescribed for threatening to do injury to the person of another by a tramp, is not in conflict with the Ohio bill of rights, nor with See. 26, Art. 2 of the constitution, nor with the fourteenth amendment to the constitution of the United States.”

I might say that Sec. 26, Art. 2 of the constitution of Ohio is claimed as one of the sections which support the contention of the plaintiff in error here.

This tramp law, referred to by Judge Spear, is given on page 208, and reads:

“Whoever, except a female or blind person, not being in the county in which he usually lives or has his home, is found going about begging and asking subsistence by charity, shall be taken and deemed to be a tramp.” etc.

On page 209 Judge Spear, says:

“In brief the claim against the law is, that it deprives persons of liberty without due process of law and- denies to them the equal pro-, tection of the laws, and deprives of the right of seeking and obtaining happiness and safety; that it .is an act of a general nature but not of uniform operation throughout the state; and that it subjects the accused to a cruel and unusual punishment. And it is specifically urged that the act does not operate uniformly because it provides a punishment for an offense committed in one county different from punishment for a like act committed in another, inasmuch as the offense of threatening to do injury to the person or property of another in a county other than that of the residence of the accused may be punished by incarceration in the penitentiary, while if done in the county of his residence it as most a misdemeanor.
“It is conceded that the law is of a general nature. The test of uniform operation and with respect to the .required conformity to the ‘law of the land’ and to the requirement of due process of law seems to be, that if the law under consideration operates equally upon all who come within the class to be affected, embracing all persons who are or may be in like situation and circumstances, and the designation of the class is reasonable not unjust nor capricious or arbitrary, but based upon a real distinction, the law does operate uniformly, and if, added to this, the law is. enforced by usual and appropriate methods, the' requirement as to ‘due process of law’ is satisfied.”

One of the contentions of counsel in argument was, that the money of the taxpayer is not taken by due process of law; that in the distribution of the fund arising from taxation, public interests are not recognized as the true criterion — in other words, if the money was used it was for a private purpose.

There is very much more in this cited decision in discussion of some of the principles which might seem to be applicable to this case, but it is unnecessary ,to read it. The judge does say:

“Nor is it an objection to a penal statute that it does not apply to all persons who might by any possibility commit the act interdicted. It is for the legislature to determine how far to go in ..order to afford the desired protection to society. The exemption of some, where it does not interfere with the rights of others, is not open to objection on constitutional grounds. The principle is illustrated in the statute under review. Females and blind persons are not included within its terms. This, presumably, from considerations of humanity, but principally because but little, if any, danger is threatened from such, and this exemption has not met with objection in this case. The act in question undertakes to define a tramp, or vagrant, by stating what acts Shall constitute such character. ” - .

On the whole, the conclusion of the court is, that the act is not invalid for any reasons claimed by counsel for defendant in error and the judgment of the court below will be sustained.

Haynes and Parker, JJ., concur.


text:
    JURY — CONSTITUTIONAL LAW.
    [Lucas (6th) Circuit Court,
    July 8, 1905.]
    Haynes, Parker and Wildman, JJ.-
    State ex rel. B. A. Hayes v. David T. Davies, Aud., et al.
    1. Courts abe Established and Administered fob Public Benefit and Welfare as well as Protection of Individual Rights.
    The courts are public and not private tribunals; they are established and administered for the public benefit and welfare as well as for the protection of individual rights.
    2. Laning R. L. 8698 Providing that County shall Pay Jurobs’ Fees not Unconstitutional.
    Laning R. L. 8698 (R. S. 5182), providing that each grand and petit juror in either a civil pr criminal case shall be allowed two dollars per day for each day he serves, together with mileage in certain cases, is not unconstitutional in that it also provides that such compensation shall be paid by the county instead of the parties in 'the civil case and by the state in the criminal case. The fact that criminal actions are brought in the name of the “State of Ohio” is unimportant.
    Error to Lucas common pleas court.
    B. A. Hayes, for plaintiff in error.
    W. G. UHery, for defendant in error.
   WILDMAN, J.

State ex rel. Birchard A. Hayes v. David T. Davies, auditor of Lucas county, and Peter Parker, treasurer of Lucas county, and State ex rel. Birchard A. Hayes v. Peter Parker, treasurer of Lucas county, Ohio, and David T. Davies, auditor of Lucas county, are both cases in which the constitutionality of Lan. R. L. 8698 (R. S. 5182), is involved. For my own convenience, I will consider first ease No. 1924. The petition below, brought by Mr. Hayes, as a taxpayer, was for an injunction, to enjoin the county officials named from payment to one Charles F. Bischoff, a petit juror, who had served, as alleged in the petition, as a juror in a civil case, between certain parties named, from payment of his fees. It was claimed that this was a private service and that the jury fee which had been paid by the county treasurer would have been paid by the litigants, or possibly by the litigant losing the case.

The statute provides that:

“Each grand and petit juror drawn from the jury box pursuant to law, and each juror selected by the court, pursuant to section 8688 [5173] of this chapter, and each talesman shall be allowed two dollars per day, for each day he serves, and if not a talesman, five cents per mile from his place of residence to the county seat, and such compensation shall be certified by the clerk of the court, and paid by the county treasured on the warrant of the county auditor. ’ ’

It is not claimed in this petition or in argument, that there is any reason for the nonpayment by the county treasurer of this fee other than the alleged invalidity of the act, Lan. R. L. 8698 (R. S. 5182).

A demurrer to the petition below was sustained by the court and judgment entered accordingly. The only question, then, before this court is as to the constitutionality of this statute. It is "not apparent from the petition whether this juror was a talesman or a regular juror for the term, and whatever might be the criticism of this act as to a service rendered by a person called for a particular case, it would seem that a like criticism could not be made as to a person called as a juror for all cases during a term, or a part of the term wherein he might render service in both civil and criminal cases, and in which service it would hardly be claimed that any particular litigant should be compelled to pay the expenses. The statuté makes no distinction between civil and criminal cases. The jurors are paid a per diem, they are not paid by the case. Even a called juror is not paid so much for a case in which he serves, but he is paid for the days which he serves and the only difference between his compensation and that of a regular juror is, that the regular juror draws mileage and he does not.

But is the service which is rendered, even in a civil case, one between private litigants, solely a private service? Courts are public and not private tribunals. They are established and administered partly for the protection of private rights, but they are established also for the public benefit, the public welfare. ' The interests of the whole public demand that disputes between individuals should be settled by a judicial tribunal rather than by force and possibly by bloodshed. It is a public purpose that is subserved, because it tends to public peace and public quiet, and the jurors sitting to try civil cases between private litigants are just as much a part of the public machinery established for the public welfare, as are the judges and the officials of the court issuing the processes and enforcing the orders, judgments and decrees — they are all parts of the same machinery, they all aid to conserve the peace and they are all essential to the government. The courts are a part of the government of ¡ the land, an independent branch, just as much as is the executive, or the legislative. It is true that individuals - may be benefited, and the legislature, for that reason, have required them to pay a part of the costs, as in the Iowa case, cited in the brief of counsel, and as in our statute by which railroad and other corporations may appropriate private property.

The ease cited from Detroit So. Ry. v. Lawrence Co. (Comrs.) 71 Ohio St. 454 [73 N. E. Rep. 510], is a case wherein the Supreme Court of Ohio has decided that jurors’ fees in such cases may be properly taxed to the corporation seeking to appropriate. The claim was made there, that the law permitting it was unconstitutional, in that the fees were required to be paid by the individual corporation rather than by the county, and the statute was defended upon the ground that the law did subserve partly a private purpose. There are many statutes which have for their object the benefit of the public and also the benefit of individuals. Our tax on dogs for the benefit of the sheep owners, is cited as an illustration. The sheep owner is interested in the protection of his sheep, but the public is also supposed to be interested, in a way, and therefore the statute which provides that a tax shall be levied on dogs and that the fruit of the tax shall go to the owner of the sheep, was held constitutional by our Supreme Court in the ease of Holst v. Roe, 39 Ohio St. 340 [48 Am. Rep. 459].

The statute now under consideration is an evolution from the earlier statutes. The attorney, Mr. Hayes, who is also a party litigant, has shown great industry in his. search, in his critical examination of the legislation from the early history of the state and has traced the course of that legislation up to the present time, and if anything is clearly indicated by the result of this search, it is that there has been a long acquiescence in the existing mode of paying grand and petit jurors from the county treasury, whether they serve in civil cases or in criminal. It appears that for twenty years before the present constitution of 1851 was adopted and for half a century since, the law of the state has required the payment of grand and petit jurors, at least in part, from the county treasury and in the ease of State v. Baker, 55 Ohio St. 1 [44 N. E. Rep. 516], it was expressly held by our Supreme Court, that a long acquiescence in a statute is to be considered as bearing upon its constitutionality and validity.. All doubts should be resolved in favor of the law attacked but we have no doubts in this case. The constitutionality of the statute seems to us clear, so far as ease No. 1924 is concerned and judgment of the court below sustaining the demurrer and rendering judgment thereon is affirmed.

In case No. 1923, the parties are the same and the same section is attacked from another standpoint. In this case we have involved the ease of two jurors, one a grand juror and one a petit juror, who served in a criminal case. It is claimed that the prosecution of persons for alleged crime is a state purpose and that the fees of jurors rendering services in such prosecutions, whether with the grand or the petit jury, should be paid by the state and not by the county. It is suggested that the title of such cases is “State of Ohio v.” this or that defendant. We deem this fact unimportant. We have many private cases where the state is named as a party plaintiff. In this very ease the state brings the suit on the relation of Birchard A. Hayes as relator, and the fact that the state is a nominal plaintiff, does not, we think, bear upon the question as to who should pay the costs. The grand juror and the petit juror served, it is said, in criminal cases — cases which were brought for the prosecution of alleged violations of the statute law. Our legislature has made certain discriminations as to the means of payment of court officers. It becomes, we think, a matter of convenience and right adjustment and also of propriety of adjustment in view of the kind of service. The judges are paid, some by the state and some partly by the state and partly by the counties, and certain county officials — who are also a portion of the court machinery, like the sheriff and clerk — are paid by the county, or may be paid by the litigants.

Now it is true that funds of the county cannot be taken for exclusively state purposes, as was held in the cases cited by counsel, in the case of Wasson v. Commissioners, 49 Ohio St. 622 [32 N. E. Rep. 472; 17 L. R. A. 795], and in Hubbard v. Fitzsimmons, 57 Ohio St. 436 [49 N. E. Rep. 477], But, is the ease one in which it can be said that the service rendered is confessedly for state purposes rather than for county purposes ? The whole state is affected by the lax administration of the law in one county. Is there not some reason apparent for making the counties bear at least some portion of the expense of the prosecution of crimes committed within the borders of the county ? It is true that the legislature in the effort to effect a fair distribution of such expenses, requires the costs of some criminal prosecutions to be borne by the state. But, on the other hand, we have had a recognition for very many years of a right to hold particular parts of the state responsible for the lax administration of the law in such parts. If the officers of a county fail to follow up crime and a part of the expense is charged on the people of the county which elected them, a public purpose is thereby subserved. The people of the county will perhaps be a little more careful in their selection of officers to execute the law and conserve the peace, if they have knowledge that some of the expense of a lax administration will be a burden to be borne by themselves. We have a law in this state which is an illustration of an effort on the part of the people to hold a particular part of the state responsible for lax administration of the law within its boundaries, in the case of lynchings, which requires that the county shall bear the burden in the way of damages or injury caused by lynchers. The section of the statute is Lan. R. L. 6992 (B. 4426-4), and our Supreme Court in Champaign Co. (Comrs.) v. Church, 62 Ohio St. 318 [57 N. E. Rep. 50; 48 L. R. A. 738; 78 Am. St. Rep. 718], in two eases, holds this act to be constitutional.

This principle is no novel one. Under the English system from time immemorial, a particular subdivision of the country, known as a hundred, was held responsible to a certain extent, for crimes committed within its borders. From 4 Blackstone’s Commentaries 293, I read this:

“ * * * and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town and the towns near; and-so hue and cry shall be made from town to town, until they be taken and delivered to the sheriff. And that such hue and cry may more effectually be made, the hundred is bound by the same statute, chapter three, to answer for all robberies committed therein, unless they take the felon; which is the foundation for an action against the hundred in case of any loss by robbery.”

And looking back to other pages I find a recognition of the principle of holding the hundred liable for a loss where a robbery is committed within its borders, to be'an adoption of a rale which had obtained in some oriental countries whereby large parts of a country were practically preserved from crime by holding those parts responsible for losses sustained thereby. So, as I have said, there is no novelty in this imposition upon the county treasury of some part of the burden of the expense of prosecuting crime although that prosecution may be carried on in the name of the state and although, for the protection of the general public, the prosecutor may bring to his aid all the instrumentalities of the state,, all the power and majesty of the law of the state, for the punishment of crime.

In the judgment of the'court, the decision below sustaining the demurrers to these two petitions and ‘rendering judgment accordingly, should be sustained and the judgment should be affirmed.

Haynes and Parker, JJ., concur.


author: PER CURIAM.

text:
    MISTAKE — PRINCIPAL AND AGENT.
    [Hamilton (1st) Circuit Court,
    June 2, 1905.]
    Jelke, Swing and Giffen, JJ.
    Samuel S. Godley v. J. W. Haley.
    Refusal of Party to Agreement to Buy Land to Perform will not Release Other Party prom Payment of Agent’s Commission, when.
    The refusal of a party to perform his agreement for the purchase of realty on the ground that the title thereto is defective will not, in the absence of mistake or fraud, release the owner from the payment of a commission to the agent effecting the agreement, where such owner has agreed to accept the terms offered and pay such commission.
    Error to Hamilton common pleas court.
    Mortimer Mathews, for plaintiff in error.
    Prescott Smith, for defendant in error.
   PER CURIAM.

The verbal contract entered into by the plaintiff in error, the owner of the land, and the defendant in error, doing business as J. W. Haley & Co., the broker, was afterwards modified and qualified by a written agreement expressed in a proposal to purchase and an acceptance of the same as follows:

“Cincinnati, O., Oct. 15, 1900.
“I, the undersigned, hereby agree to buy through J. W. Haley & Co., Mr. S. S. Godley’s home on Carroll street, for the sum of ($2,300) twenty-three hundred dollars cash, title to be free and unincumbered.
“(Signed) Geo. D. Hadley.”
“October, 16, 1900.
“I the undersigned, hereby agree to accept the above offer and pay J. W. Haley & Co. 2 per cent commission, $46, for services rendered.
“(Signed) S. S. Godley.”

By this agreement, the plaintiff in error agrees to pay out not for services thereafter to be rendered, but for services already rendered which are expressed in the proposal. In the absence of fraud or mistake, neither of which are alleged, it must be assumed that the plaintiff in error was satisfied that the purchaser produced was ready and willing to complete the purchase, and that he released the broker from any responsibility for a failure on the part of Hadley to carry out the contract.

The evidence shows that Godley was informed that Hadley wished the conveyance bo be made to his wife, and whether the purchase money was paid by Hadley or his wife or both seems to us immaterial if Hadley had caused it to be paid.

The failure to carry out the agreement resulted not from a want of ability on the part of the purchaser to pay the price agreed upon but because the title to the land was questioned.

Judgment affirmed.


author: PER CURIAM. JELKE, J.

text:
    AMENDMENT-APPEAL.
    [Hamilton (1st) Circuit Court,
    July 22, 1905.]
    Jelke, Swing and Gift'en, JJ.
    Winton Place (Vil.) v. Cincinnati St. Ry. et al.
    Aster Appeal, Amendment not Axlowed to Let in New Party with Issue to which Plaintiee Could not be Joined.
    After the trial and determination of a case, and the prosecution of an appeal to the circuit court, an amendment to the petition therein will not be allowed to let in a new complainant with an issue to which the plaintiff could not be a party, even though both the causes of action are founded on a breach of contract practically the same in the two cases, but differing in their terms and consideration.
    Error to Hamilton common pleas court.
    Lawrence Maxwell and C. P. Mackelfresh, for plaintiff in error. J. W. Warrington and Joseph Wilby, for defendant in error.
   PER CURIAM.

This case was submitted upon a motion for a new trial, and while there may be some doubt as to the authority of the railway company to make the change of its railway route in Winton Place under the section of the statute providing for the extension of the track, or whether such change was prohibited by Lan. R. L. 5553 (R. S. 3448), yet express authority is granted by the act of May 10, 1902 (95 O. L. 502; Lan. R. L. 3765; B. 1536-189), and the motion for a new trial should be overruled, unless the application to make the Spring Grove Cemetery association a party plaintiff with leave to file an amendment to the petition is allowed. It is based upon Lan. R. L. 8520 (R. S. 5005). which provides:

“All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided.”

The subject of the action stated in the original petition is first, the validity or the invalidity of the release of the railway company under the ordinance of February 10, 1903, from the obligation of operating a street railway from Epworth avenue to the north gate of the cemetery; and second, if invalid, the obligation to operate said railroad under ordinance of October 2, 1894.

The amendment offered sets up the contract between the cemetery association and the railway company, whereby the railway company agrees to construct and operate a street railroad from Spring Grove avenue to the north gate of the cemetery, in consideration of the cemetery association giving its consent as abutting property owner to such construction, and the payment of $3,500 to the defendant company.

The subject of the amendment is a like obligation to operate the railroad, but based upon other and different considerations. The contract entered into by the cemetery association was subordinate and dependent upon the contract entered into with the village of Winton Place. There was no power in the railway company to operate the railroad and no power in the cemetery association to enforce it unless a grant was first made by the village to the railroad company.

The release of the railway company by the village from the obligation to operate the road, does not require it to abandon the same, and therefore leaves no obstacle in the way of enforcement of the contract _ between the cemetery association and the railway company, although the consideration upon which it is based is separate and distinct.

It may be admitted that the breach of each contract is substantially the same, to wit, the failure to operate the railroad from Epworth avenue to the north gate of the cemetery; yet the issue presented in the petition having been tried and determined, there appears no good reason why the petition should now be amended by letting in a new party plaintiff with an issue which must be determined by the terms of a contract to which the plaintiff was not and could not be a party. Granting even that the plaintiffs might have joined in the original action, it is too late to make the application for the first time in this court. Grant v. Ludlow, 8 Ohio St. 1.

Motion for a new trial will be overruled, and the application to amend denied.

JELKE, J.

I do not think the act of May 10, 1902 (95 O. L. 502), applies. I concur in refusing leave to amend, and overruling motion for a new trial.


author: COOK, J.

text:
    SIDEWALKS — NEGLIGENCE.
    [Trumbull (7th) Circuit Court,
    February, 1905.]
    Cook, Burrows and Laubie, JJ.
    First Nat. Bank of Warren v. Barney J. Gillen.
    Coal Vaults under Sidewalks.
    Where a person, who owns and occupies a building, permits a perforated covering over a coal vault, constructed under a sidewalk in a municipality and maintained for his own benefit, to remain unfastened below, and the same can be easily displaced by lifting the same from the rim in which it is placed either by inadvertence or design and it is so displaced, and a footman lawfully walking upon the sidewalk after dark, steps upon the covering after it is displaced which tilts and throws him into the coal hole, thereby seriously injuring him: Held, that such owner is guilty of negligence although such covering would not be displaced by ordinary travel over it, and that such negligence is the proximate cause of the injury.
    Error to Trumbull common pleas court.
    T. H. Gillmer and C. M. Wilkins, for plaintiff in error.
    E. B. Taylor and Gillmer & Gillmer, for defendant in error:

      Lake Shore & M. S. By. v. Elyria, 69 Obio St. 414 [69 N. E. Rep. 737]; Bavenna v. Pennsylvania Go. 45 Ohio St. 118 [12 N. E. Rep. 445]; Zanesville v. Eannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664] ; Elster v. Springfield, 49 Ohio St. 82 [30 N. E. Rep. ^ 274]; Mcllvaine v. Wood, 12 Dee. Re. 384 (2 Han. 166) ; Clark y. Fry, 8 Ohio St. 358 [72 Am. Dec. 590]; Southern Ohio By. v. MoreyJ 47 Ohio St. 207 [24 N. E. Rep. 269; 7 L. R. A. 701]; Bailway v, Walrath, 38 Ohio St. 461 [43 Am. Rep. 433]; Iron By. v. Mowery, 36 Ohio St. 418; Lan. R. L. 10301 (R. S. 6710) ; Colder v. Smalley, 66 Iowa 219 [23 N. W. Rep. 638; 55 Am. Rep. 270]; Congreve v. Smith, 18 N. Y. 79; Irvine y. Wood, 51 N. Y. 224 [10 Am. Rep. 603] ; Clifford, y. Dam, 81 N. Y. 52 [41 Am. Rep. 358]; Wenzlick v. McCotter, 87 N. Y. 122; Dickinson v. New York, 92 N. Y. 584; Nolan v. King, 97 N. Y. 565 [49 Am. Rep. 561]; Wolf y. KüpatHck, 101 N. Y. 146 [4 N. E. Rep. 188; 54 Am, Rep. 672]; Morris y. Woodburn, 57 Ohio St. 330 [48 N. E. Rep. 1097]; Wilhelm v. Defiance, 58 Ohio St. 56 [50 N. E. Rep. 18]; Loeser y. Humphrey, 41 Ohio St. 378 [52 Am. Rep. 86] ; Dickson v. HolUster, 123 Pa. St. 421 [16 Atl. Rep. 484; 10 Am. St. Rep. 533].
   COOK, J.

Plaintiff in error is the owner of a bank building situated on South Park avenue running along the public square and one of the most public streets in the city of Warren. The bank had a coal vault five feet deep under the sidewalk, but it had not used it for at least ten years. The entrance to this vault from the outside was by means of an opening in the middle of the sidewalk. The opening was covered by a circular iron covering known as a grate covering twenty inches, in diameter and one inch thick. This grate covering rested on an iron rim and had an iron rod with a hook attached running down through the center for the purpose of fastening it below in the vault, but had never been so fastened. It fitted loosely in the rim and could be easily displaced, so it would tilt either by lifting it or by the catching of a pedestrian’s cane or umbrella in it, but it would not be displaced by ordinary travel over it. There were a large number of openings to coal vaults in the city covered in the same manner at the time of the accident and had been for years previously as well as in cities of the same size in different parts of the country; while many grate coverings were fastened below, and some openings were covered with large solid covers that fit closely into the rims. The proper authorities of the city had full knowledge of the existence of the vault and the cover, but no permit or license was obtained to construct and maintain it by the owner of the property.

About 8 o’clock in the evening of April 28, 1900, after dark, defendant in error, Barney J. Gillen, was lawfully walking along Park avenue; he stepped upon the covering, it tilted and he fell into the opening to the vault and was very seriously injured. About ten minutes before the accident the cashier of the bank in coming from the building passed over the covering and stepped upon it, without any signs of it being displaced, and after the accident the rim and covering were in good condition, showing almost conclusively that the covering had been slightly displaced by some means immediately previous to the accident, but by what means the evidence wholly fails to show.

The only error relied upon in argument for the reversal of the judgment is that the verdict is clearly against the weight of the evidence, and the only question therefore is,, was the jury justified in drawing the inference of negligence on the part of the bank from the-facts stated, as there is no claim of negligence on the part of Gillen.

The question is a very important one, as in almost all cities of the . size of Warren there are scores of coal vaults similarly covered.

Conceding that in this state an abutting owner of a lot has authority to excavate under a sidewalk and construct and -maintain a coal vault for his own benefit alone, about which there may be some question, yet what is his duty to the public when he does so ? The sidewalk is primarily for the benefit of the public. It is especially for the use of the resident of the city when walking, and he has a right to assume that no stumbling block or trap has been placed in the centre of the walk.- By day and by night he is justified in assuming that the centre of the sidewalk is clear of all obstructions or pit falls. If the owner of abutting property makes use of it for his own convenience by excavating under it, he must see to it that the sidewalk is in as substantially safe condition as if no excavation had been made. Such, no doubt, is the law upon principle and as we understand it, such is the tenor of the best' authorities.

In Dillon, Munie. Corp. Sees. 1032 and 1033, it is said:

“Section 1032. No person, not even the adjoining owner, whether the fee of the street be in himself or in the public, has the right to do any act which renders the use of the street hazardous or less secure than it was left by the municipal authorities. Whoever does so, whether by excavations made in the sidewalk by the abutter, or by unsafe hatchways left therein, or by opening, or leaving open, an area way in the pavement, or by undermining the street or sidewalk, or by placing unauthorized obstructions thereon, which make the use of the street unsafe or less secure, is guilty of a nuisance, and is liable to any person who, using due care, sustains any special injury therefrom; and in such cases, the person whb created cr ccntinues the nuisance is thus liable, irrespective of the question of negligence on his part.”
“Section 1033. In accordance with the principles stated in the preceding sections, the owner of a building and lot is liable for personal injuries sustained by the breaking of a flagstone, or defective grating forming part of the sidewalk adjoining the building and covering an excavation made in the sidewalk, and used by the owner for private purposes. It follows that it is no answer to such an action, that the work, including the defective covering, was done for the owner at a fixed price by contractors, who agreed to do it properly. The doctrine of respondeat superior has no application to such a case. And because the owner is bound, at his peril, to keep the excavation covered so as to be as safe as if it had not been made, he is not discharged from liability by the fact that, having provided a sufficient covering, it was, without his knowledge, fractured or rendered unsafe by the wrongful acts of others.”

The doctrine of the text is supported by many authorities and the author well says, in commenting upon the case of Fischer v. Thirkell, 21 Mich. 1 [4 Am. Rep. 422], which dissents from these authorities:

“Since such excavations are made for the exclusive benefit of the owner of the building the author sees nothing unreasonable in the doctrine that he is bound to see that they are kept in repair, and do not become nuisances by becoming dangerous.” See also Dillon, Munic. Corp. Sec. 700.

It is, however, not necessary in this case to go to the extent of holding that the bank should be held responsible for maintaining a nuisance and therefore guilty of a wrong, it having mo right whatever, implied or otherwise, to make or maintain the vault, and the trial court im structed the jury that the defendant would only be liable for the want of ordinary care in constructing and maintaining the covering over the hole and that if ordinary care was used in the construction and maintenance of the covering, they should find for the defendant. The jury found that the bank did not exercise such care as it should have done, and certainly that was a question of fact to be determined by the jury, if an inference of negligence could be drawn from the facts. Dickson v. Hollister, 123 Pa. St. 421 [16 Atl. Rep. 484; 10 Am. St. Rep. 533].

Ordinary care in a case of this character would be great care. This coal hole was in the centre of the pavement. The owner is bound to know that persons will pass and repass and step upon the cover, not only in the daytime but the nighttime, without apprehending danger.

“If the excavation is by license of competent authority, the one making it is bound to do it in a careful manner, and to see that it is properly and carefully covered, so as to make the street as safe for passage as before.” Irvine v. Wood, 51 N. Y. 224 [10 Am. Rep. 603].

“The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city.” A coal hole covered with a movable disc is an obstruction. “When permission is given by a municipal authority to thus interfere with a sidewalk, solely for private use and convenience, the person obtaining the permission must see to it that the street is restored to its original safety and usefulness. ’ ’ Clifford v. Dam, 81 N. Y. 52.

Many other authorities could be cited, but it is unnecessary to do so as in our own state substantially the same doctrine was declared in the case of Morris v. Woodburn, 57 Ohio St. 330 [48 N. E. Rep. 1097], in which it is held:

“If the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby,- notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair.”

In the opinion it is said, page .335:

“The liability of the owner of the abutting property for an injury resulting from torts of this character, notwithstanding the omission of duty by the municipality, is necessarily implied in Clark v. Fry, 8. Ohio St. 538, and Railway v. Morey, 47 Ohio St. 207, although the precise question may not have been raised.”

But it is claimed that the act of the bank in having such character of covering and its not being fastened below was not the proximate cause of the injury to Gillen. Indeed -that is the principal contention of counsel. It is said that-the covering was sufficient to protect foot travelers; that by walking over it the covering would not be disturbed, and that it must have been interfered with by some means immediately prior to Gillen stepping upon it, and that this intervening act of some one, either by inadvertence or intentionally, was the direct cause of the injury.

It must be borne in mind that it is not every intervening cause that relieves the defendant from his negligence. If the negligence of the defendant is the primary cause of the injury and the intervening cause was one that in the natural and ordinary course of things should be contemplated as not entirely improbable, then the defendant is not relieved. The rule is plainly and well stated in Shearman .& Redfield on Negligence, commencing at Sec. 32.

“Section 32. The connection between the defendant’s negligence and the plaintiff’s injury may be broken by an intervening cause. In order to excuse the defendant, however, this intervening causé must be either a superseding or a responsible cause. It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. It is a responsible one, if it is, the culpable act of a human being, who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause. But the connection is not actually broken, if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation. Of course, the very definition of a superseding cause implies that the defendant’s negligence cannot be the cause of the injury.

“Section 33. The first alternative needs little comment. It is simply the case of inevitable accident, which has already been considered, with only this difference, that such accident occurs after the defendant has been negligent, and when, perhaps, but for the intervention of that accident, he might have been liable. But it must be carefully noted that inevitable accident, in order to furnish a complete defense in such a case, must be the sole cause of the injury, and therefore that it is no defense, if, but for the defendant’s negligence, the plaintiff would not have been exposed to injury from such accident; while, if it contributed to any part of the resulting damage, it is only a defense, in ease that part of the damage can be accurately distinguished from the rest.

“Section 34. The second alternative, of a responsible but not superseding cause, needs further statement. If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another. If it could not have been thus anticipated, then the intervening negligent person alone is responsible. ’ ’

This rule is adopted and approved in Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700], and was previously approved in many eases in this state.

Can' it be said that the intervening event or cause in this case was not one which might in the natural and ordinary course of things have been anticipated as entirely probable ? Should not the bank have anticipated that this covering, which could so easily be displaced as to make it absolutely dangerous, would be so displaced by the ordinary use of a walking stick or umbrella, by a wholly irresponsible child, or by a burglar seeking an entrance into a bank?

Assuming that the covering was displaced by a responsible person maliciously, of which there was no proof, and certainly the burden was on the bank to show that to be the fact, Clifford v. Dam, supra,, yet we do not think the bank could claim anything from that fact, for, as said by Shearman & Redfield, Negligence Sec. 34, already referred to: “If the negligent acts of two or more persons all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in ease the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not.”

Should not the bank have reasonably anticipated that some person might remove the covering either from curiosity, or maliciously for the express purpose of causing injury, or for the purpose of committing a burglary? We think it should have so anticipated.

This rule is fully illustrated in the cases referred to in Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], where in the opinion it is said, page 32:

“And, indeed, since the leading case of Lynch v. Murdin, 1 Q. B. 29, there is an almost unbroken line of authorities to the effect that such intervening cause cannot affect the liability of the negligent party. * * *
“In Illidge v. Goodwin, 5 C. P. 192, the defendant’s horse and cart were left standing in the street, without anyone attending them. A person came along and whipped the horse, which caused it to back the cart against the plaintiff’s window. It was urged that the man who whipped the horse, and not the defendant, was liable It was also contended that the bad management of the plaintiff’s shop man had contributed to the injury. But Tindal, C. J., ruled that even if this were believed, it would not avail as a defense. ‘If,’ he says, ‘a man chooses to leave a cart standing on 'the street, he will take the risk of any mischief that may be done. ’ ’ ’
“One who leaves a horse loose and unattended in a city street is responsible for injuries done by the horse running away, although that might not have happened but for the wrongful act of a stranger in frightening it, and though after the horse began to run, the owner did his best to stop it. So also the owner of any machine, or other thing capable in its nature of doing injury is liable for injury which ensues to a person, not himself careless, in consequence of the owner negligently leaving it exposed and unguarded in a public place, and its being there set in motion by a negligent person. ’ ’ Shearman & Redfield, Negligence Sec. 35, and cases cited in the notes.

What difference- is there between leaving a horse unhitched in the street and leaving this covering in the middle of the sidewalk unanchored 1 None whatever.

In the opinion in Harriman v. Railway, supra, it is said, page 35 :

“In the latter case, Lane v. Atlantic Works, the defendant carelessly left a truck loaded with iron on a public street in Boston. The iron was so negligently placed on the truck that it would easily fall off. The plaintiff, a boy seven years old, was walking along the street, when he was called by another boy twelve years old, to come over and see him move the truck. The plaintiff went over and stood near the truck while the other boy was attempting to move it. In consequence of the motion thus given the truck by the other boy, the iron rolled off and injured the plaintiff’s legs. Colt, J.,' in the opinion of the court, disposes of the question now under consideration as follows: ‘In actions of this description the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged. But it will not be considered too remote, if according to the usual experience of mankind the result ought to have been apprehended. The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. ’ In that case it was held immaterial whether the act of the boy in moving the truck and thus causing the iron'to fall upon the plaintiff was mere negligence or voluntary, wrongdoing.”

Judgment of common pleas court affirmed.

Burrows and Laubie, JJ., concur.


author: MARVIN, J.

text:
    ERROR — EVIDENCE—PRACTICE.
    [Lorain (8th) Circuit Court,
    October 6, 1905.]
    -Marvin, Winch and Henry, JJ.
    B. H. Palmer & Son v. Charles Cowie.
    1. Verdict not Reversed unless Clearly against Weight of Evidence.
    To reverse a verdict on the ground that it is against the weight of the evidence, it must be found that it was so clearly so that unbiased, unprejudiced minds could not, from the evidence adduced, have reached the conclusion which was reached by the jury.
    2. Testimony that Witness was Juryman in Former Trial of Case, not Competent to Enhance his Testimony.
    In an action to rescind a contract of sale and recover the purchase price, on the ground of a breach of warranty, it will be incompetent to show, for the purpose of enhancing the value of his testimony that a witness called to testify as to the chattel in question was a juryman in the trial of the same case in a justice’s court.
    3. To Rescind Contract for Breach of Warranty, Parties must be Placed in Statu Quo.
    In such case, the refusal of a charge is not erroneous, which failed to instruct the jury on the material point that' in order to rescind a contract for a breach of warranty, the vendee must offer to place the vendor in statu quo by the return of the property in question, without injury to it, caused by his negligence.
    4. Charge to Jury upon Question of Warranty must Explain Law of Patent and Obvious Defect.
    An instruction to the jury upon the question of a warranty of soundness, etc., which fails to state that patent and obvious defects which can he discovered without the use of .any particular skill or knowledge are not to be considered as a breach thereof, is erroneous.
    5. Taking of Notes by Juror, before Admonishment, not Prejudicial Misconduct.
    The taking of notes by a juror during the course of a trial, which, however, was discontinued upon admonishment by the court, is not misconduct for which a new trial will be granted.
    6. Horse Dealer, not a Veterinarian, may Testify as to Pathological Condition of Horse.
    • A person who has been in the habit of buying and selling horses all his life and has in fact made that his business, and who testified that he had seen hundreds of sweenied horses, although not a veterinarian, will be permitted to give his opinion as to the soundness of a horse alleged to have been sweenied.
    7. Exclusion of Testimony as to Purpose of Examination of Chattel by Witness, not Error.
    !fhe exclusion of testimony by a witness called to testify as to the soundness of a horse, concerning his purpose in making the examination, is not erroneous, as it is the result of his examination and not the purpose of it, that is material to the issue.
    Error to Lorain common pleas court.

      D. J. Nye and C. J. Kenny, for plaintiffs in error.
    Lee Stroup, for defendant in error.
   MARVIN, J.

Suit was brought by Palmer & Son against Charles Cowie before a justice of the peace, and thereafter appealed to and tried in the court of common pleas, where it resulted in a verdict and judgment for the defendant. By proper proceedings the ease is now here for review upon petition in error filed by the plaintiffs below. A bill of exceptions is filed in this court containing all the evidence given or offered at the trial, and it is urged that errors prejudicial to the plaintiffs are manifest upon this record.

The action was based upon the claim that on May 9, 1904,. plaintiffs purchased a mare from defendant, and paid for her the agreed price of $145; that at the time of such purchase the defendant warranted her to be sound in every way; by reason of which warranty, plaintiffs were induced to make the purchase and pay the money; that the mare • was in fact unsound when such purchase was made, in that she was hoofbound and was badly sweenied in both shoulders, and upon being shod the same day became very lame on account of such unsoundness; that the plaintiffs within four days of such purchase returned the mare to the defendant and tendered her to him, demanding a return of the money; that the defendant refused the tender and refused to return the money; that plaintiffs were put to an expense of $30 in keeping and caring for the mare. The prayer is for judgment for the said purchase price and for said $30 so expended on the mare.

For answer the defendant admitted that he sold the mare to plaintiffs for $145 and denies all the other allegations of the petition.

It will be noticed that the plaintiffs based their action upon the rescission of the contract, and not upon a claim for damages for breach of warranty. Upon the facts stated they might have sued either way, that is, they might have retained the mare and sued for the breach or sued upon rescission as they did. Had they sued for the breach, they would of course have made the additional averment, that they were damaged in some certain amount by reason of such breach.

One of the errors complained of is, that the verdict is against the weight of, and contrary to, the evidence. To reverse on this ground, we must find that the verdict was clearly against the weight of the evidence. So that unbiased, unprejudiced minds could not, from the evidence, have reached the conclusion which was reached by the jury.

It is not claimed by the defendant that he did not practically warrant the mare to be sound. He says in his testimony that he told Palmer at the time of the purchase, “That the mare is sound from anything I know. I raised her, and it seems I ought to know.”

Again, he testifies that Palmer asked him if the mare was ever sweenied, and he answered, “No, sir, them shoulders are the same as they always were, from a colt.”

The defendant, however, claims that what he said about her was true, and on this issue the jury must have found with him, unless they found that whatever unsoundness there was, was so patent that, no representation about it, could have misled anyone.

There is evidence tending to show that there was a peculiarity about the shoulders of this mare that was noticeable and that attention was called to this at the time of the purchase, when Cowie declared that the mare was not sweenied.

There is evidence tending to show that the mare was sweenied at the time she was sold, and there is evidence also tending to show she was not.

Fred Rowland; a witness for the defendant, though not a veterinary, shows that he has bought and sold and examined many horses — he says he has purchased and sold at least one hundred and fifty horses within the last five years. He examined the mare at the blacksmith shop on the day of the sale; he says her shoulders were a trifle narrow, but she was not sweenied.

Orrin Babcock looked the mare over a few days before the sale and noticed her shoulders were thin, but says she was not sweenied.

Stanley Wilcox examined the mare two days before the sale, — the sale having been on Monday, he examined her on the Saturday before,— and noticed the shoulders, but says she was not sweenied. Other witnesses gave similar testimony; one Snyder and William Hart testified to substantially the same thing, upon the examination made by each of them.

All this is enough to show that the jury had evidence on which they might, without being biased or prejudiced, but in the exercise of sound judgment, have reached the conclusion that the mare was not sweenied.

It may be, that the evidence of the unsoundness would seem from a reading of the record to be weightier than this, but it is not such as to justify us in saying that the jury, who saw the witnesses and had full opportunity to judge of their testimony, were clearly wrong, and the judgment will not be reversed on the weight of the evidence.

It is further urged that the court erred in certain rulings made at the trial upon the admission of evidence.

On page 5 of the bill of exceptions a ruling is found, which was made when Stewart McConnall was upon the stand as a witness.

It appears that after the trial before the justice of the peace the mare was turned into the pasture of this witness. The witness in answer to a question as to what became of the mare after the trial, answered that she was turned into his pasture, where she remained until she died. The court told the jury to exclude from their consideration the statement that the mare died. This was nowise prejudicial to the plaintiffs, unless they had a right to show, as a part of their case, that the mare was dead. And in order to make it of value to them they must have been able to show that the mare died by reason of her unsoundness that existed at the time of the purchase; and if they might show that, then the defendant would have had a right to show that she died from some neglect of the plaintiffs after the sale, and there would have been raised an issue of what the treatment of the mare was all the time, and what sickness, if any, she had after the sale. There was no error in excluding from the jury the statement that the mare died.

Exception is taken to the exclusion by the court of the statement of W. M. Murray and others, that they were members of the jury which tried this case before the justice of the peace. Murray in testifying in the common pleas court told of an examination he made of the mare on the day of the trial before the justice of the peace, and then, to give weight to his testimony, it was sought to show that he was a juror. That is true as to others who were called and who made examinations of the mare on the day of the trial before the justice of the peace. It was certainly not a matter which the plaintiff had a right to show as giving additional weight to the testimony of these witnesses, that they were jurors on the trial before the justice of the peace. They were here; they testified to their examination, and it ought not to add to, or detract from, the weight of that evidence, that they were jurors before the justice of the peace. Evidently the object was to impress the jury with the fact, that the result, as the transcript shows before the justice of the peace, was in favor of the plaintiffs, and that these jurors were so impressed with the unsoundness of the mare that they returned a verdict showing that they thought her to be unsound. There was no error in the ruling on this.

It is claimed there was error because John Snyder was permitted to give his opinion as to whether this mare was sound. He had examined her, he is not a veterinary, but he says he is in the horse business and has been all his life; has seen hundreds of sweenied horses; that his business is buying and selling horses. He described to some extent the appearance of the shoulders and hoofs of this mare and was permitted to give his opinion as to whether she was sound or not. We think there was no error in the ruling on that. It is true he was not a veterinary, but he had, as appears from his testimony, a greater knowledge than the average man has of the condition of horses; his long experience in dealing in horses and examining them.

When William Hart was upon the stand he was asked to describe, the mare’s hoofs, and he answered she had a nice round hoof. This appears on page 200 of the bill of exceptions. It was objected to and overruled. (The record is a little peculiar.) The witness said, “I cleaned her hoofs out, and I think she had a nice"round hoof.” Objected to by counsel for plaintiff. No ruling. Without stating what you think, — eliminate the words “I think,” — you may describe the hoof. A. “She had a nice round foot.” Objected to by counsel for plaintiffs, which objection the court overruled, to which ruling the plaintiffs then and there excepted. I suppose, however, and we will treat it as though the objection had been made to the question put, “Without stating what you think, — eliminate the words ‘I think,’— you may describe the hoof.” If we treat it as an objection to that question, it was properly overruled. However, no ruling was made upon it until the answer is made, “She had a nice round foot.”

Certainly the better way to have got at that, if it was thought that the answer was incompetent, would have been to ask to have it taken from the jury, but treating the language here “objected to by counsel for plaintiffs,” as meaning that it is desired to have that taken from the jury, we think there was no error in refusing so to rule. Of course without the word “nice” there could be no objection to this answer, “She had a round foot.” Now, is it enough, to make that answer objectionable, that the word “nice” is introduced? We think not. There was no error in the ruling on this.

Charles Cowie on cross-examination, as' appears by the bill of exceptions at page 154, described the appearance of the mare on the day of the trial before the justice of the peace, and said he did not think she was then sweeniéd. Charles Cowie is the defendant in the action. He was then asked if he did not see every one of the jury examine her on that day, and an objection was made and the court sustained the objection. He was permitted to testify immediately following this that he saw others than himself examine her, and the only possible object it seems to us, that the plaintiffs could have had in asking that that question be answered, was to impress the jury which was trying the case in the common pleas court that the jury which tried the ease before the justice of the peace saw the mare and examined her, and they found for the plaintiffs, and then reason that it must be, that their examination was such as to justify that verdict. These jurors all might have been called as witnesses, and several of them were as a matter of fact, because they offered to show, — the plaintiffs did,— that they were jurors and the fact that they examined the mare, — that the witnesses did, — and that these witnesses saw various men other than themselves examine her on that day, was before the jury, and there was no error in the sustaining of the objection to this question.

William Hart being on the stand, was answering questions, and on page 202 of the record he was asked this question: — It should be said he had testified that shortly before the mare was sold to the plaintiffs, he had examined the mare, and he was asked this question:— “State whether or not you were looking at the horse with a view of matching it with another horse which you had?” To which question the plaintiffs objected, which objection the court overruled, to which ruling the plaintiffs then and there excepted. He said, “I was looking at the mare with the intentions of,”— He got that far when counsel for the plaintiff objected, — and without the answer being completed at all, so that up to this point it has not appeared what he was examining the horse for, this question was asked, “Can you answer that, yes or no?” and he said “Yes.” “Now answer it, Were you or were you not?” “Yes.” That is, he is now permitted to say that he was examining the mare with a view to matching her with another horse that he had; so that how the plaintiff’s can complain that he Avas not permitted to tell, and indeed what possible difference it could make to anybody what he was examining her for, we cannot see. It is the result of the examination that is material and not the purpose of it. The purpose of it might show — that is, if he was examining her with a view to purchasing her, it might carry with it an idea he made a careful examination; but he has said he did, somewhat careful at least. There was no error in the ruling on this.

At page 169 of the bill of exceptions it appears that the court observed that a juror was taking notes, apparently of the evidence which Avas being given, and the court said, “I notice gentlemen of the jury, that some of you have been taking notes of the testimony. The theory of the law is, that unless you all take notes of the testimony none of you should, so that some of the testimony will not be unduly emphasized in the jury room, and I will ask you to discontinue that.”

At page 272 there is an affidavit of Mr. Kenny, who was counsel in the case, that he observed during the trial, that a juror, whose name lie gives, was taking notes of the testimony, evidently referring to the same thing to which attention is called by the court at page 169. There is nothing to indicate that, after the court said that, anybody took any notes, nothing to show that the. juror retained the notes; but he did take down something on paper, and the witness says, notes of the testimony, which we may assume to be true, though I doubt if the witness knew for certain that that was it. But is that misconduct on the part of a juror for which'the verdict of the jury should be set aside and the judgment reversed?

Judge Adams took occasion to say, in Clev. C. C. & St. L. Ry. v. Ullom, 11 Circ. Dec. 321 (20 R. 512),—what he said appears on page 328 of the report,—that he entertained grave doubt as to whether a juror is guilty of misconduct by taking notes. Speaking for myself alone, I entertain no grave doubt about it. Unless a juror is cautioned not to take notes I know of no rule, nor can I think of any principle, that would make it misconduct on the part of a juror to take notes, any more than on the part of a judge before whom a trial upon facts is being heard, and especially where there are several judges.

It is true that a juror might, by taking notes, .have more information about the case in the jury room than a juror who did not take notes. It is equally true that there is a great difference in the intelligence of jurors. It is true that there is a difference in the memory, power of memory of jurors and of judges, and it is possible that it gives one juror an undue influence with his fellow jurors; but certainly until a caution is given, it would be to me a very remarkable thing that a juror should be said to be guilty of misconduct because he took down some notes of the evidence that was being introduced. There was no error in the court refusing the motion for a new trial upon that ground, misconduct of the jury in taking notes.

It is complained, however, that the court erred.

1. In refusing to give to the jury in charge certain propositions which the plaintiffs requested, and the first of these propositions is this:

“If the jury find from the evidence given in this case that the defendant, Charles Cowie, warranted the mare to be sound and all right, and the jury find that the mare was not sound and all right, then the plaintiffs had a right to return the mare to the defendant and demand the return of the money that they had paid for the mare.”

That language omits, as we think, a material proposition. In one of the eases cited by counsel for plaintiffs in error here, Crooks v. Eldridge, 64 Ohio St. 195 [60 N. E. Rep. 203], it is said, that if the property is returned so as to put the defendant in statu quo, there being a breach of the warranty, the party returning within a reasonable time the property in such wise as to put the vendor of the property in statu quo, he may do that and recover the purchase money. But that is omitted here.. If this proposition had been given, the jury might have found that the mare was returned, that by reason of ill treatment of the mare by the purchaser, she had been greatly injured and although she was sweenied at the time, they had a right to return her with the additional injury which they had put upon her by overdriving her or the like, and still have a right to rescind the contract. The court was right in not giving that in charge.

2. The second request is the same.

3. The third request reads:

“If the jury find from the evidence given in this case that the defendant, when the plaintiff, James Palmer, asked him about the mare’s shoulders told him that the shoulders were all right, that she was born that way; and you further find that the mare was in fact sweenied at the time of the sale; the warranty of the soundness of the mare would cover the condition of the shoulders.”

That would be true, — that proposition of law would be correct,— if it had one additional qualification, to wit: That the unsoundness was such that it was not patent to whoever looked at the mare.

There was evidence tending to show that this mare’s shoulders were peculiar, and that attention was called to that, by not only parties at the. time of the sale to the plaintiffs here, but at other times.

Now it is claimed on the part of the defendant, that whatever unsoundness there was — he says the mare was not unsound, there was no sweeny — but whatever there was about the mare that wasn’t all right, was patent to everybody who looked at her. And the defendant introduced evidence tending to show that the peculiarity about these shoulders was noticeable to those who looked at her. Now this should have been qualified, that if the mare was warranted, if she was unsound, and that unsoundness was not patent so as to be noticeable by those who examined her or looked at her, then the warranty would cover, and they would be entitled to recover for its breach.

I read from Swan’s Treatise (18 ed.) 830:

“A warranty of the soundness of a horse, or other property, extends to every kind of unsoundness, known and unknown to the seller. If, however, the buyer examines the property at the time of' the sale, and it is perfectly apparent that it has some particular defect, which can be discerned without requiring the use of any particular skill in the qualities of the property, as the loss of the ear of a horse, it will be presumed that the parties did not understand such defect as coming within the warranty. If, however, the horse, or other property, has a defect which is not plain and obvious, except to those who are skilled in the quality of the particular article, it cannot be claimed by the defendant that the defect was too plain and obvious to come within the warranty. ” '

There was no error in the refusal to give the charge as requested in number three.

The court properly stated the questions to be considered by the jury in the outset of his charge after stating the issues, beginning at page 259 of the bill, “Was the horse at the time of the sale unsound in the particulars complained of in the petition, or was it thereafter injured by the plaintiffs? Were the defects complained of in the petition known to the plaintiffs at the time of the purchase, or were they plain and obvious to the senses, and such as to require no skill to detect, and if so, were they included in and covered by the warranty” plainly implying that even if they, were obvious they might be included in the warranty.

Then he says, “Were the defects complained of in the petition included in such warranty?” “A general warranty does not usually extend to defects which are known to the buyer, or to defects which are plain and obvious to the senses and which it requires no skill to detect,” following the law as laid down in Swan’s Treatise which has been read.

Without following this charge through all of the way, we have found nothing in the charge which would warrant a reversal of the judgment. We think there was no language in the charge calculated to mislead the jury; but that it was .calculated to call their attention to exactly the questions they should pass upon.

The court did say once or twice in the charge, “If you find that on the day of the sale” certain things existed — . It was suggested to

the court that that might be erroneous, because there might something happen to the mare in the latter part of that day when she was being driven to Ashland, as she was in the afternoon, and the court corrected that, and said, “When I have used the term ‘on the day of the sale’ I mean at the time of the sale.” We think the charge of the court was proper. There is no error in the record which would justify a reversal, and the judgment is affirmed.

Winch and Henry, JJ., concur.