author: DUSTIN, J.

text:
    TRADE=MARKS.
    [Miami (2nd) Circuit Court,
    April 10, 1905.]
    Wilson, Sullivan and Dustin, JJ.
    Charles F. Rannells v. Noah H. Albaugh et al.
    Tbade-mabk foe Certain Fruit Trees does not Extend to Reproductions THEREOF.
    . The protection of a trade-mark cannot be obtained for an organic article which, by the law of its nature, is reproductive and derives its chief value from its innate vital powers, independent of the care or ingenuity of man; hence a trade-mark designed to cover a certain kind of nursery-grown peach tree, will not in the absence of a restrictive contract extend to the reproductions thereof after sale, so as to render the general dealing therein by vendees unlawful.
    Error to Miami common pleas court.
    Sometime in 1889, Mr. N. H. Albaugh, of Tadmor, Ohio, president of the Albaugh Nursery Company, found a peach tree of an unknown variety, purchased it, named it the “Diamond Cling,” and had the name and an appropriate label recorded by the United States government as a trade-mark of said Nursery Company. Trees that we^e grown from the buds of the “Diamond Cling” were put upon the market in 1890, and large numbers of them sold to private customers and other nurserymen. The latter put them on the market. The plaintiff, being a dealer in trees, sold a large number of this variety to customers in other states. It is claimed by plaintiff that the defendant and the Albaugh Nursery Company, through their agents, informed the customers of plaintiff that the defendants, by virtue of the trademark aforesaid, had the exclusive right to sell the trees, and that if the said customers took the trees from plaintiff they would be sued by the defendants, and were purchasing a lawsuit. The customers declined to take the trees, and Rannells thereby lost the result of his sales. He brought suit against N. H. Albaugh and the Albaugh Nursery Company, and claimed that the product of a tree or anything else that reproduces itself is not protected by a trade-mark. The common pleas court held otherwise, and a verdict was returned for the defendants. Error was thereupon prosecuted to the circuit court.
    J. A. Kerr and G. T. Thomas, for plaintiff in error:
    Sale of a nursery stock or other natural product which reproduces itself, in the absence of a special contract which prohibits it, carries with it the right to reproduce and sell the product under the original name. Higgins v. Keuffel, 140 U. S. 428 [11 Sup. Ct. Rep. 731; 35 L. Ed. 470]; Hoyt v. Lovett, 71 Fed. Rep. 173 [17 C. C. A. 652; 39 U. S. App. 1].
    Long & Kyle and W. S. Kessler, for defendants in error.
   DUSTIN, J.

This cause was submitted by counsel upon the sole question as to whether defendant’s trade-mark, “The Diamond,” as described in exhibit “B,” and meant to cover a certain kind of nursery-grown peach tree, would, in the absence of a restrictive contract, extend to the reproductions thereof, after sale, and render the general dealing therein by said vendees unlawful.

We are of the opinion that the principle announced in Hoyt v. Lovett, 71 Fed. Rep. 173 [17 C. C. A. 652; 39 U. S. App. 1], is sound, and that, “The protection of a trade-mark cannot be obtained for an organic article which, by the law of its nature, is reproductive and derives its chief value from its innate vital powers independent of the care or ingenuity of man.”

We think that the court erred in directing the jury to return a verdict for defendant, and in, not sustaining the motion for a new trial. The judgment, therefore, of the common pleas court will be reversed, and the cause remanded for a new trial.

Wilson and Sullivan, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    OFFICE AND OFFICERS.
    [Hamilton (1st) Circuit Court,
    April, 1905.]
    Jelke, Swing and Giffen, JJ.
    State ex rel. Winn v. W. E. Wichgar, Aud.
    Member of Municipal Board op Health not Eligible to Office of District Physician.
    A member of a municipal board of health is an officer of the municipality, and as such ineligible to the office of district physician during his term and for one year thereafter, and he cannot therefore recover for services rendered in such capacity.
    W. R. Collins, for plaintiff:
    Construction of Dan. R. L. 10668 (R. S. 6976); Ash v. Ash, 9 Ohio St. 383; Tyler v. Winslow, 15 Ohio St. 364; Hamilton v. Steamboat Hamilton, 16 Ohio St. 428; Stannard v. Case, 40 Ohio St. 211; State v.
      Shelby Co. {Comrs.) 36 Ohio St. 326; Allen v. Bussell, 39 Ohio St. 336; State v. Darke Co. {Aud.) 43 O. S. 311 [1 N. E. Rep. 209]; State v. Stockley, 45 Ohio St. 304 [13 N. E. Rep. 279]; State ex rel. Fleim, as Mayor of Cumminsville, Peek’s Code, p. 31; State v. Funk, 8 Circ. Dec. 782 (16 R. 155); Findlay v. Parker, 9 Circ. Dec. 710 (17 R. 294) ; State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. ; State v. Anderson, 57 Ohio St. 429 [49 N. E. Rep. 406].
    An ordinance or resolution of a general or permanent nature is defined in the following cases: Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606]; Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; Coppock’s Code, p. 80; Thatcher v. Toledo, 10 Circ. Dec. 272 (19 R. 311) ; Vpington v. Oviatt, 24 Ohio St. 232; Cincinnati v. Bickett, 26 Ohio St. 49; Guernsey Co. {Comrs.) v. Cambridge, 3 Circ. Dec. 669 (7 R. 72) ; Berlin Bros. Co. v. Toledo, 11 Circ. Dec. 56 (20 R. 603).
    O. G. Bailey, for defendant.
   PER CURIAM.

A member of the board of health of a municipal corporation is an officer of such corporation, and under Lan. R. L. 10668 (R. S. 6976), to the appointment of district physician by such board during the term for which he was appointed or for one year thereafter, and although rendering services as such physician cannot recover compensation therefor.

Judgment affirmed.


author: HULL, J.

text:
    NEGLIGENCE — DEATH—TRIAL—EVIDENCE—VERDICT.
    [Sandusky (6th) Circuit Court,
    May 16, 1903.]
    Parker, Hull and Haynes, JJ.

      Jackson Knife & Shear Co. v. Fred C. Hathaway, Admr
    1. In Action •for Wrongful Death Petition Need not Allege Pecuniary Damage.
    In an action brought under Lan. R. L. 9673 and 9675 (R. S. 6134 and 6135) for causing the death of plaintiff's decedent by neglect or wrongful act, the petition need not allege that the next of kin of the deceased have sustained pecuniary damage by his death.
    2. Burden of Proving Contributory Negligence Rests on Defendant.
    Proof of the absence of contributory negligence on the part of deceased is not essential to the right to recover for wrongful death. Contributory negligence in such a case is an affirmative defense and the burden of proving it rests on the defendant.
    3. Duty of Master to Instruct Servant Concerning Dangerous Work, when.
    In an action for wrongful death, where the alleged neglect consisted in a failure by the defendant, an employer, to acquaint the deceased, an employe, with the dangers incident to the work in which he was engaged, a charge requested to be given before argument, that “the duty to give instructions existed only when there were dangers of which defendant had or ought to have had knowledge, and which defendant had reason to believe the deceased did not know and would not have discovered in time to protect himself” is erroneous and misleading for not stating that defendant was bound to instruct where dangers existed of which defendant ought “by the exercise of ordinary care' to have had knowledge and which defendant had reason to believe the deceased might not have discovered nor been apprised “by the exercise of ordinary care.”
    4. Whether Danger so Open and Apparent as' to Require 'no Instruction a Question for Jury, when.
    Where, in an action for wrongful death, the undisputed facts are, that the deceased, a boy of seventeen years, was killed while attempting to put a belt on a rapidly revolving wheel, the belt flying off and wrapping itself about his person; that the deceased had been employed in defendant’s shop only about three weeks; that when he entered the shop he had had no experience in the kind of work upon which he was engaged; that he was asked to do the work which resulted in his death without any instruction or warning being given to him by the foreman or anyone in authority at the shop, though once on a former occasion, he had done something of this kind for another person but without receiving any instruction or warning at that time concerning the danger, it is for the jury to say whether the danger was so open and apparent that instructions concerning it were not necessary and whether the deceased was guilty of contributory negligence.
    5. Verdict of $2;950 for Death of Boy not Excessive, when.
    Where deceased was at the time of his death about seventeen years of age, unusually bright, had attended high school to within one year of graduation, when he left school to aid in the support of his family and, though earning but about fifty cents a day, was contributing to the support of his parents and was a mere beginner at the work with a probability that his wages would be increased as time went on, a verdict of $2,950 is not excessive.
    Error to Sandusky common pleas court.
    Bartlett & Wilcox and J. B. Stahl, for plaintiff in error.
    Love & Culbert, for defendant in error:
    Death, of inexperienced boy caused by dangerous or defective or unsafe machinery or appliances. See Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; Shearman & Redfield, Negligence (5 ed.) Sec. 219, page 389, citing Hamilton v. Railway, 54 Tex. 556; Goff v. Railway, 36 Fed. Rep. 299; Taylor v. Railway, 41 W. Ya. 704 [24 S. E. Rep. 631]; Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187], citing, Atlas Eng. Works v. Randall, 100 Ind. 293 [50 Am. Rep. 798]; Hill v. Gust, 55 Ind. 45; Hawkins .v. Johnson, 105 Ind. 29 [4 N. E. Rep. 172; 55 Am. Rep. 169] ; Mann v. Print Works, 11 R. I. 152; Lalor v. Railway, 52 111. 401 [4 Am. Rep. 616] ; Coombs v. Cordage Co. 102 Mass. 572 [3 Am. Rep. 506]; Chicago & N. W. Ry. v. Bayfield, 37 Mich. 205; Dowling v. Allen, '74 Mo. 13 [41 Am. Rep. 298] ; Wood, Mas. & Serv. Secs. 349, 352, 439; Beach, Contr. Neg. Sec. 132; Thompson, Negligence 975, 976, 977, 979, 1016; Pierce, Railroads 378; Thomas, Negligence 856, 857, 858; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739] ; Cole v. Railway, 71 Wis. 114 [37 N. W. Rep-84; 5 Am. St. Rep. 201].
    There is no presumption thát the decedent assumed the risk. Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187]; Ohio & M. Ry. v. Hammersley, 28 Ind. 371; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 553 [21 L. Ed. 739]; O’Connor v. Adams, 120 Mass. 427; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449].
    Duty of defendant to provide for the safety of its employes. Lake Shore <& M. S. Ry. v. Lavalley, 36 Ohio St. 221; Railway v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Railway v. Henderson, 37 Ohio St. 549; Dick v. Railway, 38 Ohio St. 389; Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596] ; Shearman & Redfield, Negligence (5 ed.). Secs. 185, 186, 194, 194a, 218; Black, Law & Pr. Acc. Cas. Sec. 67.
    Special orders given by master. Illinois Steel Co. v. Schymanowski, 59 111. App. 32; Pitts. C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187]; Crowley v.-Cutting, 165 Mass. 436 [43 N. E. Rep. 197]; Turner v. Railway, 40 W. Ya. 675 [22 S. E. Rep. 83]; Wood, Mas. & Serv. Par. 349, page 714; Union Pac. Ry. v. Fort, 84 U. S. (17 Wall.) 558 [21 L. Ed. 739]; Wood, Mas. & Serv. Sec. 366; Van Duzen Cas & Gas. Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998]; Patter

      son v. Railway, 76 Pa. St. 389 [18 Am. Rep. 412]; Breckenridge Co. v. Reagan, 12 Circ. Dec. 50; May v. Smith, 92 Ga. 95 [18- S. E. Rep. 360; 44 Am. St. Rep. 84]; Hinckley v. Horazdowsky, 133 111. 359 [24 N. E.' 421; 8 L. R. A. 490; 23 Am. St. Rep. 618]; Wharton, Negligence Sec. 216.
    Duty of employe of minors and inexperienced employes. Rolling Mill Co. y. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Cooley, Torts 652; Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640]; Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Thompson, Negligence 978; O’Connor v. Adams, 120 Mass. 427; Shearman & Redfield, Negligence (5 ed.) Secs. 73, 203, 219, 291a, 333, 334; Hickey y. Taaffe, 105 N. Y. 26 [12 N. E. Rep. 286]; Pitts. C. C. & St. L. Ry. y. Moreland, 12 Circ. Dec. 612; Railway v. Moreland, 60 Ohio St. 604 [54 N. E. Rep. 1107] ; Mather y. Rillston, 156 U. S. 391 [15 Sup. Ct. Rep. 464; 39 L. Ed. 464]; Missouri Pac. Ry.' y. CaTibreath, 66 Tex. 526 [1 S. W. Rep. 622] ; Atlas Eng. Works y. Randall, 100 Ind. 293 [50 Am. Rep. 798]; Stillivan y. Manufacturing Co. 113 Mass. 396; Western Union Tel. Co. y. McMullen, 58 N. J. Law 155 [33 Atl. Rep. 384; 32 L. R. A. 351]; New York Biscuit Co. y. Rouss, 74 Fed. Rep. 608 [20 C. C. A. 555; 45 U. S. App. 45]'; Baxter v. Roberts, 44 Cal. 187 [13 Am. Rep. 160] ; Wheeler v. Manufacturing Co. .135 Mass. 294; Coombs y. Cordage Co. 102 Mass. 572 [3 Am. Rep. 506]; Stewart v. Bridge Co. 8 Circ. Dee. 454 (15 R. 601) ; 7 Am. & Eng. Enc. Law (1 ed.) 830, 834; Houston & Tex. Cent. Ry. v. Marcelles, 59 Tex. 334; Parkhurst v. Johnson, 50 Mich. 70 [15 N. W. Rep. 107; 45 Am. Rep. 28] ; Demars y. Manufacturing Co. 67 N. H. 404 [40 Atl. Rep. 902]; Mullin v. Horseshoe Co. 105 Cal. 77 [38 Pac. Rep. 535] ; Jones y. Mining Co. 66 Wis. 268; 28 N. W. Rep. 207 [57 Am. Rep. 269]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26].
    Contributory negligence. Railway y. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403] ; Pick v. Railway, 38 Ohio St. 389; Clev. C. & C. Ry. y. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633].
    Measure of damages. Cincinnati St. Ry. y. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Grotenkemper y. Harris, 25 Ohio St. 510; Illinois Cent. Ry. v. Slater, 129 111. 91 [21 N. E. Rep. 575; 6 L. R. A. 418; 16 Am. St. Rep. 242]; Birkett v. Ice Co. 110 N. Y. 504 [18 N. E. Rep. 108]; Gulf, C. & S. F. Ry. y. Compton, 75 Tex. 667 [13 S. W. Rep. 667]; Thompson v. Johnston Bros. Co. 86 Wis. 576 [57 N. W. Rep. 298]; Johnson v. Railway, 64 Wis. 425 [25 N. W. Rep. 223]; Ewen y. Railway, 38 Wis. 613; Potter y. Railway, 21 Wis. 372 [94 Am. Dec. 548]; Potter v. Railway, 22 Wis. 615; Black, Law & Pr. Acc. Cas. 333, 334, 335; Schrier v. Railway, 65 Wis. 457 [27 N. W. Rep. 167]; Missouri Pac. Ry. v. Henry, 75 Tex. 220 [12 S. W. Rep. 828]; Pineo v. Railway, 34 Hun (N. Y.) 80; Chicago, etc. Ry. v. Becker, 84 111. 483; Union Pac. Ry. v. Dunden, 37 Kan. 1 [14 Pac. Rep. 501]; Cooper v. Railway, 66 Mich. 261 [33 N. W. Rep. 306; 11 Am. St. Rep. 482];Hoppev.Railway, 61 Wis. 357 [21 N. W. Rep. 227]; Houghkirk v. Canal Co. 92 N. Y. 219 [44 Am. Rep. 370]; Turner v. Railway, 40 W. Va. 675 [22 Sr E. Rep. 83]; Hinckley v. Horazdowsky, 133 111. 359 [24 N. E. Rep. 421; 8 L. R. A. 490; 23 Am. St. Rep. 618]; Ashtabula Rapid Trans. Co. v. Dagenbach, 11 Circ. Dee. 307; Morris v. Railway, 63 App. Div. 78 [71 N. Y. Supp. 321]; Morris v. Railway, 170 N. Y. 592 [63 N. E. Rep. 1119]; San Antonia St. Ry. v. Watzlavzick, 28 S. W. Rep. (Tex. Civ. App.) 115; Austin Rapid Trans. Ry. v. Cullen, 29 S. W. Rep. (Tex. Civ. App.) 256; Carnahan v. Ashworth, 31 S. E. Rep. 65, 66; Connaughion v. Printing & Pub. Assn. 73 App. Div. 316 [76 N. Y. Supp. 755] ; York v. Railway, 28 Mont. 574 [69 Pac. Rep. 1042]; Cicero & Pac. St. Ry. v. Boyd, 95 111. App. 510; McDonald v. Railway, 36 Misc. 703 [74 N. Y. Supp. 367]; Atchison, T. & S. F. Ry. v. Van Belle, 26 Tex. Civ. App. 511 [64 S. W. Rep. 397]; Twist v. Rochester (City), 165 N. Y. 619 [59 N. E. Rep. 1131]; Eginoire v. Union Co. 112 Iowa 558 [84 N. W. Rep. 758]; Southern Queen Mfg. Co. v. Morris, 105 Tenn. 654 [58 S. W. Rep. 651]; Taylor, B. & H. Ry. v. Warner, 60 S. W. Rep. (Tex. Civ. App.) 442; Lee v. Publishers, Knapp & Co. 155 Mo. 610 [56 S. W. Rep. 458]; Heinz v. Railway, 91 Hun 640 [36 N. Y. Supp. 675]; Omaha (City) v. Richards, 49 Neb. 244 [68 N. W. Rep.-,528]; Toledo Consol. St. Ry. v. Mammet, 6 Circ; Dec. 244 (13 R. 591).
    Sufficiency of petition. Johnson v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75]; Weidner v. Rankin, 26 Ohio St. 522; Steel v. Kurtz, 28 Ohio St. 191; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; 2 Kinkead, Code Pleading 839, 840.

      Affirmed, no report, Jackson K. & S. Co. v. Hathaway, 50 Bull. 121; 72 Ohio St. 623.

   HULL, J.

This action was brought by the defendant in error to recover damages against the Jackson Knife and Shear Company, for the death of Jesse Helmic, who was a minor and whose injuries it is claimed were due to the negligence of the defendant. And when I say defendant in this case, I mean the defendant below, and the same as to plaintiff.

The deceased was about seventeen years of age and he was at work in the shop of the defendant, and it was claimed that he was put at a piece of dangerous work without being given proper instructions by the defendant or by its foreman, as to how the work should be done, or warning as to the danger incident to doing the work. While engaged in the performance of this work, he was killed, and the action was brought by the administrator to recover damages.

The defendant denied all negligence on its part and claimed that the deceased had full knowledge of the danger of the work in which he was engaged, and that instructions were not necessary to avoid the danger; that he had been engaged in similar work prior to that time.

The facts briefly stated are these:

The deceased had been a resident of the state of Michigan, and through his brother-in-law, the administrator in this case, he came to Fremont and was employed in the defendant’s factory. He went to work in what was known as the “drop forge department,” of the factory, being at that time a boy about seventeen years of age, as has been stated. A few weeks after he entered the employment of the defendant a belt that was necessary in the running of the machinery of the factory, slipped off a small wheel or pulley as it is called, which was some distance from the floor,- the belt running over this small wheel and also a larger wheel lower down. He was asked by Mr. Kelley the foreman, if he thought he could put the belt on and he said he thought he could, and he endeavored to reach it,' but was unable to do so, and Mr. Kelley told him to get a stepladder so that he might get up more readily to where the difficulty was. Helmie went away for the stepladder, and while he was gone Mr. Kelley’s attention was attracted to the work of another employe, or perhaps a machine, that was out of repair, and did not observe he says, young Helmie, when he returned with the stepladder. He continued to observe the operation of the machine and did not know Helmie had returned until he heard him make an outcry, and then heard his body as it struck the beams of the building.

It appears that Helmie had returned with the stepladder, and gone up on it to put the belt onto the pulley, and probably while he was putting it on, the belt after he got it partially on it, tightened and then flew off suddenly, and caught hold of his arm and perhaps some other part of his body, at least his arm, and wrapped itself around his arm and around the shaft, and he was whirled rapidly around with the shaft, which was revolving at the rate of about three revolutions a second, his body and feet striking the beams and injuring him so that he died a short time after he was taken down.

The plaintiff claims as I have stated, that Helmie was inexperienced in this work, and was entitled to instructions and warning. That he did not receive any and that this was negligence on the part of the defendant.

' A verdict was returned for the plaintiff for $2,950 and judgment entered for that amount.

It is claimed by plaintiff in error that the petition does not state a cause of action and that therefore no evidence should have been admitted, and this objection was made upon the trial and exceptions properly lodged. The claim is based upon the fact that there is no allegation in the petition that the next of kin of Jesse Helmic sustained pecuniary damages by his death, .that it fails to state that the parents and next of kin of the deceased Jesse Helmic sustained any damage by reason of his death. And it is claimed that th'e petition is deficient in this respect, and fatally defective — that such an allegation is necessary.

The action is brought under Lan. R. L. 9673 and 9675 (R. S. 6134 and 6135), which authorize the bringing of an action by the personal representative of the deceased in case of death by neglect or wrongful act, for the benefit of the wife or husband or father or mother or next of kin.

We think that this question, the question raised here, has been decided by our Supreme Court in a case in Johnston v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75], where the Supreme Court say in the syllabus:

“An action may be maintained by the administrator of a deceased person, for the benefit of the next of kin of the deceased, though he leave no widow nor children, and though the petition does not contain a statement of special circumstances rendering the death a pecuniary injury to them. Such special circumstances can affect only the amount of the recovery.”

On page 339, of the opinion, the court say:

“A right of action is given by this statute to the personal representative of the deceased, merely as a trustee, and for the exclusive benefit of the widow and next of kin. Hence, it would seem to be clear, that in order to the maintenance of the action, there must be a widow or next of kin, to whom 'the amount recovered could be distributed. And so it. was held, under a similar statute of New York, in Lucas v. Railway, 21 Barb. 247.
“But if there be persons to whom the beneficial interest in the judgment to be recovered can vest, then the only other conditions to which the right of action is subjected by the terms of the statute, are, first, that, the death shall have been caused by such wrongful act, neglect, or default, as would (if death had not ensued) have entitled the party injured to maintain an action against the defendant, and recover damages in respect thereof; secondly, that the action be brought by and in the name of the personal representative of the deceased; and thirdly, that it be commenced within two years from the time of his death.
“Subject to these conditions, the statute gives a right of action; and seems to regard the widow and next of kin as sustaining, at least, a nominal pecuniary injury, in all such cases, from the wrongful act of the defendant. Quin v. Moore, 15 N. Y. (1 Smith) 432.
“Questions may arise, upon the trial of this cause, as to the construction of the rule of damages furnished by Sec. 2 of this statute; but no such questions are properly before us. The question raised by the demurrer does not relate to the amount of the recovery, but is, simply, Can an action be maintained on the ease stated in the petition ? We think it can.”

The Supreme Court here hold that the administrator brings this action simply as the trustee, and where the proper allegations are made under the statute, it is presumed that nominal pecuniary damages at least were sustained by the next of kin.

This petition alleges that the deceased left a father and mother, a brother and sister, and asks damages in the sum of ten thousand dollars, and we think that is sufficient.

The petition contains this allegation:

“Plaintiff says he as administrator has sustained damages in the sum of ten thousand dollars. ’ ’

That properly construed probably would mean that he as trustee bringing this action had sustained damages, or was entitled to damages. But leaving that out, there is sufficient in the petition to state a cause of action under the statute.

The defendant made certain written requests of the court to charge, before argument, and exceptions were taken to the refusal of the court to give some of these requests.

The first one, is request No. 1, which was refused. This request asked the court among other things to charge the jury that,

“The burden of establishing the absence of such contributory negligence as well as all other facts constituting the conditions upon which the statute gives this right of action is upon the plaintiff, and to entitle him to recover in this action he must satisfy you of their existence by a preponderance of the evidence.”

. The request also contained this language:

“Want of ordinary care on the part of Jesse Helmie which contributed proximately to the accident complained of in this action would prevent him from recovering damages against this defendant for the resulting injury, even though this defendant was guilty of negligence in the particulars stated' in the petition in this action. This in law is known as ‘contributory negligence.’ The absence of contributory negligence on the part of Jesse Helmie is a necessary condition to the right of his administrator to maintain this action and recover damages against the defendant, ‘The Jackson Knife & Shear Company ’ ”

The gist of the instruction asked was, that the burden was upon the plaintiff in making out his case, to establish the fact that the deceased had not been guilty of contributory negligence.

The statute provides that the administrator may recover in such a case where the deceased might have recovered if living, and the argument is, that as the deceased could not have recovered if living in a case where he was guilty of contributory negligence, therefore the plaintiff in making out his case as a representative of the deceased must establish this as a substantive part of his case, thus, carrying the rule from the usual one, that contributory negligence is a defense, unless the plaintiff’s own evidence raises the presumption of contributory negligence, and the instruction seems to be sustained by some language of Judge Burket in the opinion in Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]. On page 528, Judge Burket says:

“Contributory negligence of the party injured is usually a defense to an action for damages; but in actions under this section, contributory negligence is not, strictly speaking, a defense, but prevents the liability to an action for damages from arising. The burden of proving that the liability has arisen, therefore, rests on the plaintiff.”

If this language of Judge Burket states the law correctly, it would appear that this instruction should have been given. An examination of this case however, discloses the fact that it was not necessary to pass on this question discussed by Judge Burket, in deciding the case, and that the matter is not discussed nor touched upon in the syllabus of the case, which under the rule of the Supreme Court, is the law of the case, as laid down by the court — the court, as such, not being bound by the argument and remarks of the judge who writes the opinion.

We are of the opinion that this instruction was properly refused; that probably Judge Burket used this language in discussing this case without considering fully the effect of such a rule as he apparently lays down, but in any event it is our judgment that that is not the law. We think that the rule is the same where the action is brought by the administrator in behalf of the estate or next of kin of the deceased person as it is where the action is brought by the injured person if living. No one is presumed to be negligent, but on the contrary, the presumption is, that every one exercises ordinary care until the contrary appears. The law of self-preservation and self-defense raises the presumption that every one will exercise ordinary care to look out for and care for himself, and we see no reason why this rule should not prevail in a case of this kind the same at it would in the case of a living person.

This court once had this same question in a case in Huron county, where a similar instruction was asked, based upon these remarks of Judge Burket, and was refused by the court of common pleas, and that action of the court of common pleas was affirmed by the circuit court as then constituted. The judge now delivering this opinion was at that time the common pleas judge who tried the case, and the court adheres to its ruling in that case.

We therefore find that there was no ’error in the court refusing this instruction.

The court was also asked to give a request which is numbered “11” and which was refused, and this is claimed to be error. The substance of this request it is said, was taken from National Malleable C. Co. v. Luscombe, 6 Circ. Dec. 801 (9 R. 680), an opinion of this court delivered by Judge King, and was as follows:

“The duty of the defendant, The Jackson Knife & Shear Company, to give instructions to the said Jesse Helmic existed only when there were dangers in his employment of which the defendant company had or ought to have had knowledge, and which the defendant company had reason to believe Jesse Helmic did not know and would not have discovered in time to protect himself from injury. ’ ’
“If the said Jesse Helmic knew or by the exercise of reasonable care or diligence might have known the elements of the danger it would he unreasonable to require the defendant company to warn him to avoid dangers which ordinary prudence ought to make him avoid without warning. ’ ’

This request asked to be given before argument, and under the statute, the court was required to either refuse, or give it without modification. If it is defective in any respect, the court would be justified in refusing it. We think the court was justified in refusing to give this as an instruction to the jury before argument.

Such instructions go to the jury before they have been charged generally upon the ease, before they have been given instructions as to the law of the case as a whole, and the law thus given to them is in a somewhat fragmentary form. Such instructions go with the jury to their room, and are there read and considered by them, and if in any respeet they are misleading, or might be reasonably held to be misleading,, they ought not to be given.

We find on an examination of the circuit court case, National Malleable C. Co. v. Luscombe, supra, this: that the language used was quoted by Judge King, from the decision of another court in the body of his opinion. It states in a general way the law upon this question, but there may be statements made in an opinion in an argumentative form, that would not be proper to state to a jury as an instruction from the court, and we think that the instruction leaves out in the fore part of' it, the element of ordinary care which it should have contained. It says r.

‘ ‘ This duty existed only when there was danger in his employment,, when the defendant company had or ought to have had knowledge.”

It uses the phrase to be sure, ‘1 ought to have had knowledge, ’ ’ but, the instruction does not state that the defendant company had, or by the exercise of ordinary, care ought to have had knowledge of it. It leaves out the element of ordinary care entirely, and then continues, “and which the defendant company had reason to believe Jesse Helmie did not know, and would not have discovered in time to protect himself from injury. ’ ’ Again, the element of ‘ ‘ ordinary care, ’ ’ is omitted from the instruction. Jesse Helmie was bound to exercise ordinary care only, and this is left out of this part of the instruction; and in the last part of the instruction is this language:

“If the said Jesse Helmie knew, or by the exercise of reasonable care or diligence might have known, the elements of the danger, it would be unreasonable to require the defendant company to warn him to avoid dangers which ordinary prudence ought to make him avoid without, warning. ’ ’

We think the expression, “It would be unreasonable to require the defendant company to warn him to avoid dangers which ordinary prudence ought to make him avoid without warning,” was an inferential one, and an improper one to use in an instruction to the jury to be given before argument. It was an argumentative expression unnecessary to be used to state the law to the jury and it might have influenced the-jury improperly, perhaps it might have been giving undue prominence to that part of the instruction. In short, we think that the request, considered all together, might have misled the jury, and that there was, no error in the court refusing to give it before argument.

A large number of requests were given before argument, — I think perhaps ten, — covering the claims of the defendant below very fully, and we think there was no error prejudicial to the defendant, in the couid; refusing this instruction.

As to the question of the facts in the case, and whether on the evidence given to the jury, the jury was warranted in finding the defendant guilty of negligence and the deceased not guilty of contributory negligence, it is undisputed that the deceased had been employed in this shop only about three weeks; that he had had no experience in that kind of work when he entered the shop; that he was asked to do the work which resulted in his death, without any instruction or warning being given to him by the foreman or anyone in authority in the shop. It is true that on a former occasion he had once done something of this kind for Mr. Hathaway, who was his brother-in-law, but Hathaway testified that he gave him no instruction or warning as to the danger at the time.

Under the law of this state as laid down in Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596], unless he had sufficient knowledge, it was the duty of the defendant under these circumstances to give proper instructions and warning to the deceased and it was for the jury to say whether the danger was so open and apparent that such instructions were not necessary. In our judgment this was not so. The danger of putting this belt upon a rapid revolving wheel was one that would not occur in an inexperienced boy of seventeen years, and might not occur to an adult person. The danger that the belt would fly off as this one did and wrap itself around his person and kill him almost instantly was one that probably did not occur to young Helmie, and that it was a great danger is apparent from: an examinátion of this record, and although he was said to be a bright boy and observant, we are of the opinion it cannot be said that he was' guilty of contributory negligence or that he took all the risk upon himself in doing this work.

This whole question is discussed in Rolling Mill Co. v. Corrigan, supra. It is familiar to counsel, and I will not stop to read it or quote from it. This is not a case where there was any wanton negligence upon the part of the defendant. Apparently, Mr. Kelley, the foreman, did not think of the danger of requesting this boy to do this work. He says, that he turned from the work for a moment while the boy was gone, and that he did not know he had returned until he was injured, but under the law, having directed the boy to do this work, ordinary care required him to observe the manner in which he did the work, or give him proper instructions or warning. He asked the boy if he thought he could do the work, and he answered he could, and he sent him after the stepladder, and then and without any instructions the boy came back and as is natural, proceeded immediately to do the work and was killed. Under the law as laid down in our own state, it cannot be said, that the jury were not warranted in finding a legal liability existing against the defendant.

It is claimed that the damages were excessive. The verdict was $2,950. The wages he was receiving, at this time were very small, about fifty cents a day, as he was a mere beginner in this kind of work,' but with a probability that his wages would be increased as time went on. It is always of course more or less speculative what pecuniary value a child may be to his parents, or a brother may be to his brothers and sisters — in this ease, the deceased leaving a father and mother and brother and sister. He was an unusually bright boy. He had attended -the high school, within one year of graduation; his father meeting with reverses, he left the high school, in order that he might aid in the support of the family, and was contributing some to the support of his father and mother at the time of his death. We think that this verdict should not be held to be excessive.

Under the statute, the amount of damages within certain limits is committed to a great extent to the judgment and discretion of the jury. No exact rule can be laid down. One jury differs from another, and it is not always entirely satisfactory it is true. The law is, that only pecuniary damages to the next of kin can be recovered, but what pecuniary damage is suffered, is not a matter, of exact, mathematical computation. The age of the deceased, the probable value of his service, his habits, the probability that he would aid and assist are all to be taken into consideration, and it is the purpose of the statute and its object that substantial damages shall be allowed to the next of kin for death by wrongful act, and in our judgment under the circumstances in this case, considering all the facts, $2,950 is not excessive. We find no prejudicial error in the record, and the judgment of the court of common pleas will therefore be affirmed»

JBarker and Haynes, JJ., concur.


author: GIFFEN, J.

text:
    NEGLIGENCE — DAMAGES—CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    May 8, 1905.]
    Jelke, Swing and Gillen, JJ.
    Cincinnati, H. & D. Ry. v. Walter F. Taylor.
    1. Evidence of Contributory Negligence.
    Where plaintiff, in attempting to cross a railway track relied on his previous observation of the habits of the flagman stationed there and assumed from his absence that the way was clear, when in fact an accident occurred and plaintiff sustained injuries therefrom the question of contributory negligence is properly left to the jury.
    2. Expenses fob Funeral of Wife Proper Items of Damages in Action by the Husband.
    Funeral expenses incurred by plaintiff in consequence of the death of his wife in a railway accident are proper items of pecuniary loss in an action by the husband individually as they could not be recovered by the administrator in an action under Lan. R. L. 9673 (R. S. 6134).
    3. Ordinary Care — One is Never Absolved from Using his Faculties to Avoid Danger.
    A charge that “the public need not anticipate danger and look for it in the absence of the flagman” at a railway crossing is properly refused. One is never absolved from using his faculties to avoid danger, and the exercise of ordinary care is a question of fact for the jury to determine from the circumstances of the case.
    4. Misleading Charge to Jury on Contributory Negligence.
    A charge containing the statement that those who cross a railroad track in the known absence of the flagman regularly stationed there, “knowing they are absolutely sure to be injured, assume the risk,” is misleading, as the jury might believe that a less degree of danger, although known, would not make a case of contributory negligence.
    Error to Hamilton common pleas court.
    M. R. Waite, for plaintiff in error.
    Johnson & Levy, for defendant in error.
   GIFFEN, J.

The defendant in error commenced an action to recover damages for injury to his buggy, harness and wearing apparel, and for expenses for medical attendance, hospital fees, medicine, nursing and funeral expenses incurred by reason of an accident at a railroad crossing of the plaintiff in error, in which the wife of the defendant in error was injured, and from which injuries she afterwards died.

The defendant in error testified that as he approached the crossing, he saw there was no watchman on the track; that his horse was on a slow trot; that he approached the track from the west; that the door of the box provided for the watchman faced towards the east, and that prior to the accident, he had frequently observed the watchman seated in his box when no train was approaching the crossing.

It is claimed that the court erred in overruling the motion to arrest the case from the jury at the conclusion of the plaintiff’s testimony. We think, however, under all the circumstances, the question of con-tributary negligence was properly left to the jury. The plaintiff below undoubtedly assumed from his previous observation of the custom of the watchman that he was then seated in his box attending to his duties. The watchman was, in fact, present, but not attending to his duties. The court, therefore, properly left the question to the jury. Railway v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321].

There was no error in refusing to give the four special instructions requested by the defendant below. The first and second were unsound in law; the fourth required the jury to bring in verdict for the defendant, and the third, although sound as a proposition of law, was refused because the request that it be given in writing was made after the argument.

The -defendant was not prejudiced by the refusal to give such charge, for the reason that it was in substance given in the general charge.

There was no error in admitting testimony as to the funeral expenses, as they constituted a part of the pecuniary loss of the plaintiff and could not be recovered by the administrator of the deceased in an action commenced by him under Lan. R. L. 9673 (R. S. 6134).

The court charged the jury as follows:

“The public need not stop and listen, they need not do that, they need not anticipate danger and look for it in the absence of the flagman in not warning them, because they have the right to believe that the railway company invites them through their agent to cross this particular track; but it, does not relieve them of the duty if they see danger before them and know that by thus crossing they are absolutely sure to be injured, then they take upon themselves the onus and burden, and that is such contributory negligence, if they are injured and it is the direct cause, the proximate cause of the injury which they receive, then they cannot recover.”

Ordinarily, when a flagman is present at a railroad crossing, it is not the duty of one approaching thé track to stop and listen, but there may be circumstances requiring this. A traveler is never wholly absolved from using his faculties to avoid danger, and what would or would not amount to the exercise of ordinary care depends upon the circumstances of each case, and is properly one of fact to be determined by the jury.

A railroad crossing, where trains are passing and repassing, is necessarily a place of danger, and to say that the public need'not anticipate and look for it in the absence of the flagman not warning them, is an erroneous statement of the law.

■ The further statement that those thus crossing, knowing they are absolutely sure to be injured, assume the risk, is liable to mislead the jury to believe that any danger of a less degree, although known, would not make them guilty of contributory negligence. We think this part of the charge is prejudicial to the rights of the plaintiff in error, for which the judgment will be reversed and cause remanded for a new trial.

Jelke and Swing, JJ., concur.


text:
    GUARDIAN AND WARD — LEASE.
    [Hamilton (1st) Circuit Court,
    July 28, 1905.]
    Jelke, Swing and Giffen, JJ.
    Globe Soap Co. v. Louisville & N. Ry.
    1. Petition in Action Involving Guardian’s Lease must Set out His Authority.
    In an action involving the validity of a lease executed by a guardian, the petition must set out by what authority he aeted, and that his wards were disqualified by infancy, imbecility or otherwise.
    2. Covenant in Guardian’s Lease Giving Option at End oe Three Years is Invalid.
    A covenant in a lease for three years executed by a guardian, granting an option on the premises for a further period will be invalid under the terms of Lan. R. L. 9836 (R. S. 6295).
    3. To Bring Guardian’s Lease within Purview oe Lan. R. L. 9837 (R. S. 6296), Petition must Contain such Averments.
    In order to bring a lease by a guardian within the purview of Lan. R. L. 9837 (R. S. 6296), authorizing a guardian to lease realty for a term of fifteen years under permission of the court appointing him, the petition must contain > the necessary averments showing the requisite conditions and authority of the court.
    Demurrer to petition.
    Kittredge & Wilby and H. L. Gordon, for plaintiff.
    E. G. Kinkead and H. K. Rogers, for defendant.
   GIFFEN, J.

This case was submitted upon a general demurrer to the petition and involves the validity of a lease executed by Fannie J. Dickson, Caroline T. Dickson, David J. Dickson and Fannie J. Dickson, guardian of Charles F. and Paul B. Dickson, heirs at law of Charles T. Dickson, deceased.

It does not appear by what authority the guardian acted, nor whether she was the guardian of the estate of Charles F. and Paul B. Dickson, nor does it appear that the two persons for whom she aeted were disqualified by infancy, imbecility, or otherwise. The petition, therefore, fails to show any authority in the so-called guardian for the execution of a lease, and in the absence of such authority, her act would be a nullity.

The demurref was argued however, not upon the ground that the power conferred upon her by statute, she exceeded such power.

Laning R. L. 9836 (R. S. 6295), provides as follows:

“A guardian of the person and estate, or of the estate only, of any minor may lease the real estate of his ward for any term not exceeding three years and not extending beyond the minority.”

The lease in this case was for a period of three years, together with an option for “ a further term of two and one-half years, three years, and three years, making in all a renewal of eight and one-half years. ’ ’

It will be observed that the wards themselves do not sign the lease, and the question whether they could ratify an act done under disability, after such disability has been removed, ■ does not arise in this case, and the only question is, whether the guardian as such had authority to make a lease for a longer period than three years, or, what amounts to the same thing, make a covenant to renew for a term of years after the three-year lease expired.

' As appears from the briefs of counsel, the authorities are not uniform on the question here presented, but we think it comes within the principle announced in the case of Knox Co. (Comrs.) v. Nichols, 14 Ohio St. 260, the fourth proposition of the syllabus being as follows:

“"Where a power created by statute has been fully executed and something not authorized by the statute has been added, but which is clearly distinguishable from the rightful execution, the execution of the power is good so far as authorized by the statute, and void only as to the excess. ’ ’

In this ease, the power to execute a lease for three years has been fully executed, the term having expired on December 31, 1904, but the covenant to renew the lease for a term of years is in excess of the pdwer granted by the statute, and is therefore void.

It is contended, however, that the lease may have been executed under Lan. R. L. 9837 (R. S. 6296), which permits a guardian “to lease the real estate of his ward for any term not exceeding fifteen years whenever the court appointing him shall, on his application, * * * find that such lease will be to the advantage of the ward,” etc., but in order to bring it within this section, the petition should contain the necessary averments showing the requisite conditions and the authority of the court.

We are of the opinion that the demurrer should be sustained upon both of the grounds above stated.

Jelke and Swing, JJ., concur.


author: MARVIN, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Lorain (8th) Circuit Court,
    May 8, 1905.]
    Marvin, Winch and Henry, JJ.
    Cleveland & S. W. Traction Co. v. Theodore D. Ward.
    1. Fact that Plaintiff Married and a Father has no Effect on Recovery in Personal Injury Case.
    The fact that the plaintiff in a personal injury case is married and the father of living children, has no effect whatever on his right to recover or the amount of the recovery.
    2. Erroneous Admission of Evidence Cured by Charge to Jury, when.
    The error of the trial court in permitting the plaintiff in a personal injury suit to testify that he was a married man and the father of living children, is cured by the court charging the jury that no damages should be allowed because of such facts.
    3. Witnesses may Testify that Break in Car Wheel was an Old Break.
    Where one of the grounds of negligence against a traction company is that one of the car wheels of the car in which plaintiff was riding as a passenger at the time it was derailed was cracked and unsound, evidence of witnesses who examined the wheel may testify that the break in the wheel was an old break without going into the details as to its appearance.
    4. Evidence that Car Wheel Bumped Along as the Car Ran Competent, when.
    Evidence that one of the car wheels on a traction car bumped along on the rail as the car ran, and that there was a bumping motion of the car, is competent in a personal injury case where one of the grounds of negligence is the excessive rate of speed at which the car was run as well as the unsound condition of the wheel.
    5. Traction Company not Liable for Hidden Defects in Car Wheels, when.
    Where a traction company, which is not the manufacturer of the car wheels used on its passengers cars, used proper care in the purchase and inspection of such wheels, and purchased the same from a competent and reliable manufacturer, and carefully inspected the wheel which broke the day on which the accident occurred and a reasonable time before plaintiff became a passenger, it is not liable for any hidden or latent defect in the wheel which broke which it could not have discovered and provided against in the exercise of due care and diligence.-
    6. Jurors need not be Instructed as to wiiat They are Presumed to Know.
    Jurors need not be instructed in what they are presumed to know, and there is no prejudicial error in refusing an instruction of such character although no error would have been committed in giving it. Hence, a request to charge in a personal injury case, wherein it is conceded that plaintiff iq entitled to recover for diminished earning capacity, that in arriving at the amount of the damages to be awarded by reason thereof the jury may, in the absence of testimony, use their common knowledge of what men earned who did such work as the testimony shows the plaintiff did, is not improperly refused.
    7. What is and what is not “Proximate Cause.”
    The term “proximate cause” means that which produced the result or injury, and not that which might naturally be expected to produce the result or injury; but the addition of the clause “or that which might naturally be expected to produce the result” to the definition above given cannot be said to be prejudicial to the defendant.
    8. Instruction Requiring Traction Company to Use Highest Degree of Care in Inspecting Car Wheels not Erroneous, etc.
    An instruction by the trial court in its general charge that if the defect in one of the car wheels on the car in which plaintiff was riding as a passenger could have been discovered by the defendant by a “most careful and thorough inspection of said wheel, then you would be justified in finding that the defendant was negligent in that particular,” is not erroneous in that it places an unreasonable requirement upon the defendant. A fortiori where the defendant traction company conceded in a special request to charge, which the court gave, that it was bound to the highest degree of care and diligence in providing its passenger cars with safe machinery, wheels, etc.
    9. Verdict for $4,000 in Favor of Laborer Permanently Injured not Excessive.
    A verdict for $4,000 in favor of a laborer, who sometimes worked at farm work, drove team and the like, is not excessive when it appears that he was permanently disabled by the negligent derailment of a traction passenger car in which he was riding as a passenger.
    Error to Lorain common pleas.
    C. W. CoIIister and E. G. & H. C. Johnson, for plaintiff in error.
    Skiles, Green & Skiles and Lee Stroup, for defendant in error:
    In the case of a passenger who has paid his fare, and the same is accepted by a railroad company, the law exacts the highest degree of care that the passenger be carried safely to his destination. 3 Thompson, Negligence Sec. 2819; Gin. St. By. v. Kelsey, 6 Cire. Dec. 209 (9 R. 170) ; Iron By. v. Mowrey, 36 Ohio St. 418 [38 Am. Rep. 597]; Serviss v. Stockstill, 30 Ohio St. 431; Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350 ; 4 Am. St. Rep. 548]; Northern Ohio By. v. Bigby, 69 Ohio St. 184 [68 N. E. Rep. 1046].
   MARVIN, J.

The case of the Cleveland and Soirth-Western Traction Company against Theodore D. Ward, is a proceeding in error, brought here for the purpose of reversing the judgment of the court of common pleas. The parties here are reversed from what they were in the court of common pleas.

Ward was a passenger on car No. 65, of the traction company, which left Oberlin westerly at a little after 5 o’clock on the evening of February 26, 1903. The car was derailed some distance west from Oberlin, and Ward was injured. A suit was brought by Ward to recover for those injuries. The petition charges that the derailment'was caused by the negligence of the railroad company, and that such negligence consisted of two things; that one of the wheels under the car on which Ward was a passenger was cracked and unsound, and that by reason thereof it broke, causing' the derailment. The other negligence complained of is, that the car was run at an excessive rate of speed, which contributed to the derailment.

The evidence shows that immediately after the accident an examination was made; that the front wheel on the right side of the forward truck was broken off. This wheel was of iron; it had openings in it between the outer rim and the hub, and the iron part of the wheel, bounded by the rim and hub and these openings were spoken of by the witnesses as spokes; one of these spokes was broken off and the rim broken off either side of such spoke so that a considerable section of the rim was entirely broken out.

This may have been the cause or it may have been the result of the derailment.

On the part of the plaintiff below it was urged that it was the immediate cause of this derailment, and was occasioned by the negligence of the company in not having a proper wheel on this truck.

The trial resulted in a verdict and judgment for the plaintiff below, and proper proceedings were had to bring the case here.

One of the exceptions made by the plaintiff in error is, that the plaintiff below was permitted over the objection of the defendant below to answer this question (the plaintiff having first testified as to the fact of his injury, the car being derailed and the like, and that he- was fifty-six years of age) : “Are you married?” A. “I am.” Q. “Children?” Here objection was made by counsel for the defendant. He answered “I have one.” An exception was taken to each of these. Objection was not made to the first question, but an exception was taken, so that the plaintiff in error is entitled to have this considered.

Of course the fact of whether this man was married or single could have no bearing whatever on his right to recover, or on the amount which he should be permitted to recover. The fact that he was a father could have no bearing on that whatever.

It is urged, however, on the part of the defendant in error, that though technically these answers would have constituted no part of the plaintiff’s case nor in any wise affected his right to recover, they were not prejudicial to the railroad company; that the fact of his being married would have come out, as it did, later on, by his saying he visited at some place with his wife, or perhaps that his wife took care of him in his sickness. Nothing came out about the child. But still, if this was an error, the fact it came out in some other way cannot help it any. But the court in its charge to the jury, at page 320, took away, as we think, any possible injury that could come or prejudice that could come to the plaintiff in error by the admission of this evidence. The court said:

“If 'the plaintiff’s ability to labor and earn money has been impaired by reason of the injuries complained of, that circumstances may be considered; but no damage should be allowed because the plaintiff is married or has a family. ’ ’

We think with that charge, taking from the jury any consideration as to the family, that there was no prejudice to the plaintiff in error in the ruling on this question.

The first witness introduced was a man by the name of Kearins, who was the motorman on the car which was derailed, car No. 65. He testified as to the accident, and as to the position of things, the car and trucks and the like after the car was derailed and thrown over on its side, and then that he made an examination of the broken wheel, and by the way, he examined it with a lantern for it was dark when this accident occurred, and on page 12 he testified over objection that the break in the spoke was black, showed where it had rubbed together, and was shining. And then further along he was permitted to testify, that it was an old break. Not only was this witness permitted to testify this was an old break, but a number of other witnesses, where objections were made.

It is urged on the part of the plaintiff in error here, that the court erred, as is shown on page 13, by permitting this witness to testify that one of the wheels had a flat side, that is, that the circumference was not a complete circle, or rather the boundary a complete circle; that the circumference did not completely surround a circle, but that it was flat on one side. An examination of the record shows the court took that out, not only at that place but every other place where attention was called to it; no witness was permitted to testify that there was any flatness to any one of the wheels of this car. But he was permitted to testify this was an old break, and as I said, other witnesses were permitted to testify to the same thing. It is said that is error; that the witness should only have been permitted to testify as to how it looked, what its appearance was, and leave it to the jury to say whether it was an old break or not; that testimony related to the break of the spoke and one of the breaks at least in the rim of the wheel, and some of the witnesses, I think Kearins is one, that testified as to the appearance of the break, saying it was an old break, both in the rim and spoke.

We think there was no error in admitting this evidence, any more than there would be in admitting evidence that one appeared to be an elderly man; one could hardly be expected to say how many wrinkles there was in the face, how gray his hair was, but the general result; one looks over a man and says that is an elderly man or that is a young man; one looks at a house and is able to say from its looks whether it has been recently painted or has been painted a long time; and it is a matter of common knowledge, the looks of iron which has been broken for a long time, without going' into details as to just how it appeared on the surface, on the face. We think it was permissible for witnesses to testify there was an old break in the wheel.

Kearins was permitted to testify and so were other witnesses, that ■ one of the wheels bumped along on the rail as it ran; that there was a bumping motion of the ear; several witnesses were permitted to testify to that.

It is urged that that was error, because it is said that that tended to show there was a flat place on the rim of this wheel or on the circumference of this wheel, and no negligence was charged on that account.

We think it was competent to show how. this car was running; negligence was charged as to the rapidity with which the car was moving, and the bumping may have borne on that.

But whether or not it would be admissible on that ground, if one of the wheels was bumping along as it ran, it might have a tendency to cause that old break in the wheel to become a new break — or might have a tendency to cause that wheel to break, which is charged was negligently allowed to be on the ear. We think it is admissible, in the same wqy it would be admissible to show there was a bend in the road, a sudden bend in the road at the place of the break, no negligence charged and no negligence would exist because of the fact there was a bend in the road; but in describing the situation at the time of the accident, and the fact that the wheel broke.

We think it would be entirely competent to show that there was a bend in the road at that place; as tending to show that the breaking of the wheel was the cause, not the result, of the accident. '

Exception is taken to the action of the court in reference to the charge, and requests which were made by the defendant below to charge; but we think that the court gave every one of the requests that should have been given.

The fourth request which was asked was given, and that reads: “While the defendant is bound to exercise the highest degree of care and diligence in providing a car, safe in all its machinery and wheels, yet if the defendant is not a manufacturer of the ear wheels which it used under ear No. 65, at the time of the injury to plaintiff, and used the proper care in the purchase and inspection of the said wheels, and purchased the same from a competent and reliable manufacturer and carefully inspected the wheel which broke, on the day in question, a reasonable time before the plaintiff became a passenger on said ear, it is not liable for any injury resulting from any hidden or latent defect in said wheel which it could not have discovered and provided against in the exercise of due care and diligence.”

The ninth request was refused; but we think that every proposition of law, which was proper to be given, which is embodied in the ninth request is covered by the fourth request which was given. The ninth reads:

“If the defendant used proper care in the purchase of the wheel- in question, and carefully inspected it before it was used on the day the accident occurred, and such inspection disclosed no defect in said wheel, and said wheel had been purchased from a' competent and responsible manufacturer, then the defendant is not liable for an injury occurring to plaintiff from hidden defects in said wheel which it could not and did not discover in the exercise of due care and diligence.”

There was no occasion for the court to repeat what had already been given in the fourth.

Complaint is made that the court did not give the eighth request, which reads:

“That should they find that plaintiff is entitled to a verdict, then in arriving at the amount to be given him, one of the things from which the said amount shall be determined is the sum he earned theretofore; and if there is no testimony as to the sum he had theretofore earned, the jury may in arriving at said amount, use their common knowledge of what men earned who did such work as the testimony shows the plaintiff did.”

The testimony shows that.the man was a laborer, he worked sometimes at farm work, and drove team and the like; but no evidence was introduced as to his earning capacity, except as that comes from the common knowledge of what that kind of men earn.

It would have been eminently proper to have given this request, but we think there was no error in refusing it.

One of the cases cited is Fisher v. Jansen, 128 Ill. 549 [21 N. E. Rep. 598]. Another the case of Baker v. Railway, 118 N. Y. 533 [23. N. E. Rep. 885]. Baker, the plaintiff, was a young woman, a teacher in the schools and of music. The evidence showed that she was injured,, and that she was unable to use her hand on the piano as she had done, and that she was deprived of her income as a teacher in the school for some time; but no evidence was introduced tending to show what she earned, either as a teacher of music or as a teacher in the schools. The court of appeals held that nothing should have been allowed, because there was no evidence of what her earning capacity was. But that is not claimed here, this request reads: ‘ ‘ then in arriving at the amount to be given him, one of the things from which said amount shall be determined is the sum he earned theretofore.”

In the case of Murray v. Railway, 101 Mo. 236 [13 S. W. Rep. 817], the second clause of the syllabus recites some facts, to wit: that a man was injured and that the women in his family took care of him, nursed him, and no evidence was introduced tending to show what that service was worth; but the court said that it was proper for the jury to consider, just what was asked to be considered here, their knowledge of what such things were worth. But in the opinion the court used this language, page 818: “Jurors may well be presumed to be reasonably familiar with the value of such services,” that is the services of these women who nursed the man in their own family, “and they may measure the same by their own knowledge and experience. ’ ’ Although it would have been proper to have given the request, it was not error to refuse it. Jurors need not be instructed in what they are presumed to know.

Complaint is made of the definition of proximate cause given in the charge. The definition complained of is found on page 319 of the bill. The court said: “By the term proximate cause, is meant, that which naturally and probably caused the injury.” Perhaps complaint would not be made if the definition had ended here, but this is added, “that is, the cause which leads up to or might naturally be expected to produce the result.”

The difficulty with that; and there is a difficulty with it, is, that the court said, that the proximate cause was that cause which might naturally be expected to produce the result. It must have produced the result. It is that cause which did produce the result, the court had before said that, and he says “or that might naturally be expected to produce the result.” Tie limited that a little too much for the defendant; for whether it might naturally be expected to produce the result or not, if it is the cause which did produce the result, then it is the proximate cause. It is that which immediately produced it.

But in any event there was nothing to the prejudice of the defendant below in that definition of proximate cause. If it read, “by the term proximate cause is meant that which naturally and probably caused the injury,” then that language “which might naturally be expected to produce the result.” would be error; but he says, “it is that cause which produced the result, ’ ’ not a thing which- does not turn out to be a cause, but might have been; so there was no error in the charge in this regard.

Complaint is also made of this language in the charge:

“If you find that said wheel had been so cracked or broken for some time before the accident, and that said defect was in such a place and of such a nature, that it could have been discovered by the defendant, by a most careful and thorough inspection of said wheel, then you would be justified in finding that the defendant was negligent in that particular. ’ ’

Now it is said this required more of the defendant than ought to be required. It is conceded that the defendant was bound to use the highest degree of care, both in providing machinery and in conducting the business, that is conceded in the fourth request made by the defendant below, which has already been read. And certainly to make a most thorough inspection is not using a higher degree than the highest degree of care. And the defendant below had requested this to be charged, and the court charged it. “While the defendant is bound to exercise the highest degree of care and diligence in providing a ear, safe in all its machinery and wheels,” etc. Now it is said it is requiring more than that to require a most rigid inspection. We do not think so. • We think it does not require a higher degree than the highest degree.

It is urged the verdict was for too much. The damages allowed was for $4,000. The man is permanently injured; the verdict is not so high as to indicate that the jury was governed by bias or prejudice in allowing that much, and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    CONTRACTS — CORPORATIONS—NOTICE.
    [Lucas (6th) Circuit Court,
    March 11, 1905.]
    Hull, Haynes and Parker, JJ.
    James Paul v. Caldwell Furnace Foundry Co.
    1. Notice to President of Corporation Notice to Corporation, when.
    In order to charge a corporation with notice it is not necessary that it be given in writing or orally at a meeting of its board of directors in regular session, but notice to the president, while acting within the scope of his duties, is sufficient.
    2. Reorganized Corporation Liable on Contract of Old Company, when.
    Where a contract of employment was entered into between the plaintiff and a West Virginia corporation through its president, but shortly thereafter a new corporation was organized under the laws of New Jersey for the purpose of taking over all the property and business of the West Virginia company, the new company also retaining the name and officers of the old company, including the president — in such case the knowledge of the president of the contract and his allowing the plaintiff to continue working under it for the new company amounts not only to notice to the latter company of its existence, but is also a ratification by it of its terms.
    Error to Lucas common pleas court.
    Seiders & Monnette, for plaintiff in error:
    It is well settled that a corporation is not chargeable with knowledge of facts merely because those facts were known to its incorporators or stockholders or clerk. But the corporation has notice of facts which come to the knowledge of its officers or agents while engaged in the business of the corporation, provided those facts pertain to that branch of the corporate business over which the particular officer or agent has some control. Cragie v. Hadley, 99 N. Y. 131 [1 N. E. Rep. 537; 52 Am. Rep. 9]; Wood, Railway Law 457-465; Smith v. Norwich (Comrs.), 38 Conn. 208; Anderson v. Kinley, 90 Iowa 554 [58 N. W. Rep. 909]; Clark, Corporations Sec. 727, p. 1561; Mechanics’ Bank v. Schaumburg, 38 Mo. 228; Thompson, Corporations Secs. 5189,5190,5891, 5228, 5239 and many cases cited in notes; 10 Cyc. 9Í5; New England Car-Spring Co. v. Rubber Co. 4 Blatchf. 1 [18 Fed. Cas. 59]; White v. Barlow, 72 Ga. 887; Indiana, I. & I. Ry. v. Swannell, 157 111. 616 [41 N. E. Rep. 989; 30 L. R. A. 290] ; Liebfritz v. Railway, 48 Iowa 709; Connecticut Mut. L. Ins. Co. v. Scott, 5 Ky. Law 639; Conant v. Reed, 1 Ohio St. 298; 12 Cent. Dig. See. 1754.
    Scintilla rule. Dick v. Railway, 38 Ohio St. 389; Williams v. Burnet, Wri. 53; Worden v. Smith, Wri. 334; Warring v. Martin, Wri. 380; Ellis v. Insurance &' Tr. Co. 4 Ohio St. 628 [64 Am. Dec. 610]; Byrd v. Blessing, 11 Ohio St. 362; Stockstill v. Railway, 24 Ohio St. 83. -
    Upon the question whether a contract for personal services, whereby a corporation agrees to pay in part for the same with shares of its capital stock, is invalid ab initio. Cook, Corporations Secs. 16, 20, 21, 22, 146, 147, 376; Green’s Brice, Ultra Vires, 145; Angelí & Ames, Corporations Sec. 517; Shannon v. Stevenson, 173 Pa. St. 419 [34 Atl. Rep. 218]; Carr v. Le Fevre, 27 Pa. St. 413; Appleyard’s Case, 49 L. J. Ch. 290; Reed v. Hayt, 51 N. Y. Supr. 121; affirmed, Reed v. Hayt, 109 N. Y. 659 [17 N. E. Rep. 418];Kobogum^.Iron Co.76 Mich. 498 [43 N. W. Rep. 602]; Cin. Ind. & C. Ry. v. Clarkson, 7 Ind. 595; Phillips v. Bridge Co. 59 Ky. (2 Mete.) 219; Washburn v. Wall Paper Co. 81 Fed. Rep. 17 [26 C. C. A. 312; 51 U. S. App. 380];
      Brant v. Ehlen, 59 Md. 1; Liebke v. Knapp, 79 Mo, 22 [49 Am. Rep. 212]; Coffin v. Bansdell, 110 Ind. 417 [11 N. E. Rep. 20]; Sprgo’s Case, 8 Ch. App. 407, 412; Clark, Corporations 379; Verplanck v. Insurance Co. 1 Edw. Ch. 46; Iowa Lumber Co. v. Foster, 49 Iowa 25 [31 Am. Rep. 140] ; Barton v. Plankroad Co. 17 Barb. 397; Cooper v. Frederick, 9 Ala. 738; Gillet v. Moody, 3 N. Y. 479; Taylor v. Exporting Co. 6 Ohio 176; Chillicothe Branch Bank v. Fox, 3 Blatch. 431 [5 Fed. Cas. 632]; City Bank v. Bruce, 17 N. Y. 507; McNeeVy v. Wood-ruff, 13 N. J. Law 352; Thompson v. Moxey, 47 N. J. Eq. 538 [20 Atl. Rep. 854]; 7 Am. & Eng. Ene. Law (2 ed.) 818; 2 Thompson,‘Corporations See. 1062.
    Effect of execution of contract in question by president, in absence of express authority, if subsequently ratified, acquiesced in or benefits accruing thereunder received by the corporation. Clark, Corporations 493, 494, 498, 499; Richardson v. Graham, 45 ~W. Ya. 134 [30 S. E. Rep. 92]; 'Jones v. Williams, 139 Mo. 1 [39 S. W. Rep. 486; 37 L. R. A. 682; 61 Am. St. Rep. 436]; Omaha Consol. Yin. Co. v. Burns, 49 Neb. 229 [68 N. W. Rep. 492]; Davies v. Steel Co. 6 App. Div. 166 [39 N. Y. Supp. 791]; Illinois Tr. & ScPv. Bank v. Railway, 117 Cal. 332 [49 Pac. Rep. 197] ; Cunningham v. Railivay, 63 Hun 439 [18 N. Y. Supp. 600]; West Salem Land Co. v. Land Co. 89 Ya. 192 [15 S. E. Rep. 524]; Curtis v. Leavitt, 15 N. Y. 1; Dill, Priv. Companies 30; Stokes v. Pottery Co. 46 N. J. Law 237; Fifth Ward Sav. Bank v. Bank, 48 N. J. Law 513 [7 Atl. Rep. 318]; Taylor, Corporations Secs. 202, 236, 244; Blake v. Manufacturing Co. 38 Atl. Rep. 241 (N. J.) ; Trenton Ins. Co. v. McKelway, 12 N. J. Eq. 133; National Tr. Co. v. Miller, 33 N. J. Eq. 155; Black v. Canal Co. 24 N. J. Eq. 455; Leggett v. Manufacturing & Bkg. Co. 1 N. J. Eq. 541 [23 Am. Dec. 728] ; State v. Mansfield (Comrs.), 23 N. J. Law 510 [57 Am. Dec. 409]; Camden '& A. Ry. v. Railway, 48 N. J. Law 530 [7 Atl. Rep. 523]; Ellerman v. Railway, 49 N. J. Eq. 242 [23 Atl. Rep. 287]; Hays v. Gas L. & Coal Co. 29 Ohio St. 330.
    As to the pleadings. Cincinnati v. Cameron, 33 Ohio St. 336; Bates, Pleading 833; Stafford Pav. Co. v. Monheimer, 41 N. Y. Supr. 184; Mathews v. Leaman, 24 Ohio St. 615; Haigh v. Kaye, L. R. 7 Ch. App. 469; Gebhart v. Sorrels, 9 Ohio St: 462; Life Assn. v. Cook, 20 TCan, 19; Keokuk Com. Bank v. King, 47 Iowa 65; Milbank v. Jones, 127 N. Y. 370 [28 N. E. Rep. 31; 24 Am. St. Rep. 454]; Wilking v. Richter, 25 Misc. 735 [55 N. Y. Supp. 582]; Hentz v. Miner, 58 Hun 428 [12 N. Y. Supp. 474]; Milbank v. Jones, 57 N. Y. Supr. 135 [5 N. T. Supp. 914]; Jones, Evidence See. 176; Temple St. C. By. v., Heilman, 103 Cal. 634 [37 Pac. Rep. 530].
    "Where an agreement is illegal in part only, the part which is good may be enforced, provided it can be separated from the part which is bad, but not otherwise. Kinkead, Code PI. 543; Doty v. Bank, 16 Ohio St. 133; Thomas v. Miles, 3 Ohio St. 274; Bigot’s Case, 11 Coke 276; Pennsylvania Co. Y. Wentz, 37 Ohio St. 333; United States v. Bradley, 35 U. S. (10 Pet.) 343 [9 L. Ed. 448];. United States ,v. Hodson, 77 U. S. (10 Wall.) 395 [19 L. Ed. 937]; United States v. Mora, 97 U. S. 413 [24 L. Ed. 1013]; Doty v. Bank, 16 Ohio St. 133; Widoe v. Webb, 20 Ohio St. 431 [5 Am. Rep. 664]; State v. Perry s-burg (Bd. of Ed.), 35 Ohio St. 519; Marshall, Corporations 106; Morris v. Way, 16 Ohio 469.
    Seney, Johnson & Seney, for defendant in error.
   HULL, J.

This action was brought by Paul against the furnace company to recover nearly $1,000 damages which he claims the had sustained on account of a breach of contract for Paul’s services. At the conclusion of the plaintiff’s evidence the court below directed a verdict in favor of defendant. Judgment was entered in due course and reversal is sought here.

There were various grounds upon which the court of common pleas sustained the motion to direct a verdict; but upon the motion for a new trial the action of the court in overruling the motion was based upon one ground — that no contract had been entered into between the plaintiff and the defendant — and that is the ground relied upon in this court by defendant in error to sustain this judgment and none other need be mentioned in this opinion. The claim is made that the company with which Paul contracted went out of existence before he entered upon his duties and that the company for which he performed the duties and from which he is claiming this money, never made a contract with him, had no privity with him and are not liable to him. The contract was in writing, was .executed on March 14, 1902, and is signed, “The Caldwell Furnace Foundry Company, by James W. Caldwell, President.”

The testimony shows that two days before this contract was made, a corporation of this same name organized under the laws of West Virginia and elected directors. They were incorporated on March 12, but they did not organize until about two weeks later, March 29, when they elected -a board of directors and officers. The original company, the one in existence when this contract was made, was organized under the laws of West Virginia. The other company seems to have been incorporated originally under the laws of West Virginia, but on March 29 this West Virginia corporation became a New Jersey corporation and these officers and directors were elected for that corporation retaining the old name of the West Virginia corporation, the same officers and the same president.

All of the property of the West Virginia corporation was taken over by the New Jersey corporation; they went through the form, as one of the officers testifies, of a sale of the property of the West Virginia corporation to the New Jersey corporation. The West Virginia corporation went out of existence, at least so far as owning any property was concerned or having any visible existence, and the New Jersey corporation took its jflace. The reason for this change, apparently, was, (that they preferred to do business under the laws of the state of New Jersey instead of those of West Virginia. As I have said Caldwell still remained president; the same name was retained and the same business carried on at the same place — the only change made was, that they were organized under the laws of New Jersey instead of West Virginia.

Paul had made this contract on March 14, fifteen days before this reorganization occurred. The contract was, that he was to have $1,700 a year as managing salesman of this concern, which was engaged in the manufacture and sale of heating and ventilating apparatus, but besides this $1,700 per year, to be paid monthly, he was to have certain commissions based upon the amount of sales of the company, and a certain amount of the stock of the company. He went to work under the contract April 1, the day after the reorganization of the company. He had no knowledge nor notice of this reorganization during all the time that he remained in the employ of this company. He was hired for one year.

On November 12, 1902, about six months after his contract commenced, he was discharged, without any ground except that they did not need him any more. He had been paid his salary monthly, $141.66, by this reorganized company. The commissions were not due and payable until at the end of the year. His duties were the same as specified in this contract. He went about the country here and there. A lot of correspondence is put in evidence to show what communications were made and as to the new company. Caldwell had full knowledge of this contract and signed it, and he remained president of the company until July, 1902, when he was succeeded by a man named Sutton, who called Paul into the office and told him that he desired him to remain with the company and perform the same services, except that he wanted him to go ont on the road more than had been his habit previously; his pay continued, and he was paid under Sutton’s directions up until November when he was discharged.

Caldwell testifies that he employed this man. He says there was no resolution of the board of directors to this effect but that he had full authority in the matter — he was in fact general manager as well as president of the company and appears to have had full authority to manage the company.

The claim is, that the New Jersey corporation never employed Mr. Paul; that the notice and knowledge of Mr. Caldwell of the making of this contract having accrued or been given before he became president of the new corporation, that that would not be notice to the new corporation — that they would not be bound by this contract.

We think this claim is untenable; that there was evidence here strongly tending to show that the new corporation had notice and knowledge of this contract. It is claimed by the plaintiff in error that they adopted it and ratified it and are bound by it the same as though they had signed it; and under the evidence as it is now in the record it seems to us that that is correct. The only way in which knowledge can come to a corporation, ordinarily, is through its agents and officers. In order to give notice to such a corporation it is not necessary to have a meeting of its board of directors in regular session and notify them by writing or parol; but notice to a president of a corporation, acting within the scope of his authority and in accordance with his duties, is notice to the corporation. As is said in Cook, Corporations:

“It is well settled that a corporation is not chargeable with knowledge of facts merely because those facts were known to its incorporators, or stockholders or clerk. But the corporation has notice of facts which come to the knowledge of its officers or agents while engaged in the business of the corporation, provided those facts pertain to that branch of the corporate business over which the particular officer or agent has some control.”

And Thompson, Corporations:

“The most comprehensive rule with reference to this subject which can be stated is, that notice communicated to, or knowledge acquired, by, the officers or agents of corporations, when acting in their official capacity or within the scope of their agency, becomes notice to, or knowledge of, the corporation, for all judicial purposes.”

Now that Mr. Caldwell had notice of this contract when he was acting as president of the West Virginia corporation — of a contract that he' made and signed — is clear. That he had notice of it after he became president of his New Jersey corporation — actual notice — is clear; and according.to the testimony, it was within his power to employ men or discharge them under the new corporation. He was the manager of the company and we think notice to him of'the contract after he became president of the new corporation would be .notice to the company. The change in the corporation was only a change in the state under which it was incorporated; there was no other reason given for it than as Mr. Caldwell says:

“Why we changed our company from West Virginia laws to New Jersey laws — a New Jersey corporation — and transferred all the property and the business and everything we had over from the one corporation to the other; quit doing business under West Virginia laws and commenced under New Jersey laws that day.” In speaking of his successor, Mr. Sutton, as to what Paul did, he!is asked: “Did he act for the corporation after the change was made?” And he answers: “I think he commenced'his employment after the change was made; my recollection is he commenced April 1 but I am not sure about it. If he went to work before, he continued right along, but I think his actual work commenced April 1, or about that time.” The new company was incorporated on March 29. And he is asked: “You knew of his being paid, did you?” And he answered: “All of our help was paid.” “Who had the entire management of the New Jersey corporation after that time?” Answer: “I had the management of it, both corporations, the old and the new, under the board of directors. ’ ’ And he was asked: “How long did you continue to manage the affairs of .the new corporation?” Answer: “Until July 3, 1902.” That is when Sutton went out. Then, on the next page of the record, he is asked this: “Was there any resolution of the board of directors pertaining to that contract passed before you executed it?” A. “No, sir, it came within my authority to make sales, and all that sort of thing.”

To permit the New Jersey corporation to escape liability under this contract, it seems to us, would be working a fraud upon Mr. Paul. They retained-him in their employ; they recognized, adopted and ratified this contract so far as they could do so without saying that to Paul in so many words. They paid him. He did this work and nothing was said — no notice-was given to-him that any’ change was made. He had no knowledge nor notice of the reorganization, and they are to be presumed to know that — and they had no reason to suspect that he knew anything about any change in the corporation. To permit them to “take over,” as they say, and go through the formalities of taking all of the property of every kind and description of the old corporation and assume no liability under such a contract as. that, clearly cannot be sustained. We think the evidence tended strongly to show, and so far as this record shows, it did show that the New Jersey corporation acknowledged and .ratified this contract.

The judgment of the court of common pleas, in our opinion, was erroneous, and will therefore be reversed.

Haynes and Parker, JJ., concur.