text:
    COMMISSIONS FOR. SALE OF LAND.
    Circuit Court of Cuyahoga County.
    Mary H. Lippert et al v. W. B. Page.
    Decided, January Term, 1910.

      Real Estate Broker — Entitled to Commissions on Sale of Property, When —Hearsay Evidence and Weight of Evidence.

    1. Incompetent hearsay evidence, when admitted without objection, has some probative force.
    2. To entitle a real estate broker to recover commissions he must show that the purchaser was induced to apply to the owner through means employed by the broker. It is not indispensable, however, that the purchaser be introduced to the owner by the broker, or that the broker be personally acquainted with the purchaser, or that the broker at the time have knowledge of the negotiations between the owner and the purchaser.

      A. R. Odell, for plaintiffs in error.

      George A. Groot, contra.
    Winch, J.; Henry, J., and Taggart, J. (of the Fifth Circuit, sitting in place of Marvin, J.), concur.
    Error to the Court of Common Pleas.
   This is a proceeding to reverse a judgment recovered by Page on a claim for commissions on the sale of a small farm of six acres in Warrensville township, Cuyahoga county, Ohio. The sole error complained of is that there was not sufficient evidence produced before the jury to sustain its verdict. It is said that the plaintiff below failed to show that by Ms efforts a sale of the property was made.

The evidence was very conflicting; the defendants below not only denied having authorized Page to sell their property for them, but denied that he had in any way directly contributed as the efficient cause to the sale which was finally made.

After carefully considering the evidence, and allowing for an absolute disbelief in some statements of the defendants which the jury doubtless had because of manifest untruths in other parts of their testimony, we think it may be said fairly that the following is all the plaintiff proved regarding the transaction:

About September 1st, 1907, W. B. Page, a.real .estate man, called upon tbe Lipperts at tbeir home in Warrensville and made a verbal agreement with them whereby he was to try to find a purchaser for said real estate at a price above $1,000, and was to have all over said sum that any purchaser furnished by him might pay for it, the Lipperts retaining the right to find a purchaser themselves. It was also arranged that in order that the Lipperts might know Page’s customers Page was to give his business cards to everybody sent by him, and the Lipperts were to ask everybody who went there to buy, or to consider buying the place, whether they came at Page’s suggestion, or were sent by him, and if the customer said that he came by or through Page, then the Lipperts were to regard him as Page’s customer.

Thereafter, Page advertised in the Plain Dealer that he had six acres of land in Euclid, off North Woodland avenue, for sale, and this advertisement was seen by one Mary Benbow, and she, about September 20, wrote to Page asking for information regarding the property and when she could see it. Page replied by postal card telling where she could find him and afterwards she called him up'by ’phone, or wrote him a letter, so as to make arrangements to see the property. He wrote back giving her directions, and subsequently met her with a horse and buggy at stop No. 10 on the Gates Mill line, driving with her about a mile and a half to the property, which, upon inspection, Mrs. Benbow decided not to buy, but told Page, or Mrs. Page, who was with them, that she had some friends in mind'whom she thought would be glad to buy the property, and that she would let them know about it. Thereafter, she told one Elizabeth McCulloch (about the property, and the latter told Andrew Hogg, who was a friend of Mrs. Benbow, and he and his wife called upon Mrs. Benbow to find out about the property, and also sent their sons to her for information concerning it. Mrs. Benbow gave them Page’s postal card and also his business card, and told them about the property, where it was, and that Page was asking $1,350 for it. She told them to call up Page for further information. They attempted to do so twice, but did not get him on the line, and receiving from Mrs. Benbow more specific directions as to how to find the property, they sent their two' sons to see. it about Thanksgiving time. They reported, and a few days later went out again to the place and talked with the Lipperts, who live upon the adjoining farm. On Thanksgiving day Mr. Hogg and his wife went to see the property and Mrs. Hogg told Mr. Lippert that it was through Mr. Page she was buying the property; whereupon Lippert told her that he had taken the property out of Page’s hands, and that his price for it was $1,200. Shortly after Thanksgiving day the sons went again to the property with instructions to buy it, and, paying down $20, received a receipt for said sum as part payment on the purchase price, and reported to their parents. The sale was shortly thereafter concluded between the Lipperts and Hoggs and a deed was delivered on December 5, 1907. Page never saw or personally communicated with the purchasers, and never knew of any of the negotiations the purchasers had with the Lipperts until after the deed was made — perhaps not until January, 1908.

It is proper to say that our finding that Mrs. Hogg told Mr. Lippert that she was buying the property through Page is based wholly upon hearsay evidence, found in the bill of exceptions on page 23, where Mrs. Benbow, without objection, was permitted to testify that Mrs. Hogg had told her that she so stated to Mr. Lippert, and that he thereupon informed her.that he had taken the property out of Page’s hands.

Hearsay evidence has some probative force. It is not inherently without weight, for we act upon it daily in our business affairs. It is only the rules of law which have made hearsay evidence incompetent, and there are many exceptions to the general rule. Nor is the rule universal in all countries. In Scotland, France and other countries, hearsay evidence is received in the courts of law and given such credit as it should properly have.

It has been held in this state that incompetent hearsay evidence, when admitted without objection, has its natural probative effect (Thompson v. Ackerman, 21 C. C., 740). The opinion there expressed is supported by the authorities cited.

The question remains whether all the evidence, as heretofore stated, shows any direct connection between Page and the sale.

It may be conceded, as claimed by plaintiff in error, that “to entitle a real estate broker to his commission'for furnishing a purchaser of real estate, he must be the procuring cause of furnishing such purchaser. In order to be the procuring cause, he must be the proximate cause, not a remote cause or cause of causes. ’ ’

We can not subscribe, however, to the balance of plaintiff in error’s claim that:

“To entitle Page to a commission from the Lipperts on account of said sale, it must appear that he by himself personally or by others acting under authority from him as his agents, was the procuring cause. To entitle him to the benefits of what Mrs. Benbow and Miss McCullock did in the matter, it must appear from the evidence that they were authorized or directed by Page to do what they did. It is not enough that the information was transmitted the whole length of the chain unless it was transmitted from one to another by Page directly or through others who were expressly authorized by him as his agent.”

A very instructive note on this subject, citing many authorities, most of which we have examined, is found appended to the case of Hoadley v. Savings Bank, 44 L. R. A., 321.

The cases relied upon by plaintiff in error lack the one distinguishing feature of this case, to-wit: the advertisement of the property in a newspaper.

We take it that when a broker advertises property for sale in a newspaper of general circulation in the community, he naturally expects, not only that his notice, if attractively worded, will be read by many persons who may see it in the paper, but that it will be repeated by the readers to others and discussed by many who did not see the paper. He thus intends the natural results of inserting an advertisement in a newspaper, and why should he not have the benefit of the natural results of his deliberate act?

It may be conceded that ordinarily it would be very difficult for the broker to trace the connection between his ad. and a purchaser who did not read it, but got his information from another who had read it; however, in this case the chain is complete; we know that the Hoggs learned of this property only because Page advertised it.

Furthermore, it. was agreed between the parties that if any intending purchaser should inform the Lipperts “that he came by or through Page, then the Lipperts were to regard him as Page’s customer,” and this Mrs. Hogg did.

There are cases which sustain the view here expressed.

The syllabus of the ease of Anderson v. Cox, 16 Neb., 10, is as follows:

“2 * * * A landowner employed an agent to sell his real estate upon commission. The agent advertised the land at his own expense, and a neighbor seeing the advertisement directed a buyer to the firm, and thereby a sale of the land was effected. There being a dispute as to the contract between the landowner and agent, Held: That the sale being effected through the agent’s advertisement, constituted a strong equity in his favor. ’ ’

The first paragraph of the syllabus of the case of Lincoln v. McClatchie, 36 Conn., 136, reads as follows:

‘‘The defendant in the month of March put into the hands of the plaintiff, a real estate broker, for sale, a house on a certain city street, at the price of $6,500; the plaintiff to receive a commission of one per cent, if he sold the house, the defendant to have the right to sell it himself without being liable to a commission, and the plaintiff not to advertise. The plaintiff entered the house on his books and in December and January following advertised houses for sale on that street. G, who lived on the street and was desirous of finding a house near by for a friend, saw the advertisement and went to the plaintiff’s office and learned that the defendant’s house was for sale. He informed his friend, and the latter went to the defendant, and negotiated with bim for it and finally purchased it. The purchaser did not see the plaintiff nor go to his office, and G’s action in the matter was wholly voluntary. Held: That the plaintiff was entitled to his commission.”

This case was approved and followed in the case of Hoadley v. Savings Bank, 71 Conn., 608, being the same ease annotated in the L. R. A., heretofore referred to. On page 608 of the opinion in that case we find the following language:

“Where an owner places land with a real estate broker for sale, he agrees, in the absence of any special contract, to pay the customary commission or brokerage in case a sale is eonsummated with a purchaser who was led to begin negotiations through the intervention of the broker. It is immaterial that the purchaser at some prior time had been engaged in a bootless negotiation with the owner in respect to the same property, or that the owner, after the broker has interested the purchaser, secretly pursues the negotiation and himself completes the sale, or that the owner of his own accord effects, a sale at a less price than that he gave the broker. If any act of the broker in pursuance of his authority to find a purchaser is the initiatory step that leads to the sale consummated, the owner must pay the commission. ’ ’

This statement of the law is perhaps broader than we are willing to subscribe to. It is not indispensable that the purchaser should be introduced to the owner by the broker, nor that the broker should be personally acquainted with the purchaser; but in such cases it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker. Guasdorff v. Schmidt, 55 N. Y., 319; Derrickson v. Quimby, 43 N. J. L., 373.

Upon the whole case as shown by the bill of exceptions, remembering that the credibility of the witnesses is a matter peculiarly for the jury, and that plaintiffs in error b'y their testimony, which was manifestly false in some particulars, must have shaken the jury’s faith in them in all particulars, we are unable to say that the evidence introduced was insufficient under the law as we understand it, to sustain the verdict.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CARRIAGE STRUCK BY CAR. RUNNING SOUTH ON NORTH-BOUND TRACK.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Co. v. James Jamison.
    Decided, March. 19, 1910.

      Collision Between Car and Carriage — In-hound Car Running on Out-hound Track — Frightened Horse — Answers by Motor-man to Questions Immediately After the Accident not Competent — Negligence-Charge of Court — Pleading.
    1. Where the answer contains no averment of contributory negligence, and the defendant offered no evidence in support of such a theory of the ease, it is error to instruct the jury on the subject of con-tributary negligence, or to express an opinion as to the amount of evidence tending to prove contributory negligence.
    2. What a motorman said immediately after the accident, not voluntarily and spontaneously, but in answer to questions by witnesses of the accident as to why he did not stop the car, is not a part of the res gestae and therefore not admissible in evidence.
    8. While a motorman should exercise more care when running on the left hand track than when running on the right hand track, yet it is still only ordinary care which can be required of him.

      Kinkead & Rogers, for plaintiff in error.

      J. T. Rhyno and Walter M. Locke, contra.
    The defendant in error recovered a verdict of $257.47 for injury to his horse and buggy in a collision with a traction' car on College ITill. The petition alleged that the horse was frightened and uncontrollable at the time of the accident, that the motorman saw or could have seen the peril in which the plaintiff was placed in ample time to have stopped the car, and that the situation was further complicated by the fact that a down car was running on the up track.
    Gikfen, P. J.; Swing, J., and Smiti-i, J., concur.
    There can be no burden of proof of any issue hot raised by the pleadings nor by the evidence. The .defendant offered no evidence tending to prove contributory negligence, nor did the answer contain any such defense. The court therefore erred in. charging upon the subject of contributory negligence. It was also error to express the opinion “that there is little, if any, evidence tending to show that there was any contributory negligence on the part of the plaintiff. ’ ’ If there was in fact none it would have been proper to so instruct the jury; but while a doubt existed, it was a question for the jury and not for the court.
   Witnesses were permitted to testify to declarations of the motorman in answer to questions put to him by the plaintiff and a bystander after the accident, to-wit: “Why didn’t you stop the ear.” He says, “I could not stop the car.” He says “the brake would not work.” And .again: “The motorman he said the brake didn’t work. We asked him why he didn’t stop. He says the brake didn’t work, he could not stop.”

These are not voluntary and spontaneous declarations characterizing the transaction, but constitute the motorman’s version of a past occurrence, given under pressure by the witnesses. The numerous cases cited by counsel for defendant in error undoubtedly show a tendency to relax the rule of evidence in like oases, but none of them goes so far as to hold that such declarations made under such circumstances are a part of the res gestae and therefore admissible.

The court erred in defining the term “burden of proof.”

It is also urged that the court erred in charging the jury that a motorman should exercise more care in running the car on the left hand side of the road, than if running on the right hand side. Under the pleadings and evidence of this case, the horse being already frightened and beyond the control of the driver, the motorman could not anticipate that the horse would be liable to turn one way more than another and especially that he would attempt to pass the car on the side next to a steep enbankment and where there was no room to pass. If the motorman in the exercise of ordinary care saw the peril of horse and driver, his duty to have his car under control and if necessary stop it, arose not from running on the left side of the road, but the unmanageable and perilous condition of the horse and driver. Under certain circumstances the motorman would perhaps be required to exercise relatively more care in using the left hand track than if using the right hand track; but it would still be only ordinary care, and we think the jury so understood the instruction. The error if any was harmless.

The judgment will be reversed and the cause remanded for a new trial.


text:
    TAXES ON INSURANCE PREMIUMS.
    Circuit Court of Franklin County.
    The State of Ohio v. The Mutual Life Insurance Company of New York.
    Decided, March 25, 1910.

      Taxation — Insurance Premiums Deposited in the Mails — Becomes Bo Instanti the Property of the Insurance Company and me Subject to Taxation — Construction of 'Section 5482, et seq., General Code.

    Taxes may be recovered by the state on premiums collected by a foreign insurance company from policy holders in Ohio, where the petition alleges that the said premiums were paid to the said company “in the state of Ohio by policy holders by depositing the same within the mails in the state of Ohio at its request, addressed to it at the home office in the state of New York, and which premiums were carried by the mails to the said home office of said company.”

      U. G. Denman, Attorney-General, and John M. Sheets, for plaintiff.

      Arnold, Morton ■& Irvine, eontra.
    Allread, J.; Sullivan, J., and Dustin, JV, eoncnr:
    This action was brought in the court of common pleas to recover an amount charged as taxes upon premiums sent by policy holders in Ohio through the mails to the home office of the company at New York city. The Supreme Court, passing upon a demurrer to the original petition, held that the insurance company was not liable. An amended petition was filed and a demurrer thereto sustained in the court of common pleas. The ruling and judgment of that court is now brought here for review. The original petition reviewed by the Supreme Court contained the allegation that the premiums sought to be taxed were “received by it at its home office in the city of New York directly from policy holders, residents of the state of Ohio, and not paid to any agent of the company in the state of Ohio.”
   The amended petition, upon which the case now stands, sets forth that the premiums sought to be taxed are those “which were paid to it in the state of Ohio by policy holders by depositing the same within the mails in the state of Ohio at its request and addressed to it at its home office in the city of New York, and which .premiums were carried by the mails to the said home office of said company.”

Counsel for the state contend, and in our opinion correctly, that the case now made in the amended petition brings it within purview of Section 2745, authorizing the tax assessment.

When the premium money is deposited by request of the insurance company in the mails in this state under proper address, the payment is complete. The money becomes eo instanti the property of the insurance company. The risk of transportation is on the company, and the money can not be attached as the property of the policy holder, nor reclaimed by him. The rule of the postal department does not affect property rights. The same legal effect as to the transfer of ownership of the money would arise if it had been sent by messenger or other means of conveyance. The change of property is complete when the money is delivered pursuant to request.

We note the effect given in the opinion off Summers, J., when the case was before the Supreme Court, as to the effect of the amendment of 1902, and the statement that the basis of taxation was not thereby changed. But we do not deduce therefrom that under either the original or amended act those premiums were entitled to escape taxation, if actually paid in the state to an informal or special agency. It is not a fair deduction from the language and scope of Section 2745, to. say that only premiums paid to licensed or formally constituted agencies in this state aré taxable. The fact of their being received in the state implies an agency and brings the premium so received within the taxing statute.

Some argument has been offered as to the tender or depositing of checks in the mails here to be forwarded. But as we read the petition, that question is not involved. The averment that the premiums were paid by depositing and so forth, implies the deposit of legal tender. In the common pleas court much, if not controlling, force was accorded by the learned judge to the allegation that the superintendent of insurance demanded of the insurance company a supplementary report of the premiums remitted to it through the mails by Ohio policy holders, and not through any agent of the state, and that such report was accordingly made and forms the basis upon which the tax was laid.

This suggestion is not without weight, but we are of opinion that the superintendent of insurance is not bound by the report in this respect. He is required to examine the report, pass upon its correctness and charge the taxes upon the amount of the return, and he may, we think, reject the statement as to the manner of payment.

The report was requested undoubtedly by the superintendent of insurance in that form to designate the premiums forwarded by mail in contradistinction to those collected by duly constituted and licensed agents, and to enable him to arive at the amount of premiums upon which he claimed the right to assess taxes. Now, having the report showing the amount of premiums transmitted by mail, the superintendent of insurance may, upon being satisfied that such premiums were actually received in this state, go beyond the mere admission of the report as to the manner of receipt, and charge the taxes. In the amended petition an allegation is distinctly made that the premiums so reported and upon which the taxes are charged were in fact paid in this state by being deposited in the mails at the request of the insurance company.

We are of the opinion that the state may properly allege and prove the fact as to the place and manner of payment, notwithstanding the form of demand of the superintendent of insurance and the report of the company.

The judgment of the common pleas court is, therefore, reversed, and the cause remanded with instructions to overrule the demurrer.


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    LEGALITY OF AN ATTACHMENT.
    Circuit Court of Hamilton County.
    M. S. Daniels v. Mitchell Taylor.
    Decided, May 21, 1910.

      Attachment — Against a Non-Resident on an Account — Defendant Sued by Ms initials — Description of the Property' Attached.

    1. An attachment may Be issued on the ground that the defendant is a non-resident of the state when the suit is a civil action for the recovery of money on an account.
    2. A motion to set aside an attachment will not lie on the ground that the defendant has Been sued by his initials instead of his Christian and middle names, where it appears that he has Been in ‘the habit of using his initials in Business transactions, and has been commonly designated By his initials, and to the plaintiff . he had been known in his dealings by his initials, and they plainly indicate who is meant.
    3. The holding of the Supreme Court in Green v. Ooit, as to the necessity for an accurate description in the sheriffs return of the ' property’ attached, is not applicable where the property levied on is persohalty, and the discription of the property attached as “forty car. loads of staves” is- sufficient.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   Tbe court is of tbe -opinion that tbe judgment of tbe trial court overruling tbe motion of plaintiff in error to set aside tbe attachment issued in tbe. above case' should be affirmed..

■Tbe action is a civil action upon an account for tbe recovery of money, and tbe attachment was issued upon the ground "that tbe defendant is a non-resident of tbe state of "Ohio. . We think the action as brought is within Section 5521, Revised Státutes.

It is further claimed that the motion to set aside the attachment should have been granted for the reason that the defendant is sued as “M. S. Daniels,” without stating in the verification of the petition that the plaintiff could not discover the true name of tbe defendant and that tbe summons did not contain the words “real name unknown.” It is apparent that’plaintiff in error wás known to defendant in error in all his dealings as “M. S. Daniels,” and so far as defendant in error is'concerned the true name was as stated and his real name was-not unknown to defendant in error. A name is a word to designate a person or thing; a man’s name; is the designation by which lie is distinctly known in the community (21st Encyclopedia, 305). It is the designation by which any individual is known, and in this ease the defendant named “M. S. Daniels” is the same person intended to be sued and is sued, although his Christian name is “Morris.” If initials have been commonly used by any individual in the transaction of his business affairs, and he has been commonly designated by such for his Christian and middle names, and they plainly indicate .who is meant thereby, we see no reason why such individuals should not be so known. In this case the one who seeks to set aside the attachment is clearly the same person sued as “M. S. Daniels.”

While Section 5010, Revised Statutes, provides that parties to a written instrument by initial letter may be so designated in an action thereon, yet this section would not preclude the bringing of other actions against a defendant by-using the initial letters of his Christian and middle names. To the plaintiff in this case the defendant’s real name was not unknown, but his name was “M. S. Daniels.”

We think the property attached is sufficiently described in the sheriff’s return. The case of Green v. Coit, 81 O. S., 280, 285; we do not think is-applicable to,the case at bar; that case related to an attachment upon real ¿state and the return did not show the property attached. In the present case the return discloses that forty car loads of staves were attached, appraised and taken into possession by the sheriff of this county, who now holds the same, and they are the identical staves attached and no others, and their identity is always fixed.

For the same reason as .above we think the attached property is sufficiently described in the service by publication. This sets forth that an attachment was issued and levied on personal property belonging to the defendant. Under- Section 5047, Revised Statutes, providing how publication shall be made in suits in attachment, we do not think it was necessary* to give a description of the attached property, but if so, a notice to the defendant that personal property belonging to him has -been attached, the kind of personal property can be readily ascertained by him by referring to the sheriff’s return, said property being in the possession of the sheriff.

We think the return of the order of attachment is sufficient, both as to the date thereof as well as that the appraisers were disinterested freeholders. For the above reasons the judgment of the court below will be affirmed.


text:
    AS TO EXPOSED COG-WHEELS.
    Circuit Court oí Lucas County.
    The Marine Boiler Works Company v. Harry W. Shuck.
    Decided, December 4, 1909.

      Construction of Statute Providing Against Injury 'from Machinery— Allegations Necessary Where the Injury Resulted,-from, Exposed Cog-Wheels — Pleading—Negligenoe—Section Ji86Jr89c.

    A petition for damages on account of injuries alleged to be due to exposed cog-wbeels does not state facts -sufficient to constitute a cause of action, where the petition merely avers that the wheels complained of “were not covered;” and does not allege that no railing had been placed around them.
    Kjnkade, J.; Parker, J., and Wild man, J., concur.
    This was an action in the court of common pleas to recover damages for a personal injury by reason of falling upon some unprotected cog-wheels that were a part of a gang drill at which the plaintiff, Harry W. Shuck,' was working. The plaintiff set out in his petition that the cog-wheels that caused the injury-were unprotected; were uncovered, to use the language of the petition. The defendant moved the court to require the petition to be made more definite and certain, then filed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action; then filed a motion for judgment on the pleadings; then filed an answer denying all negligence and alleging and setting np contributory negligence. The case went to trial and after the evidence of the plaintiff was in, the defendant then moved for a directed verdict in behalf of defendant, which was overruled and exception taken, and the jury returned a verdict in favor of the plaintiff, for $2,000, and this is a proceeding in error to reverse that judgment.
   A number of errors are assigned for our consideration, all of which have .been examined, and I will say with respect to all of them except one that we do not think it is necessary to pass upon then. It is the opinion of the majority of the court that the error involved in stating the measure of damages that the plaintiff was entitled to recover, if entitled to recover anything, is sufficient to justify a reversal of this ease. That was the opinion of the majority of the court, and as I have said, there are a number of other errors of more or less importance that we have given attention to; but we think it is not necessary to pass upon them in view of the conclusion that we have reached.

As I have said, the defendant filed a demurrer to the plaintiff’s petition, and our attention was directed in argument here to one particular thing about this petition, and that is as tc whether it makes such allegations as bring the case within the statute. The allegation in the petition — I read but a single paragraph— is as follows:

‘ ‘ The defendant on the day aforesaid was negligent in failing to have said gearing or cog-wheels covered so as to prevent the clothing and hand or other part of one operating said drill from being cut and mangled therein. The defendant was also negligent in not providing the operator of said machine with a reasonably safe place to work, and in failing to make provision to keep the place where he was required to stand from becoming slippery and dangerous.”

It is said that this does'not fall within the statute under which this action was prosecuted, for the reason that the statute does not require cog-wheels to be covered, and our attention is called particularly to the language of the statute in this regard. It is said on behalf of the petition that this court in the case of Zier v. Maumee Paper Co. has held that exposed cogs should be covered or protected, and that the court had practically held the same thing with reference to band wheels in the case of Gruzinski v. The Royal Brush and Broom, Co. We have examined those cases and think the contention of counsel for the plaintiff below, the defendant in error here, is well taken. We think the court did substantially make that statement, but there was nothing in either case, as far as we can find, calling the attention of the court to the particular language of the statute, as to whether-cog-wheels fell within the class that is to be boxed or covered. The point is made in this ease for the first time in this court, and we have read this statute with much care, and commend it to the careful reading of counsel.

It will be observed that Section 4364-89c, groups a number of different kinds of machinery, and provides what shall be done with respect to these particular groups. Speaking for myself alone, I have endeavored vigorously to read unboxed cog-wheels into one -of these groups, and I found myself unable to read it in. It seemed to all of us that the Legislature, or the draughtsman of this bill at least, was perhaps intending to require that cog-wheels, exposed cog-wheels should be covered or boxed. But that is not' what the statute says, and no rule of construction that we know anything about will justify reading into this statute that which is not there. I call -attention particularly now to the language of -the statute, and I read the classification preceding the one that is called in question here. The section says:

“and such ordinary care and such suitable provision shall include the casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular or other positions operating between, from, or through floors, or traversing near floors, or when operating near passageway, or directly over the heads of employes.”

It will be noticed that in' that class" of machinery the shafti-ng operating in 'those particular relations shall be cased or boxed. The next group of machinery referred to is the cog-wheels, and it reads as follows:

“the enclosure of all exposed cog-wheels, fly wheels, band wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, and all openings through floors, through or in which such wheels or belts may operate, with substantial railing.”

The words “with substantial railing” referred to embrace “exposed eog-wheels, fly-wheels, band-wheels, and all main belts transmitting power,” etc. The next group following this is the “railing in of all unused elevator openings,” etc. I need not read that. It is a long paragraph, but it is a group by itself, and following that is another group, and that group begins “the guarding of all saws and other wood-cutting and wood-shaping machinery, providing shifters for shifting belts,” etc.

It will be observed, as I have said, on a careful reading of this statute that there is nothing in the section which provides that exposed eog-wheels shall be boxed or covered. The statute distinctly and plainly states that exposed cog-wheels shall be enclosed with a substantial railing. It is perfectly apparent to anybody that a railing in front of cog-wheels, if a man is obliged to have his hand near the cog-wheels, might be sufficient to protect his body from getting into contact with the eog-wheels, and at the same time have no effect in preventing his hand from coming in contact with the cog-wheels and being ground off. Of course it is not the business of the court to legislate; it is our business to find out what the statute says and declare it, and after the fullest consideration we have unanimously arrived at the conclusion that this statute, insufficient though it may appear in that form, provides only for a substantial railing to protect one operating near exposed cog-wheels.

This petition does not allege at all that there was no railing around these cog-wheels. The allegation is — and it is the only allegation, the whole substance of the petition in that regard — “the defendant on the day aforesaid was negligent in failing to have said gearing or eog-wheels covered so as to prevent the clothing, hands, or other parts of one operating said drill from being cut and mangled therein. ’ ’

It only allges that the wheels were not covered. It does not allege at all that there was no railing, and that being true, we are very clearly of the opinion that the petition was demurrable, and that the general demurrer on the ground that it did not state facts sufficient to constitute a cause of action should have been sustained, and the judgment will be entered here which the court of common pleas should have entered sustaining the demurrer and dismissing the petition for the reason that it does not state a cause of action.


text:
    AS TO RECOVERY OF FACTOR’S DEPOSITS OF PROCEEDS OF SALE.
    Circuit Court of Hamilton County.
    David M. Smith et al v. City Hall Bank.
    Decided, April 9, 1910.

      Banks and Banking — Deposits of Customers’ Money by Factors Who Have Made Bales and, Collected the Proceeds — Factor Becomes Bankrupt — Bank not Liable for Proceeds of Bales Made at About the Time of the Act of Insolvency, When — Fund not Traced.

    1. In an action for recovery of the proceeds of sales made by factors and deposited in the defendant hank, the burden is on the plaintiff owners of the.property sold to prove that the proceeds from the sales in question were deposited on that particular day and remained in possession of the bank.
    2. Although the bank may be held .to have known that the greater portion of the deposits made by the factors was derived from sales made for their customers, it can not be held to have had knowledge of the ownership of the deposits made on a particular day or to be liable for the payment in good faith of checks drawn against such deposits.
    3. Checks drawn by such factors and held by their customers, but not accepted by the bank, have no preference against the fund on deposit over the claims of general creditors.

      Bennett & Utter, for plaintiff.

      Robertson & Buchwalter and Theodore C. Jung, contra.
    Gieebn, P. J.; Smith, J., and Swing, J., concur.
   The plaintiffs in the several actions consolidated under the above title aver that on the 11th day of November, 1907, and for thirteen years prior thereto the firm of Rabenstein, Harris & Conner were engaged in- business as live stock commission men and brokers, having a deposit account in the defendant bank; that the bank knew the nature of the firm’s business, and that the greater portion of the money deposited by the firm was the proceeds of the sale of live stock belonging to their customers; that during the period from the latter part of October to the 11th day of November, 1907, they consigned live stock to said firm, which was sold and the proceeds deposited in the defendant bank, and are still in the possession of defendant; that said firm was then and for a long time prior thereto insolvent, and known to be so by the defendant; that on the 11th day of November, 1907, said firm made an assignment for the benefit of creditors, and was subsequently adjudged a bankrupt; that the plaintiffs notified defendant that the money so deposited was the proceeds of such sales and demanded payment. The answer, in so far as it is necessary to here consider it, is a general denial.

The plaintiffs assume the burden of proving not only that the proceeds of such sales were deposited in the bank, but that they are still in the possession of the bank; nor do they now claim that the bank is liable to account to them in any greater sum than the balance due to the insolvent firm on November 11, 1907, to-wit, $3,674.01.

On November 5th, 1907, the account was overdrawn $700.81; on November 6th, $1,259.19; on November 7th, $125.87, and on November 9th, $70.09. The latter does not appear at the close of business on that day, but by reason of the custom on Saturday of each week to exchange checks at the clearing house at an earlier hour than other days, the checks on Saturday, November 9th, were presented and honored before the deposits of that day were made. It is self-evident that any deposits made by the firm prior to any of such overdrafts ceased to be thereafter in the .possession of the bank; and it can not be held liable, unless it knew or ought to have known that such deposits were the proceeds of sales of cattle belonging to the plaintiffs. While the defendant must have known that the greater portion of the money so deposited was derived from sales of live stock belonging to the customers of the firm' it had no knowledge that the proceeds of sales here involved were a part of the deposits, or of the fund in controversy; and the account being an ordinary and general bank account it was justified in honoring good faith any cheek presented.

The only plaintiffs who have traced the proceeds into the bank and identified them as a part of the balance November 11, 1907, are H. L. Tanner, $166.80, deposited on the 9th, and $32.50 deposited on the 11th; Slack & Offutt, $492.45, deposited on the 9th, and $85 deposited on the same day; and because they have thus traced the proceeds they are entitled to recover the same with interest. Heidlebach v. National Park Bank, 87 Hun., 117; Cady v. South Omaha National Bank, 46 Neb., 756.

Of course the bank could not apply the money belonging to .plaintiffs in satisfaction of an existing overdraft; but upon each day the deposits were largely in excess of the overdraft of the preceding .day, and largely from sources other than the property of plaintiffs. The presumption is that the firm intended such deposits from other sources to be applied to the overdraft, rather than the money which belonged to plaintiffs.

It is further urged that the cheeks of the firm held by the plaintiffs, but not accepted by the bank, created an equity in the fund or a preference over the general creditors; but the law is otherwise in this state. Covert v. Rhodes, 48 O. S., 66; Bank v. Brewing Co., 50 O. S., 151.

A decree may be entered in accordance with the above finding.

Opinion-ON Application por a Rehearing.

On application for leave to reargue this cause our attention is directed to the testimony of Mr. George Schmidt, the president of the bank. While it is true that checks coming through the clearing house may be returned at any time before one o ’clock on Saturday and four o’clock on other days, and final payment made at that time, yet on Saturday, November 9th, the checks were entered in the account about eleven o’clock, and payment became absolute at one o ’clock, not because of deposits made on that day, but because there was a balance in the account carried over from the preceding day sufficient to pay the cheeks except the comparatively small sum of $70.09.

This particular fund could not therefore be traced by the plaintiff as in the .possession of the bank after the checks were charged to the account.

Application denied.


text:
    COLLISION OF VEHICLE AND TRAIN AT CROSSING.
    Circuit Court oí Franklin County.
    The Toledo & Ohio Central Railway Company v. John Fippin, Administrator.
    Decided, March 25, 1910.

      Negligence — Of a Driver not Imputable to a Traveling Companion, When — Effect of Failure to Charge Driver with Negligence where a Collision has Occurred through His Fault.

    1. When a passenger in a road vehicle sees or hears anything indicating danger that the driver could not, or probably does not see or hear, it is his duty to warn the driver thereof; but it is not incumbent upon him to call attention to every approaching vehicle or possible peril, which is as manifest to the driver as to himself.
    2. Where the question of the driver’s contributory negligence as a cause of an accident is not raised by the pleadings, a reviewing court is not at liberty to hold the verdict erroneous in that it contains no finding whereby he may be excluded from participation in the damages awarded on account of fatal injuries to his wife sustained in the collision which occurred with a railway train.

      A. T. Seymour and L. F. Sater, for plaintiff in error.

      J. F. Rogers and Geo. S. Peters, contra.
    Dustin, J.; Sullivan, J., and Allread, J., concur.
   Our conclusions in this case are as follows:

1. That the railway company was negligent in not having a watchman at .the crossing, and in not providing gates.

2. That John Fippin was guilty of negligence contributing to the accident to his wife (a) in not checking his horses; (b) in failing to see Mr. Zetty (a volunteer watchman). If he had looked for the regular watchman he would have observed Mr. Zetty in time to stop his horses; (c) in not looking and listening for trains.

3. That the negligence of Mr. Fippin was not imputable to his wife.

It was not a case of a joint enterprise where she furnished the eyes or ears, as in the Kistler case (66 O. S., 326). ITis sight and hearing were good, and he was an experienced driver, using his own horses, with which he was presumably familiar.

She had no knowledge of the situation superior to his. If she saw or heard anything indicating danger that the driver could not, or probably did not, see or hear, it was her duty to tell him. But we think it is not incumbent upon a passenger in a wagon to tell the driver of every approaching vehicle, and every car, car-track, hole in the road, stone or gutter. Such a course of conduct would be an annoyance, calculated to confuse the driver and increase the dangers of travel.

' Mrs. Fippin had a right to trust in her husband as the head of the family, and his judgment and skill as a driver; and that he would heed all apparent warnings and avoid all apparent dangers. As soon as she realized that collision with the train was imminent, she left her seat and prepared to jump from the wagon. That act was a notice to her husband, quicker and more effective than words. It was also a prompt attempt to escape the peril. It at once brought the husband to his senses and he made efforts to escape, but too late. The lamentable accident was largely his fault, but we can not see that any of it was attributable to her.

4. If the pleadings permitted, we should hold that the verdict is erroneous in that it does not find John Fippin guilty of contributory negligence, and thereby exclude him from participation in the verdict. The answer does not charge him with contributory negligence. Nor was there any amendment after the verdict to correspond with .the evidence. We must consider, therefore, that the point was waived. It comes too late now to make it in the brief.

We find no prejudicial errors, and the judgment must be affirmed.


text:
    DISCREPANCIES BETWEEN APPLICATION FOR. LIFE INSURANCE AND THE COPY RETURNED.
    Circuit Court of Hamilton County.
    The Ohio Mutual Life Insurance Company v. Maria Hoffmann.
    Decided, January 22, 1910.

      Life Insurance — Construction of the Statutory Provision that Copy of Application Must Accompany Policy Issued — Evidence—Defenses —Section 8628.

    Where discrepancies appear between the original application for life insurance and the copy of the application which was returned with the policy, and these discrepancies are matters of substance, it is not error to exclude them as evidence, if the court finds that they were of such a character as to afford a reasonable ground for a defense.

      Peck, Shaffer & Peck, for plaintiff in error.

      Joseph B. Kelley, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The only question here involved is whether the copies of the application or -other documents held by the insurer which are intended in any manner to affect the force or validity of the policies, are full and complete within the meaning -of Section 3623, Revised Statutes.

In the original “report of the examining physician” for policy No. 3856, under the heading “Family History”: Father died at age of “47”; specific cause of death, “Bright’s disease”; duration and character of fatal illness, “2 months”; previous health, ‘‘ good. ’’

In the copy attached to the policy the words “2 months,” and “good” do not appear.

Under the heading “Father’s father”: Age 39 — died of cardiac paralysis; duration and character of fatal illness, “sudden, ’ ’ which latter word does not appear in the copy.

The original report is dated November 14, 1907; the copy November 15, 1907.

The original report contains the question to and answers made by the medical examiner, while the copy does not.

In the "report of the examining physician” for policy No. 3858, are questions addressed to and answered by the physician which do not appear in the copy. In the copy are found the following questions: "Has your weight recently increased?” "How much?” Answer, "Neither” — none of which appears in the original.

In the copy the father’s previous health is stated as "good.” No answer in original.

In the copy the age of living sister is given "57”; in the original "37.”

These are all matters of substance, not only because the company has made them so by propounding the questions to the applicant and to the examining physician, but because the family history, the physical condition of the insured and examination by the physician are generally regarded as important by insurance companies. They do not directly affect the particular defense set forth in this case, but they might easily he the occasion of a controversy, to avoid which the statute was evidently passed. We deem it unnecessary to find that the discrepancies are material and would be a good defense to an action upon the policies, but only that they are of such a nature as would afford reasonable ground for such defense. There was therefore no error in excluding the documents in question as evidence and in directing a verdict for the plaintiff.

Judgment affirmed.


author: Parker, J. Kinkade, J.

text:
    EVIDENCE AS TO SCOPE OF EMPLOYMENT.
    Circuit Court of Lucas County.
    John C. Carland et al v. John Feller.
    Decided, December 4, 1909.

      Negligenoe — Injury to an Employe from the Premature Discharge of a Blast — Scope of Employment — Failure of Evidence Showing Authority of Helper to Pull the Lever Which Fired the Explosive— Inconsistency between General Verdict and Answers to Interrogatorrogatories.

    1. In an action by an employe for injuries received in tbe course of bis employment, it is error to admit testimony as to tbe incompetency of a fellow employe whose negligence caused tbe accident, or as to failure of tbe master to provide any rule for carrying on tbe dangerous work in wbicb they were engaged, where there is no allegation in tbe petition to tbe effect that tbe plaintiff did not know tbe work was being carried on without any rule for its conduct, and did not know or have equal means with tbe master for knowing of tbe alleged incompetence.
    2. A verdict for damages for injuries resulting from the premature firing of a blast is not supported by sufficient evidence, wbeire there is an entire absence of any evidence that the- man who pulled tbe lever wbicb caused tbe discharge bad ever been given any authority so to do, or that it was known on tbe work either by tbe master or fellow employes that be was in the habit of so doing.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
    This case is in this court for the third time. At the first trial of the case a verdict was directed for the defendant on the motion of the defendant, and error was prosecuted to that action of the court below, and that judgment of the court of common pleas was reversed for two reasons: first, for excluding evidence relative to whether the company had or had not a rule governing how the work should be done; and, second, for having directed the verdict. That went to the Supreme Court and was dismissed in the Supreme Court, as we understand, on the ground that the plaintiff in error did not file a supersedeas bond. The case was retried in the common pleas court and a verdict of $5,000 recovered by the plaintiff. That case came to this court on error and was affirmed by a majority of the court; then proceeded to the Supreme Court, and was reversed and remanded. The case was again tried and the plaintiff recovered $10,000, and that is the case now here in which the plaintiff in error, Carland & Company, seeks to reverse the judgment of the court of common pleas.
   The record is not long; presents less than 100 pages. It would not be accurate to say that the court had committed 100 pages, but it would be entirely accurate to say that all the members of this court are so familiar with every page of the 100 pages that we could stand any kind of an examination on this record. We have read the whole evidence and read it with care. The plaintiff in this ease sought to recover principally upon two grounds: first, that the defendant had emploj'ed and kept in their employ a man by the name of Pete Eekebaum who was entirely incompetent to do that which he was employed to do; and second, that the company had no rule directing how this dangerous work of blasting should be done, and consequently that they were negligent in that regard. The petition and the supplement to the petition contained the allegations of course that no notice was given, when notice should have beén -given before the blast was fired and so forth, and sets up also the insufficiency of force that the defendant had employed, and other things, but the principal grounds relied upon for the recovery and submitted to the jury at the time of the trial in the court below were the known ineompetency of the employe, Pete Eekebaum, and the failure to have any rule.

It will be observed upon reading this petition that neither the petition nor the supplement to the petition states that the plaintiff, John Feller, did not know of the ineompetency of Eekebaum, nor does it state that he did not know that the company had no rule, nor does it state that he had not equal means of knowing with the employer. Our attention has not been called to this feature of the case by counsel, but in examining the pleadings we notice this to be true. We also notice in the record that when evidence was offered to prove that the company had no rule, that it was objected to and was admitted over objection. The court is unanimously of the opinion that the evidence was not competent; there being no allegation in the petition or the supplement to the petition that the plaintiff did not know this fact, and the evidence being objected to when offered, the court is unanimously of the opinion that that evidence was not competent and should not have been admitted, and that no recovery should be based upon that feature of the case.

We then come to the question of the incompeteney of the man Eckebaum. It must be conceded that there is some evidence in the ease tending to show the incompeteney of Eckebaum, to-wit, the statements of witnesses that he did not always at first understand what was said to him, and that at times they would have to tell him once or twice or more before he would distinctly understand what he was to do; and also the statement of Mr. Brenkamp that on the day of the accident he called to him as he was about to throw the lever, admonishing him not to throw it because it would result in injury to the men who were in the cut and were not prepared for the blast to be fired, which he did not ■ hear, or if he did hear, apparently paid no heed to. Of course it is possible that it may have been said at such a time as that he could not heed it, that he had not time to comprehend it before he threw the lever; may have been said simultaneously with the throwing of the lever; but a fair construction of the evidence' is that it was prior to that and no heed paid to it. So there was some evidence to submit to a jury on the question whether this man was incompetent to do that class of work.

' The serious question in this case is whether this man was when doing'that particular act inside or outside the scope of his employment. Counsel realize that, and the question has been presented to us with force, not only in argument but in the briefs, and as' I havfe said, we have examined the record with great care in that regard. I am not going to take the time to go through the' record in detail, but I will state our conclusion of what this record states unmistakably in some respects. In the first place, there'is not a syllable of testimony in this record anywhere that anybody ever told Pete Eckebaum to pull a lever; not a syllable. All there is on that subject in the record is practically to the contrary. When witnesses are asked whether any instruction was given to Eckebaum or to Flynn as to what Eckebaum should do, they say no instructions. It is conceded that Mr. Flynn was an entirely competent blaster; had worked for years, perhaps eight or ten years at the business, and was competent in every regard to do everything connected with the blasting. This man Pete was sent to him by the superior of Flynn as a helper, without any instructions as to what his duties should include. Mr. Flanagan says he gave Flynn no instructions, and he gave Pete no instructions as to what he should do. He sent him to Flynn because Flynn asked for him and he worked there some months, perhaps four months all told, with Mr..Flynn and the predecessors of Mr. Flynn in the blasting situation. As I have said, the record contains not a syllable from anybody that anyone ever heard Flynn or any other person tell Eckebaum to pull a lever. So that if Eckebaum was authorized to pull the lever at the time and pulled it, it must be determined from the course of conduct in which he was engaged. Of course it will not be contended that he might not have been authorized otherwise than by direct instructions to pull the lever, because if he was continually, or-very frequently, pulling the lever, the jury might have a right to infer that somebody had instructed him, although no one could say in behalf of the plaintiff that anyone had so instructed him.

There being nothing in the record to the effect that anybody ever told Eckebaum to pull the lever, we are brought, to the question whether his conduct indicates that he was in the habit of pulling the lever or firing the blast, and in this regard it is said in the brief of counsel for defendant in error that the reeórd clearly shows that Pete Eckebaum was in the habit of pulling the lever and firing the blast. It may be said that no one can find a syllable in this record, other than the single statement on page 23, touching this subject. On that page of the record, this question is put to Mr. Brencamp, who was a driller and who was the man who said to Pete, “For God’s sake, don’t fire, you will kill somebody,” or words to that effect. This question was put to Mr. Brencamp:

“Did you see this man Pete operate the lever to the battery prior to the day on which the blast was fired that injured Feller? A. Yes, sir.”

That is the.sum total of all there is in this record to show that Pete ever fired the blast prior to this time, and it will be observed that this question does not inquire of Breneamp whether he ever saw Pete pull the lever and fire the blast; it does not inquire when he saw him pull the lever, whether one, two or three months before; it does not inquire what happened when he'pulled the lever; it does not inquire whether he was immediately censured; it does not show but what he may have been immediately censured or admonished never to do it again, and it does not show that this pulling of the lever fired the blast. The language is limited, and exceedingly limited:

“Did you see this man Pete operate the lever to the battery prior to the day on which the blast was fired that injured Mr. Feller? A. No, sir.”

We think that the evidence falls very far short of establishing the necessary fact that this man Eckebaum had been in the habit of firing the blast at that quarry such number of times as that his employer must take cognizance of the fact that he was acting outside of the scope of his employment. It does not, we think, establish the fact that the scope of his employment included that duty. The plaintiff for some reason saw fit to press this inquiry no further, to make it no more definuite, and the defendant left it as the plaintiff had left it; and that is the sum total in this whole record indicating that Pete ever fired the blast before, and it does not even state that he did ever fire the blast before.

Now when this case was submitted to the jury, the jury were handed by the court certain interrogatories, and the first interrogatory reads as follows: “Was the stringing of the wires, attaching the same to the electric battery, operating the lever and firing the blast within the scope of Pete’s employment; that is to say, such as he, Pete, might in the absence of any instructions reasonably be expected or permitted to do or perform in his services as a helper to Flynn?” and the jury answered “No”; and we think that the absence of any proof in the record other than this one indefinite statement, taken in connection with this special finding of the jury, that in the absence of express’ directions, it was not within the scope of his authority, clearly and definitely settles that this man Pete Eckebaum was acting at the time he pulled this lever entirely outside the scope off his authority. It seems to us that no other conclusion can be reached, and we feel that the subsequent finding of the jury in answer to interrogatories two and three, first in answer to two, that he was incompetent, and second, that it was known to Flanagan, are immaterial in the ease.

I may say this in regard to certain other errors that have been alleged. The plaintiff in error here contends first that a verdict should have been directed at the close of the plaintiff’s evidence, and not securing that, it should have been directed upon the motion that was made at the close of all the evidence, and that not having been done, a judgment should have been entered for the defendant notwithstanding the verdict on the coming in of this special finding, for the reason that- the special finding is entirely inconsistent with the general verdict, can not be reconciled with-it, and must be a controlling factor in this case, and that that motion should have been granted. We were also cited to certain requests which were refused, being 6, 8, 13, 28 and 29. We have considered the other items of error, but in view of the conclusion we have reached we have determined to express no opinion upon any error in this case except one. If the case should proceed to the Supreme Court and our conclusion should there be reversed, it might be back here for us to pass on the errors not passed on now.

I will say this generally that it is the unanimous opinión of the court that this verdict should be reversed as being against the weight of the evidence as shown by this record. That is the opinion of a majority, that the court below should have granted a motion for the judgment notwithstanding the verdict and entered a judgment in behalf of the defendant, and this being the conclusion that the court has arrived at, we think it is the duty of the court here to enter the judgment that' the court of common pleas should have entered, and that will be a judgment in behalf of the defendant.

Parker, J.

As has been said by my associate in announcing the judgment of the majority of the court, we have agreed that the general verdict is against the weight of the evidence, but I am not in accord with my associates upon the proposition that a final judgment should be entered against the plaintiff below, the defendant in error. I believe that such a judgment should not be entered against the plaintiff, if it can be found by a search of the record that there is a scintilla of evidence tending to support the general verdict, and also where the record is such that the special findings of fact may stand. In my judgment the special findings of fact may stand in harmony with the general verdict here and still leave a scintilla of evidence in support of the general verdict upon the material issue that has been discussed by my associate as to the authority of Pete in the premises, or as to whether Pete was acting within the scope of his authority.in firing the blast. We all agree, I believe, that this first interroga-, tory and the answer to it, do not, standing alone, require a judgment non obstante veredicto; that the question and answer are not sufficiently comprehensive to effect that purpose; but the question and answer may be construed as meaning simply that within the ordinary scope of his powers, such things as he might reasonably be expected to do as a helper, in the opinion of the jury, would not include this particular thing of firing the blast, still leaving open the question, which was a question upon the trial, a question which has been discussed before us, as to whether Pete might not still have been acting within the scope of his duty in obeying a direction from Flynn to fire the blast.

Now I believe with my associates that this record as it stands is against the weight of the evidence on that proposition. We think it is not fairly established by the whole evidence: first, that Pete was acting under some special direction from Flynn, and secondly, that Flynn was authorized to give that special direction, that it might be reasonably expected or anticipated by the company that Flynn would direct Pete to do that class of work, or to do that particular thing. And yet in my judgment there are circumstances in the case indicating that Flynn had authorized the firing of blasts by Pete, and that Flynn was not being regarded by the company as violating his duties to the company in thus directing or permitting Pete to. fire the blast; and believing that there is a scintilla at least of evidence upon that subject to support that contention, I can not concur in the judgment denying him a right to have his ease retried in the common pleas court. In this respect the record is substantially as it was before, but because of the answer of the jury that it was not within the general scope of Pete’s authority, merely as a helper, the record is considerably different than the récord had under consideration when the ease was last before us; it narrows the ground upon which there might be a recovery notwithstanding the special finding in answer to the interrogatory No. 1.

Now as to Pete’s incompetency, the jury have answered that he was incompetent; but before I go to that I wish to remark this upon the subject of the helper. Pete was employed in and about this work to do yarious things that might be described as rough work. From time to time as the predecessor of Flynn called for an assistant about the shooting, Pete assisted him; from time to time after the operation of shooting devolved upon Flynn, and when Flynn desired a helper, Pete would leave his other work of ditching, carrying ties, or whatever he may have been 'doing in his work, and go to the assistance of 'Flynn. He had other duties to perform, and perhaps his other general duties outside of assisting Flynn required as much or more time of him than was devoted to his .assisting Flynn.

It does not appear from this record that by the company or any one in authority the duties of the helper were defined; that the duties of the helper were in any way circumscribed, and I still hold to the opinion expressed on behalf of the majority of the court, and I believe expressed on behalf of the entire bench, when the case was here in the first instance, and which I then understood to be an expression of the opinion of the whole court in the one case and of the majority in the other, that being employed generally as a helper and assistant without his duties being defined or in any way circumscribed, that it might reasonably be anticipated by the company that he would be directed by Flynn to do anything in and about the operation of loading and directing the blasts to be shot and firing them. But as a part of this the answer of the jury to Interrogatory 1 is opposed to the opinion expressed by the court and the views of the jury upon that question, of course as the case now stands before us, we are bound to obey. But as I say, it does not cover the whole question, it still leaves something. It still leaves something that was left if the jury had answered this same interrogatory by saying this, Yes, if directed so to do, which to my mind means substantially the same thing as the answer given. Pete no doubt was incompetent in a sense. The jury must have understood the respect in which he was regarded as incompetent. Why this particular duty of pulling the lever should be singled out as something that should not have been done by Pete is made manifest by the testimony as to the character of Pete’s ineompetency. Pete was physically competent to pull the lever. There is no doubt from this record but that Pete was competent to understand the object and effect of pulling the lever; there is no doubt but that Pete had sufficient intelligence and understanding that it would not do to pull the lever and fire the blast when men were near the blast. No doubt he had sufficient humanity to not purposely endanger the lives of his fellow workmen. But the trouble with him. and the respect in which he appears to have been incompetent was that he was apt to misunderstand his orders because of his not being well acquainted with the language. Anri to my mind his situation there was very much like that of a deaf person put in the same position, or person almost deaf, to whom an order might be given that would be misunderstood, and therefore the danger of having a man of that character to fire the blast.

But perhaps we are not much at variance upon that question. The real vital question that is left unanswered by this special verdict, and upon which I think there is a scintilla of evidence, and upon which my asociates think there is not a scintilla of evidence, is as to whether Pete was doing that which he had been directed by Flynn or the company to do, and if he did it under the direction of Flynn, whether Flynn had authority to direct him to do it. I dissent only from the judgment.

Kinkade, J.

I want to add a word that I had intended to include in what I have said, but omitted through an oversight, and that is that although there were forty or fifty men employed, at least a very large number of men employed about this cut and the case has been tried three times, yet nobody is produced to say that he ever saw a blast fired when he saw Flynn where he would not be if somebody else other than Flynn (Pete?) had been firing the blast. Men in the cut could not see who was firing the blast, but they had every opportunity to see whether Flynn was away from where he would be were he firing the blast, and on the three trials, and with the large number of men employed in the cut, as I have said, nobody says that Flynn was ever in the cut and away from the battery at the time the blast was fired.

One further thought, and that is this: That there is not a scintilla of evidence in the record that this man Pete ever misunderstood an order before while he was upon this work; and he was under the direction of a man of high experience and judgment in connection with the blasting, and was sufficient in his intelligence as helper.


text:
    TRIAL FOR. HAVING IN POSSESSION BURGLARS’ TOOLS.
    Circuit Court of Hamilton County.
    Jerry Brown v. State of Ohio.
    Decided, April 30, 1910.

      Criminal Law — Having Burglars’ Tools in Possession — Hearsay Evidence as to Occupation — Evidence as to Good Character — Charge of " Court — Section 12J/31, et seq., General Code.

    1. While it is competent, in the trial of one charged with having burglars’ tools in his possession with burglarious intent,, to prove the occupation or livelihood of the accused as bearing upon the intent with which he was carrying the tools, it is error to admit hearsay or secondary evidence as to his livelihood.

      .2. The presumption is in favor of good character and reputation, and a charge to the jury which seems to imply that, if the accused did not produce evidence as to his good character and reputation, he thereby did not claim good character, is erroneous.

      Thomas J. Gogan, for plaintiff in error.

      Arthur G. Friclce, contra.
    Smith, J.; Gieeen, P. J., and Swing, J., concur.
    The plaintiff in error was convicted in the court of common pleas of this county under Section 6835, Revised Statutes, for having in his possession certain implements. used by'burglars for breaking and entering houses, with the intention of using the same burglariously, and upon said conviction was sentenced to the penitentiary of the state.
   The conviction is attacked upon the ground that hearsay or secondary evidence was admitted by the trial court on behalf of the- state, to prove the calling or livelihood of plaintiff in error and his associates at the time of his arrest, to-wit, that of being a thief or burglar.

While it is competent to prove the calling or livelihood of the plaintiff in error or his associates as bearing upon the intent with which he was carrying the implements which were found in his possession, yet this livelihood or business if it may be so designated is a fact and should be proven as other facts in the case.

We do not think that the character or reputation of the associates of the accused could be placed before the jury, as disclosed by the record in this case, to establish their means of livelihood or business, by statements made by the various witnesses .as to what other people had told them in regard to the calling or business of these individuals.

It was competent to show the work that the associates of the plaintiff in error had been engaged in, or that the plaintiff in error himself, as a fact in the case; but this fact could not be deduced from or proven by secondary evidence as to reputation of the parties, based upon what other persons had told the witnesses these parties were engaged in.

We are also of the opinion that the admission by the trial court of evidence pertaining to the reputation of the plaintiff in error as to his being a criminal or thief, was prejudicial, notwithstanding that the same was later stricken from the record and withdrawn from the consideration of the jury.

Until the reputation of the accused had been put in issue by himself, it was error to have allowed it to enter into the case; and in instructing the jury to disregard the same the court said, “that so long as the defendant had not put his own character and reputation in issue before the jury by claiming to be of good character, the state was not authorized to introduce any -evidence to impeach his character.”

This would seem to imply, that if the plaintiff in error did not produce evidence as to his good character and good reputation he thereby did not claim to be of good' character or to have a good reputation. This-we think was- prejudicial, for the presumption is in favor of the good character and the good reputation of the plaintiff in error and these can not be attacked until he himself has offered evidence bearing upon the same beyond the presumption of law.

Judgment will be reversed.


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    LIQUIDATED DAMAGES FOR. BREACH OF CONTRACT OF EMPLOYMENT.
    Circuit Court of Franklin County.
    Ed. H. Jacobs v. The Shannon Furniture Co.
    Decided, March 25, 1910.

      Liquidated Damages — Stipulation for, Valid, When — Sum Named not a Penalty, When — Its Reasonableness to be Determined from Circumstances at the Time the Contract' was Made.

    1. A stipulation for liquated damages for discharge before expiration of term of employment is valid, where the sum named is for a complete breach of the contract of employment, and is not based upon the amount of wages to be paid, but is dependent upon uncertain damages arising from the discharge.
    2. In determining whether -the sum stated as damages is reasonable, the question must be viewed from the standpoint of the parties at the time the contract was made, and not on an ex post facto basis after litigation has arisen and the case is up for trial.

      E. C. Turner and A. R. Jones, for plaintiff.

      Huggins, Huggins & Johnson, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   The first .cause of action seeks to recover liquidated damages stipulated for in a contract of employment. The contract provided for the employment by the Shannon Company of Jacobs as manager of a business to be conducted in his name for a period of five years, at a salary of $9,000, or $1,800 per annum, and 5 per cent, commission on the excess above $25,000 of the combined net profits for each year during said term. The contract stipulated for liquidated damages upon its termination otherwise than by voluntary withdrawal or fault of Jacobs within twenty-five months after the beginning of the term in the amount of $1,750.

The petition alleges the discharge of Jacobs within twenty-five months, a full compliance by J acobs up to that time, and ability and readiness to comply for the balance of the term, and asks judgment for the sum stipulated for.

A demurrer was sustained in the court of common pleas to the first cause of action, and final judgment entered for the defendants. The only question presented here upon error is as to the validity of the stipulation for liquidated damages.

It may be deduced from the authorities in this state that a stipulation in a contract for liquidated damages in case 'of breach where no purpose appears or can be fairly deduced to charge the same as a penalty will be upheld. Blast Co. v. Stone Co., 64 O. S., 361-367; Grayselli v. Lowden, 11 O. S., 349, 361; Lange v. Werk, 2 O. S., 520, 533.

Whether a stipulation in any given case is to be regarded as penalty for liquidated damages, becomes a question of intention to be reflected from the whole instrument in connection with the subject-matter. The form in which the stipulation is clothed may be considered, but is not conclusive. In final analysis, the stipulation for damages must be read and considered along with all other provisions, the general scope and subject-matter of the contract, from which must be determined whether the parties intended thereby to fix a fair and just amount for the actual damages likely to arise, or an arbitrary amount as mere penalty to secure performance.

Cases cited by counsel for defendant in error in support of tbeir contention may, we think, fairly be grouped as follows:

(a) Cases where a lump sum is fixed for default in each of several things of varying importance, and therefore inconsistent as actual valuation or liquidation, but consistent only as penalty. (Berry v. Wisdom, 3 O. S., 241.)

(b) Cases where the amount stipulated for is manifestly in excess of the actual damages to be reasonably contemplated from a breach of contract.

The case at bar is distinguishable from those' of class a, for the reason that the lump sum here is fixed only for a complete breach.

It is distinguishable also from those of class b, for the reason that the damages here are uncertain, and therefore a proper subject of liquidation. It is true that the obligation of the Shannon Company was to pay money. But since the payment of money was for wages, upon breach, the measure of'damages is not necessarily the amount of wages agreed to be paid, but depended upon the uncertain damages arising from the discharge. And such damages are generally, if not universally, held to be a proper subject for liquidated damages. Tenn. Manufacturing Co. v. James, 91 Tenn., 153; Walz v. Fisher, 102 Wis., 172, 180; Watson v. Russell, 149 N. Y., 388; Clynn v. Moran, 174 Mass., 233.

It therefore remains to be considered whether the amount stipulated for is a fair and reasonable measure of the contemplated damages, or manifestly excessive. This question must be viewed by the court from the standpoint of the parties at the time of the contract, and not ex post facto when the litigation is up for trial. Contracts are always so construed and a stipulation for liquidated damages is no exception. Sun Ptg. & Pub. Ass’n v. Moore, 183 U. S., 642, 672; Blasting Co. v. Stone Co., supra, p. 366.

It is urged that Jacobs’ damages may be very slight, and in argument it was stated that he had gone back almost immediately to Ms old employment. But tMs is ex post facto and can not be employed to aid in the original construction of the contract, except as it may have been reasonably foreseen and contemplated.

It is a matter- of common knowledge that responsible and lucrative positions in merchants’ establishments are not always open, but more frequently attained only after years of subordinate employment and by regular promotion. When Jacobs left the employ of the Lazarus Company and entered the employ of the Shannon Company, it was reasonable to contemplate a difficulty upon discharge in securing satisfactory employment of a like character and of the same compensation, and to make some provision in case of discharge. We are of the opinion from the written contract, in connection with the subject-matter, and in view of the common knowledge of the difficulties of securing other employment, that the sum of $1,750, provided for a discharge within the first twenty-five months and while thirty-five months of his (time was still before him, was a fair adjustment of what would be considered by the parties at the time of the contract as the actual damages that, might under reasonable circumstances be contemplated.

The cases of the Rock Blasting Company v. the Stone Company and Glynn v. Moran are both in point in principle and general features. The stipulated amount in the present case may be sustained under the authority of the two eases referred to, not only as a reasonable liquidation of damages, but as an agreement based upon sufficient consideration to pay the additional amount as further compensation upon discharge.

The judgment of the court of common pleas is, therefore, reversed, and cause remanded, with instructions to overrule the demurrer to the first cause of action.


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    CERTIFICATION OF ASSESSMENTS.
    Circuit Court of Hamilton County.
    Joseph E. Fox et al v. City of Cincinnati et al.
    Decided, May 21, 1910.

      Sidewalks — Service of Notice upon Agent of Abutting Land — Oertifica- . tion of the Assessment — Statute of Limitations — Section 3855, General Gode.

    The particular act which saves an assessment from the two years statute of limitations is its certification by the municipal corporation to the county auditor.

      Fox & Fox, for plaintiffs.

      Fyffe Chambers, for the City.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Under Section 71, -municipal code, the written notice required therein may be served upon the agent of the owner of abutting land, and it sufficiently appears that W. F. Fox was the agent of the owners and served with notice.

While the agreed statement of facts shows that the assessment appeared for the first time upon the tax duplicate for the year 1908, yet it does not appear that the same was certified to the auditor more than two years after it was payable. It is the action taken, by the corporation in certifying the assessment to the auditor of the proper county which saves it from the two years’ limitation, and if this was done prior to August 29, 1908, the statute was complied with.

Section 1536-271, Revised Statutes, authorizes a penalty of ten -per cent, to be collected upon any unpaid assessment, and even' conceding that the penalty should be computed only on the amount of the assessment, without including the interest due, it is a mere trifle not requiring the action of the court.

The petition and cross-petition will be dismissed.


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    PURCHASE BY A COMPETING COMPANY OF AN UNCOMPLETED RAILWAY INVALID.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Attorney-General, v. The Cleveland & Pittsburg Railroad Company.
    Decided, May, 1910.

      Purchase and Consolidation of Parallel Railway Lines — Policy of the State With Reference to Competing Lines — Applies to an Unfinished Line — Construction of the Provisions of Section SJ¡09 — Merely an Enabling Act as to the Selling Company.

    The provisions of Section 3300 as to when one railroad may aid, lease or purchase another and Section 3409, providing when a railroad company may sell its road-bed, when read and construed together prohibit the acquiring by a railway company of a parallel and naturally competing line which is under construction but not yet completed.
    Allread, J.; Sullivan, P. J., and Winch, J., concur.
    Quo warranto.
   Upon demurrer to the amended petition the question is, as to the authority of the Cleveland & Pittsburgh Railroad Company to purchase and acquire the right-of-way, road-bed and other property of the Steubenville & Toronto Railway Company.

The defendant has a completed railroad in operation and extending as part of its route, from Steubenville to Toronto and Empire. The Steubenville & Toronto Railway Company was chartered to build, acquire and operate a railroad having Steubenville and Empire as termini. In pursuance to the charter the latter company acquired the right-of-way for said railroad, made surveys and estimates and did other work toward the completion thereof, when the purchase was made by the defendant company.

It is charged that the line of railway proposed and in process of construction by the Steubenville & Toronto Company passes through a populous country and manufacturing district, and will be, if completed, a parallel and naturally competing road to that of the defendant.

The contention of the Attorney-General is that because of the parallelism and naturally competing character of- the two railways, the defendant has no right to acquire the roadway and property of the other.

This contention is founded upon Section 3300, Revised Statutes, which provides among other things, that “any company may lease or purchase any part or -all of a railroad constructed, or in course of construction by another' company, if the lines of road of such companies are continuous or connected, and not competing,” etc.

The defendant contends that Section 3409, containing no exception as to competing lines, applies. This section, among other -things, provides that, “a company owning in whole or in part any road-bed and right-of-way for a railroad, within this state * * * which from lack of. means or other cause, is unable to complete the construction of its proposed line of road thereon, may sell, assign and transfer the same, or any part thereof to any -othér company incorporated under the laws -of this state, with authority to construct and operate a railroad over the same route or any part thereof,” etc.

Sections 3300 -and 3409, Revised Statutes, may, we think, be harmonized and read together. The rule of strict construction of corporate charters having been established in this state, it follows naturally that the General Assembly have been called upon from time to time to grant certain specific powers. Section 3409, Revised Statutes, confers the power of sale upon a railroad company unable to finish an uncompleted railway. The various steps taken are definitely fixed. No attempt is made in this section to confer power upon the purchasing company. It is purely an enabling act as to the selling company. It has, however, this restriction, that the grantee or acquiring company must be incorporated under the laws of this state, and with authority to construct and operate a railroad over the route proposed to be acquired. This limitation is one upon the grantor company as to the grantee with which it may deal, and clearly the inference that Section 3409 is to be carried out in harmony with the section granting powers to the purchasing company. The defendant, the purchasing company, can only justify its acquisition of the uncompleted roadway by force of Section 3300, Revised Statutes, and it is therefore held to the public policy, therein, clearly established.

By the express terms of Section 3300 the defendant company-had no right to acquire the road-bed and right-of-way of a parallel and naturally competing railway company. The limitation of Section 3409, that the purchasing company shall be one authorized to construct and operate a line over the route to be acquired, justifies the court in looking to the statutes conferring power upon the purchasing company and in reading all the sections together. They should, if possible, be so read as to maintain the established policy of the state against combining by purchase, or otherwise, competing lines of railway.

This is declared in the case of State v. Vanderbilt, 37 O. S., 643, in reference to the statute of consolidations, as follows:

“And where companies such as these are, being parallel and competing, claim that authority to consolidate has been granted to them, they must be able to point to words in the statute which admit of no other reasonable construction; for it will not be assumed that the law-making power has authorized the creation of a monopoly so detrimental to the public interest.”

It is argued that the rule of public policy does not apply to an unfinished and abandoned roadway. The fact of abandonment of the roadway does not appear in the amended petition. Besides the “Toronto” company accepted a charter to build this railway and is acting under its charter in attempting to sell it. It can not in one breath claim its charter in attempting to sell and in another breath say that it has abandoned its charter duty to construct a competing line of railway. Nor does the fact of the abandonment of the construction of the railway afford a reason for excepting its transfer from establishing rules of public policy. Such recognition of an exception would open up a very convenient loophole for evasion of the various restrictions against acquisition of competing lines of railway.

Objection is made to the prayer for relief and the case of State, ex rel, v. R. R. Co., 50 O. S., 239, Is cited. The case cited involved a private right, while the case here involves a public right, viz., the right to exercise certain powers under a charter The public right involved in the attempt to exceed the charter powers by a corporation is a familiar subject of jurisdiction in actions in quo warranto.

Demurrer overruled.


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    PROSECUTION UNDER. THE STATUTE PROHIBITING COMMON LABOR ON SUNDAY.
    Circuit Court of Hamilton County.
    Nathan Goldsmith v. State of Ohio, and Nine Other Similar Cases; and State of Ohio v. Kate Magrish, and Three Other Similar Cases.
    Decided, June 4, 1910.

      Criminal Law — Insufficient Laying of Venue — Charging of Knowledge and Criminal Intent — Duplicity—Prosecution for Opening Stores and Selling Goods on Sunday — Failure to Take the Offenses out of the Statutory Exemptions — Sections 13044, et seq., and 13500, General Code.

    1. The venue of an offense is not sufficiently stated, where the substance of the accusation is not set forth in the warrant, or the affidavit incorporated therein, or attached to and referred to in the warrant, and neither the affidavit nor the warrant contains any allegation as to the county in which the offense is alleged to have occurred.
    2. An affidavit and warrant do not charge a violation of the Sunday closing law or the performance of common labor on Sunday, if •there is a failure to charge knowledge and criminal intent on the part of the accused.
    3. The performance of common labor on Sunday and the causing of a place to be opened for the transaction of business on Sunday are distinct offenses, and an affidavit and warrant which charge them as one offense are bad for duplicity.
    4. A warrant charging common labor on Sunday is insufficient, if it . does not set out the negative averments that the labor performed was not a work of necessity or charity and that it did not come within the other saving- clauses of the statute.

      Pogue & Pogue, for plaintiffs in error.

      Bates & Meyer, contra.
    Smith, J; Giffen, P. J., and Swing, J., concur.
    In the first ten eas'es and last four above named, the plaintiffs in error and defendants in error respectively were arrested, tried and convicted before the mayor of the village of Delhi for an alleged violation of Section 7033, Revised Statutes, which prohibits performance of common labor on Sunday.
   Upon the hearing of petitions in error to the court of common pleas, the judgments of the mayor in the first five eases were affirmed, in the next five cases the judgments were -affirmed in part and reversed in part, and in the remaining four cases the judgments of the trial court were reversed on the ground that the s-ame were not sustained by the evidence.

From the record it appears that each of the parties was arrested upon affidavits and warrants issued by the mayor of the village of Delhi in the following language, except as to the name of the respective defendants.

‘ ‘ State of Ohio, Hamilton County, ss :
“Before me, a notary public in and for said county, came Anthony Fichtl, who being duly sworn according to law, deposeth and saith, that on or about the 15th day o.f September, 1907, at the county aforesaid, Nathan Goldsmith, being over fourteen years of age, engaged in common labor on the first day of the week, commonly called Sunday, by engaging in the business of selling dry-goods, not being a work of necessity or charity, and also caused to be opened in the county aforesaid and on said day a place for the transaction of business, to-wit, selling dry-goods contrary to the statutes in such eases made and provided, and further this deponent saith not. ’ ’

(Duly signed by affiant and authenticated by a notary public.)

The warrant reads as follows:

“State of Ohio, Hamilton County.
“Marshal of the Village of Delhi, Greeting.
“Whereas, complainant has been before me, Mayor of-the Village of Delhi, Hamilton County, aforesaid, upon the oath of Anthony Fichtl, that Nathan Goldsmith being over 14 years, did, on or about the 15th day of September, 1907, at the county aforesaid, engage in common labor on the first day of the week, commonly called Sunday, by engaging in the business of selling dry-goods, not being a work of necessity or charity and also caused to be opened in the county aforesaid and on said day a place for the transaction of business, to-wit: selling dry-goods.
"These are therefore to command you to take the said Nathan Goldsmith, if he be found in your county, or if he shall have fled, that you pursue after him into any other county in the state and him take and safely keep, so that you have his body-forthwith, before me to answer the said complaint and be further dealt with according to law.
‘‘Given under my hand this 17th day of September, A. D. 1907.
"E. E. Kjruthoeeer,
“Mayor of the Tillage of Delhi.”

At the trial, motions to quash the information, demurrers to the same and motions to discharge were made in each ease, but they were overruled by the trial court; each defendant being adjudged guilty and fined by the mayor.

Objections are made to the judgments rendered against the various parties by the trial court for the following reasons:

First. A venue of the offense- can not be ascertained from the affidavits and warrants.

Second. That the return of the service is defective.

Third. That the affidavits and warrants fail to allege a crime.

Fourth. That the affidavits and warrants are bad for duplicity.

Fifth. That the necessary negative averments are not contained in the affidavits and warrants.

Sixth. That the affidavits and warrants are defective in that they fail to allege criminal intent.

Seventh. The affidavits and warrants are defective in that the second charge is not complete in omitting the necessary exceptions, that the causing to be opened a building or place for the transaction of business was not a work of necessity or charity.

As to the first objection, we .are of the .opinion that it is well taken. The warrant was based upon the .affidavit and should show a copy of it inserted therein, or annexed and referred to, or recite the substance of the accusation. (Section 7137, Revised Statutes.) Nowhere therein does it contain an allegation as to the county in which the alleged misdemeanor is claimed to have occurred, either in the affidavit or in the warrant, both of which simply refer to the caption which merely sets forth the county in which the affidavit is taken and the warrant issued. Knight v. State; 54 O. S., 365.

Second. We find no objection to the return of the service made upon the various individuals of the affidavit or of the warrant.

Third. The .affidavit and warrant do not, we think, contain words sufficient to charge a crime, for they nowhere charge knowledge and criminal intent on the part of the various individuals arrested. '“An affidavit charging the accused with violation of a Sunday closing ordinance is insufficient unless it charges knowledge and criminal intent.” Daugherty v. Village of Dennison, 11 C.C.(N.S.), 13; affirmed, 59 O. S., 593.

Fourth. In a number of the affidavits and warrants issued against certain of the individuals, two alleged misdemeanors are set out in the same affidavit and warrant — one of performing labor on Sunday and another causing to be opened a place for the transaction of business. These are two distinct offenses, and for this reason the affidavit and warrant relating thereto are bad for duplicity. Duplicity is the joinder of two or more distinct offenses in one count. (Bishop’s Criminal Procedure, Section 432.) In the eases where the defendants are charged with two offenses in one count and tried on both, the affidavit and warrant were defective for this duplicity. Barnhouse v. State, 31 O. S., 39.

Fifth. Under Section 7033 it was necessary to have set out the negative averments contained in the statute: first, that the performance of the common labor complained of was not a work of necessity or charity, or that the work did not come within the other saving clauses of the statute. Hirn v. State, 1 O. S., 15; Canton v. Nist, 9 O. S., 439.

The sixth objection as to not alleging criminal intent is included in and covered by the third objection.

The seventh objection raised by counsel to the affidavits and warrants, we think is fully covered by what the court has heretofore said relating to the omission in the same of the necessary exceptions in the statute.

For the above reasons the judgments in the first ten eases will be reversed and in the last four will be affirmed.