text:
    EMINENT DOMAIN — EVIDENCE.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    Cleveland T. &. V. Ry. v. Thomas M. Gorsuch et al.
    1. APPROPRIATION Proceedings — Proper to Show that Plaintiff Is Part op a Great Railway System.
    In appropriation proceedings brought by a railroad company, it is proper for a defendant to introduce evidence tending to show that plaintiff is a part of a great railroad system and is using a freight house as part of such system near to defendant’s property.
    2. Appropriation — General Selling Price op Land in the Neighborhood Admissible.
    It is error, in appropriation proceedings, to exclude testimony as to the general selling price of land in the neighborhood, for a brief period prior to such proceedings.
    3. Appropriation — Error to Exclude Purchase Price op Land in Question, ip Recently Bought.
    It is error to exclude the testimony of a defendant in appropriation proceedings, on cross-examination, as to the price he paid for the land in question when he bought it, that time being a little over a year before giving such testimony.
    4. Appropriation — Proper to Show Value op Land and Buildings Separately —Total Value is Sum op Values, of Land and Buildings in Absence op other Evidence.
    'n appropriation proceedings by a railway company, it is proper for plaintiff to introduce evidence to prove the value of the land in question separate from the buildings thereon, and also the value of the buildings separate from the land. In the absence of all other evidence as to the value of lands and buildings together, the aggregate of the above two values should be taken as the value of the parcel.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Kline, Tolies & Goff, for plaintiff in error.
    Goulder, Holding & Masten and Smith, Taft & Arter, for defendants in error.
   MARVIN, J.

The railroad company brought proceedings in the probate court of this county to appropriate for railroad purposes certain real estate owned by the' defendant, Gorsueh, and others, in the city of Cleveland. By proper proceedings the matter of the assessment of the compensation to be paid for the premises so appropriated was brought to trial in said court and the jury made return, by its verdict, of the amount assessed in favor of each owner whose lands were sought to be appropriated. Judgment was entered for each on such verdict. The plaintiff brought proceedings in error in the court of common pleas to reverse the judgment as to Gorsueh. On hearing, such judgment was affirmed, and these proceedings are now prosecuted here to reverse such judgment of affirmance.

A bill of exceptions is filed here, containing all the evidence offered on the trial in the probate court, together 'with a record of all the proceedings at such trial.

Numerous rulings of the court are complained of, all of which have been carefully considered, and some of which are especially pointed out in this opinion.

Mr. Gorsueh, the owner of the premises, was undergoing examination as a witness and had testified as to the surroundings of the property, the increase of business in the neighborhood, the proximity of the Valley railroad tracks, etc., and then this question was asked:

“What, Mr. Gorsueh, is the common reputation of the C. T. & V. Ry., whether or not it is being operated as a part of another system ?
“A. To the best of my judgment and what I have seen, by the Baltimore & Ohio.”

On motion of the plaintiff, this answer was taken from the jury» and then this question was asked:

“Mr. Gorsueh, you may state whether there is a common reputation-in the neighborhood in which you live, that the Cleveland Terminal & Valley Railway Company are operating and using this freight station which is in the rear of your property, whether they are on not ? ’ ’

This was objected to by plaintiff, the objection overruled, and plaintiff excepted.

“A. It has been used in that way.”
Then this question:
“Well, now, what railway company has been using and operating this freight station in the rear of your property?”
This' was objected to, the objection overruled and an exception taken.
“A. Well, it has been operated by the Baltimore & Ohio.
“Q. Now, Mr. Gorsuch, have you any personal knowledge of the character, as to the extent of the Baltimore & Ohio Railroad Company, whether it is a large or a small railroad?

Objected to; objection overruled; exception.

“A. It is one of the largest systems we have got — amongst the largest. ’ ’

We find no error to the prejudice of plaintiff in any of these rulings. The witness does not testify as to the reputation in the neighborhood as to either railroad company. He does testify that the freight house adjacent to his premises was used by the Baltimore & Ohio, and that this is one of the largest systems in the country. We think it entirely proper, in an effort to ascertain the value of property, to show that it is near to a great railroad. Property is likely to be enhanced in value by being near to such a railroad, over what it would be by some insignificant tramway or small road.

Mr. A. G. Daykin, a witness on behalf of defendant Gorsuch, was being cross-examined by counsel for the plaintiff, and this question was asked of him:

“Did you know, Mr. Daykin, of Mr. Gorsuch’s having within about a year sold the thirty-three feet adjoining?
“A. No, I don’t know anything about it, except what Mr. Gorsuch said about it.
“Q. Did you learn prior to testifying, that such a sale had been made of thirty-three and one-half feet adjoining, by him at about the time he acquired this property?
“A. I don’t think I did, Mr. Tolies. He said something about being skinned out of a piece there, but I didn’t take it into consideration.”

The plaintiff moved to have this entire answer taken from the .jury, and same was overruled.

There was no error in this ruling. Certainly the first sentence of the answer is directly responsive to the answer put. The court was not asked to take a part of the answer from the jury but to take it all «.way. Nor, do we regard the last part of the answer as prejudicial to the plaintiff. There is nothing to indicate who Gorsuch thought skinned him, if anybody did.

Further on in this cross-examination the same witness was asked if he did not know of the sale of certain other property by the defendant in this locality, and he answered:

“Yes, he told nje he got swindled out of it.”

Motion was made by plaintiff to take this answer from the jury. The first part was responsive to the question; the last part was not prejudicial.

Without stopping to call attention to each of the rulings on the admission of evidence, in which we find no error to the plaintiff’s prejudice, we come to the consideration of a question appearing on page 136 of the record: Mr. F. H. Goff was upon the stand as a witness for the plaintiff. He had qualified as being sufficiently acquainted with the value of lands in the neighborhood of those under consideration to entitle him to give an opinion as to such values, and had' placed a value upon the defendant’s land, the value of which was in issue. He was then asked this question:

“You may state, Mr. Goff, what, during the period named by you in your previous examination, has been the general selling price of .lots upon James Street?”

This was objected to, the objection sustained and exception taken. It was expected that the witness would answer $1.50 per square foot, without buildings, $2.50 with buildings. This was property in the immediate vicinity of that in question.' Mr. Goff had testified that he .knew of. a considerable number of sales in that vicinity within the past two years. He had given his estimate of the value of this property. The question now under consideration sought to bring out an independent fact, viz.: the general selling price of lands in the neighborhood within a comparatively short time. He had already said that he knew what it was. We think if the witness had testified that he had not examined the tract in controversy, it would still have been competent to show- by him at what prices land in that locality were selling for.

Lewis, Eminent Domain Sec. 443, says:

“The propriety of allowing proof of the sales of similar property to that in question, made at or about the time of the taking, is almost universally approved by the authorities.”

lie shows, however, that there are high authorities to the contrary.

Elliott, Railroads Sec. 1036, says that it is not settled that the price paúl on particular sales is admissible, but that it is held that, the general selling price of land in the neighborhood" is the test. We hold that the evidence of the general selling price of land in the neighborhood is admissible, not the price paid at a particular sale, and that,, therefore, there was error in excluding such testimony.

It appears from page 27 of the bill of exceptions, thau when Mr. Gorsuch, the defendant, was upon the stand in his own behalf and had testified that the market "value of the property in question was $15,000, he was,-on cross-examination, asked by plaintiff’s attorney, from whom he purchased it. He answered, from Mr. Johnson, and that it was-two months more than a year before he testified. He was then asked iff the price he paid was not $7,000, and, again, what the price was that he' paid, stating that he expected the witness to answer, if permitted, that he paid $7,000. Both these questions as to the price paid were, on objection of defendant’s counsel, excluded. In this we think there was error. The price paid does not fix the value, nor does the value fourteen months prior to the time at which value is now to be determined, even when fixed, determine the present value, but both have a bearing on the present value and are admissible in evidence as tending to show present value. But the question here was asked on cross-examination and might well have been admitted as testing the witness. See Hoffman v. Conner, 76 N. Y. 121.

On page 195 of the bill, it appears that J. G. W. Cowles was being examined as a witness for the plaintiff. He qualified as to the value off the land but not as to the building, and he was asked to give the fair market value of the land exclusive of the building. This, on objection of defendant, was excluded. Plaintiff expected him to say two dollars-per square foot. These and other like questions were asked of witnesses produced by the plaintiff, for the purpose of showing the value of the-building and the land separately. The court excluded such evidence..

The defendant contends that there was no error in those rulings, because the statute requires of the jury to fix a value on the parcel to-be appropriated, and here the land and the building together constitute-the parcel.- It is true that there is but one parcel to be paid far, but if this parcel is made up of parts, though the aggregate value of the-several parts taken separately may not be the value of the parcel when. \taken as a whole, yet such value of the parts furnish some criterion - upon which to "form a judgment of the value of the parcel. Of course,, there are some things where it may well be said that the value of the-parts taken separately can form no such criterion. A complicated machine may be of great value as a whole and yet the several parts when separated be of practically no value whatever. But the case of a building upon land is far removed from this.

Suppose the value of a farm of one hundred acres on which is a fine house is to be ascertained. Can it be doubted that those farmers owning, buying and selling land in the immediate vicinity, but who know nothing of the expense of putting up such a house, may be permitted to testify as to the value of the land, exclusive of the house, and that a competent builder may testify as to the value of the house for the purpose of ascertaining the value of the farm as a whole? It is not certain that the farm is worth as much as the combined value ,of the land and house, .for the house may be wholly unsuited to the purpose of the farm and .yet in itself be of great value. It may be, too, that the value of the house alone and of the land alone may be less than the value of tlie farm with the house upon it because of the fact that the two are so admirably adapted to each other, but it would hardly be urged that a separate valuation of the land and the house might not aid in coming to a right valuation of the whole. One can readily conceive of a case where of necessity the value of the thing to be paid for must be ascertained by taking the separate value of the several parts of that thing. A railroad company by one wrongful act destroys one’s turnout, consisting of horse, harness and carriage. One witness or a dozen witnesses know th$ value of the horse but on one of them knows the value of the carriage. Another witness or another dozen of witnesses know the value of the carriage but no one of them knows anything of the value of the horse. No one would doubt that in such case the value of each might be shown separately:

In the case at bar we are of the opinion that the plaintiff had the right to show the value of the land, separate from the building, and the value of the building separate from the land, and in the absence of all other evidence the .aggregate of these two valuations should be taken as the value of the parcel.

For the errors pointed out in this opinion the judgment of the court of common pleas is reversed, as is also the judgment of the probate court, and the case is remanded to the court of common pleas for further proceedings.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    EASEMENTS.
    [Hamilton (1st) Circuit Court,
    May 11, 1905.]
    Jelke, Swing and Giffen, JJ.

    Oliver Schlemmer Co. v. Steinman-Meyer Furniture Co.
    1. Alley Dedicated and Accepted is Public Thoroughfare.
    An alley, duly dedicated and accepted as such, becomes a public way, and abutting premises are invested with an appurtenant easement therein.
    2. Abutting Owneb may not Obstruct Public Alley.
    Where one of two owners, whose properties abut on an alley in the rear, obtains a vacation of the alley without the consent of the other owner, the petitioning owner cannot thereafter obstruct the alley at the only means of exit without furnishing some other means of egress therefrom, notwithstanding the nonconsenting owner has access to the front of his lot.
    [Syllabus approved by the court.]
    W. M. Ampt and Ó. W. Kuhn, for plaintiff;
    Tugman & Baker, for defendant-.
   JELKE, J.

For the facts in this ease see Schlemmer Co. v. Furniture Co. 15 Dec. 92, affirmed.

We are of opinion that when Kirby alley was accepted by the city of Cincinnati under the amended dedication it' became and was a public way, and the premises occupied by the Oliver Schlemmer Company abutting on it became invested with an appurtenant easement in the same, which was not and could not be destroyed by the proceedings for a public vacation. Neither has there been any conduct or laches on the part of the plaintiff to create an estoppel in pais. This being so, the proposed wall which defendant admits it purposes to build is such a trespass upon the private property rights of plaintiff as to entitle plaintiff to ah injunction without compelling him to submit and bring his action at law for damages.

A decree for injunction may be had herein by plaintiff, and the same general order made as was made by the court below.

Swing and Giffen, JJ., concur.


text:
    MONOPOLIES — WITNESSES.
    [Hamilton (1st) Circuit Court,
    March 17, 1906.]
    Jelke, Swing and Giííen, JJ.

      Salmon P. Jones, Sheriff, et al. v. Cora Dow Goode.
    1. "UNDER Rev. Stat. 5243 (Lan. 8752) Party may not Refuse to Disclose Names of Dealers from whom he has Bought Goods.
    In an action to enjoin an illegal combination under the Valentine antitrust law and for damages resulting from such combination, the plaintiff, when called under Rev. Stat. 5243 (Lan. 8752) for examination before a notary is not at liberty, on the ground that it is a trade secret, and therefore privileged, to refuse to disclose the names of dealers from whom he has succeeded in obtaining a partial supply of the goods the combination has refused to furnish him.
    2. Under Rev. Stat. 5243 (Lan. 8752) Party need not Disclose Names of Dealers from whom he has Bought Goods as that is Irrelevant.
    In an action for damages and an order of injunction against an illegal trade combination which had prevented plaintiff from obtaining proprietary medicines for sale, a refusal by plaintiff, in an examination under Rev. Stat. 5243 (Lan. 8752), to disclose the names of persons from whom she had bought such medicines prior to the commencement of her suit, is justified on the ground that such matter is irrelevant at that stage of the proceeding, not being a material part of plaintiff’s case.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    F. H. Freiricks and R. B. Smith, for plaintiff in error.
    J. S. Graydon and Smith Hickenlooper, for defendant in error:
    Practice of courts in ex parte proceedings to hear viva voce testimony. Church, Habeas Corpus (2 ed.) See. 178 et seq.; Hurd, Habeas Corpus (2 ed.) 301, 302.
    The action of the notary will not be upheld unless the court can see that the questions are relevant. Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720].
    Power of notary to punish for contempt depends upon the relevancy of the questions asked. Bobbins v. Brockton, 180 Mass. 51 [61 N. E. Rep. 265]; Storm v. United States, 94 TJ. S. 76 [24 L. Ed. 42]; 3 Wigmore, Evidence Secs. 1856, 2212.
    Privilege of withholding names. Krieger, Ex parte, 7 Mo. App. 367; Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720]; Jenkins v. Putnam, 106 N. Y. 272 [12 N. E. Rep. 613]; Gorham Mfg. Go. v. Dry Goods Co. 92 Fed. Rep. 774.
    The right to take testimony of the opposite party is limited. Schoepf, Ex parte, 74 Ohio St. 1.

      Chancery confines the discovery to the party’s own testimony in support of his own case on issues already made up. Badische Ainlin & Soda Fabrile v. Levinstein, L. R. 24 Ch. Div. 156; Moore v. Craven? L. R. 7 Ch. App. 94; Moxie Nerve-Food Co. v. Beach, 35 Fed. Rep. 465; Langdell, Eq. PI. 86, 87.

      Affirming, Goode, In re, 16 Dec. 404.

   JELKE, J.

This cause comes into this court from the judgment of the court of common pleas directing Salmon P. Jones, sheriff of Hamilton county, Ohio, to release and discharge from custody the defendant in error, Cora Dow Goode. The defendant in error being the owner of several drug stores in the city of Cincinnati, brought suit in the court of common pleas under the Valentine antitrust law (93 O. L. 143; Rev. Stat. 4427-1 et seq.; Lan. 7586 et seq.), charging that Emil Zorn and the Peruna Drug Manufacturing Company et al. had combined to-prevent her from securing certain patent proprietary medicines, particularly one known as Peruna. She alleged that shé was injured by these acts in the sum of $50,000, for which she prays judgment, and that the defendants be enjoined from further maintaining such alleged illegal combination.

Counsel for defendants in said action had the said Cora Dow Goode summoned before a notary for examination and cross-examination. At such examination the said Cora Dow Goode testified that she had been prevented from buying Peruna, because of the contract plan used in selling its goods by the Peruna Drug Manufacturing Company.

“On further examination it was admitted by the witness that she had Peruna and that she had been buying it, and she also stated where she had bought a part of it. Thereupon counsel for Emil Zorn asked the following questions:

“Question. Is that all you have bought between the first day of January and the time of bringing this suit?
“Answer. No.
“Question. Will you state where else you have bought it?
“Answer. I don’t care to.”

The question was objected to by counsel for Cora Dow Goode on the ground that it was irrelevant and an unwarranted inquiry into plaintiff’s private business.

Counsel for Emil Zorn then asked the witness other questions and finally repeated the foregoing question in the following manuer:

“Question. Will you state where else you have bought Peruna, besides from John D. Park Sons Co., since the first day of January.
“Question was objected to as irrelevant and witness said, ‘I decline to answer as to giving the names of persons— a trade secret.’ "Whereupon, counsel for Emil Zorn made the following statement:
“I shall now ask the notary to order the witness to answer. The witness, who is plaintiff in this suit, alleges in her petition to have been damaged to the amount of $50,000 by this defendant in combination with others, by reason, among other causes, of being prevented from buying or obtaining goods. The witness in her examination says that this has been partly due to certain contracts which the Peruna Company as a party to the alleged combination requires wholesale and retail dealers to enter into, on account of which she has been unable to ■obtain Peruna. We expect to prove that she did buy Peruna from ■dealers who entered into this contract, after it went into effect, at current jobbers’ prices, and that she was not damaged by reason of said contract. ’ ’

Upon the witness’ refusal to answer such questions, the notary ordered that she be committed to jail, and in this proceeding below and application for writ of habeas corpus, the common pleas court found that the said Cora Dow Goode had a right to refuse to answer such questions and directed the sheriff to discharge her from custody.

There are two objections urged to this testimony: First, that to disclose the names of the persons from whom Cora Dow Goode obtained Peruna would be a disclosure of business or trade secrets, and would injure her in her business and drag the parties so named into difficulty and litigation possibly with the Peruna Drug Manufacturing Company, and would furnish such company opportunity of placing said persons on a so-called black list, thereby making it thereafter impossible for them to buy any m'ore Peruna, or any of the proprietary articles in the interest of which said alleged illegal combination was formed; second, that the questions asked were irrelevant in an examination provided for by Rev. Stat. 5243 (Lan. 8752).

On the first ground, we are of opinion that the names of these parties from whom the said Cora Dow Goode secured Peruna are not privileged matter in the nature of trade or business secrets. Indeed, it may be a matter to which at the trial she may be compelled to respond. It is not like an inquiry into the constituents or ingredients •of manufactured. articles nor is it entirely like an impertinent inquiry by a competitor as to the names of persons to whom one is selling goods or with whom one is doing business.

It is true that a disclosure of these names would lend to the defendants in the original action the information and opportunity to do the very things which the act is intended to counteract and prevent, and it may be, that to carry out the spirit and intent of this legislative enactment, the said Cora Dow Goode would be justified in refusing to divulge this information, but this cart only be by the policy of the law adopted and declared by the Supreme Court in furtherance of the spirit and intention Of this antitrust act. This the Supreme Court has not yet done; as it is not necessary to a decision of this case, we do not feel impelled to express an opinion on this point.

"When it comes to the question of relevancy, the matter of general relevancy is not here under consideration, but it is a matter of relevancy in the examination conducted by way of deposition in advance of trial under the provision of Rev. Stat.' 5243 (Lan. 8752). Such provision of the statute is enacted as declaratory of the old principles of discovery in chancery, making the same applicable to all suits.

The Supreme Court in Schoepf, Ex parte, 74 Ohio St. 1, recently said:

“The rule in chancery as to compelling the production of documents for the purpose of evidence and inspection was, and is that a party is entitled to a discovery of such facts or documents in his adversary’s possession or under his control, as are material and necessary to make out his own case; but that this right does not extend. to a discovery of the manner in which the adverse party’s case is to be established, nor to evidence which relates exclusively to the adverse party’s case.”

It is contended that inasmuch as the said Cora Dow Goode has charged that by reason of the conduct of the defendants in said action, she is injured in the sum of $50,000, that it becomes pertinent and relevant on the measure of her damage to show from whom she procured Peruna; the quantity she either actually secured or failed to get, and the price that she paid for the same. It is said that it would work a great hardship to the defendants if they are deprived of this information at this time, and would expose and put them entirely in the hands of Cora Dow Goode in the matter of proving her damage. It is said in 3 Wigmore, Evidence Par. 1856.

“In chancery practice, a party to a suit at law has always been entitled, by a bill of discovery, to ascertain before trial the tenor of his opponent’s knowledge and belief upon all the facts in issue; in other words, to obtain disclosure of his testimony before trial. The soundness of this policy rests upon reasons already examined (ante, Sec. 1847, Par. 2), But the tenor of this discovery was strictly limited to the opponent’s own testimony; that is, his own admissions resting on his knowledge and belief. It is true that the bill required from the opponent an answer under oath stating all that he claimed in opposition; but to this extent, what was obtained was no more than a sworn pleading, stating such material facts as would be alleged in any pleading. But of the evidence which he was io bring forth in support of those facts — the names of his witnesses and the circumstances to which they would testify — he was required to betray nothing in advance, except so far as he himself could bear testimony. In answering as a witness to facts, it was no excuse for him that his testimony would incidentally reveal his witnesses’ names; but this did not impugn the general principle that he was entitled to keep to himself all evidential data except his own testimony. * * *

“In the interpretation of these statutes, it seems to be generally held that their purpose was merely to extend to all courts the expedient that formerly existed in chancery alone (ante, Sec. 1846) ; that, therefore, the principle is not changed, and that the discovery is limited to the extraction of the party’s own testimony and cannot be asked merely to ascertain his other evidence to support his own case or the names of his witnesses; so that the common law in this respect (supra, Par. 1) remains unchanged for civil cases.

“1895, Lindley, L. J., Strachan, In re, 1 Ch. 439, 445: (The applicant) wants to see how her opponent hopes to prove his case, and what she wants to see is the evidence he has procured to prove the insanity which he alleges and she disputes. In England it is considered contrary to the interests of justice to compel a litigant to disclose to his opponent before the trial the evidence to be adduced against him. It is considered that so to do would give undue advantages for cross-examination and lead to endless side issues, and would enable witnesses to be tampered with and give unfair advantage to the unscrupulous. It is very true that an honest and fair-dealing litigant, on seeing how strong a case his opponent had, might at once withdraw from further litigation. But our rules of evidence and of discovery are not based upon the theory that it is advantageous to let each side know what the other can prove, but rather the reverse.”

It makes no difference, neither does it affect the amount of said Cora Dow Goode’s damage, whether she procured Peruna from A, B or C, or from Smith, Brown or Jones. Under the law as above set out, the defendants are entitled to know from her all material facts upon which she relies to establish her damage, but these facts do not include the identity of the persons from whom she bought. It may be true that the defendants should have an opportunity to verify or impeach the accuracy of her statements by an examination of ^hese undisclosed persons, and it may put them at very great inconvenience to go to trial-without a knowledge of their identity; but the identity of these persons is not part of the said Cora Dow Goode’s essential claim against those -defendants. We are, therefore, of opinion that at this time, in this kind of an examination, under Rev. Stat. 5243 (Lan. 8752), said questions are irrelevant and the said Cora Dow Goode had the right to re- ■ fuse to answer the same, and the court below did right in discharging her from custody.

Inasmuch as we come to this conclusion upon the question of relevancy, which is sufficiently presented by the record made before the magistrate, it is not necessary and we do not pass upon the question •of the property' of the common pleas court hearing further evidence after the commitment.

The judgment will be affirmed.

OPINION ON REHEARING.

After our former decision in this case counsel asked the privilege of presenting to us another reason why the evidence held by us to be irrelevant, was relevant on the examination before the notary.

It is contended that had Cora Dow Goode been compelled to answer the question propounded her answer might have disclosed that she was procuring Peruna from the very parties who she charges were in conspiracy to prevent her from buying Peruna.

We adhere to our former opinion for the following reasons:

The way has not been paved for this question. The said Cora Dow Goode had not been interrogated as to whether she had obtained all the Peruna she needed in her business and whether or not she had applied to any of the persons named in her petition and been denied; the fact that persons had bought Peruna under the prohibitive contract, and in violation thereof had sold to Cora Dow Goode would have been matter of defense and tended to weaken her ease but not conclusively.

We think the scope of the inquiry is too broad and subject to the objection first found by us, and if it was anticipated that she had bought Peruna from persons charged in the petition, the inquiry should have been limited and made more specific.

We think the inquiry as to the identity of persons on this point seeks a disclosure of her witnesses.

Swing and Giffen, JJ., concur.


author: DONAHUE, J.

text:
    EVIDENCE — HABEAS CORPUS.
    [Muskingum (5th) Circuit Court,
    October 28, 1905.]
    Donahue, McCarty and Taggart, JJ.
    Henry C. Lillibridge v. State ex rel. Stewart.
    Habeas Corpus not Pkopeb Pboceedings where Evidence Outside the Record would Show that Jurisdiction was Wrongfully Exercised,
    The rule that evidence may be heard de hors the record, applies only to evidence relating to the jurisdiction of the court, and to the extent of establishing such jurisdiction. If it appear from the record that the court had jurisdiction of a criminal cause but proceeded in fact to exercise that jurisdiction erroneously and to commit the prisoner wrongfully, the remedy is not in habeas corpus but in the prosecution of error; and, prior to such proceeding, the record, if it does not show such irregularity, must be corrected in a proper proceeding for that purpose.
    [Syllabus approved by the court.]
    Error to Muskingum common pleas court.
    A. A. George, for plaintiff in error:
    Cited and commented upon the following authorities. Ammon v. .Johnson, 2 Circ. Dec. 149 (3 R. 263) ; 1 Kinkead, Code Pleadings 742; Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dec. 55]; Van Hagan, Ex parte, 25 Ohio £>t. 426; McGehan, Ex parte, 22 Ohio St. 442; McAdams, In re, 11 Circ. Dec. 780 (21 R. 450) ; Madden v. Smelts, 1 Circ. Dec. 424 (2 R. 168); Haines v. Baihvay, 40 Ohio St. 95; Herig v. Nougaret, 7 Ohio St. 480; Rev. Stat. 5738 (Lan. 9275) ; Bird v. Cincinnati, 9 Dec. Re. 301 (12 Bull. 101) ; Dillon v. State, 38 Ohio St. 586; Rev. Stat. •5741 (Lan. 9278); 95 O. L. 88 (Rev. Stat. 4364-20b; Lan. 7274); Larney v. Cleveland, 34 Ohio St. 599; InwoodF. State, 42 Ohio St. 186; Fletcher v. State, 7 Circ. Dec. 316 (18 R. 674) ; Beall, In re, 26 Ohio :St. 195; Rev. Stat. 2107e (1), 6801a, 6801b (Lan. 3443, 10395, 10396) ; Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. •472]; 2 Am. & Eng. Enc. Law (1 ed.) 11, note 1; Lee v. State, 32 Ohio St. 113; 20 Am. & Eng. Enc. Law (1 ed.) 495; Henderson v. James, ■52 Ohio St. 242 [39 N. E. Rep. 805; 27 L. R. A. 290]; Rev. Stat. 5729 (Lan. 9266) ; State v. Hamilton, 2 Circ. Dec. 6 (3 R. 10) ; Mosler, In re, 4 Circ. Dec. 82. (8 R. 324) ; Gibson, Ex parte, 31 Cal. 619 [91 Am. Dec. 546]; 9 Am. & Eng. Enc. of Law (1 ed.) 201; Spelling, Extra Leg. Rem. See. 1217.
    Winn & Bassett, for defendant in error:
    Cited and commented upon the following authorities. Rev. Stat. 5726, 5728, 5738 (Lan. 9262, 9265, 9275); Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. 472]; George, In re, 3 Gh-e. Dec. 104 (5 R. 207) ; Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dee. 55] Prescott y. State. 19 Ohio, St. 184 [2 Am. Rep. 388]; Kruse, In re, 13 Dec. Re. 775 (2 C. S. C. 71) ; Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197, 204; Collier, In re, 6 Ohio St. 55; McKnight, Ex parte, 48 Ohio St. 588 [28 N. E. Rep. 1034; 14 L. R. A. 128]; Knapp y. Thomasf 39 Ohio St. 377; Spoors v. Coen, 44 Ohio St. 497 [9 N. E. Rep. 132] ; Smith v. Perry, S Circ. Dee. 778 (18 R. 826) ; Moore, In re, 7 Circ. Dec. 575 (14 R. 237) ; Lee v. State, 32 Ohio St. 113; Bates y. Slate, 63 Ohio-St. 11 [57 N. E. Rep. 957]; Hateas Corpus, In re, 5 Dec. 571 (7 N. P. 604) ; Libty y. Nicola, 21 Ohio St. 414; Ammon v. Johnson, 2 Circ. Dec. 149 (3 R. 263).
   DONAHUE, J.

The ease of Lillibridge v. Ohio, ex rel. Stewart, is a proceeding in error growing out of an action in habeas corpus, brought by the relator to recover his liberty, claiming that he was unlawfully restrained by the defendant, Lillibridge, superintendent of the workhouse. The contention is, that the court below erred in the admission of evidence and in its general finding in favor of and discharging the relator.

We think there was error in the admission of evidence. There is no question that evidence may be heard de hors the record to show the jurisdiction of the court undertaking to make the commitment, but when that jurisdiction is once established — when it appears that the court was clothed with jurisdiction — then the record of that court must determine what was done. It is not possible to determine by evidence aliunde what was done in a court of record for the purpose of review in another court; but if the record does not contain all the proceedings, there is a clear remedy to compel that court to make its record state the truth. If, as claimed here, there was a suspension of sentence and the docket of the mayor does not show that suspension, mandamus would lie to compel a correction of' such record, and any court having’ juris- ' diction of such action will hear evidence to determine the truth. And if there was an ex parte hearing setting aside that suspension, the record ought to show that fact. Then it would be a question of error and not of habeas corpus. If the court having jurisdiction of a cause proceeds irregularly or erroneously error should be prosecuted, but the records in habeas corpus or in a collateral proceeding are binding. Courts cannot consider what ought to be in a record, or what might be in a record, ■but only what is in a record. It was perfectly proper to introduce not •only the writ of commitment, the mittimus, but it was also proper to in-trocmce the record of the court below; and if that established jurisdiction ij. the tribunal trying that cause, it was not proper to introduce other evidence to show what the record ought to have contained. The record speaks for itself and imports absolute verity until it is corrected in a proper proceeding for that purpose. i

We think that the record of the mayor showed that he had jurisdiction. If all that is contended for on the part of the other side is', true, then it was irregularly, or erroneously exercised, and that is the.most that «an be said of it. That being true, the way to correct it was. by a proceeding in error, and while it may be said that error would not-appear upon the record as it now reads, it was his right and privilege^ to have it corrected in a proper proceeding so that error might be prosecuted thereto.

The judgment of the court of common pleas will be reversed and judgment entered here that should have been entered there, remanding the prisoner into the custody of the superintendent of the workhouse. Exceptions noted.

McCarty and Taggart, JJ., concur.


author: OIFFEN, J.

text:
    DAMAGES — PLEADING—MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    March 31, 1906.]
    Jelke, Swing and Giffen, JJ.
    John Kauffman Brewing Co. v. Joseph Betz.
    1. New Statement of Manner in which Injuries Inflicted does not State New Cause of Action.
    An amendment to a petition does not state a new and different cause of action, where in both the amended and original petition the object sought is the recovery of damages for the same personal injuries, the variation being only as to the precise manner in which the injuries were inflicted.

      2. Suit fob Personal Injuries Included in Liabilities Assumed under Contract between Receiver and Company to whom he Turns Over the Business.
    Where a receiver turns over to the company owning it the plant and assets in his hands, upon the condition that all contracts and liabilities incurred by, or incumbent on, him as receiver shall be assumed by the company, a claim on which suit has been brought against him as receiver for damages for personal injuries is included therein, and the plaintiff in the suit mentioned may maintain his action against the company.
    3. One under the Authority of One Foreman may Recover for Injuries Sustained in Carrying out Another’s Orders.
    A special finding by the jury ti the effect that the plaintiff was under the control of a foreman who is named, does not entitle the defendant to a judgment on the ground that the accident happened in a different department, where the testimony shows that at the time of the accident the plaintiff’s duties had taken him into another department and under the control, for the time being, of the foreman of that department, 'and that plaintiff, at the time when he was first employed, had been told to obey the orders of the latter foreman.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    Worthington & Strong and Renner & Renner, for plaintiff in error.
    Horstman & Horstman, for defendant in error:
    • As to abuse of discretion in allowing amendment. Daley v. Gates, 65 Vt. 591 [27 Atl. Rep. 193]; Maxwell v. Harrison, 8 Ga. 61 [52 Am. Dec. 385]; Stevenson v. Mudgett, 10 N. H. 338 [34 Am. Dec. 155]; Strong v. State, 75 Ind. 440; Ball v. Claflin, 22 Mass. (5 Pick.) 303 [16 Am. Dec. 407]; Smith v. Palmer, 60 Mass. (6 Cush.) 513; Kuhns y. Railway, 76 la. 67 [40 N. "W. Rep. 92]; Hunt v. Gaylor, 25 Obio St. 620; Chicago, St. L. & P. Ry. y. Bills, 118 Ind. 221 [20 N. E. Rep. 775]; Beers v. Iron Works, 30 Conn. 308.
    Liabilities assumed. Wood v. Currey, 57 Cal. 208; Lattin v. Gillette, 95 Cal. 317 [30 Pac. Rep. 545 ; 29 Am. St. Rep. 115]; McElfresh v. Kirhendall, 36 la. 224; Joslin v. Car Spring Co. 36 N. J. L. 141;
      Choate v. Quinichett, 68 Tenn. 427; Harris v. Hutcheson, 65 Miss. 9 [3 So. Rep. 34]; Gordon v. Gibbs, 11 Miss. (3 Smed. & M.) 473; 18 Am. & Eng. Ene. Law (2 ed.) 846; Pittsburgh Melting Co. v. Beese, 118 Pa. St. 355 [12 Atl. Rep. 362]. .
    Authorities as to liability of master. Brown Oil Can Co. v. Green, 12 Cire. Dee. 510 (22' R. 518); Van Huzen Gas & Gasoline Engine Co.v. Schelies, 61 Ohio St. 293 [55 N. E. Rep. 998]; Kracht v. Bailway, 25 O. C. C. 521; Connors v. Golding, 10 Dec. 614 (8 N. P. 600) ; affirmed, Golding v. Connors, 53 Ohio St. 647; Toomey v. Stamping Coll Gire. Dee 216 (20 R. 183); Lake Shore & M. S. By. v. Feller, 11 Cire. Dee. 799 (21 R. 605); Missouri, K. & T. By. v. Walden, 27 Tex. Civ. App. 567 [66 S. W. Rep. 584]; Gulf, C. & S. F. By. v. Hayden, 29 Tex. Civ. App. 280 [68 S. W. Rep. 530]; 4 Thompson, Negligence Secs. 3814, 4021, 4034, 4055, 463b, 4631, 4642, 4648, 4676; Orman v. Mannix, 17 Colo. 564 [30 Pae. Rep. 1037; 17 L. R. A. 602; 31 Am. St. Rep. 340]; Louisville,'N. A. & C. By. v. Graham, 124 Ind. 89 [24 N. E. Rep. 668]; Erickson v. Bailway, 83 Mich. 281 [47 N. W. Rep. 237]; Wilcox & G. Sewing Machine Co. v. Hines, 70 N. Y. St. Rep.. 368 [35 N. Y. Supp. 861]; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449]; Jones v. Cotton Mills, 82 Ya. 140 [3 Am. St. Rep. 92]; Dolese v. Schultz, 101 Ill. App. 569Muller v. McKesson, 73 N. Y. 196; Frank v. Bullion Beck & C. Min. Co. 19 Utah 35 [56 Pae. Rep. 419]; Hass v. Bailway, 97 Ill. App. 624; Wabash W. By. v. Morgan, 132 Ind. 430 [31 N. E. Rep. 661]; Stucke v. Bailway, 50 La. Ann. 172 [23 So. Rep. 342]; Smith v. Powell Co. 10 Dec. Re. 799 (23 Bull. 436); Lake Erie <& W. By. v. Mulcahy, 9 Cire. Dec. 82 (16 R. 204); Berea Stone Co. v. Kraft, 31 Ohio St. 287; Baltimore & O. By. v. Sutherland, 4 Cire. Dec. 115 (12 R. 309) ; Wainright v. Bailway, 11 Cire. Dee. 530 (21 R. 267) ; Bailey, Mas. & Serv. Ill, 112; Pullman Palace Car Co. v. Laack, 143 Ill. 242 [32 N. E. Rep. 285; 18 L. R. A. 215]; Galveston, H. & S. A. By. v. Garrett, 73 Tex. 262 [13 S. W. Rep. 62; 15 Am. St. Rep. 781]; Highland Ave. & B. By. v. Walters, 91 Ala. 435 [8 So. Rep. 357]; 1 Shearman & Redfield, ‘ Negligence Sec. 203; Ferren v. Bailway, 143 Mass. 197 [9 N. E. Rep. 608]; 'Motey v. Marble & Granite Co. 74 Fed. Rep. 155 [20 C. C. A. 366; 36 U. S. App. 682] ; Louisville <& N. By. v. Miller, 104 Fed. Rep. 124 [43 C. C. A. 436]; Wheeler v. Manufacturing Co. 135 Mass. 294.
   OIFFEN, J.

The plaintiff below,- Joseph Betz, brought an action against the John Kauffman Brewing Company to recover damages for a personal injury received while in the employ of Frank H. Shaffer, as receiver of the brewing company. The accident occurred while the plaintiff was assisting in removing an obstruction to the free operation of a freight elevator used for carrying materials between the washhouse on the ground floor and the second cellar below. The negligence charged in the. petition was the faulty construction and want of repair of the elevator.

It is further averred, in substance, that on the second day of October, 1901, an action was commenced against the receiver to recover damages for such injury, and that in April, 1902, in the cause in this court, wherein a receiver was appointed, he filed his account, which was approved by the court and he was ordered to transfer to the brewing company all assets in his hands, on the condition that said company assume all contracts and liabilities then incumbent upon the receiver. Thereupon he transferred to the company all assets, and the company in open court assumed all liabilities, the receiver being discharged and the brewing company giving bond to the receiver to indemnify him and his bondsmen from all liability incurred by him in carrying on the business which might not yet have become due and liquidated and assuming the liability of the receiver to this plaintiff as aforesaid; and that said action commenced by this plaintiff against the receiver was thereupon dismissed without prejudice to the commencement of another action.

After the jury was impaneled, the plaintiff with leave of court and against the objection of defendant, filed an amendment to his petition in which he avers that a superior servant of the receiver ordered him to go from the wash room into the cellar where the obstruction to the elevator existed, and assist in removing it; that while attempting to do so, such superior servant carelessly caused the elevator to be moved whereby the plaintiff was thrown from the first cellar to the floor in the second cellar, from which he sustained the injuries complained of.

Defendant by answer denies all allegations of negligence or carelessness contained in the petition and amendment thereto, and avers that the injuries resulted solely from the negligence and want of proper care of the plaintiff and contributing directly thereto.

The first alleged error is the allowance by the court of the filing of the amendment to the petition, the claim being that it states a new and different cause of action. In each of the pleadings, the object sought is the recovery of damages for the same personal injuries. The precise manner in which the injuries were inflicted, whether through defects of the elevator or the negligence of a superior servant, each being imputed to the receiver,' was of secondary importance. In the case of Spice v. Steinruck, 14 Ohio St. 213, the first proposition of the syllabus is as follows:

“The restriction upon amendments in Sec. 137 of the code, that the proposed amendment ‘must not change substantially the claim or ■defense’ does not refer to the form of the remedy, but to the general identity of the transaction forming the cause of complaint. Therefore,
“2. Where the original petition demanded damages for a wrongful arrest, under an order issued by a justice of the peace, containing averments making a case of malicious prosecution, an amendment, striking out the averment of ‘want of probable cause,’ and alleging that the same arrest was made ‘illegally and with force,’ may be allowed, if it conform the pleading to the proof, upon such terms as may appear proper and just to the court.”

If such an amendment may be made by conforming the pleading to the facts proved, with much greater reason should it be allowed before the ease is tried, and especially under that general clause of Rev. Stat. 5114 (Lan. 8629), which permits an amendment “by inserting •other allegations material to the ease.” There was no error in permitting the amendment to be filed.

The next alleged error is the refusal of the court to direct the verdict in favor of the defendant when the plaintiff rested his ease.

It is claimed that the brewing company did not assume the plaintiff’s > claim for damages against the receiver. The entry confirming the final •account of the receiver contains the following:

“And it further appearing that all creditors of the Kauffman Brewing Company, who have an interest in the funds in the hands of said receiver have been fully paid and satisfied, except the following: Bernard Bing, $998.14; S. B. Bing Soehne, $1,074.71; Crystal Lake Ice Co., $8.77; L. A. Greiner & Co., $2.16; W. P. McLaughlin, $3.45, and H. Schile & Sons, $66.22, it is ordered that a special deposit of an amount sufficient to pay said claims be made in the Atlas National Bank out of which said claims shall be paid when presented for payment.
“It is further ordered that a bond in the sum of $15,000 with sufficient sureties to the satisfaction of said Frank H. Shaffer be given by the John Kauffman Brewing Company, to indemnify said Frank H. Shaffer and his bondsmen from all liability incurred by him in carrying on the business which may n,ot have become due or been liquidated.
“All of which have accordingly been done and all fees and charges of the receiver and his counsel having been paid in full it is now ordered that said receiver transfer and assign to the said the John Kauffman Brewing Company all assets' of the trust now in Ms bands on condition that said company assume all contracts and liabilities now incumbent upon said Frank H. Shaffer as said receiver, incurred by him in the administration of the trust. And thereupon said receiver in open court formally transferred to said company all said assets and said company assumed all of said liabilities. ’ ’

Some contention is made that the words “contracts and liabilities’’ are not broad enough to include the claim for damages or a suit for tort, but we think they include any obligation which the receiver might assume or be subject to in the administration of the trust, and liabilities other than contracts would naturally include a claim such as that of the plaintiff.

It is urged, however, that the plaintiff not being in privity with either the brewing company or the receiver, cannot avail himself of the agreement between the brewing company and the receiver. It has repeatedly been held in this state that if one person upon a sufficient consideration make a promise to another for the benefit of a third person, such third person may maintain an action at law upon the promise. Nor need he be named, especially, as the person to whom the money is to be paid. Counsel cite us to the case of Cin. H. & D. Ry. v. Bank, 54 Ohio St. 60, 69 [42 N. E Rep. 700; 31 L. R. A. 653; 56 Am. St. Rep. 700], where Spear, J., says, in commenting upon the case of Emmitt v. Brophy, 42 Ohio St. 82:

“No one of the cases cited carries the doctrine further than the foregoing. In no one of them is it held that a right to sue in a stranger can be raised by mere implication. Nowhere is it held that the obligation will attach in favor of future creditors not '.named and not known, and as to amounts not specified or then ascertainable, to the extent of giving to such creditors a right of. action on the contract. ’ ’

The meaning of this evidently is, that if a creditor is not named, and not known, and the amount of his claim is not specified or then ascertainable, the parties to the agreement could not have had in contemplation such a creditor or his claim; or, in other words, that the agreement discloses no such intention.

In this case, the plaintiff, although not named, is known to have a pending suit against the receiver for the same cause of action stated in the petition in this case, and although the amount which the court or the jury may award is not then ascertainable, the identity of the claim and the maximum amount which may be recovered was fixed by the petition in the suit pending against the receiver. When we consider that all the creditors had been fully paid or provided for by a. deposit in tbe bank, it is not unreasonable to conclude tbat tbe parties bad in contemplation this very claim among others although tbe amount of tbe bond executed is $10,000 less than tbe amount prayed for in tbe petition. A case in many respects like this one, is'that of Ryan v. Hays, 62 Tex. 42, in which tbe eighth paragraph of the syllabus is as follows:

“The resolution of the directors, providing for an indemnifying bond to the receiver, inured to the benefit of anyone contemplated by it, having a just debt or claim against the receiver as such, or personally. ’ ’

If the plaintiff had prosecuted his suit against the receiver to final judgment, it could be satisfied only out of the funds in his hands as directed by the court appointing him, unless he was personally at fault. Murphy v. Holbrook, 20 Ohio St. 137 [5 Am. Rep. 633]. Nor would he be subject to any liability after his discharge. It seems, therefore, that the court instead of reserving jurisdiction over enough of the funds to satisfy any existing claims, authorized the execution of the bond and the release of the assets upon the understanding that whatever judgment might be obtained would be paid by the brewing company, or on default, a resort might be had to the bond. The motion to instruct the jury to return a verdict for the defendant was properly overruled.

The next error assigned is the refusal to enter judgment in favor of the defendant on the special finding of fact made by the jury in answer to interrogatories submitted to them, and especially upon the first, which is as follows:

“Was the plaintiff at the time he was injured a cellar man, and under the authority and control of Wendelin Ludwig as cellar boss or foreman ?
“Answer. Yes.”

The amended petition contains the averment that the accident happened by reason of the negligence of Charles Roehrig, foreman in the wash room, and the uncontradicted testimony is, that plaintiff, when employed by John Kauffman, the general superintendent in the brewery, was directed and commanded to obey the orders of Charles Roehrig, and that such authority was never withdrawn except as may be implied from the fact that the plaintiff was transferred from the wash room to the cellar, where Ludwig was boss. But the duties of the plaintiff required him to transfer chips, via the elevator, from the cellar to the wash room,, and after washing the same to return them to the cellar; he necessarily, therefore, came in contact with the cellar boss and the ¡boss of the wash room, and it is not unreasonable to assume that the jury may have found that the plaintiff, while in the wash room, was under the authority and control of the foreman of that department, although .they found that at the time of the accident Roehrig, the cellar boss, also had authority and control over him. The motion was properly overruled.

Another ground of error is, that the court refused to allow its written general charge to be taken by the jury to the jury room. It appears that the court was not requested to reduce this general charge to writing, as provided by Rev. Stat. 5190 (Lan. 8699), but that it was done for the convenience and protection of the court itself, and, therefore, was not such a written charge as the section requires to be taken by the jurors in their retirement.

We have considered the objections to the general charge am* the special charges given at the instance of the plaintiff, and the refusal to give certain special instructions at the request of the defendant; and also the admission of certain evidence on behalf of Betz, and objected to by the brewing company, and our conclusion is, that no substantial error has intervened prejudicial' to the rights of the defendant, and the judgment will be affirmed.


author: MARVIN, J.

text:
    GAMBLING — PARTIES.
    [Cuyahoga (8th) Circuit Court,
    January 19, 1906.]
    Marvin, Winch and Henry, JJ.
    Ella M. Pentz v. George H. Burrowes.
    Recovery op Money Lost at Gambling — May Join as Dependants Owner op Gambling Business, his Landlord, and the Assignee eor the Benefit op his Creditors.
    A party suing to recover money lost in gambling may unite in one petition the causes of action against the, gambling firm to whom the money was lost, and against the proprietor of the building in which the gambling business was conducted, as a principal under Rev. Stat. 4276 (Lan. 7052), and also a cause of action against the assignee for the benefit of the creditors of the gambling firm for allowance of the claim for the money so lost, which claim had been rejected by the assignee.
    [Syllabus approved by the court.]
    Eeror to Cuyahoga common pleas court.
    H. M. Bull and W. C. Rogers, for plaintiff in error:
    Statutes cited and construed. Revised Statutes 4269, 4270, 4271, 4272, 4276, 5006, 5058, 6352 (Lan. 7045, 7046, 7047. 7048, 7052. 8521, 8573, 9928).

      ■Whether plaintiff in one action may recover judgment against a partnership and for allowance against the assignee. Green & Kelley’s Ohio Practice 18, 27, 40, 62, 123 et seq., citing Neilson v. Fry, 16 Ohio St. 552 [91 Am. Dee. 110]; Jones v. Timmons, 21 Ohio St. 596; Bethel v- Woochvorth, 11 Ohio St. 393; Dixon v. Caldwell, 15 Ohio St. 412 [86 Am. Dec. 487]; O’Neal v. Blessing, 34 Ohio St. 33; Lamson v. ■Pfaff, 12 Dee. Re. 231 (1 Han. 449) ; Finnell v. Burt, 12 Dec. Re. 403 (2 Han. 202) ; Morgan v. Spangler, 20 Ohio St. 38; Penn v. Hayward, 14 Ohio St. 302; Mains v. Henlde, 2 Dec. Re. 530 ( 3 Mo. 593) ; Allen v. Miller, 11 Ohio , St. 374; Irvin v. Smith, 17 Ohio 226; Trimble v. BootJiby, 14 Ohio 109 [45 Am. Dec. 526] ; Taylor v. Exporting Co. 5 Ohio 162 [22 Am. Dec. 785] ; Campbell v. Watson, 8 Ohio 498; Hyde v. Kelley, 10 Ohio 215; Piatt v. .St. Clair, 5 Ohio 555; Gary v. May, 16 Ohio 66; Sockman v. Sockman, 18 Ohio 362; Massie v. Donaldson, 8 Ohio 377; Negley v. Gard, 20 Ohio 310; Reynolds v. Stark Co. (Comrs.) 5 Ohio 204; Talmadgé v. Boad Co. 11 Ohio 197; Gildersleeve v. Burrows, 24 Ohio St. 204; Morgan v. Spangler, 20 Ohio St. 38; Harrison v. King, 9 Ohio St. 388; Ward v. Howard, 12 Ohio St. 158; King v. Nichols, 16 Ohio St. 80; Sprague v. Childs, 16 Ohio St. 107; Badger v. Benedict, 4 Abb. Pr. 176; Sturges v. Burton, 8 Ohio St. 215 [72 Am. Dec. 582]; See v. Partridge, 2 Duer 463; Turner v. Frost, 2 Dec. Re. 477 (3 W. L. M. 213) ; Getty v. Railway, 6 How. Pr. 269; Corbin v. Bouve, 13 Dec. Re. 537 (1 Cin. 259) ; Byers v. Rivers, 3 Dec. Re. 231 (5 Gaz. 37) ; Adams v. Bissell, 28 Barb. 382; Hunter, In re, 6 Ohio 499; Smith v. Jones, 15 Johns. 229; Bendernagle v. Cocks, 19 Wend. 207; Badger v. Titcomb, 22 Mass. (15 Pick.) 409 [26 Am. Dec. 611]; Farrington v. Payne, 15 Johns. 432; Hite v. Long, 27 Va. (6 Rand.) 457; Howe v. Peckham, 10 Barb. 656; Howe v. Peckham, 6 Plow. Pr. 229; Ferguson v. Gilbert, 16 Ohio St. 88; Fox v. Railway, 12 Dec. Re. 386 (2 Han. 169) ; Sturges v. Burton, 8 Ohio St. 215 [72 Am. Dec. 582] ; Sianbery v. Smyihe, 13 Ohio St. 495; Owen v. Miller, 10 Ohio St. 136 [75 Am. Dec. 502] ; Moore v. Smith, 10 How. Pr. 361; Corning v. Iron (& Nail Factory, 40 N. Y. 191; Latiin v. McCarty, 41 N. Y. 107; Philips v. Gorham, 17 N. Y. 270; Clippenger v. Ross, 2 Dec. Re. 562 (3 W. L. M. 645); McCarthy v. Garraghty, 10 Ohio St. 438; Howard w. Powers, 6 Ohio 92; Wilcox v. McCoy, 21 Ohio St. 656; Hall v. Pailway, 12 Dec. Re. 485 (1 Disn. 58) ; Myers v. Miller, 2 Dee. Re. 319 (2 W. L. M. 420) ; Globe Ins. Co. v. Boyle, 21 Ohio St. 119; Jeroliman v. Cohen, 1 Duer 629; Maxwell v. Farnam, 7 How. Pr. 326; Cahoon v. Banlt, 7 N. Y. (3 Seld.) 486; Badger v. Benedict, 4 Abb. Pr. 176; Badger v. Benedict, 1 Hilt. 414; Palen v. BushnclI. 46 Barb. 24; Palen v. Bushnell, 18 Abb. Pr. 301; Tompkins v. White, 8 How. Pr. 520; Vermeule v. Beck, 15 How. Pr. 333; Marion Dep. Bank v. McWilliams, 2 Dec. Re. 142 (1 W. L. M. 571) ; Barnes v. Smith, 1 Robb. 699; Barnes v. Smith, 16 Abb. Pr. 420; Henshaw v. Noble, 7 Obio St. 226; Hathaivay v. Bailway, 2 Dec. Re. 349 (2 W. L. M. 481); Chinn v. Trustees, 32 Obio St. 236; Davis v. Morris, 36 N. Y. 569; Pennsylvania Coal Co. v. Canal Co. 1 Keyes 72; Davis v. Morris, 35 Barb. 227; Mann v. Fairchild, 2 Keyes 106; Finnell v. Burt, 12 Dee. Re. 403 (2 Han. 202) ; Rowland v. Entrekin, 27 Obio St. 47 - Ellsworth v. Holcomb, 28 Obio St. 66; Willyard v. Hamilton, 7 Ohio (pt. 2) 111 [30 Am. Dec. 195]; Norton v. McLeary, 8 Ohio St. 205; Carlisle v. Foster, 10 Ohio St. 198; Ellithorpe v. Buck, 17 Ohio St. 72; McCrory v. Parks, 18 Obio St. 1; Corry v. Gaynor, 21 Ohio St. 277.
    Further authorities cited and commented upon. Clapp v. Banking Co. 50 Ohio St. 528 [35 N. E. Rep. 308]; Holland v. Drake, 29 Ohio St. 441; Wrightson v. Bettinger, 1 Circ. Dec. 543 (2 R. 381) ; Herbert v. Building & Dep. Assn. 6 Circ. Dec. 814 (18 R. 881) ; Mauk v-Brundage, 68 Ohio St. 89 [67 N. E. Rep. 152] ; Globe Ins. Co. v. Boyle, 21 Ohio St. 119; Burgoyne v. Insurance & Tr. Co. 5 Ohio St. 586; Ladd v. James, 10 Ohio St. 437; Chapman v. Lee, 45 Ohio St. 356 [13 N. E. Rep. 736]; Buckner v. Mear, 26 Ohio St. 514; Brundridge v. Goodlove, 30 Ohio St. 374; Bugh v. Sturgeon, 41 Ohio St. 402; Turner v. Frost, 2 Dee. Re. 477 (3 W. L. M. 213) ; Smock v. Bouse, 5 Circ. Dee. 293 (12 R. 46); Weil v. Guerin, 42 Ohio St. 299; Whittaker Annotated Ohio Code (6 ed.) 232, 233, and following; Moore v. Ogden, 35 Ohio St. 430; 1 Bates, Pleading 198-203.
    O. H. Burrows, for defendant in error:
    Recovery of money lost at gaming. Revised Statutes 4270, 4271,. 4273, 4274, 4275, 4276, 4983 (Lan. 7046, 7047, 7049, 7050, 7051, 7052, 8498).
    Sections of the Revised Statutes of Ohio pertaining to bucket shops; and gaming. Revised Statutes 6934a, 6934a-4, 6934a-5 (Lan. 10580, 10581, 10582).
    Statutes of limitations penal one year. Deaver v. Bennett, 29» Neb. 812 [46 N. W. Rep. 161; 26 Am. St. Rep. 415]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Cooper v. Rowley, 29 Ohio St-547 ; Hoss v. Layton, 3 Ohio St. 352; Raguet v. Roll, 7 Ohio (pt. 1) 77; Goudy v. Gebhart, 1 Ohio St. 262; Trout v. Marvin, 62 Ohio St. 132 [56 N. E. Rep. 655]; Trout v. Marvin,- 24 O. C. C. 333; Burrell, Assignments 263; Estill v. Fox, 23 Ky. 552 [18 Am. Dec. 213]; Marvin v. Trout, 70 Ohio St. 437 [72 N. E. Rep. 1161]'; White v. Barber, 123 U. S. 392 [8 Sup. Ct. Rep. 221; 31 L. Ed. 243]; Pomeroy, Code Rem. See. 145, 146, 147; Fite v. Lander, 52 N. C. (7 Jones) 247; >Governor w. McManus, 30 Tenn. (11 Humph.) 152.
    Prosecution qui tarn. Benson v. Fgerton, Brayt. (Vt.) 21; Davis •v. Bint, Car. & P. 438n-441n; Moore v. Jones, 23 Vt. 739; Danner v. Brewer, 69 Ala. 191; Branden v. Pate, 2 H. Bl. 308; Káhn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203],
    In equity he who is least guilty must suffer least, the creditors stand in the position of innocent purchasers as against the losers. Lester v. Buel, 49 Ohio St. 240 [30 N. E. Rep. 821; 34 Am. St. Rep. ■556]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Cooper w. Bowley, 29 Ohio St. 547; Boss v. Layton, 3 Ohio St. 352; Baguet v. Boll, 7 Ohio (pt. 3) 76; Qoudy v. Gebhart, 1 Ohio St. 262; Babcock v. Thompson, (20 Mass.) 3 Pick. 446 [15 Am. Dec. 235].
    Penal statute. Cooper v. Bowley, 29 Ohio St. 547; Trout v. Marvin, 62 Ohio St. 132 [56 N. E. Rep. 655]; Hoss v. Layton, 3 Ohio St. 352.
    Action being penal cannot be directed against a copartnership. Babcock v. Thompson, 20 Mass. (3 Pick.) 446 [15 Am. Dec. 235]; Meech v. Stoner, 19 N. V. 26; Nichol v. Batton, (11 Tenn.) 3 Yerg. 469; Samuels v. Ainsworth, 13 Ala. 366; Cooper v. Bowley, 29 Ohio St. 547; Davis v. Bint, 1 Carr. & P. 438n and 441n; Trotit v. Marvin, 62 Ohio St. 132 [56 N. E. Rep. 655],
    An unliquidated claim for damages is. not provable against an assigned estate in the hands of an assignee. Danner v. Brewer, 69 Ala. 191; Burrill, Assignments 263; Beecher Bros, In re, 15. Am. Bankr. Rep. 228.
    Contract qui tarn. Zinn v. Bitterman, 2 Abb. Pr. (N. S.) 261; Fstill v. Fox, 23 Ky. 552 [18 Am. Dee. 213]; Cooper v. Bowley, 29 Ohio St. 547; Trout v. Marvin, 24 O. C. C. 333; Marvin v. Trout, 70 Ohio St. 437 [72 N. E. Rep. 1161] ; Pomeroy, Code Rem. Sec. 145, 146, 147; Willis y. Byrne, 106 Ala. 425 [17 So. Rep. 332]; Estis v. Lenox, 1 N. C. 72; Yarter v. Flagg, 143 Mass. 280 [9 N. E. Rep. 649]; Beed r. Cist, 7 Serg. & R. 184; Governor v. McManus, 30 Tenn. (11 Humph.) 152; Benson v. Egerton, Brayt. (Vt.) 21; State v. Schuenemann, 18 Tes. Civ. App. 485 [46 S. W. Rep. 260]; Fite v. Lander, 52 N. C. 247; Cooper v. Bowley, 29 Ohio St. 547; White v. Barber, 123 U. S. 392 [8 Sup. Ct. Rep. 221; 31 L. Ed. 243]; Allen v. Whetstone, 35 La. Ann. 846; Genin v. Isaacson, 6 N. Y. Leg. Obs. 213; Boulstone v. Moore, 10 Dec. Re. 275 (19 Bull. 387) ; Staples v. Gould, 9 N. Y. 520 Staples v. Gould, 5 Sandf. 411; 24 Am. Dig. 1627-1628.
   MARVIN, J.

The parties here are as they, were below. Suit was brought by the plaintiff!' against Frederick J. Johnson ' and others as partners >under the firm name of Johnson, Walther & Co., George B. Burrowes as as-signee of said firm, and Levi T. Schofield.

The petition alleges that Johnson, Walther & Co. carried on a. gambling business in rooms owned and leased to them by said Schofield,, and that said business was so carried on with the full knowledge of said Schofield, ’ who took no steps to recover the premises from said firm; that the plaintiff lost in gambling at said gambling rooms and paid, to said firm on account of such loss the sum of $482.50, that after said loss and payment by her, said Johnson, Walther & Co. made an assignment for the benefit of their creditors, to said Burrowes; that she presented a claim for the money by her lost as aforesaid to-said assignee for allowance, and such claim was rejected by him. She prays for judgment against all the defendants for said sum of $482.50, and that the defendant, Burrowes, be ordered as assignee as aforesaid, to allow her claim as valid.

To this petition Burrowes filed a demurrer, which was sustained,, and the plaintiff, not desiring to amend or plead further against him, final judgment was rendered in his favor. The grounds of demurrer are stated in thes.e words:

“First. There is a misjoinder of parties defendant.
“Second. That separate causes of action against several defendants are improperly joined.
“Third. That the petition does not state facts sufficient to constitute a cause of action against this defendant and in favor of this plaintiff. ’ ’

Recovery is sought against Johnson, .Walther & Co. under provisions of Rev. Stat. 4270 (Lan. 7046) which reads:

“If any person, by playing at any game, ■ or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part 'thereof, to the winner, the person who so loses and pays, or delivers may, at any time within six months next after such loss and payment or delivery, sue for and recover the money or thing of value so lost and paid or delivered, or any part thereof, from the winner thereof, with-costs of suit, .by civil •action founded on this chapter, before any court of competent jurisdiction. ’ ’

Recovery is - sought against Schofield under provision of Rev. Stat. 4276 (Lan. 7052), which reads:

' “"Whenever premises are occupied for gaming or lottery purposes, the lease or agreement under which they are so occupied shall be absolutely void at the instance of the lessor, who may at any time obtain possession by civil action, or by action of forcible detainer before a justice of the peace; and if any person lease premises for gaming or lottery purposes, or knowingly permits them to be used and occupied for such purposes, and fail immediately to prosecute, in good faith, an action or proceeding for the recovery of the premises, such lessor shall be considered in all cases civil and criminal, as a principal in carrying on the business of gaming, or a lottery, in such building. ’ ’

The order for allowance of the claim by Burrowes is sought under the provisions of Rev. Stat. 6352 (Lan. 9928), allowing suit to be brought on claim rejected by assignee, within thirty days of such rejection, the judgment, when claim is found upon trial to be valid, to be that the same be allowed by the assignee.

It is not urged here, and could not successfully be urged, that this petition does not state sufficient facts to entitle the plaintiff to a judgment against the assignee.

Was there, then, a misjoinder of causes, or a misjoinder of defendants ?

Revised Statutes 5058 (Lan. 8573) provides that,

“The plaintiff may unite several causes of action in the same petition” when the same are “(1) The same transaction or (2) transactions connected with the same subject of action.”

By Rev. Stat. 5059 (Lan. 8574') it is provided that,

“The causes of action so united # * * must affect all the parties to the action.”

By Mr. Justice Ingraham, in the case of Robisson v. Flint, 16 How. Pr. 243, this language is used:

“By transaction I understand the whole proceedings, commencing with the negotiation and ending with the performance of the contract,, where the matter in controversy arises out of a contract, and I see no difficulty in carrying out under the present system of pleading, what is the fair meaning of the words used in the 167th section. The answer is only to be a statement of facts showing that upon each count the plaintiff has no right to recover. The judgment, if on both claims,, would only be for so much money, and there is no difficulty now in entering up judgment as formerly, even if the causes are in tort and contract. The only point upon which there would be doubt as to the-proper proceeding, might be as to the execution. In one ease (tort) it might be against the person, in the other against the property. The answer to this is, if the plaintiff thus unites claims, he loses his right to proceed against the body, and must be content with the other execution.”

See, also, Howe v. Peckham, 10 Barb. 656, and Badger v. Benedict, 4 Abb. Pr. 176.

The wrong for which plaintiff in this action seeks a remedy is the loss by her, in gambling, and payment of the money so lost, to Johnson, Walther & Co. Everything depends on this and the liability of each defendant is connected with this subject of action. Failure to establish this transaction on her part will prevent a recovery against any one of the defendants. If she recovers against all, she will have a joint judgment against Johnson, Walther & Co. and Schofield, because, if the allegations of her petition are true, Schofield is, by Rev. Stat. 4276 (Lan. 7052), made a principal with Johnson, Walther & Co. Her judgment against Burrowes will be of a different character, but it arises out of the same transaction, viz., the gambling loss to Johnson, Walther & Co.

The right against Burrowes is different from that against the others, but the cause is the same.

In Pomeroy, Code Rem. (4 ed.) Sec. 454, it is said:

“The cause of action thus defined is plainly different from the remedial right, and from the remedy or relief itself. The remedial right is the consequence, the secondary right which springs into being from the breach of the plaitniff’s primary right by the defendant’s wrong, while the remedy is the consummation or satisfaction of this remedial right. From one cause of action, that is, from one primary right and one delict being a breach thereof, it is possible, and not at all uncommon, that two or more remedial rights may arise) and, therefore, two or more different kinds of relief answering to these separate remedial rights. ’ ’

See, also, Pomery, Code Rem. Sec. 455.

Do the causes of action affect all the parties defendant as required by Rev. Stat. 5059 (Lan. 8574) ? Certainly, all are affected by the transaction out of which all the rights of the plaintiff arise. All are not affected in the same manner, but this is not necessary.

See Pomeroy, Code Rem. Sec. 480, old Sec. 374.

The Ohio authorities cited by counsel have not been here discussed for want of time and because they are familiar to counsel in the case. It is believed that none of them conflict, when carefully considered, with the views herein expressed.

Our conclusion is, that the court erred in sustaining the demurrer of Burrowes and rendering judgment in his favor, and the same is reversed and the case remanded to the court of common pleas.

Winch and Henry, JJ., concur.


author: GIFFEN, J.

text:
    BILL OF EXCEPTIONS — DAMAGES—NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    February 3, 1906.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati Traction Co. v. Darwin Stephens, Admr.
    1. Action foe Wrongful Death of Child — Testimony of Fathee as to Value of Child’s Services Competent.
    In an action for damages on account of tbe wrongful death of a minor child, the testimony of the father as to what the child would probably have been worth to himself and family is competent, after a recital as to the health and capacity of the child, his own resources, etc.

      2. Evidence — Re-examination op Witness as to Peioe Statements Competent to Rebut Recent Fabeication.
    After a cross-examination in which a recent fabrication has been imputed to a witness, a re-examination is competent as to prior statements by the witness.
    '3. CONTRIBUTORY NEGLIGENCE — CHARGE TO THE JUEY.
    In an action against a traction company for causing the death of a child, a charge to the jury that if the direct cause of the death was the negligence of the traction company’s employes, the verdict should be for the plaintiff, and if it was the contributory negligence of the child, the verdict should be for the defendant, will be sustained in the absence of any allegation of contributory negligence in the answer or a request on the part of the defendant to charge that if the negligence of the deceased contributed to the injury there could be no recovery.
    •4. Bill op Exceptions — Signature op Judge is Evidence op Settling' as well as op Allowing.
    Under Rev. Stat. 6302 (Lan. 8816)) as amended, the signature of the judge to a bill of exceptions is evidence of the settling, as well as of the allowing and signing of the bill.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    Outcalt & Foraker and Smith Hickenlooper, for plaintiff in error.
    E. S. Aston, for defendant in error:
    On motion to strike bill of exceptions from files. Revised Statutes 5190, 5301, 5302 (Lan. 8699, 8813, 8816); 97 O. L. 463; 96 O. L. 16; Mudge v. Ba/nk, 56 Kan. 353 [43 Pac. Rep. 255]; Keller v. Lewis, 56 Cal. 466; Adams v. Dohrmann, 63 Cal. 417; Sharon v. Sharon, 79 Cal. 633 [22 Pac. Rep. 26]; Girdner v. Beswick, 69 Cal. 112 [10 Pac. Rep. 278]Richardson v. Eureka, 96 Gal. 443 [31 Pac. Rep. 458]; Montana Lumber & Produce Go. v. Howard, 10 Mont. 296 [25 Pac. Rep. 1024]; Gard v. Stevens, 12 Mich. 9.
    Evidence of damages resulting from death of child. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Ashtabula Bapid Transit Go. v. Dagenbach, 11 C. D. 307; Bajnowski v. Bailway, 74 Mich. 20 [41 N. W. Rep. 847]; Hurst v. Bailway, 84 Mich. 539 [48 N. W. Rep. 44]; Nelson v. Bailway, 104 Mich. 582 [62 N. W. Rep. 993]; Pennsylvania Co. v. Lilly, 73 Ind. 252; Cooley, Torts See. 272 and note.
    Pleading damages in general terms. 2 Kinkead, Code Pleadings 837.
    Admissibility of prior consistent statement generally. 3 Enc. of Ev. 738; Johnson v. Patterson, 9 N. C. 183 [11 Am. Dee. 756]; State v. Parish, 79 N. C. 610; Jones v. Jones, 80 N. C. 246; Lockwood v. Betts, 8 Conn. 130.
    Impeaching credibility of witness. State v. Neverson, 1 Mackey (D. C.) 152; Cooke v. Curtis, 6 Harr. & J. (Md.) 93; Parker v. Gonza-lus, 1 Serg. & R. 147; Wright v. Daklyne, 1 Pet. C. C. 78; State v. Hendricks, 32 Kan. 559 [4 Pac. Rep. 1050]; Brookbank v. State, 55 Ind. 169; Coffin v. Anderson, 4 Blaekf. 395; Dailey v. State, 28 Ind. 285; People v. Vane, 12 Wend. 78; Jackson v. Etz, 5 Cow. 314; State v. George, 8 Ired. (N. C.) 324 -[49 Am. Dec. 392]; Dossett v. Miller, 35 Tenn. (3 Sneed) 72; Lyles v. Lyles, 1 Hill Ch. (S. C.) 76; State v. Dennin, 32 Vt. 158; Commonwealth v. Wilson, 67 Mass. (1 Gray) 337; Henderson v. Jones, 10 Serg. & R. 322 [13 Am. Dec. 676],
    Corroborating credibility of witness. State v. Dudoussat, 47 La, Ann. 977 [17 So. Rep. 685]; Bloomer v. State, 48 Md. 521; Hester v. Commonwealth, 85 Pa: St. 139; Wigmore, Evidence Sec. 1129 and notes; Thompson, Trials Sec. 576; 3 Enc. of Ev. 736; 1 Greenleaf, Evidence (16 ed.) Sec. 469b, par. 5; Starkie, Evidence (10 ed.) Sec. 253; Commonwealth v. Wilson, 67 Mass. (1 Gray) 337; affirmed, Commonwealth v. Jenkins, 76 Mass. (10 Gray) 485; Farrell v. Boston, 161 Mass. 106 [36 N. E: Rep. 751] ; Craig v. Craig, 5 Rawle 91; Zell v. Commonwealth, 94 Pa. St. 258, 273; Baltimore City Pass. By. v. Knee, 83 Md. 77 [34 Atl. Rep. 252],
    Special charges. Bolling Mill Co. v. Corrigan, 46 Ohio St. 283: ■[20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Breckin-ridge v. Beagan, 12 Circ. Dec. 50 (22 R. 71) ; Cincinnati St. By. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276],

      General charges. Cincinnati St. By. v. Snell, 54 Ohio St. 197 [43 N. E-. Rep. 207; 32 L. R. A. 276]; New York, L. E. & W. By. v. Harber, 12 Circ. Dec. 652; Pitts. C. C. & St. L. By. v. Moreland, 12 Circ. Dec. 610; Clev. C. C. & St. L. By. v. Ivins, 12 Circ. Dec. 570.
    Speed of cars. Cincinnati St. By. v. Lewis, 13-23 O. C. C. 127.
    Negligence of children. Cincinnati St. By. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Lake Erie & W. By. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R A. 757; 53 Am. St. Rep. 640]; Cincinnati Trac. Co. v. Blackson, 27 Ohio St. 191; Booth, Street Ry. See. 382, p. 523.
    Persons in dangerous positions. Erie By. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571].
    Damages. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Wolf v. Bailway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812] ; Cleveland, A. & C. By. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602].
    Damages after majority. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300].
    Further citations in reply brief. Cincinnati St. By. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Bajnowski v. Bailway, 74 Mich. 20 [41 N. W. Rep. 847].
   GIFFEN, J.

The original action was commenced to recover damages for the death of Emily Stephens, nine years of age, occasioned through the alleged negligence of the Cincinnati Traction Company, in operating its cars at a crossing in a public highway. The defense, with the exception of certain formal admissions, was a general denial. The jury returned a verdict in favor of the plaintiff, on which judgment was entered.

The first alleged error consists in the admission of the testimony of Darwin Stephens, relative to the amount of damages that would be sustained by next of kin.

After testifying concerning the age, health and capacity of the child to work, the health of his wife, his own resources and other circumstances, he was permitted to state what his deceased daughter would probably have been worth to himself, his wife, and the brothers and sisters. The opinion of the witness, taken in connection with the facts; mentioned, brings it within rules 4 and 5 stated in the case of Railway v. Schultz, 43 Ohio St. 270, 282 [1 N. E. Rep. 324; 54 Am. Rep. 805].

The next alleged error is in permitting the witness, Julia Nicholson, to testify upon re-examination as to her statements before the coroner, •after a cross-examination which imputed to her the recent fabrication ■of statements made by her in the examination; in chief.

In Zell v. Commonwealth, 94 Pa. St. 258, the fourth proposition «of the syllabus is as follows:

“Where an attempt is made to discredit the statement of a witness, evidence is admissible to show that the witness made said statement at another time, to other parties to show that the statement is not a fabrication of recent date, and as bearing on the witness’ credibility.”

In the case of Commonwealth v. Wilson, 67 Mass. 337, the last proposition of the syllabus is as follows:

“A witness, who has been asked on cross-examination when ne was first inquired of by anyone concerning the facts of which he has testified in chief, may be asked on re-examination whether he had previously communicated the same facts to other persons.”

We think there was no error in the re-examination of the witness.

The last alleged error consists in the court charging the jury that If the direct cause of the death of the child was, the negligence of the traction company’s employes, the verdict should be in favor of the plaintiff; if it was the contributory negligence of the child, the verdict should be in favor of the defendant.'

The objection to this charge made by counsel for plaintiff in error is, that a direct cause necessarily implies the only cause, and relies upon the case of Pitts. Ft. W. & C. Ry. v. Krichbaum, 24 Ohio St. 119, where the court say, at page 124:

“The jury was properly instructed: (1) That the plaintiff could not recover, unless it was shown that the defendant was guilty of negligence, and that such negligence ‘caused’ the injury; (2) that the plaintiff could not recover, if the deceased was guilty of negligence or want of care, and ‘that produced’ the injury.
“Neither of these instructions, however, indicated the rule by which the jury should be governed, in case they found the injury to have resulted from combined causes, to wit, the co-operation of negligent conduct on the part of both the defendant and the deceased.”

The charge before us differs, from that one in the use of the word “contributory,” from which the jury may well have inferred that there must be some negligence on the part of the defendant to which the ' negligence of the decedent contributed. But whether that be so or not, the case cited is not applicable to this case, for the reason that the defendant in that ‘case requested the court to instruct the jury that if the negligence o£ tbe deceased contributed to the injury which caused his death, the plaintiff cannot recover although the defendant was guilty of negligence; whereas in this case no such request was made by the defendant nor was there any allegation in the answer of contributory negligence, and the most that defendant could have requested would be, “that if testimony introduced by the plaintiff raised the presumption of contributory negligence, the burden was upon him to remove such presumption.” Not having made any request, and the: charge given being proper insofar as it was given, there was no error. Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1.

Upon the motion to strike the bill of exceptions from the files, for the reason that it is nowhere certified that the bill of. exceptions was settled, although objections thereto have been filed, Rev. Stat. 5302 (Lan. 8816), as amended in 96 O. L. 17, provides:

“It shall not be necessary to cause an entry to be made upon the journal of the court of the settling, allowance and signing of any bill ef exceptions; but the signature of the trial judge, or other judge mentioned in Sec. 5301a [Lan. 8814], allowing, settling, and signing suck bill, shall be sufficient evidence of such fact.”

Under this section we hold that the signature of the judge to the bill of exceptions is evidence of the settling, as well as the allow! and signing of such bill.

The motion will be overruled, and the judgment affirmed.

Jelke and Swing, JJ., concur.