text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1898.)
    Before King, Haynes and Parker, JJ.
    STATE OF OHIO ex rel. JAMES M. CAHOO, v. THE BOARD OF ELECTIONS of the City of Toledo, County of Lucas and State of Ohio, and DAVID H. COMMANGER, MILTON TAYLOR, PARKS HONE AND WILLIAM HARDEE, Members of said Board of Elections.

      Error in statute — Power of court to correct—
    Courts have power to correct errors and mistakes in statutes, but such errors and mistakes must be manifest beyond doubt, either on the face of the act, or when read in connection with other statutes in pari materia.

      Same — Act of March 23, 1898—
    The act of March 23, 1898, “to provide for the organization of Boards of Education in districts of a city of the third grade of the third class,” applies to the city of Toledo and to the board of education of that city. The first section provides “that all boards of education in city districts of the third grade of the first class, snail consist of five members. ” Under the statutes of Ohio there are no “city districts of the third grade of the'first class.” Held, that the section must be read, “that all boards of education in cities of the third grade of the first class, ” as from the title and the other provisions of the act this was clearly the intention of the legislature.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition is filed in this case for a mandamus to compel the board of elections, defendants therein, to place upon the ticket or official ballot to be voted at the election in April, 1898, the name of James M. Cahoo as the candidate of the Republican party for membership of the board of education from the twelfth ward of the city of Toledo. An alternative writ was issued upon that, returnable yesterday morning, and at that time the defendants had filed an answer, in which they admit certain matters and deny others, the question raised being whether a certain act, passed by the general assembly of the state of Ohio, March 23d, 1898, is a valid law binding upon the board of elections of the city of Toledo. The objection of the relator is, that by the terms of said act the law is not applicable to the city of Toledo, and is not binding upon the board of elections of this county. The act is entitled: “An Act to provide for the reorganization of boards of education in districts of a city of the third grade of the first class’’, and the first section provides: •

“That all boards of education in city districts of the third grade of the first blass shall consist of five members, all of whom shall be elected by the qualified electors for school purposes residing in such city, and such - board shall meet on the first and third Mondays of each month during the school year, and it may hold such special meetings as it may deem necessary.-’

In order to arrive at a better knowledge of the laws relating to school districts and municipal corporations, I will briefly refer, first, to sec. 3885,Revised Statutes, where it is-provided:

“The state is hereby divided into school districts to be-styled respectively city districts of the first grade of the-first class, city districts of the second grade of the first class, city districts of the first class, city districts of the second class, village districts, special districts, and township districts. ’ ’

Section 3886, of the Revised Statutes, provides that:

“Each city having a population of ten thousand or more,, including the territory attached to it for school purposes,. .■and excluding the territory within its corporate limits detached for school purposes, shall constitute a school district, ■to be styled a city district of the first class; and each district that has heretofore been constituted a city district of the first class shall remain such.”

Section 3887 provides as follows:

‘‘Each city of the second class having a population of less than ten thousand by the last preceding census, including the territory within its. corporate limits attached for school purposes, shall constitute a school district, to be styled a city district of the second class.”

And then provision is made for the other districts.

In regard to municipal corporations, sec. 1546 provides, in regard to classification, as follows:

‘‘Municipal corporation^ are divided into cities, villages and hamlets; cities are divided into two classes, first and second; cities of the first class are’divided into three grades, first, second and third. ”

Section 1547 provides in regard to population of cities of ihe first class, and, among other things:

‘‘Those which on the first day of July last, had, and those ■which hereafter on the first day of July in any year, have, according to an official report or abstract of the then next -preceding federal census, more than two hundred thousand inhabitants, shall constitute the first grade; those which on the first day of July last had, and those which hereafter, •on the first day of July, in any year, have, when ascertained in the same way, more than ninety thousand and less than two hundred thousand inhabitants, shall constitute the -second grade; and those which on the first day of July, had, and those which thereafter on the first day of July in any year, have, when ascertained in the same way, more than thirty-one thousand five hundred and less than ninety thous- and inhabitants shall constitute the ifbird grade.”

It is admitted here that the city of Toledo has a population of more than ten thousand, and has had for a long time, ■and it therefore comes within the classification of a school district to be styled a city district, and in fact has been so for many years. In regard to the grade of municipal corporation, it is now, and has been for many years, a city of the third grade of the first class. It is practically admitted here (and if not admitted, it would be apparent) that this act when it provides for districts of the third grade of the first class, does not refer to any other class which exists in the state of Ohio, and the question is whether, upon the whole act, there is sufficient to show the intent of the legislature in regard to the city or territory to be covered by the act? Before proceeding to a discussion of the act itself, it will be proper to read some of the rules which have been laid down by the supreme court of this state in regard ' to the construction which is to govern the court in examining the act. I read from the case of State ex rel. v. Archibald, Sheriff, 52 Ohio St., 1. The case arose under an act passed by the general assembly of the state May 21, 1894, to establish a court of insolvency in counties containing a city of the first grade of the first class. The error in that case was that the election of a judge was, by the second section, directed to be held on the first Tuesday after the second Monday of the year 1894, the general election in fact occurring on the first Tuesday after the first Monday. In regard to that the rules of the court say:

“If there is no error or mistake in this statute, it must be construed and enforced according to its letter. If there is such error or mistake, and the intention of the legislature can be ascertained, the error or mistake should be corrected by the court.
“That courts have power to correct errors and mistakes in statutes, cannot be doubted; but such errors and mistakes must be manifest beyond doubt, either on the face of the act, or when read in connection with other statutes in pari materia.
“When it appears beyond doubt that a statute, when read literally, as printed, is impossible of execution, or will defeat the plain object of its enactment, or is senseless, or leads to absurd results or consequences, a court is authorized to regard such defects as the result of error or mistake, and to put such construction upon the statute as will correct the error or mistake, by carrying out the clear purpose and manifest intention of the legislature. The error or mistake, as well as the proper correction, must appear beyond doubt from the face of the act,- or when read in connection with other acts in pari materia.
“The supreme court of Pennsylvania states the rule in these words: ‘The power is doubted, but it can only be exercised when the error is manifest, upon an inspection of the act, as to preclude all manner of doubt, and when the correction will relieve the sense of the statute from actual absurdity, and carry out the clear purpose of the legislature.’
“An eminent text writer states the rules thus: ‘The power to make such corrections is well established, but it is exercised only when the error is so manifest as to leave no doubt, in the judicial mind as to the actual intent of the legislature. ’ ”

Then follow cases to the same effect cited in the report. Other cases are cited in Ohio which practically lay down the same rule, but this last decision of the supreme court is sufficient for our purpose on this occasion. I have said that the city of Toledo was included in,or is a city district of the first class. There are many districts of that class comprising a very large number of cities in the state of Ohio. I have said that it is a municipal corporation of the third grade of the first class. I believe it is the only one of that class in the state of Ohio at this time, or that has been in the state of Ohio at any time. It will be observed that the act as it was passed provided that “in city districts of the third grade of the first class”, not of cities'of the third grade first class, or districts in cities of the third grade first class, but “city districts of the third grade of the first class”. Standing alone, that description would not be applicable to any school district of the state of Ohio, and we must look to the whole bill for the purpose of ascertaining whether there is sufficient in it to enable us to apply it to any school district in the state of Ohio. It has already been pointed out that in this first section, after providing that in city districts of the third grade of the first class there should be five members, it provides: “all of whom shall be elected by the qualified electors for school purposes residing in such city”. No city having been referred to before that time, it is manifest, we think, that there had been at some time or was in the mind of the persons who drew this bill a reference to some city; and in the second section of the act it provides that “the board of elections shall publish the names of such candidates in the daily papers of the city” — mot the city district, but “of the city”, referring evidently to some city.

In section four it provides:

“Such board shall also have the powers specified in section thirty-nine hundred and ninety-four relative to refunding bonded indebtedness, and it shall have all the powers and perform all the duties which by existing laws are vested in and to be exercised by boards of education in cities of the third grade of the first class relative to any library board and university board therein,or otherwise.”

In section 10, it provides that:

“The city treasurers of such city, shall be ex officio the treasurer of the board of education in such district.”

In section 15, it provides that:

“The members of the board of education, in cities of the third grade of the Srst class, in office when this act takes effect, shall continue in office until the school board is organized as herein provided, at which time their powers and duties shall cease and determine, and their offices thenceforth shall be and are hereby abolished,”

Twice at least it refers to boards of education of cities of the third grade of the first class: in section á and in section 15. That, of course, does not describe technically a city ■ board of education of the first class, and the question is, to whom and to what does it refer?

We had a question before us two years ago, involving a statute which was passed with reference to the subject of taxation, which was decided at the September term, 1896, but was never reported. In that case mandamus was brought to compel the auditor of this county to place upon the tax-duplicate a levy of seven mills on the dollar, provided by the general statutes of the state of Ohio, for contingent purposes of the school board. It will be remembered that funds used for the purposes of carrying forward the schools are raised: first, by a general tax levied by the state authorities; second, by the proceeds of certain lands in the state, and then it is provided that, as a contingent fund, boards of education may themselves levy certain sums of money provided by the general statute, not to exceed seven mills on the dollar. This particular act in question was sec, 2690c, Revised Statutes, and provided:

“No tax shall be levied upon the property of any such city, by the council thereof, or any other authority therein, except by the boards of education in cities of the first grade of the first class, and in cities of the third grade of the first class, for school and educational purposes, until approved by the board of tax commissioners aforesaid. Provided that in cities of the third grade of the first class, boards'of education shall not levy in excess of five and one-half mills upon the dollar of the taxable property thereof in any one year. ”

We held in that case that the act applied to the city of Toledo; and we held the act to be a valid act, and rendered judgment accordingly. Aside from that decision, we think there is no question but what in these places, where it speaks in the act of boards of education in cities of the third grade of the first class, it refers to the board of education in the city of Toledo. In section 4, in the provision relating to the refunding of the bonded indebtedness, it says they shall have the powers specified in a certain section relating to that,and says: “It shall have all the powers and perform all the duties which by existing laws are vested in and to be exercised by boards of education in cities of the third grade of the first class, relative to any library board and university board there, or otherwise.” The city of Toledo has a library board, over which the board of education exercises some power — probably in appointing a trustee — and it has a university board, in relation to which the board of education also exercises some power, and. we think there is no question but what that clause refers to the board of educaton of the city of Toledo, as the law stands, and to none other.

But, in section 15 it provides that: “The members of tbe board of education, in cities of the third grade of the first class, in office when this act takes effect, shall continue in office until the school board is organized as herein provided, at which time their powers and duties shall cease and determine, and their offices thenceforth shall be and are hereby abolished.” The court thinks there is no question but what that applies to the city of Toledo and to the board of education of the city of Toledo, and it clearly provides that the board shall cease and determine at a certain time — in a certain event — “their offices thenceforth shall be and are hereby abolished.” That it was the intention of the legislature to abolish the board of education of the city of Toledo as it exists at the present time, this court thinks there can be no question; and the question is whether the legislature intended to abolish the existing board without providing some other board in its place?

We think it clearly manifest that the intention of the legislature was, first,to provide for a new board of education for the city of Toledo; and that upon the election taking place, that the existing board of education should cease and determine. To hold the construction claimed on behalf of the relator, would be to hold that the legislature in passing this act, had passed an act which was of no force whatever, applying to no territorial district in the state of Ohio, and no school district, and that it was a mere nullity. This certainly was not the intention of the legislature: it intended to create a school board. That is manifest from a reading of the statute. We think the clear conclusion is that this act should be read substantially as if it provided for the reorganization of boards of education in city districts of cities of the third grade of the first class, and that that construction would make it an act which would be uniform and about which, so far as the classification is concerned, and the board of election is concerned, there would be no question whatever.

C. F. Watts, H. A. Merrill, for Relator.

George B. Boone, Smith & Beelcioith, for Defendants.

We are therefore clearly of the opinion that this act should be read so as to read in that manner, and that it is of binding force upon the city of Toledo; that the board of elections is justified in its action in placing upon the ticket the names of the candidates placed in nomination under this act.

There were some other questions referred to in regard to this act, but we do not pass upon them: we pass simply upon the question before us in this proceeding. We hold therefore that the petition of the relator should be dismissed, at his costs.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    (Fourth Circuit — Ross County, O., Circuit Court,
    May Term, 1898.)
    Before Cherrington, Russell and Sibley, JJ.
    JOHN B. MULLIGAN, ADM’R., v. RECEIVERS OF THE OHIO SOUTHERN R. R. CO.

      Bill of exceptions — Clothing put in evidence must be sufficiently described for identification—
    1. Where a bill of exceptions shows that articles of clothing were in evidence, and they are referred to and made parts of tbe bill, as exhibits, but not attached to it, nor so described that they could be identified, except by evidence de hors the record — Held: lhat by a court of review, these things cannot be considered as in the bill of exceptions, nor can the bill be regarded as containing all the evidence in the case.

      Same — What evidence necessary to he set out on error for refusal of court to arrest case from jury and when motion granted—
    2. While the refusal of a trial court to arrest a' case from the jury, can be reviewed only on a record which contains all the evidence offered; yet when a motion to arrest is granted, and the correctness of that action is to be passed upon, all the testimony may not be indispensable to its reversal. It will in such case be sufficient for that purpose, to set out in the bill evidence which tends to prove all of the facts necessary to enable the plaintiff to maintain his action.
    Error to the Court of Common Pleas of Ross county.
   Russell, J.

In the court below, this was an action to recover damages for wrongfully causing the death of one Hugh Mulligan. On issues properly made up the case went to a jury." At the conclusion of the plaintiff's evidence, the defendants moved the court to arrest the testimony from the jury and direct a verdict for them, which motion was granted — the plaintiff excepting thereto. Judgment upon this verdict was entered, proper exceptions being made by the plaintiff, and a bill of exceptions taken by him purporting to set out all the evidence in the case. Upon the record thus made, error is prosecuted in this court.

When the bill of exceptions was presented, it was objected (1), that it shows upon its face that it is incomplete; and (2), assuming such to be the fact, that the bill cannot be used in support of the petition in error. These points will be considered in the order of their statement. The bill is clearly defective. It shows that certain articles of clothing were put in evidence, and in terms refers to them as exhibits and parts of the bill; but they are not attached to it, nor so described as that they can be identified, except by the testimony of the parties in whose possession they have been since the trial. But such proof is wholly inadmissible. The record must tell its own story, and cannot be patched up by parol. Where exhibits referred to in a bill of exceptions, as parts of it, are not attached, before they can be considered they must be filed with the bill, and so described therein that, on simple inspection by the court, they will be clearly identified. Upon this point the rule of practice is uniform and settled. (Busby v. Finn, 1 Ohio St., 409; Hicks v. Person, 19 Ohio, 426.) Moreover, such a bill cannot be said to contain all of the evidence. Upon its face it shows the contrary. (Murdock v. McNeely, 1 C. C., 16.) The conclusion sought to be drawn, however, from this condition of the bill, does not, as we think, necessarily follow. While the rule seems to be established, that the action of a trial court will not be reviewed unless the bill of exceptions discloses all the testimony upon which it acted, if error be predicated upon the refusal to allow a motion to arrest (Wagers v. Dickey, 17 Ohio, 439); yet when it is granted, a different practice in some instances prevails. The law governing such motions is, that if the evidence tends to prove all the facts necessary in order to maintain the action, the case must go to the jury. (Stockstill v. R. R. Co., 24 Ohio St., 83; Dick v. R. R. Co., 38 Ohio St., 389.) On principle, then, when the court has arrested the testimony, improperly, and the bill of exceptions sets out enough of it to show that such is the case, this ought to be regarded as sufficient. What lies beyond that, becomes immaterial, in the sense at least of being needless. But the proposition need not further be discussed. The exact point has been decided in the first circuit, and we are agreed in following the ruling there made. The objection that the bill cannot be considered in support of the petition in error, we do not, therefore,regard as well taken, and it is overruled. (Mack v. Despatch, 3 C. C., 36.) Coming now to the evidence set out in the bill, it is sufficient to say that under what is known in our practice as the “scintilla doctrine,” there was enough to send the case to the jury. The consequence is that the judgment of the common pleas must be reversed, and the cause remanded.


author: Norkis, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Norris, JJ.
    [Judge Norris of the Third Circuit taking the place of Parker, J. ]
    HARRY HINDS, an infant, by George A. Hinds, his next Friend, v. THE E. P. BRECKENRIDGE COMPANY.

      Child staying in factory after errand accomplished without permission — Liability of owner for injury—
    A boy eleven years old went to a factory to inquire for work, and was told to come back at a certain time. He came again at the time indicated, and was told there was no work for him. Instead of leaving the factory, he remained without the knowledge or consent of th6 foreman, and amused himself running the elevator up and down the building, when finally his foot was caught between the elevator and the first floor, and he was thus injured.
    Held: His staying at the faotory after being told there was no work for him, under the circumstances of the case, made him a trespasser; and the fact that the elevator was slightly defective did not maue the owner liable for the injury of the boy, especially where the injury was not caused by the defect in the elevator.
    Error to the Court of Common Pleas of Lucas county.
   Norkis, J.

The plaintiff and the defendant in error were respectively the plaintiff and defendant below. For his cause of action the plaintiff says that on the 25th of June, 1895, the defendant used in its manufacturing establishment in this city a freight elevator which ran and was operated from the basement of its building to the top floor which was the fourth story. That it was used to convey both people and freight from one floor to another. The elevator was put in motion by moving a cable that hung through it perpendicularly. The safety of persons who might be in this elevator required that one with competent knowledge and judgment should have charge of and operate it, and that it should be equipped with proper appliances, so that it might not move until the operator, for that purpose, should properly move the table. He says that there was no signal bell at the entrance of the elevator, at each floor, as there should have been, so that it was necessary to step to the front of the •elevator and look up or down to ascertain which floor was being called. That the elevator was defective and broken, and suffered by defendant to remain so, in this, that the stop clamp or knob at the first floor, was displaced, so that at that floor the elevator would not respond to the proper movement of the cable to stop or move it at that floor. That defendant knew of these defects, and negligently allowed the elevator to remain in this condition; all of which plaintiff was ignorant of and had no means of ascertaining, and was not informed. He, plaintiff, says that on the 25th of June he was eleven years old, and was employed by defendant to work in and about the running of this elevator, and was working and was thus acting in compliance with the orders of those who had authority over him and who were in charge of said factory. That he was not skilled in operating an elevator, and had no knowledge of the danger to life and limb which threatened one who was so employed, and was not warned nor instructed as to his duties or the attendant dangers. That notwithstanding all this, and well knowing the defects and dangers, and his want of knowledge and want of skill and that he was only eleven years old, defendant wrongfully and negligently allowed plaintiff to be so employed. And that by reason of the premises, on the night, or rather morning of this 25th of June, while so employed in moving the elevator, and without plaintiff’s fault, his foot was caught between the elevator and first floor, and was mangled and crushed, and that this very means by which he was hurt was one of the threatening and probable dangers of which he had no knowledge and of which it was defendant’s duty to have warned him; and for this injury he seeks to recover.

Defendant says that on this 25th of June, 1895, this boy, the plaintiff, was net an employe of defendant, but without the knowledge or consent of defendant,came into its factory, and while there got on the elevator, took hold of the cable, caused the elevator to move, and at the same time stood with his foot extended over the edge of the elevator, and while in that position the elevator ascended, caught his foot between the elevator and the floor, and he received the injury of which complaint is made. That all this was without the knowledge of defendant, and that having no knowledge of his presence there, it was powerless to prevent his injury. That defendant, when this boy entered the factory, was taking every reasonable measure to prevent persons other than employes from entering the factory; and that plaintiff knew this, and knew he was there without right and contrary to the orders of defendant; and all else in the petition defendant denies.

These allegations of the answer are denied by the reply.

The case was tried in the court of common pleas of this county, and a verdict for the defendant was returned by the jury to which the issues were submitted. Plaintiff presented his motion for a new trial, which was not allowed, and judgment was entered upon the verdict, and error is here prosecuted to the proceedings in the court below.

The reasons urged in the motion for new trial and the assignments of error in plaintiff’s petition in error in this court, are:

Error in admitting evidence over the objection of plaintiff, and error in rejecting evidence offered by plaintiff to maintain the issues upon his part. Objection to the charge to the jury as given; error in refusing to charge as requested. That the verdict is against the weight of the evidence and is contrary to the law of the case. Error in overruling the motion for new trial. That there were irregularities in the proceedings of the court, and misconduct upon the part of the jury, That there has been new material evidence discovered, and surprise occasioned by the unexpected testimony of one of plaintiff’s witnesses; by ail of which he was prevented from having a fair trial, as asserted in his motion and in his petition in error. All of these grounds were not urged in the argument of the case, and do not appear to be relied on as reasons why the proceedings of the court below should be set aside; they will not, therefore,be ■seriously considered by this court as grounds of error or reasons for reversal.

As to the errors assigned in the court rejecting evidence offered by plaintiff and in receiving evidence offered by defendant over plaintiff’s objections: there were few marginal notes in the bill of exceptions pointing out the parts of the testimony of which plaintiff complains. We carefully went through the record with this in view, and without here noticing the objections in detail, we failed to find wherein the court rejected testimony that was competent,or admitted testimony that did not bear upon and have pertinence to the issues, and discover no'error in that regard.

As to whether the verdict is against the weight of the evidence and is contrary to the law of the case. In determining this we have to look to the relationship that existed between this boy and the defendant at the time the injury was sustained. And here if may be remarked that it does not appear that the defects in the elevator recited in the petition, which to suffer to exist by defendant is claimed to be an act of negligence, caused or contributed to the injury of this boy. His foot was hurt by coming in contact with the bottom of the first floor. It is complained that the appliances by which the elevator was stopped, were so out of •order that it could not be without manipulation stopped at “the proper place when it reached the first floor. He was .hurt before it reached the stopping place at the first floor. When it reached the place to stop for the first floor, it was too late to prevent the injury — the injury had already oc. •curred. So, the fact that the elevator was defective, and for that reason could not be readily stopped even with the first floor, may not be considered as contributing to his injury.

Was this little boy at the time he was hurt, an employe of the defendant as alleged in the petition? He says — and he is corroborated by John Newton, the elevator boy — that three or four days before the accident Mr. Lowe, the day ■foreman, was asked by him whether he could give him a job in the factory at the end of the school term. Lowe said he would see, and in three or four days he should come •around and find oul. Newton says that Lowe answered to •come around when school was out, and he would see if he had any job for him, and fixed no day for his coming. Of this conversation Lowe has no recollection, but it was probably in response to it that Harry went there. He came to the •factory with Newton, and asked Mr. Lowe if he could give him work. He was told by Lowe that he (Lowe) had no place for him, but to see the night foreman, who might .give him a job. The boy was not invited to go to this elevator by any one who had a right to place him there; but there he went,and there he remained until he was hurt. He •did not attempt to see the night foreman, and did not see him; he made no further inquiry for work,and was not put to work or invited to go to work by anybody; so that it“ -cannot be claimed that he was an employe of the defendant, mor was he acting in the line of any duty assigned him for performance when he was hurt. The little fellow, at the time of the accident, was there as a trespasser, amusing himself by riding up and down on this elevator. He went ■there to ask for work, and it was his duty to ask for work, •and if refused, to depart, But he did neither. He just ¡staid there, and he was not moved or impelléd or influenced ¡to remain by any person who had a right to invite him to ¡stay; he did chose to stay, and his stay was unwarranted, and so doing, he was, as the facts show, transgressing ¡the rules of defendant, and was in that sense a trespasser,

The injury which resulted to this boy might not fairly be ¡anticipated as one likely to happen, from the nature of this machine and its use. It is true, and anybody could see and know that if one put his foot so as to have it caught between the elevator and the ceiling, he would be injured. The boy himself swears that he was well aware of this. But it was a position so unlikely to be assumed by one riding in -the elevator that to anticipate it was not to anticipate a casualty that was liable to happen. The testimony shows that for even one running the elevator it was not necessary to ■stand out in front to see the other floor; but the top of the •crib was open, and the upper floor could be well seen without taking that position.

The .defendant had a right to have an elevator in its establishment,and it was not only a convenience, but a necessity. It is in the back part of an enclosed building, a guarded building as the record shows, not in sight and easy of ac•cess, not a constant threat and menace like the turn-table in ■the Stuart case, or the torpedoes in the Harriman case, or the mash-tub in the Bellman case, inviting children to re■sort to it for amusement and pastime; and to maintain this ■elevator as defendant did was not negligence.

The plaintiff not being an employe, the defendant owed him none of the duties recited in the Corrigan case in the -46 Ohio St., and in no wise could sec. 6986, of the Revised Statutes, in relation to the employment of children, apply. To have this elevator there, was not negligence. To keep it in the condition it was in, so far as it relates to this- accident, was not negligence. To have that little boy come in there and ask for work was not negligence, This was not an establishment wherein was dangerous machinery, like a machine shop or a planing-mill, which when in motion threatened employes and visitors and everybody — the most dangerous contrivance it had in use appears to have been this, elevator. An elevator is not deemed a dangerous piece of machinery, in the ordinary sense of that term, so that when this little boy went into this factory,it would not suggest itself that due care for him under the circumstances demanded that he should be guarded and guided until he left, and it was not a violent supposition upon the part of that man Lowe that the child would go away after he found no work. We think the jury was warranted in finding- — as it probably did find — -that nobody in that factory who had charge, knew of his presence in the elevator, and hence, even if anticipated, were liable to have prevented the accident by sending him home. The boy came there to ask for employment. It was his duty to ascertain whether or not there was work for him,and if there was not, it was his duty to depart, The duty, and the only duty which defendant owed to this boy under the circumstances, was to see that while he was there, no injury should befall him through the wanton carelessness of its employes, and that he should be safe from the result of any negligence Upon its part or upon the part of its servants that amounted to bad faith, and all this measured by the boy’s age and his surroundings. The injury — from the facts — appears to have been simply the result of a deplorable accident, occasioned by nobody’s fault, but the poor little fellow’s own fault.

As to the requests to charge, we find that such of them -as are applicable to the issues were in substance given. The ■charge as given fairly states the issues, and fully covers the law of the case, and finding no error in the record to the prejudice of plaintiff in error, the judgment is affirmed at costs of plaintiff in error, without penalty, and the case is xemanded for execution.

Beard & Beard, for Plaintiff in Error.

B. W. Tolerton, for Defendant in Error.


author: (Cherrington, J.,

text:
    (Fourth Circuit — Ross County, O., Circuit Court,
    May Term, 1898.)
    Before Cherrington, Russell and Sibley, JJ.
    EAST AND BUILDING & LOAN CO. v. HUGHEY.

      Deed of corporation for land — Corporate seal not required—
    Under the laws of this state, prior to 1883, a deed of lands by a corporation must have been sealed, in order to make it operate as a legal conveyance. But now, by force of section 4, R. S., then so amended as to abolish private seals, and of changes at the same time made in sections 4106 and 4107, whereby deeds are no longer required to be sealed, the seal of ■ a corporation is not necessary to the execution of a valid deed of its lands in this state.
    Error to the Court of Common Pleas of Ross county.
   By the Court:

(Cherrington, J.,

presiding.)

The action below was by Hughey, for breach of covenant in an alleged deed from the company, a corporation, purporting to convey certain lands in this state, to him. The answer set out as a defense that the instrument counted on, which was of recent date, was not the deed of the corporation because, as it alleged, the corporate seal had never been affixed to it. Its perfect execution and form in all •other particulars, was not questioned. Upon general' demurrer, the answer was held bad, and amendment not being asked, judgment was given for Hughey. Due exception was taken, and this aetion prosecuted, to reverse the common pleas. The case therefore presents the single question, whether or not, under the laws of Ohio, it is necessary to affix the seal of a corporation to an instrument, otherwise perfect in form as a deed of its lands here, in order to make it operate ás a legal conveyance of the title thereto.

The ancient rule of the common law, that a corporation “spoke and acted only by its common seal” (2 Kent, 28), is familiar. And, as respects a strictly legal conveyance of lands, it long was applicable in this state. That was not, perhaps, by virtue merely of the principle it embodied, but also because from the act of 1808 (1 Chase, 44),down until 1883, our statutes required all deeds for the conveyance of lands in Ohio to be “sealed”, as well as signed, by the grantor. In the latter year, however, section 4 of the Revised Statutes was amended so as to declare that “private seals are abolished.” At the same time, sections 4106 and 4107 were changed by omitting therefrom the requirement that the deeds of natural persons, executed “within the state”, must be sealed, and by making them operative as legal conveyances of lands here, by the “signing, ” simply, of the proper grantors. (80 Ohio L., 79-80.) These sections have since been amended into the form which they now take in the Revised Statutes. (84 Ohio L., 133.) On the point in question, there are two changes which may be considered material. The first, and more important is, in expressly making all deeds of land in Ohio, effective in execution by signing, without sealing; and the second, in omitting the clause by which these provisions applied only to instruments executed in this state. The latter is not important in this case, save as it seems rather to enlarge and emphasize the new policy, by not requiring conveyances of lands in Ohio to be sealed, no matter where they were executed.

This, of course, does not in terms say that the deeds of corporations are effectual as legal conveyances of lands here, when otherwise in due form, without their seal; though we should scarcely hesitate in giving the legislation referred to, this effect. But if any doubt existed, it would be removed by the settled principle, that “a corporation may bind itself by a contract not under its seal when the law does not require the contract to be evidenced by a sealed instrument.” (Gottfried v. Miller, 104 U. S., 527.)

If this be so,it is manifest that its deed, without seal, will be valid where the law under which it is executed makes such an instrument effective by signing, without being sealed. No essential distinction can be made in the application of the principle, between contracts for lands and conveyances of them. From this conclusion it obviously follows that the deed in question was not affected by the omission to seal it; the defense founded on that fact is therefore bad, and the court below properly sustained the demurrer thereto. Consequently its judgment must be affirmed.


author: Caldwell, J.

text:
    (Eighth Circuit — Lorain Co.,O., Circuit Court —
    April Term, 1898.)
    Before Hale, Caldwell and Marvin, JJ.
    THE KNOX ROCK BLASTING CO. v. THE GRAFTON STONE CO.

      Contract for use of patent — Sum stipulated for use of patent without lieense is penalty, not liquidated damages—
    Where a contract between a patentee and licensee for the use of his patent provides that the latter shall have the use of the patent for one year at $250.00, with the option of having the lieense extended at the end of the year for five years-more at'the same rate, but that if the licensee, after the expiration of the termination of the license, shall use the patent without renewing the license, he shall have to pay $500 a year for such use; and it appears that the licensee, having at the end of the five years declined a renewal of the license, yet has used the patent during -two years more, in a suit for the $500 for each year .stipulated in the contract for such use without license, Held, that the $500 a year fixed in the contract for such use without a license, is a penalty, and not liquidated damages, and plaintiff can only recover for. such use compensation at the rate of $250.00 a year.

      Same — What recoverable under such contract — -
    To determine whether the sum so fixed in the contract is a penalty or liquidated damages, courts have to look to the intention of the parties; also whether the damages arising from the use are easily ascertainable. If they are conjectural or necessarily uncertain, courts will construe such contracts as for liquidated damages; but if the damages can be definitely determined, then courts will prefer to construe such provision as a penalty. If the circumstances show that the parties have fixed the amount much larger than would reasonably be expected actually to flow from a violation of the contract, then the tendency is always in favor of construing the contract to mean a penalty. The actual loss may exceed that penalty,or may be less; but when once ascertained,then the party is entitled to recover his actual loss, be it more or less than the penalty stipulated.
   Caldwell, J.

This case involves a construction of the contract, as to whether certain matters stated in it constitutes liquidated damages, or a penalty. It seems that the plaintiff was the inventor of certain tools and implements to be used in the quarrying of rock; and in 1889 or ’88, the company gave to The Grafton Stone Company the license to use the plaintiff’s inventions in its quarry at Grafton for one year, with an option in the contract that if it was desirable on the part of The Grafton Stone Company to continue the contract for five years longer, that it could do so by serving notice upon the plaintiff to that effect, and if no notice was served then the silence was to be taken as a desire on the part of The Grafton Stone Company to continue as licensee for five years longer at the same terms; the terms being $250 a year.

Then there was a provision in the contract that if it was continued longer, under circumstances I will notice more definitely hereafter, that The Grafton Stone Company was to pay to the plaintiff the sum of $500 a year.

This suit was brought, claiming that after the expiration -of the six years under the lease, The Grafton Stone Company used this devise for a period of three years thereafter. .And suit was brought to recover the amount named in the •contract, $1500.00.

Upon the trial of the case it turned out that during the ■second year there had been no use made of the implements by The Grafton Stone Company, but a finding on the part •■of the jury that the use had been made during the first and «third year after the expiration of the six years.

And the plaintiff claimed for such use $1000, claiming that the amount named in the contract was liquidated damages, and the defendant claimed that it was a mere penalty, and that no recovery could be had beyond the actual use 'that was made of the implements, or actual damages. The ■matter turned upon the trial in such a manner that for this use for which suit was being pressed, a recovery of about $129.00, I think, was obtained. And now,upon the special finding of the jury that a use was made of this in' the first • and third years; that some use was made of it during these years after the expiration of the lease, plaintiff claims that ■under the finding of the jury and the law of the case, it is entitled to $1000, instead of the amount that was awarded in the general verdict.

And whether the plaintiff is entitled to the $1000,or must •be content with what has been obtained upon the trial,must be determined from the construction of the contract between the parties; and whether the parties intended to stipulate for damages, or to fix a penalty, is a matter that has to be determined by the intention of the parties. It is ■purely a matter of intention, and that intention is to be determined entirely from the contract that existed between them.

No extrinsic evidence is proper in such a case, unless there is a charge of fraud or something that is itself equivalent thereto; there being no such charge in this case,ifc turns upon purely a question of construction of the contract.

Now, the contract, the agreement or lease, was made the 22nd day of May, 1888, between The Knox Rook Blasting. Company and the defendant, The Grafton Stone Company.

It recites, preceding the terms of the contract, that the plaintiff has obtained certain letters patent that, are of benefit to parties who are engaged in quarrying stone, giving their date, etc., and reciting that whereas the party of the second part is desirous of making use of these inventions and improvements protected by the above recited: letters patent:

“Now, therefore, the parties have stipulated and agreed* as follows, to-wit:
“First: The party of the first part hereby licenses and empowers the said party of the second part to use and apply the improved method covered by letters patent above recited, together with all improvements that may hereafter be made-thereon and for which letters patent may issue to or become the property of the said party of the first part, at its-quarry situated near Grafton, on the line of the C. C. 0 &■ I. R. R. and O. L. & W. R. R., in the township of Carlisle, county of Lorain and state of Ohio, said quarry being now owned and operated by said second party; and in no other place or places, for and during the full term of one (1) year from the date hereof, and ending on the twenty-first day of May, A. D. 1889.
“Second: In consideration whereof, the said party of the-second part agrees to pay the sum of two hundred and fifty ($250,00) dollars, as follows, to-wit: two hundred and fifty ($250) dollars upon the first day of June, A. D, 1888, and a like sum upon the first day of June in each year during' the term of this contract as provided for upon the second page hereof.
“It is mutually understood and agreed by the parties hereto, as a part of the consideration of this contract, that the-party of the second part shall have the privilege of extension of the term of this license for the period of five years,. commencing upon the twenty-second day of May, A. D.. 1889, and expiring upon the twenty-first day of May, A. D. 1894, and the consideration for the said additional term of' five years shall be the sum of twelve hundred and fifty ($1250.00) dollars, payable in equal annual installments, asset forth in section two, upon first page of this contract,, and it is further understood and agreed that the said second party may give notice in writing to said first party, on ©r before the first day of January,A. D. 1889, of its intention to accept or reject this privilege, and the failure to give-such notice shall constitute this license a contract in full force and virtue, subject to all the conditions herein, forth© above mentioned term of five years.
“Third: The party of the first part agrees to protect the party of the second part against all suits for infringement, if any, and also agrees, upon proof being furnished, to protect the said second party against any infringement of the patent above recited within the territory covered by this-license, by any or all parties illegally using the same; and the said second party agrees to immediately disclose to the said first party the facts concerning any such infringement-as shall come to their notice, and to furnish proof of the-same, when the said first party shall take immediate steps by proceeding at law, in equity or otherwise, to prevent sueh infringement.
“Fourth: It is mutually understood and agreed by the-parties hereto, that the manufacture and sale of the tools-protected by the above recited letters patent, is hereby expressly reserved to and by the party of the first part, and the use of any of said patented tools, by the party of the-second part, is hereby expressly limited to the term and life of this license, and that the party of the first part may, if' it so elect, require the return and delivery of all such tools, paying therefor the actual value of the same as ‘tool steel’.
“Fifth: -It is further mutually understood and agreed that in case the party of the second part shall, at any time after the termination of this license, as set forth in any previous-paragraph hereof, use or apply any of the tools or method® protected by the le’tters patent referred to above, without having first obtained a new license from the party of the first part, then and in that case the license fees shall be double tbe sum specified in the license for at least the term of one full year, and thereafter from year to year at the increased rate, so long as any use shall be made of said tools or methods, not exceeding however the life of the patents. Anud upon failure by the said party of the second part to make payment of any of the said annual installments, the said party of the first part may, if it so elect, after having given ten days’ notice in writing to the party of tbe second part, or its agent in charge of the quarry, revoke and terminate this license; but the party of the second part shall not thereby be discharged from any liability incurred by this contract.”

There is no doubt but that the life of this contract was for one year with an option to extend. The Stone Company avails itself of that option, and it was then extended for five years under its terms, and there is no doubt but at the end of that five years this contract terminated, and there being an option in the fourth paragraph, that the plaintiff could take back the tools and pay for them the price of tool steel, or could leave them, but that should depend entirely upon its option.

The Grafton Stone Company very properly, a few days before the termination of the contract, notified tbe plaintiff that it would no longer continue to use, or no longer make any contract with it for the use of these tools and these implements, and the company in Pittsburgh responded to that letter by regretting very much their conclusion, and wishing to know the grounds on which they had come to the conclusion that they had, not to use them any loDgei.

Now the company did go on, and as the case stands before us, it is conclusive that the parties did use these implements during the first and third years after the termination of this contract in 1894, and it leaves then only the construction of this contract so far as the. fifth clause is concerned.

That is, this part of it:

‘‘It is further mutually understood and agreed that in case the party of the second part shall, at any time after the termination of this license, as set forth in any previous paragraph hereof, use or apply any of the tools or methods protected by the letters patent referred to above, without first having obtained a new license from the party of the first part, then and in that case the license fees shall be double the sum specified in this license for at least the term of one full year, and thereafter from year to year at the increased rate, so long as any use shall be made of said tools or methods, or that the use is continued. ”

It seems to us that calling this a license fee when there is no license — the license has terminated, the Stone Company has refused to enter into any new license; now to call that a license fee under this contract,is certainly a misnomer. And there could be no license fee without a license, and that being a misnomer, the plaintiff now claims that it may be treated as liquidated damages for the use. that is, after the expiration of this lease. And the other party, the defendant, claims that it is a mere penalty attached for so using.

In construing this class of contracts, the courts have to ascertain certain facts as aids in the construction; one of these, the intention of the parties to the contract is to be determined. Another matter that bears upon that intention is, whether or not the damages arising from the use, as in this case, after the expiration of the license, whether the damages are such as are easily ascertainable of not. I am now putting that very strong in saying “easily ascertainable’’. -Our supreme court, in the 11th Ohio St. 849, has ptit it,- that if they are conjectural or uncertain, necessarily so, then the crurts will construe the contract as for liquidated damages; but if they are certain, or so certain that they may be definitely determined — and by that I do not mean precisely determined- — -I mean definitely determined as damages generally are in cases, then the courts will prefer to "Construe the provision as a penalty rather than as liquidated damages.

And another principle clearly established by the courts is, that if there is any uncertainty as to which the parties ■intended, whether they intended liquidated damages or penalty, the courts will invariably, if the damages can be ascertained, prefer calling it a penalty rather than liquidated damages.

There is something of a question in this case, whether this shall be called liquidated damages or a penalty,and that •is to be determined by applying some of these rules, and the plaintiff insists that the reason it should be construed as liquidated damages in this case is, that the amount of • damages are not ascertainable, or are ascertainable only under difficulties to the plaintiff; but that is not sufficient. I find a number of cases where the damages are ascertained 'through much difficulty and through expense, yet it is not regarded as a sufficient reason for construing the provision -•as liquidated damages in preference to that of a penalty.

It is certainly fair to both parties to say that the amount they agreed upon for the use of these implements during the six years, is the fair value for the use — fair value for •the license.

And we have then the fair value for the use for a year in this contract itself. Having that determined,there is no uncertainty except to determine the amount of time that these -implements were used. They cannot be used at all without those persons who use them knowing pretty definitely, as «definitely as we ever get at questions of this kind, how much they were used, how long they were used, to what •extent.

And because the plaintiff cannot be upon the ground himself all the while without expense, is not sufficient ground on which to turn the scale of the construction.

So that the amount of time that these tools were used in 1895 and ’97, could be quite definitely ascertained, And it was in this case, as I find by looking through the testimony. There was considerable testimony on this question, and the testimony is conflicting. If the jury took one view of the testimony, it might allow much more for actual use than it would if it took the testimony of the other side of the case. And in fact, very little, if any, would have been recovered in this case if the testimony of the defendant had been followed by the jury; but the verdict seems to be a •compromise, going between the two somewhat; the general verdict in the case.

So that we then have in this case no element of uncertainty as to the damages, that does not exist in a large number of cases where the courts are very free to construe the provision in the contract as a stipulation for a penalty. That is true of a party who hires a house to be rented by ■a certain time, and the penalty attached for all time running over a year. Now it is uncertain, and largely conjecture, whether a boat that is to be completed by a certain day, as to how much she might have earned had she been in the trade from that time until the boat was actually completed.

Unless there is some special element involved in it, such contracts are almost always construed by the court to be a jpenalty.

Another element that has weight in determining this, to which class it belongs, is the amount. If the parties, when fixing the amount — If all the circumstances show that they have fixed an amount much larger than could reasonably be expected to actually flow from a violation of the terms of the contract, then in that case the tendency is always in favor of construing the contract to mean a penalty.

It is hardly consistent with the way men take care of their own affairs to believe that a man intends to stipulate ithat he will pay damages for a certain default of his, way •beyond, or much beyond what the damages will actually be.

Men usually take greater care of their affairs than to make contracts of that kind; but he may be willing that a certain amount shall be named and shall be a penalty, with the understanding that nothing can be recovered but actual loss. That actual loss may exceed that penalty, or it may be less; but after it is once determined, then the party is entitled to recover his actual loss whether it be more or less than the penalty.

Now,in reading this contract, this idea appears prominent in it: Here are six years that The Grafton Stone Company is authorized to use this invention; beyond that if it wants to use it, it must make a contract.

The supposition is that the fair use of it per year is $250. The parties for six years have regarded that as the fair value for the use of it.

If The Grafton Company-wants to continue longer than that, it must make a contract; if it don’t make a contract, then it must pay $500. It looks to me very much like a penalty of $250 for not making a contract for the use of it before using it.

In other words, it is almost equivalent to saying, the use of this devise is worth $250 a year. If the defendant makes a contract, then it can have it for $250. If it does not make a contract, or if it goes on and uses it without a contract, then it shall pay $500. It looks very much like a penalty of $250 for using it without a written contract. That being true — at least the contract is so uncertain as to this that we think under all the rules for construing such-contracts as I have already stated it, that we should construe it as being a penalty, and not stipulated damages. We find therefore there was no error in this case, and the judgment is affirmed.


author: 'Smyser, J.,

text:
    Fifth Circuit — Licking Co., O., Circuit Court
    March Term, 1898.
    Before Adams, Douglass and Smyser, JJ.
    JOSEPH M. ICKES v. THE STATE OF OHIO.

      Review in criminal case — Bill of exceptions must be attached to petition in error—
    •(1.) To authorize the review of a judgment of conviction for a misdemeanor, it is necessary that a certified transcript of the record, including the bill of exceptions be attached to the petition in error.

      Request by defendant in criminal ease of trial by court without jury—

    .(3.) Defendant not entitled as a matter of right to have cause topied by the court, instead of a jury.

      Juror — Power of court to excuse sua spónte—

    (8.) Court may, sita sponte, excuse an unsuitable juror, such as for defective hearing.

      Challenge to array, too late after impaneling begun— i(4.) Challenge to the array, after the impaneling of the jury has been begun, comes too late.

      Jury commissioner de facto—
    ■(5.) A person duly appointed and acting as a jury commissioner is defacto an officer, and his acts valid, although he may not be.a free-holder.

      ■Libel — Knowledge of manager or editor of a newspaper—

    ¡(6.) The manager or editor of a newspaper is primp facie criminally liable for a libel published therein, and cannot escape responsibility simply by showing that it was published without his knowledge or consent. It is incumbent upon him to •show that the publication did not occur through any neglect or want of ordinary eare on his part.
    Error to the Court of Common Pleas of Licking county.
   'Smyser, J.,

(orally).

James M. Ickes files his petition in error here to reverse the judgment of the court of. common pleas of'this ■county. In our investigation we have not had the indictment. It is not with the papers, nor is a copy of it set out ■anywhere in the bill of'exceptions; but as no question was made on the indictment, we have considered the case in its absence.

At the January Term, 1897, of the court of common pleas of this county, the grand jury returned an indictment against the plaintiff in error, under sec. 6828. To this a plea of not guilty was entered; trial to a jury; verdict of guilty, and judgment upon the verdict; and it is this judgment that it is sought to review. A bill of exceptions is before us, embodying all the evidence taken in the trial below. I might as well say at the outset, that there is some question as to whether this case is properly before this court; but, as it. was not raised, the court feel like waiving that question. To call counsel’s attention to some sections of the statute, and some authorities may be valuable in the future. It is conceded that the offense charged here is a misdemeanor. Rees. 7356-7-8, provide for the prosecution of error in criminal cases. Sec. 7356 provides that judgments and final orders in criminal cases, and so on, may be reviewed on eiror.

“Sec. 7357: On application by; or on behalf of the accused to any officer whose duty it is to make a record or docket entries in any such ease, and tender of the proper fee, such officer shall make and deliver to the, accused or his counsel a complete certified transcript of the record, omitting, if so requested, any bill or bills of exceptions; or,'if the prosecution was before a court or tribunal in which a complete record is not made, a certified transcript of the judgment' and all entries in the case, and on receipt of a copy of a summons as hereinafter mentioned, shall forward to the clerk of the court the original papers in the case.
“Sec. 7358: The proceedings to review any such judgment shall be by petition in error, to which shall be attached such transcript, and also any original papers received by the clerk; except that in cases of felony it shall not be necessary to include in the transcript of the record any bill of exceptions, but the original bill of exceptions may be' attached in lieu of the transcript of the record thereof. And the court in which the review is sought, may, by summary process, compel a more complete record to be furnished,and such original papers to be forwarded.”

It being conceded that this is a misdemeanor, it is very questionable whether there ought not to be a certified copy of this bill of exceptions attached to this petition in error. There is a case in 2 C. C., 129, where it is said:

“This court has no jurisdiction, under sec. 7356, (82 Ohio L., 39), to review a conviction and sentence in the court of common pleas, on a petition in error, unless there is attached to and filed with such petition in error, a complete certified transcript of the record in the case, as provided in sec. 7358, (80 O. L., 46).”

And in the 9 C. C., 315:

“The plaintiff in error seeking to reverse a judgment of the court of common pleas in a prosecution for a misdemeanor, should attach a transcript of the complete record to his petition in error, and if he fails to do so, the petition in error will be dismissed.”

But that question was not suggested to us, and therefore we will not dispose of the case on any such ground.

Numerous errors are assigned upon this record as a reason for the reversal of this judgment. The first error that was urged upon the court, and with much vehemence, was the refusal of the trial court to dispense with a jury and to conduct the trial by the court alone, and to have the court itself pass upon the guilt or innocence of the accused.

The second is, that the evidence is insufficient to warrant a conviction, principally upon the ground that it does not show that Ickes was the manager of the paper in which this alleged libel was published, at the time of its publication. And, incidentally, that this judgment is against the evidence. There are some other errors assigned, and we have gone through this entire record and looked at all of them. The first, as I have suggested, is the refusal of the trial court to dispense with a jury and to hear the testimony and pronounce judgment upon the evidence. Sec. 7301, provides:

“A person indicted for a misdemeanor may, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court.”

It is insisted that the word “may” used in the criminal code, and especially in this section, is equivalent to “must;” that when a privilege is accorded to an accused, if he sees fit to exercise his privilege, that that becomes mandatory upon the court, As this statute reads, it is clearly permissive. We are asked to put the construction upon it that it shall be mandatory; that it shall be peremptory upon the court, in case of a misdemeanor, where the accused in a writing subscribed by himself waives a jury trial, and asks to be tried by the court, that it thereupon becomes the right of the accused under such circumstances to have the court try him. We cannot subscribe to that view of this statute. If “may” is to be read “must”, •then we would have the curious anomaly of an accused, ■charged with a misdemeanor, subscribing in writing a re-quest to be tried by the court, compelling the court to accord him such a trial, although the accused is within the •call of the sheriff's voice from the court house, For if this privilege is to be accorded him at all events, he could absent himself from the court-room alone, and under such circumstances it would be the duty of the court to try him be■cause he is both absent and requesting the trial to be heard 'hy the court alone.

That cannot be true. It is not the practice. It has not ’been. This is discretionary with the court. It is a privilege that is accorded, that is true; and our view is, that this •provision embodied in the statute was for the purpose of •enabling the accused to waive, what he otherwise could not waive. That is its object and its purpose. When you lo.ok at the request made, it says: “I request.” If it is a right, be could say: “I demand.” It is discretionary. The court is not bound or required to dispense with the services of a jury in the trial of a misdemeanor at the behest of the accused, but can exercise its discretion. In this case, the court having exercised its discretion and declined to try the case, we see no error in it.

Sec. 10, Art. 1, of the Bill of Rights, guarantees the-right of trial by jury to a defendant. The proposition here-contended for has never been decided in Ohio, at least no-authority is called to our attention, and we háve not been-able to find any such authority. But, the converse of the-proposition arising under this constitutional guarantee has. been before our courts in various shapes.

1th Ohio St., 57; 32 Ohio St., 439; 5th Ohio, 283.

The principle decided in these cases being, that under the circumstances of the particular case, the right of jury trial was not infringed by the action of the court, In 12th Ohio St., 622, the court hold that in felonies an accused cannot waive his right of trial by jury, The reasoning of the court in these cases strengthens us in the view that the object of sec. 7301, was to enable a person charged with a misdemeanor to simply waive his right of trial by jury, but that it does not infringe upon the discretion of the court clearly indicated in the section, to either grant or refuse such request. We are unable to see how the court accorded to the accused a trial by jury, such as is guaranteed him by the constitution, and being so tried, would occasion any prejudice to the accused whatever. And we, therefore, hold that there was no error in the refusal of the court to try the case without the intervention of a jury..

After this request to be tried by the court was overruled, the court ordered the jury called. Thomas B. Reece was called and examined, and after he is excused by the court, a challenge is interposed to the array, Mr. Reece is examined by counsel for the state, by counsel for the accused, and the court propounds some interrogatories touching his qualification as a juror; and after that is concluded comes the challenge to the array. It is assigned, however, as error, that this juror was excused because of defective hearing. Secs. 7278, 7279, 5176, and 5177, determine the manner in which the jury shall be impaneled; and what I am saying in respect to this will apply largely to the challenge to the array. Sec. 7278: “Causes of ■challenge of jurors,” Paragraph 9: “The same challenges ■shall be allowed in criminal prosecutions that are allowed to parties in civil cases.”

“Sec. 7279: All challenges for cause shall be tried by the court, on the oath of the person challenged, or on other evidence, and shall be made before the jury is sworn. ”
Sec. 7278 says: The same challenges as are allowed in civil cases; and in civil cases we find the grounds for challenge in 5176 and 5177.
“Sec. 5177: Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, or for want of a competent knowledge of the English language, or for any other cause that may render him at the time an unsuitable juror,and the validity of such challenge shall be determined by the court; and each party may peremptorily challenge two jurors.”

This record discloses that the real reason for the excusing of juror Reece was defective hearing. He clearly comes within the provisions of sec. 5177. It cannot prejudice this accused to have a man excused from the jury because be could not hear. He is just as much an improper person in the jury-box, — a man with defective hearing, — as a man who is .blind, or one who could not understand the English language. So that there is no error in that.

The challenge to the array comes after that. Clearly, the challenge to the array comes too late. They had entered upon the impaneling of the jury. Sec. 5175, is the ■only section we have in respect to challenge to the array, ■and that provides:

“A challenge to the array may be made and the whole •array set aside by the court, when the jury, grand or petit, was not selected, drawn, or summoned, or when the officer •who executed the venire did not proceed, as prescribed by Jaw. But no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names, but such challenge shall only be made before the jury is impaneled and sworn, and no indictment ¡shall be quashed or verdict set aside for any such irregularity or misnomer, if the jurors who formed the same possessed the requisite qualifications to act as jurors.”

We think that while he had the right to challenge the •array, it comes too late by waiting until the impaneling of the jury had begun. Forsythe v. State, 6 Ohio, 6; also 23 Ohio St., 354. The reason assigned for the challenge ¡to the array is, that one of the jury commissioners who seJected the jury, and put the names in the box in this county, was not a freeholder. Counsel did not cite us any au•thority, but I will call attention in passing to the 24 Ohio St., 146. The court heard evidence on that subject; the record does disclose that he was a freeholder, but not a •freeholder in Ohio; and we are not cited to any authority that it is absolutely essential that the jury commissioners •should be freeholders of a freehold in Ohio. But, be that ¡as it may, he is in fact a jury commissioner, whether he •owns a foot of real estate or not. It would be a mere irregularity; and, in order to entitle the accused upon this ¡ground to have a new trial, and to reverse this judgment, prejudicial error must have intervened by reason of the refusal of the court to sustain his challenge to the array. We •cannot see, if there was the irregularity that I have indicated in this case, how any prejudicial error intervened in this respect.

Upon the other question that is urged upon the attention of the court: The alleged libel is set out in the record. Although we have not seen the indictment, we take it for granted that it is alleged that this libel was published of and concerning W. O. Lyon; in fact, from this record, that admits of no discussion. It is shown by abundant evidence on the part of the State,that the prosecuting witness, W. O. Lyon, was intended and meant by the article; and, in the testimony of John A. Ohilcote, who purports to have written the article, finally, after having two or three times claimed his privilege upon the witness stand, withdraws his privilege and says, by way of answer: “I meant Lyon.” The accused himself upon the witness stand, says substantially the same thing. There were three distinct offenses charged in this libel. One was, that ‘‘Boss Bill” had been riding with some married lady of Newark,and, through inadvertence, left part of her clothes in the buggy when the buggy was returned. Another related to a transaction in Chicago. To use the ordinary term, and what the ordinary mind would understand by that article when he read it, — '‘‘bibulous time in Chicago,” would mean nothing more nor less than ‘‘a common drunk.” The other charge was a larceny committed in Chicago. These were the three-charges, — three distinct matters appearing in this alleged-libelous article. As I say, the record discloses that Lyon,, the prosecuting witness, was the person intended. ' As to-the falsity of these charges, we think there can be no room for doubt from this record. The gentlemen who were with-the prosecuting witness in Chicago, were upon the witness-stand, — William M. Hahn, Samuel J. Davis, Judge Lowery; the persons in charge of the train when he missed getting off the train at Newark, and rode on through to Zanesville, were before the court; they detail these circumstances, —how it happened. As to the other transaction, the prosecuting witness himself testifies to; and Kellar, the mam from whom the horse and buggy was hired, and the man from whom it seemed, as claimed by the accused, that this story emanated. The publication being admitted, and the falsity proved, malice would be presumed; but, in order to. entitle the State to a recovery, and before it could ask a conviction of the accused at the hands of the jury, it would be necessary to show that Ickes was the responsible party in some way, for the libelous article. The State had a theory that he, to say the least, inspired the article; that if he did not inspire the article, he was the editor and the manager of that newspaper at the time the libel was published, and, by reason of the fact that he was such editor and manager, he would be responsible criminally, although he had neither written nor participated in any way in the publication of the libel, other than merely allowing it to. appear in the columns of his paper. The State, on the proposition that he was manager and editor, offered a good deal of proof. The State submitted to the jury the paper itself. It had at the head of its editorial column the name of “James M. Ickes” as “Editor.” Th6 State called several witnesses oh the proposition that he was manager_ Brown, Wilhelm; and also offered the record of the company. (The Tribune was published by a stock company at that time.) The record shows that in 1896, at the January meeting, the accused was made the editor and manager of that newspaper. He was also secretary and treasurer. In June, 1896, he resigned as secretary and treasurer. He made some statements to the board that he desired to be re lieved of employment, and that arrangement was agreed to; and at the nest meeting there was something done about that. But, be that as it may, soon after this June meeting, Chilcote, who, it was said, became, after the June meeting, the manager of that paper, died; and the State contended that, upon the death of Chilcote, whether Ickes was formerly re-elected manager or not, he, in fact, assumed the management of the paper, and his assuming the management of the paper was acquiesced in by the board of directors, and he was, in fact, the manager. I have already suggested what the record shows. Wilhelm was called. He was an employe there. On page 98, he says:

‘‘I was working for Mr. Iekes. Q. In'the Tribune? A. Yes, sir; for the Tribune. Q. Who employed you to work in the Tribune? A. Mr. Iekes wrote me a letter and wanted me to come down and work for him seveial weeks, and I did.” He says he has that letter yet. ‘‘A. I thought he was general managing editor and had control of the business at that time.” ‘‘He gave me instructions to have supervision of the circulation; I was to go out and solicit subscriptions,and make collections.” ‘‘He told me to go out and solicit subscriptions, and to find out how many copies each of the other papers had in the city, and to make a report, and also to make collections.” “Q. Do you know who was managing editor of that paper? If so, state who he was. Objected to. The Court: If he knows who was managing editor. A. Yes, sir. Q. Well, who was it? A. Mr. Iekes.”

I will call attention to Brown’s testimony on page 131. Brown was an employe there. ‘‘Q. Who was the managing editor of the paper? A. Joseph M. Iekes.”

Mr. Stasel, who was the president of this company, on page 32, says he doesn’t know, maybe Iekes was managing the thing there. ‘‘He had control,as I say, of the general mechanical part and business part of the office, I think, and did exercise such control, and furnished editorials for the paper.”

The defendant offered testimony tending to show that he was not the manager; that he was simply the editor; that his business and connection, and relation with that paper at the time this libelous article appeared was simply to furnish editorial matter, and he was responsible only for what appeared in the editorial columns. It is conceded that 'the alleged libel did not appear in the editorial column, but was in the local column. He claimed that one Cochran '¡had charge and control of the local columns.

This was all submitted to the jury, and we are asked to •^reverse this judgment as against the evidence.

Without taking up the time to read from this record, it 'does appear that a night or two before this article appeared, ■the prosecuting witness, who was running a newspaper, had made some observation about Chilcote, at which he took ■umbrage. On the night of the 4th of December, Chilcote and the accused were talking by telephone in respect to the article that appeared in “Daily American,” and about 'Chilcote answering that article, and it was suggested by Ickes that he ought to answer it; that it would be proper; and there was some inquiry made about Chicago. That was before the jury. On pages 273-4, Chilcote describes the scene there,and we are not prepared to say that the jury was not justified in giving credence to the testimony of Brown and Wilhelm,who,so far as this record discloses, appeared to be disinterested in this matter, rather than the versión that was given by Chilcote and the accused upon trial.

“Had you any talk with Ickes as to what appeared in the ‘American’, that was the immediate cause of this? Had you any consultation? A. I had talked to him over the telephone. “Q. Did you have a talk with him outside •of the telephone? A. No, sir; I didn’t.” “Q. I ask you, what his reply was when you told him you were going to answer it? A. Well, I think he said he thought he would if he was in my place. I think I asked him if Mr. Lyon wasn’t robbed in Chicago, in 1888, while attending the convention there. He said that Lyon had said that he was. ’ ’

And so it goes on, but I will not go through this at length. This talk occurred on the 4th of December. Mr. Iekes must have expected a reply, and might naturally expect it to come through his paper; but,be that as it may, we think the jury were warranted in finding that he was= manager there from this evidence.

In addition to this, the record discloses the publication-of an article that is concededly libelous. It is vile. Its publication by a newspaper is under circumstances that make no person responsible for its publication. As part of the outfit of the office there is a dummy leading to the composition room, and it is claimed that anybody can go into the office, deposit in this dummy articles that are to appear in the paper, and they go by means of the dummy to the composition room where they are set in type, and nobody oversees or supervises the article; and, by reason of this claim, it is contended that there is no criminal responsibility. It is claimed in this case that Iekes did not write the article. He says he did not write it, knew nothing of it until he read it in the paper. Chilcote says he wrote it, and' that Iekes did not see it until after its publication. Chilcote signs his name to the article, and addresses the communication to the editor. He says that no person at the office saw it, except the man who set it in type. That her took it to the office, put it in the dummy, had it sent up to the composition room, and nobody connected with the-management of the paper had any knowledge of it, except the man who set it in type. And, it is contended that by reason of this condition of affairs, Iekes is not responsible-because he neither wrote the article, nor saw it until after its publication. Wilhelm, as a witness, says that he saw Iekes and Chilcote together in the office apparently examining a paper, and talking and laughing. One or the other of them said “this is a corker; it will fix him.” Chilcote is called as the chief witness for Iekes. He sheltered himself upon his privilege on the stand. Iekes offered himself as a witness, and, on being admonished by the court that be might assert his privilege, on four or five. occasions he did assert his privilege, and refused to answer the interro.gatories propounded. This occurred in th9 presence of the jury, and it was for them to determine what credence they would give to their testimony. It was for the jury to dra;w their own conclusions and inference from what was occurring in open court. Under these circumstances, the jury would be warranted from the facts in finding that the whole truth ■as to the writing and publication of this article was not before them as claimed by the plaintiff in error.

There is another matter that I might suggest, and which, doubtless, occurred to the jury, and that is, if the claim of ■the accused was true, that he had no knowledge of this article, knew nothing about it until he read it in the paper, upon its appearance he would have been swift in disavowing Tesponsibility for its publication, and it would doubtless have occurred to him, being a newspaper man, that a retraction would be proper. But no such retraction or disavowing of responsibility occurred. Now, from these facts, all of which were before the jury, the jury was, in our opinion, clearly warranted in finding Iekes responsible for the publication.

The only remaining question is, was the^law properly charged to the jury in the findings as detailed in the record?

I read from the 46 Am. St., 629. This caséis a dear exposition of criminal responsibility for libelous|fpublications under circumstances as favorable as the plaintiff in error •could possibly have claimed it.

The charge to the jury stated fairly the claims of the State and the accused, and the legal principles^upon which a conviction can be had, if at all. It might be suggested that carelessness, even, is a ground for criminal responsibility in other cases. A man may be guilty of manslaughter •where death occurs by reason of carelessness or gross neglect.

There is another matter that I might suggest: If the claim of the accused were true, — that he had no knowledge of this article; knew nothing about it until he read it in the paper, common decency would have suggested, upon its appearance, the prompt disavowal of responsibility. A retraction, to say the least. The editor or the manager of that newspaper could have said: “This article appeared there without knowledge on the part of the officers or the responsible head of that concern, without our consent; we do not approve it;: we retract; so far as we are concerned, we retract, and desire to repair whatever damage we have done.” But nothing of that kind.

We cannot say that the finding of the jury was against: the evidence. In fact I will go further: I will say that we feel that the finding of the jury in that respect was right,, in finding that he was manager and editor at this particular time. I read from 46 Am. St., 629:

“Knowledge of Manager or Proprietor of Newspaper-Defense.^ — The manager or proprietor of a newspaper isprima facie criminally liable for a libel published therein, and cannnot escape responsibility simply by showing that it was published without his knowledge or consent. He-must further show that the publication did not occur through any negligence or want of ordinary care on his, part.”

Page 632;

“This brings us to the most important question in the-case, and that is whether, under our statute, it is a defense for the proprietor or manager of a newspaper, when indicted for libel, to show that the libelouB article was published without his consent or knowledge. The statute provides that “if any person shall * * * publish or cause to be published of or concerning another any false or scandalous matter with intent to injure or defame such other person, upon conviction thereof (he) shall be punished etc.”

JB. Wcdght, G. D. Barrows, B. G. Smythe, for Plaintiff in Error.

T. W. Philipps, Prosecuting Attorney, S. M. Hunter, J. B. Jones, for Defendant in Error

It is claimed here that the evidence failed to show that there was a specific intent to injure and defame.

“The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent.” * * * “And it should be no defense that the publication was made without his knowledge or consent, unless it further appears that it did not occur through any negligence or want of.ordinary care on his part. One who furnishes tne means for carrying on, and derives profit from, the publication of a newspaper, and intrusts its management to servants or employes whom he selects and controls; may be said to cause to be published what actually appears, and should be held responsible therefor, whether he was individually concerned in the publication or not, if he did not exercise proper care and oversight over the business intrusted to his servants.”

And I might read on.

On the ground of “criminal carelessness,” — that is not an unfamiliar principle. Men are indicted for manslaughter by reason of careless conduct through which death results.

The charge, as given, we think covered the case fairly as made by the evidence.

We think the case was fairly tried; and, there being no error that we discover in this record, this judgment must be affirmed.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co.,O., Circuit Court,
    January Term, 1898.)
    Before King, Haynes and Parker, JJ.
    MINERVA T. RUSSELL, v. CHARLES A. RUSSELL, ET AL.

      Action for assignment of dower — Can not be changed by cross-pe■iion into action for partition and dower—
    :In a suit instituted for assignment of dower, a defendant can not by his answer and cross-petition change the suit to one for partition and dower.

      Dower in unimproved lands — Value to be ascertained — Sec. 5714a JR. S.—
    In an action for the assignment of dower in unimproved lands under sec. 5714a, R. S., the court is not required to order the land sold and to assign dower in the proceeds, but may have the lands appraised and ascertain their fair value ■ by hearing testimony, .• and may fix the amount of the dower from the value thus found, and order the sale of so much of the land as is necessary to realize that amount.
    Error to the Court of Common Pleas of Lucas county,
   Haynes, J.

This case is brought into this court upon appeal from a •certain order that was made by the court of common pleas •in the case. The original petition was filed by Minerva T. Russell in the common pleas for the assignment of dower in •certain property in Lucas county. Thereupon an answer ■was filed by one of the defendants, who was the owner of a portion of the premises, or had an interest in the land, praying for a partition of the premises, and praying also, perhaps, with reference to certain taxes which had been paid. 'Such proceedings were had in the court of common pleas that the court found that the plaintiff was entitled to dower in the premises described in the petition; that as between defendant Charles A. Russell, and Rowland E. Russell, ■Charles A. Russell is the owner of an undivided two-thirds interest, and Rowland F. Russell, in like manner, of a one-third interest therein. And it was ordered that a writ be issued to the sheriff of Lucas county, to assign dower in said ^premises to the plaintiff. This writ was issued in June, After the issuance of the writ, commissioners were appointed to make partition. The commissioners made a report to the court on November 11th, 1897, whereupon the court, proceeded to affirm the action of the commissioners,and proceeded to make certain findings and orders. Among other things they found the value of her dower, acting under sec. 5714a, Revised Statutes: “The court further finds that at the time of the .filing of the petition herein, the plaintiff was fifty-eight years of age, and that the value of said do,wer in money is the sum of $700.88.” And thereupon, under that same section, it proceeded to order that the property, or so much thereof as might be necessary, should be sold and the amount of her dower paid to her.

It was to this order of the court that an appeal was taken, objection being made that the court erred in the amount that it found the value of the dower to the widow to be.

We have very serious doubts whether this is an appealable matter. Unquestionably, under the decision in 49 Ohio St., 374 (McRoberts v. Lockwood et al.,) it is held that an appeal may be allowed in a case of partition. At the same time, while the court held that an appeal might be taken from a final order and decree in partition, it held that there could be no appeal from the action of the court confirming the partition. For that reason we have very serious doubt whether the proceedings which were had in this case after the decree that was taken in July, finding that the plaintiff was entitled to dower, could be appealed from; but inasmuch as there has been, under sec. 5714a, a finding of the amount and value of the dower, we have concluded to hold that the case is properly in this court.

There is no disagreement her.e about the facts of the case. The conlention of counsel in this court seems to be that the court of common pleas should have ordered a sale of the whole property, as upon partition, and that the proceedings should have been governed by the law of partition, and claims his cross-petition should operate to change the action for dower to one for partition and dower.

Upon consideration, we are of the opinion that the defendant had no right by his answer and cross-petition in partition to change the case from dower to partition and dower; in other words, we hold that the case should have proceeded as it originally was commenced — as an action in dower and for the assignment of dower, to be governed by the chapter of the statutes relating to the assignment of dower.

Under chapter seven the widow is assigned a dower by metes and bounds, or else an interest in the rents and profits. But lately a supplementary statute has been passed by the legislature, which is now known as sec. 5714a, which provides that under certain circumstances, where there are unimproved lands or woodlands which are unproductive, she has other and different rights: that she has a right to have the amount and value of her dower interest fixed, and that she be paid the amount out of the proceeds of sale. Whether she could do that in a partition, is a matter that perhaps we need not decide here. It is sufficient to say that they are distinct proceedings, and we see,in reason, no right that defendant has,to come here and substitute a proceeding in partition for a proceeding in dower. For that reason, we hold that the answer of Russell should not have been regarded, and that the proceedings should have gone forward as for proceedings in dower alone.

I come now to the real controversy in this case — for I fake it that the supposition on the part of counsel for defendants, is that if the proceedings should go forward as partition proceedings, and if plaintiff elected to take a portion of proceeds of the sale of the property, that then she would only take a certain portion of the amount for which the land might be sold, whereas under sec. 5714a a different right is given her. Sec. 5714a, provides:

“When an estate of which a widow or widower is dowable, or in which a widow or widower owns a dower or curtesy interest, heretofore assigned to or vested in her or him, consists, in whole or part, of timber lands or other unimproved lands or lots, commissioners, appointed as hereinbefore provided, shall return to the court a true appraisement of such lands in money, and also a true appraisment of the annual rental value thereof, and if it shall appear to the court, upon the hearing of such report, that the assignment of dower or curtesy in such land, either by metes and bounds or as of the rents, issues and profits, cannot be or has not been made so as to provide such widow or widower with an income from the lands or lots so charged commensurate with the value of the same, as fixed and determined by said commissioners, the court shall determine the value of such dower or curtesy in money, and make an order directing the sheriff to advertise and sell the lands so charged with dower or curtesy, or so much thereof as may be necessary, as upon execution. * * .”

It will be noticed that this only applies to a certain class of lands. In lands which are improved, or lands which are valuable and productive, the widow is still endowed either with one-third of the premises, or one-third of the rents and profits, as the law stood before the passage of this section. Hut, in unimproved lands, for the purpose of enabling her to have some benefit of dower, provision is made for her as in this section provided. Now it is objected here that the court, in finding the value of the premises, have found it as of one-third the face value of the property — or might find it of that valuation. The statute provides: “the court shall determine the value of such dower or curtesy in money;” the court is not limited to taking one-third of the land, but is to ascertain, as near as he can, the value of her dower interest.

It is contended that the way to ascertain the value of the lands is to sell them, and that the plaintiff should be endowed with one-third of the proceeds that may arise out of the sale of the lands. Now, we cannot agree to that rule; we do not think the court is bound by any rule of that kind. She has a right to have assigned to her a one-third interest in the real estate. No better way, perhaps, could be found than to have the value fixed by appraisers, as it was fixed in this case, and then, when the court ascertains what the value of the land is, by appraisement or by hearing testimony, then it would also proceed to ascertain the fair value of her interest in that — that is to say, her third. That, in this case, the court has proceeded to do. The statute then provides that the “court shall make an order directing the sheriff to advertise and sell the lands so charged with dower or curtesy, or so much thereof as may be necessary, as upon execution,” And that the court did in the case at bar, and we think the action of the court was correct, and the order of the court is that the same order be entered in this court as was entered in the court of common pleas.

Hamilton & Kirby, for Plaintiff.

A. P. Grane, for Defendant.