text:
    ILLEGAL DISMISSAL OF A SCHOOL PRINCIPAL.
    Court of Appeals for Fairfield. County.
    Samuel H. Layton v. Jerry R. Clements et al.

    Decided, April 26, 1917.

      Schools—Statutory Protection of a Teacher Dismissed 'Without Ground —Applies Also to a Principal—Time Not the Essence of the Contract With a Principal—Action of a Previous Board of Education Binding Upon its Successors—Remedy of a Principal Dismissed Without a Hearing.

    1. The provision of Section 7702, General Code, that the term of a superintendent of schools must end on August 31, is directory and not mandatory, time not being the essence of the contract.
    2. The provision of Section 7701, that no “teacher” shall be dismissed by a board of education unless charges are first reduced to writing and an opportunity given for defense before the board or a committee thereof, covers superintendents of public schools, and the dismissal of a superintendent without observance of these provisions may be enjoined.
    3. A court will not permit a hoard of education to abrogate and hold for naught a contract entered into by its predecessors unless it first establishes its legal right so to do, nor will it remit to an action at law a party suffering from the annulling of such a contract.

      M. A. Daugherty and J. W. Deffenbaugh, for plaintiff,

      Ruble, Courtright, McCleery & Shell, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, July 3, 1917.

   Houck, J.

This cause is here on appeal from the' Common Pleas Court of Fairfield County, Ohio.

The petition in substance avers that on May 27, 1915, plaintiff was elected to the office and position of superintendent of schools, for the city of Lancaster, Ohio, by the board of education of said city; that his term of office was for three years from the 1st day of September, 1915; that his salary was fixed at $2,200 per year, payable in monthly installments of $188.33 1-3; that he holds a state life certificate as a teacher in the high schools of Ohio ;■ that he accepted said employment and is now discharging the duties of same; that his salary has been paid up to July 1st, 1916; that the defendant, Jerry R. Clements, claims to have been elected superintendent of said schools by the board of education of said city of Lancaster, for the year commencing September 1, 1916, and is now assuming and attempting to act as such; that he is attempting by force and otherwise to get possession of the boobs and papers pertaining to said position, and by force and otherwise and against the law and rights of plaintiff seeks to assume and perform the duties of superintendent, as aforesaid; that the other defendants herein are aiding and assisting said Clements in his unlawful acts and attempt to prevent the plaintiff from acting as such superintendent and in the performance of his official duties.

Plaintiff prays for an injunction restraining each and all of the defendants from in any way interfering with him in the performance of his duties as superintendent aforesaid, and from the payment of any salary to the defendant, Jerry R. Clements.

The defendants filed an answer denying all of the material allegations of the petition.

Upon these pleadings and the evidence the cause was submitted to this court. The undisputed evidence in this case is:

That on May 29, 1913, the plaintiff was elected superintendent of the Lancaster schools for a period of two years, commencing on the 1st day of July, 1913; that he accepted and performed the duties of said position; that on May 27, 1915, he was elected for a period of three years at a salary of $2,200 per year, term to commence on July 1, 1915, and that he accepted said position and entered upon the discharge of his duties and has been paid his salary to July 14, 1916; that the membership of the board of education prior to January 1, 1916, was as follows: G. E. Miller, J. T. Oberdorfer, L. G. Silbaugh, J. D. Yan Gundy and L. E. Eyman, and that subsequent to that date its membership consisted of J. T. Oberdorfer, Lee 0‘Grady, J. D. Van Gundy, Ralph W. Wolfe and L. E. Martin.

Minutes of board of education meeting held May 1, 1916:

“The following resolution was read. Resolved: Be it Resolved by the Board of Education of the City of Lancaster, Ohio,

“1st. That by reason of the inefficiency, neglect of duty and improper conduct of S. H. Layton, superintendent of said schools, the said S. IT. Layton is by said board of education of the city of Lancaster, Ohio, hereby discharged and dismissed as such superintendent of the said Lancaster schools, the said discharge and dismissal aforesaid to become effective on the 30th day of June, 1916.

“2d. That upon the passage of this resolution, the clerk of this board be, and he .is hereby ordered to serve a copy of said resolution on said S. IT. Layton, within five days from the date of the passage hereof, and of his service to make due return forthwith to this board.

“Offered by J. T. Oberdorfer, seconded by Lee O’Grady. The . vote on the above resolution was as follows: T. D. Van Gundy, yes; Lee O’Grady, yes; J. T. Oberdorfer, yes; Ralph W. Wolfe, yes; L. E. Marten, yes. The president then declared the motion carried.

“Upon calling for remarks before vote on the above resolution, Supt. Layton said: ‘ I would like to demand more specific charges. ’

“No other remarks were made and motion to adjourn was carried.

“T. D. Van Gundy, Pres.,

“W. A. Thompson, Clerh.

“A copy of the above resolution was placed in the hands of Supt. S. IT. Layton, by the clerk of the board of education of Lancaster, Ohio, on May 4th, 1916.

“W. A. Thompson, Clerh.”

Minutes of board of education meeting held May 25, 1916:

“The following resolution was offered by J. T. Oberdorfer, seconded by Lee O’Grady:

“Resolution. There being a vacancy in the office of superintendent of schools of the city of Lancaster, Ohio, on and after the 30th day of June, 1916, therefore,

“Be it Resolved by the board of education of the city of Lancaster, Ohio, that Lewis D. Bonebrake be, and he hereby is, employed and elected to the position of superintendent of the schools of said city of Lancaster, Ohio, for a term of two years, at an annual salary of $2,500 per year; said term of Lewis D. Bonebrake as such superintendent as aforesaid shall begin on the 1st day of July, 1916. On call of roll of board, the vote on the above resolution was as follows: Oberdorfer, yes; Yan Gundy, yes; O’Grady, yes; Wolfe, yes; Marten, yes; said reso-' lution receiving a majority of all votes of said board of education, the president of said board, J. D. Yan Gundy, declared the said Lewis D. Bonebrake duly elected and employed as such superintendent of the schools of the city of Lancaster, Ohio, in accordance with the terms, conditions and specifications of said resolution.”

Minutes of board of education held May 25, 1916:

“Board of education of Lancaster schools met in adjourned session with following present: J. D. Yan Gundy, Dr. Lee O’Grady and L. E. Marten.

“Clerk reported that contract for south building improvement had been approved by city solicitor and placed in hands of the Gosling Plumbing Oo. for signature.

“The following resolution was offered by O’Grady, seconded by L. E. Marten:

“Be it Resolved by the board of education of Lancaster city schools, Lancaster, Ohio, that the clerk of this board be instructed to ask Mr. S. IT. Layton for all keys to buildings and for the custody of any property said Mr. Layton may have in his possession belonging to the said board of education and Lancaster schools. Roll call as follows: Yan Gundy, yes; O’Grady, yes; Marten, yes. Resolution adopted.

“Motion by O’Grady, seconded by Marten, that clerk be instructed to have the grass cut on north school grounds. Motion carried.

“Adjourned to meet July 8, 1916.

“J. D. Yan Gundy, Pres.

“W. A. 'Thompson, Clerk.”

Minutes of the board of education meeting held July 27, 1916:

“The following resolution was read by the clerk: Resolution : There being a vacancy in the office of the superintendent of the schools of the city of Lancaster, Ohio, caused by the death of Superintendent-elect Lewis D. Bonebrake, Be it Resolved, by the board of education of the city of Lancaster, Ohio, that J. R. Clements be, and he is hereby employed and elected to the position of superintendent of the schools of said city of Lancaster, Ohio, for a term of two years, at an annual salary of $2,500 per year. Said term of J. R. Clements as such superintendent as aforesaid shall begin on the 1st day of September, 1916.

“Offered by Lee O’Grady, seconded by L. E. Marten. On roll call of the board the vote on the above resolution was as follows:

‘‘Oberdorfer, yes; Van Gundy, yes; O’Grady, yes; Marten, yes; Wolfe, yes. Said resolution receiving a majority of all of said board of education, the president of the said board, J. D. Yan Gundy, declared the said J. R. Clements duly elected and employed as such superintendent of the schools of the city of Lancaster, Ohio, in accordance with the term, condition and specifications of said resolution.”

Plaintiff was ready and willing to and did perform all the duties of superintendent of schools of the city of Lancaster, Ohio, and did all that was necessary to be done until defendants placed new locks upon the doors to the superintendent’s office and refused him admittance thereto, which was on or about the -day of August, 1916.

It is not claimed that any charges were preferred against the plaintiff as provided by Section 7701, General Code, or that he was given an-opportunity to be heard either by the board or a committee thereof.

Under these facts this court is called upon to determine as to whether or not the plaintiff is entitled to the relief prayed for in his petition.

The defendants contend that plaintiff’s petition should be dismissed for the following reasons:

1st. That the plaintiff has no valid and binding contract of employment with the defendant board of education.

2d. That if plaintiff has any right of action against the defendants that it is one in law and not equity.

Learned counsel for the defendants urge that because the term of employment does not end with the 31st day of August, as provided by Section 7702, General Code, that plaintiff has no valid contract.

'This provision, as we view it, is directory and not mandatory. A board of education may employ a superintendent for a term not to exceed five years, but it may employ one for less than that period, which was done in the present case. The essence of the contract under consideration is not time, and therefore we do not think the claim of the defendants.i'jn this regard is well taken.

The contract was for three years, and it must be admitted that at the time it was entered into it was done in good faith and considered binding upon all of the parties thereto.

Plaintiff performed his part of the contract and defendants accepted it for one year and then the personnel of the board of education changed and an attempt was made to annul said contract on the part of the board of education.

No opportunity was given the plaintiff to be heard as to any alleged inefficiency, neglect of duty or improper conduct on his part. But the Legislature of Ohio has seen proper to place a protection around teachers and superintendents of schools by the enactment of a wise statute, the provisions of which are clear, definite and certain. Section 7701, General Code, provides :

"Each board may dismiss any appointee or teacher for inefficiency, neglect of duty, immorality, or improper conduct. No teacher shall be dismissed by any board unless the charges are first reduced to writing and an opportunity be given for defense before the board, or a committee thereof,” etc.

Defendants insist that from a proper construction of the above statute we are bound to reach the conclusion that a superintendent is not a teacher.

It seems to'us that this construction would lead us to conclude that the Legislature had a higher regard for the protection of a janitor or a primary teacher than it did for the efficiency, protection and safety of its "guiding star of the school system,” its superintendent.

We are bound to disagree with the construction urged by learned counsel for the defendants, and hold that a superintendent of schools is a teacher and is entitled to all the protection placed about him by the provisions of the statute just referred to.

The contract before us is a solemn and binding obligation between the parties to it, and can not and should not be set aside and held for naught, unless there has been some violation of its terms and provisions.

What act of omission or commission on the part of the plaintiff has been proven that would warrant a court in setting aside his contract of employment in this case? We are unable to find any. .

A contract entered into between a board of education and an individual is just as binding on the parties as if made between individuals; and a court will not permit a board of education to abrogate and hold for naught a valid contract made by its predecessors in office, unless it first establishes its legal right so to do. In the case at bar there is certainly no evidence warranting it.

Coming now to the second proposition urged by the defendants. Has the plaintiff pursued the proper remedy? Counsel for defendants in their brief say:

“The defendants did everything they could do to get rid of the plaintiff. They demanded the keys. When this was refused they took possession of the office, changed the locks on the doors, and with force kept him out. 'True, he came into the room while they were holding a meeting, but he was not invited and did not take part in the proceedings. He certainly was not • recognized by the board.”

Where do we find the equities in this case in the face of such admission of facts, and the further fact that the defendant Clements with the approval of the other defendants herein had taken charge of some of the school papers, and the plaintiff, by means of locks and force, was kept from performing the duties of his position as superintendent of schools notwithstanding the fact that he had a valid contract so to do? What was plaintiff’s duty in the premises—to use force against force, or to seek redress in a court of equity whereby he might be restored to his just and equitable rights?

But it is insisted that he is not a public officer and therefore his remedy was in damages to be obtained in a court of law.

"We do not deem it necessary to discuss this question at great length, because in' the light of the conceded facts in this case it is obvious that under the law the plaintiff’s relationship to the defendants was of such a character that he was fully justified in seeking relief in a court of equity.

We are of the opinion that the plaintiff is entitled to the relief prayed for in his petition.

Decree and judgment accordingly.

Powell, J., and Shields, J., concur.


source: Caselaw Access Project

author: Kunkle, J.

license: Public Domain

text:
    AUTOMOBILE STRUCK BY INTERURBAN CAR. AT COUNTRY CROSSING.
    Court of Appeals for Montgomery County.
    The Ohio Electric Railway Co. v. W. C. Mendenhall.
    Decided, July 6, 1917.

      Negligence—Questions Pertaining to Negligence of Motorman and Contributory Negligence of Driver of an Automobile—In Collision at a Country Crossing—Charge of Court.

    1. In an action against an interurban railway company for injuries to the plaintiff from being struck by a car as he was attempting to drive across the track in an automobile, questions pertaining to the negligence of the motorman and contributory negligence of the plaintiff are for the jury, and it is not error to refuse to direct a verdict.
    2. Nor is it error to refuse to give a special charge in such a case to the effect that the duty was not imposed on the motorman to blow his whistle upon approaching the crossing “unless he saw someone was about to cross the track.”
    3. And in view of the principle that it is not the duty of the court to determine the question of negligence, it is not error to refuse to give the charge “under such circumstances I charge you that the operation of a car at a high rate of speed, if you find by a preponderance of the evidence that the car was so operated, would not be such negligence as would entitle plaintiff to a verdict.”

      McMahon & McMahon, for plaintiff in error.

      Boy G. Fitzgerald, contra.
   Kunkle, J.

Defendant in error sought to recover judgment against plaintiff in error in the sum of $20,000 for personal injuries and damage claimed to have been sustained by reason of the negligence of the employees of plaintiff in error in the respects stated in the petition.

The ease was tried and submitted to a jury with the result that a verdict was rendered in favor of defendant in error in the sum of $5,000. Motion for a new trial was overruled; judgment was rendered upon the verdict and from such judgment error is prosecuted to this court.

In brief, it appears from the record that in the afternoon of August 13, 1914, Dr. Mendenhall, the defendant in error, was driving eastwardly on the Eaton pike, for the purpose of visiting a patient who resided on the driveway which runs northwardly from the Eaton pike near a point on the line of the railroad of plaintiff in error called Crown Point. At this place the tracks of plaintiff in error are construeed along the north side of the Eaton pike. 'The track is not constructed upon the traveled portion of said pike 'but upon the right-of-way of the pike.

Defendant in error was driving in an automobile and in order that he might reach the home of his patient was obliged to cross the track of plaintiff in error at this point, and in so doing was run into by one of the cars of plaintiff in error and was injured. Plaintiff in error insists that it is not responsible for the accident. The testimony shows that defendant in error was seriously injured. No claim is made in the brief of counsel for plaintiff in error that the verdict is excessive. Plaintiff in error contends that it is not liable for the injury in question.

Defendant in error in his petition alleged three grounds ofv negligence upon the part of the employees of plaintiff in error, namely:

1. That the rate of speed at which, the ear was being operated was excessive.

2. That no signal was given of the approach of the car.

3. That a proper lookout was not maintained by the motorman in charge of this car.

We have carefully read the record in this case, but shall not attempt to quote therefrom in detail. It is sufficient to say that a number of witnesses tesified that this ear was being operated at from 40, 50 and 60 miles an hour at the time of the accident. 'There was also testimony tending to show that another employee of plaintiff in error was standing in the doorway immediately behind the motorman talking with the motorman at and about the time of the accident. There is also testimony tending to show that no signal was given of the approach of the car until just about the time of the crash, i. e., the collision between the automobile and the traction car.

Plaintiff in error introduced witnesses contradicting such evidence. The motorman testified about. blowing the whistle for this crossing (page 196) :

‘‘Q. Go ahead. A. When I saw the machine running along side I blew for the crossing, which we naturally do that anyhow; and the next I noticed his wheels turned; that was the first I noticed him turn in at all; I just threw up the emergency break and whistled and reversed the car; by that time it was done.”

Counsel for plaintiff in error rely upon the following alleged errors for a reversal of the judgment:

1. Eefusal of the trial court to direct a verdict.

2. Eefusal to give certain special charges requested.

3. Error in the general charge of the trial court.

In regard to the first claim we think it-is sufficient to say that the question of the negligence of plaintiff in error and the contributory negligence of defendant in error were questions for the jury to determine from all the facts and circumstances disclosed by the testimony, and under proper instructions from the court.

Under the decision of our Supreme Court in the case of Railway Co. v. Weingartner, 93 O. S., 124, and other decisions of the Supreme Court, we think the trial court. properly submitted to the jury the question of the negligence of plaintiff in error and the contributory negligence of defendant in error.

Plaintiff in error insists that the trial court erred in refusing to give special charges numbers 1 and 2, before argument of counsel, as requested by plaintiff in error.

Assuming that the facts stated in special charges numbers 1 and 2 are correct (although this fact is disputed by counsel for defendant in error), we are of opinion that the trial court did not err in refusing to give special charge number one for at least the following reason:

This special charge concludes with the following paragraph:

Under such circumstances I charge you that there is no duty imposed upon the motorman to blow his whistle on approaching said crossing unless he saw some one was about to cross the tracks, and his failure so to do, if you ñnd by a preponderance .of the evidence that he did so fail, would not be such negligence as would entitle plaintiff to a verdict.”

The motorman claims that he blew the whistle for the crossing. Other witnesses testified that the whistle was blown for this crossing. 'The motorman seems to have considered that some duty devolved upon him to blow the whistle for the crossing in question. We think the trial court was justified in refusing this special charge at least for the reason that it eliminates any degree of care upon the part of the motorman in discovering whether any one was or was not about to cross the tracks at the point in question. It imposed no duty unless the motorman saw that some one was about to cross the tracks.

Under all the circumstances disclosed by the record we think it was the duty of the motorman to at least exercise some degree of care for the purpose of discovering whether any one was about to cross the tracks into this driveway. The charge instructs the jury that no obligation exists unless the motorman saw that some one was about to cross the tracks.

This charge would permit the company to escape liability if the motorman had not been looking at all, or had not made any effort to discover whether any one was about to cross over this driveway. We think the trial court properly refused to give special instruction number one.

As to instruction number 2, again assuming that the facts stated in this charge are correct, which fact is disputed by counsel for defendant in error, we think the concluding paragraph of this special charge does not correctly state the law upon the subject.

The paragraph referred to is as follows:

“Under such circumstances I charge you that the operation of a car at a high rate of speed, if you find by a preponderance ot the evidence that the car was so operated, would not be such negligence as would entitle plaintiff to a verdict.”

It was not the duty of the trial court to determine the question of negligence, but it was the duty of the jury under proper instructions from the court and under all the facts and circumstances disclosed by the evidence, to .determine the question of negligence.

It is further claimed that the trial court erred in charging the jury upon the question of wanton and willful negligence.

The trial court stated to the jury that there was no evidence to support the charge of willful negligence, but did instruct the jury in reference to the question of wanton negligence.

'This was an issue under the pleadings in the case. This issue was explained by the court in its general charge to the jury. At the request of counsel for plaintiff in error the issue of wanton negligence was called to the attention of the jury by the concluding paragraph in one of its special requests, namely:

“If you find, therefore, by a preponderance of the testimony that if he had looked at such point before attempting to cross the tracks he could have seen the car approaching in time to have stopped the car and avoid the accident, his failure to do so was such negligence directly contributing to the accident as would prevent his recovery and your verdict should be for the defendant, unless you find from a preponderance of the evidence defendant at the "time and place of the accident was guilty of wanton disregard of plaintiff’s rights as charged by plaintiff.”

This special instruction was given before argument at the request of counsel for plaintiff in error and recognizes one of the. issues in the case, namely, that of wanton negligence.

The trial court in the general charge to the jury also defined what would constitute wanton negligence, and in other ways referred to this issue. We have considered the charge of the trial court in the respects complained of’by counsel for plaintiff in error and when the charge as a whole is considered we find no error therein which we consider prejudicial to plaintiff in error.

Finding no prejudicial error in the record the judgment of the lower court wll be affirmed.

Allread, J., and Ferneding, J., concur.


author: Chittenden, J.

text:
    DAMAGES FOR. ASSAULT UPON PASSENGER BY CONDUCTOR.
    Court of Appeals for Lucas County.
    The Toledo Railways & Light Company v. John Duggan.
    Decided, January 15, 1916.

      Street Railways—Liability of Company for Assault Upon Passenger by Conductor—Dispute as to the Amount of Fare Which Might be Charged—Permitting One to Ride Who Has Made an Inadequate Tender of Fare Malees Him a Passenger—Charge of Court.

    1. A street car conductor, while in charge of a car and engaged upon his regular run, is the alter ego of the company, and, when performing any act associated with his duties as conductor, is acting within the scope of his authority and his employer is responsible for such act.
    2. Where a street railway company instructed its conductors to refuse a tender of a three cent fare but to permit the person making such tender to ride, and the plaintiff presented himself at a proper street crossing as a passenger and was permitted to enter the car and thereupon tendered to the conductor three cents, and the conductor allowed him to be transported, he was in every sense a passenger and entitled to protection as such.

      Tracy, Chapman & Welles, for plaintiff in error.

      W. If. McLellan, Jr., contra.
   Chittenden, J.

Error to the court of common pleas.

John Duggan sued the 'Toledo Railways & Light Company to recover damages for an alleged assault and battery committed by a conductor in the employ of the defendant, while the plaintiff was a passenger upon one of its ears. The trial in the common pleas court resulted in a verdict and judgment in favor of: the plaintiff in the sum of $500.

'The claimed errors presented by the plaintiff in error to secure a reversal of the judgment are the refusal of the trial court to give certain written instructions, requested by the defendant before argument; failure to give certain instructions requested by the defendant after argument; errors in the charge of the court, and that the verdict and judgment are excessive.

Instruction number two, requested to be given before argument, is as follows:

“Even if you find that plaintiff had trouble with some conductor as claimed by him, he is not entitled to recover herein unless you find that the conductor was acting within the scope of his authority at the time.”

The evidence leaves no question but what the conductor alleged to have made this assault was the conductor iu charge of the car upon which Mr. Duggan was at the time. The testimony of Mr. Duggan is to the effect that, upon entering the car, it being of the pay-enter type, he tendered the conductor three cents in payment of his fare; and that thereupon the conductor asked him what he was trying to do and demanded that he pay a full fare, saying to Mr. Duggan that he had a lot of money. Mr. Duggan responded that he was going to pay only a threeeent fare; that he was doing as other lawabiding citizens were doing, and stated that he was authorized to pay no more than three cents. 'Thereupon, he says, the conductor seized him, jerked him up against the side of the door, knocked the money out of his hand and scratched his nose. In this situation the jury should have been charged by the court that the conductor was acting within the scope of his authority. A conductor, while in charge of a ear and engaged upon his .regular run, is the alter ego of the company, and, when performing any act associated with his duties as conductor, he is acting within the scope of his authority and his employer is responsible for such act. B. & O. R. R. Co. v. Reed, 12 C.C.(N.S.), 177.

In the general charge the court left to the jury the question as to whether or not the conductor was acting within the scope of his authority, and charged the jury that, if they found that he was not acting within the scope of his authority in committing the assault charged by the plaintiff, the defendant would not be liable. In so charging the jury the trial court was in error. But inasmuch as the instructions contained in the general charge, as above stated, were favorable to the plaintiff in error, the error is not prejudicial and affords no ground for reversal.

Request number three is as follows:

“Plaintiff is not entitled to recover herein unless he was wantonly, willfully and maliciously assaulted by one of the defendant’s conductors acting within the scope of his authority.”

This request is based upon the theory that the plaintiff was not, at the time of the alleged assault, a passenger, but was only a licensee. We think the request is erroneous even upon this theory of the ease. In order that the defendant shall be held liable because of injury to a licensee, it is not necessary to show that it was wanton, willful and malicious. It is sufficient to show that the injury was willfully inflicted. We think, however, that the evidence fairly shows that the plaintiff was more than a licensee. The evidence of the conductor is to the effect that when persons boarded the ear he was to demand of them either a four and one-sixth cent ticket or a five-cent cash fare, and that if the person tendered to him but three cents, he was to refuse the tender of three cents and permit such person to ride. We have no doubt that under this peculiar situation, when Mr. Duggan presented himself at the proper street crossing as a passenger, and he was permitted to enter the car, and tendered to the conductor three cents, and the conductor permitted him to be transported, that he was in every sense a passenger and entitled to protection as such. It follows from this conclusion that there was no error in refusing written instruction number four. What has been said also disposes of the claimed errors in the refusal of the court to give instructions requested after argument.

We have examined the charge of the court and, aside from the error heretofore pointed out, and which was favorable to the defendant, we find no error in the charge.

We are unable to find that the verdict is excessive. The jury were entitled to assess punitive damages if they found that the assault was malicious. In determining the amount of such damage they might rightfully take into consideration everything disclosed by the evidence—the fact that the plaintiff was an old man some seventy-four years of age, and that he was in feeble health. The jury might well feel that a substantial sum should be imposed as punitive damages to the end that the defendant might take all proper and necessary precautions to prevent recurrence of such treatment of passengers upon its cars.'

It is claimed that there was some error in not instructing the jury that if they should find that the assault of the conductor was contrary to instructions which had been given him by the defendant company, no punitive damages could be assessed against the defendant. An examination of the record fails to show that the conductor had received any such instructions; but, even if it had so appeared, the charge requested was not a correct statement of the law. Such instructions are competent evidence, in a case in which punitive damages may be awarded, for the purpose of mitigating or defeating punitive damages, as the judgment of the jury may determine, but it is erroneous to charge the jury that such instruction’s, as a matter of law, operate to defeat punitive damages. Western Union Telegraph Company v. Smith, 64 O. S., 106.

Finding no prejudicial error in the record, the judgment of the common pleas court will be affirmed.

Richards, J., and Kinka.de, J., concur.


author: Shields, J.

text:
    APPLICATION OF STATUTE PROHIBITING CHANGE OF SALARY DURING TERM.
    Court of Appeals for Muskingum County. ■
    State of Ohio, ex rel Harry C. Pugh, v. Cecil W. Tanner, Auditor of the City of Zanesville.
    Decided, May Term, 1917.

      Office and Officer—Bar of Statute Against Increase in Salary During Term—Applicable to the Incumbent and Not to the Office—New Man- Serving an Unexpired- Term—Entitled to the Salary in'Ef- ■ feet at the Time He Was Named for the Offiice—Section 4213. ■
    The salary of an appointee to a vacancy in a public office is controlled ■by the law in effect at the time’his appointment was made, and not by the law in effect at the time his predecessor was elected for the term which he is to complete.

      Harry G.. Pugh, .for plaintiff in error.

      J. E. Harhness, contra. '
   Shields, J.

The relator instituted a proceeding in mandamus to compel the city auditor of the city of Zanesville, Ohio, to issue his warrant upon the treasurer of said city in favor of the relator for the sum of $40.62, in payment of what he claims to be his salary due him as a member of the municipal civil service commission of said city at the time of the commencement of said proceeding.

In an answer filed the defendant, as said city auditor, denies that the relator is entitled to said sum of $40.62 as salary as a member of said commission as in his said petition stated, and he denies that said relator is entitled to receive a salary in excess of the sum of $25 per annum as such commissioner for the reasons therein stated.

The sufficiency of the above answer was challenged by a demurrer filed thereto by the relator, which demurrer was by the court below overruled and judgment was thereupon rendered in favor of the defendant. Error proceedings are prosecuted to this court to reverse said judgment of the court of common pleas.

It appears that the relator, on August 24, 1916, was duly appointed by the mayor of said city as a member of said commission to fill a vacancy caused by the resignation of one James M. Bailey, who on November 19, 1915,'had been appointed as a member of said commission for the term of sis years; that the relator thereupon qualified and has since continued to act as a member of such commission; that the salary of the members of said commission was originally fixed by an ordinance of said city at $25 per annum, which said ordinance on the-day- of July, 1916, was repealed and another ordinance of said city of that date was passed fixing the annual salary of the members of said commission at $150 per annum, which said latter ordinance took effect February 16, 1916.

The question raised by said demurrer is whether the salary of the relator is controlled by the provisions of said city ordinance passed and which became effective prior to his appointment and qualification as a member of said commission, or is such salary controlled by the provisions of said city ordinance in effect at the time of his predecessor’s appointment and resignation as a member of said commission.

Acting under constitutional authority, the Legislature of this state enacted Section 4213 of the General Code, which provides that:

‘‘The salary of any officer, clerk or employee shall not be increased or diminished during the term for which he was elected or appointed.”

In the investigation made we have failed to find that the question here made has been passed upon by the courts of this state, although it appears to have been the subject of judicial action by the courts-in some other states, not, however, with -unvarying unanimity of view and decision, to which we will refer later on.

At the outset we deem it unnecessary to say, in view of the constitutional provision that there shall be no change in “the salary of any officer during his existing term,” that the relator would not be entitled to any increase in salary under any legislation passed after his appointment nor during the term for which he was appointed, nor that his appointment made under favor of Section 486-19 was not for the unexpired term of said Bailey, as urged on behalf of the defendant in error.. But as already stated, this is not the question made here. The question to be met here arises under a proper interpretation to be given the terms employed in said section of the statute. It is unnecessary to remark that the intent and meaning of a statute are to be ascertained by the language employed therein, and if such language, is plain and unambiguous and such statute is within the. constitutional authority of the law-making power, the plain duty'of the courts is to enforce it according to its terms. All the authorities seem to agree that the constitutional and statutory inhibition against a change in the compensation of an officer during his incumbency of an office is founded upon considerations of public policy in guarding and protecting the public against a possible combination of office-holding interests and log-rolling Legislatures in an effort to raise their salaries. With the limitation of power laid upon the law-making body as if to prevent such influences and abuses, it would seem that the ■Legislature in framing this law had in mind the incumbent of the office rather than the office itself; for, among other things, the statute declares that “the salary of any officer * * # shall not be increased * * * during the term for which he was elected or appointed.” What does “during the term for which he was elected or appointed” refer to? Does it refer to the full term of office for which a person is elected or appointed, or to the officer? Does it refer to the time of the incumbency of the office, or to the incumbent of the office ? If to the former, in either instance, then “during the term” is to be treated'as an unbroken- and indivisible unit, without reference to an intervening vacancy in the office by death, disability, resignation or otherwise, and without reference to the number of incombents of the official term. Is this the correct interpretation to be given the statute referred to? As stated, we have found no case directly in point decided by the courts of this state, except the reference made in State, ex rel, v. Raine, Auditor, 49 O. S., 580, wherein the court say:

“A statute, whatever terms it may employ, the only effect of which is to increase the salary attached to a public office, contravenes Section 20 of Article II of the Constitution of this state; in so far as it may affect the salary of an incumbent of the .office during the term he was serving when the statute was enacted.” . .

But the same question involved in the case before us has been directly passed upon by courts in some other states, as béfore stated, and among them is the case of Board of Freeholders of Atlantic Co. et al v. Lee, reported in 76 N. J. Lew Reports, 327, which was ah action in mandamus to compel the county clerk to pay over certain fees, etc., received by him for services rendered as such clerk. It appears that one Lee was appointed county clerk in December, 1907, to fill a vacancy in said office caused by the death of one Scott in November, 1907, who had been elected to said office in November, 1905, for the constitutional period of five years from that date. Notwithstanding Scott’s death, it was claimed by Lee that Scott’s term of office did not expire until December, 1910. Reed, Judge, speaking for the court in this ease, says:

“The words ‘term of office’ may, in a sense, be used to indicate the statutory period for which an officer is elected. We speak of the term of office of the President of the ..United States; the term of office of the Governor of the state, meaning that the first was four years.and the latter three years; but the words ‘term of office’ may also mean a period much shorter than that for which the particular officer was elected. His term of office may be terminated before the expiration of the statutory period for which he was elected by impeachment, or resignation, or death of the particular officer. The happening of these contingencies are implied limitations upon the right of the elected officer to continue in office for the period for which he would otherwise be entitled to hold. When such a contingency occurs the officer’s term expires; there is a vacancy, and upon the appointment or election to fill the vacant office, the term of another officer begins. * * In view of the’purpose of the legislation, there seems to be no question that the words ‘term of office’ was the term during which the then present clerk was entitled Ato receive compensation for his services. When Mr'. Scott died it terminated his official life, and the period of his official life was his term of office. When Mr. Lee was appointed he began a new term, not as legatee of Mr. Scott, but by a distinct appointment to a vacant office.”

Again, in Gaines, Comptroller, v. Horrigan, 72 Tenn., 607, it is held that:

‘ ‘ The constitutional provision that the salaries of judicial officers shall not be diminished or increased during the time for which they were elected does not apply to their term of office, and where a judge is appointed to fill out the unexpired term of a deceased judge he is entitled to compensation fixed by law at the time he assumes the duties of the office. ’ ’

And in Barnum v. Gilman, 27 Minn., 466, while a case in quo warranto involving the right and title to an office, Judge Cornell, speaking for the court in said ease upon the subject of “term of office,” says:

“The clause may very properly be construed to mean ‘during his term of office,’ and this may be the full term during which the office may be held, or such shorter period as the incumbent may consent to hold it. The term of every elective office, in the absence of any express enactment of law to the contrary, may be terminated at the pleasure of the incumbent by resignation, or by the acceptance of an incompatible office.” 8

And Timlin, J., in a separate concurring opinion in the decision of the court in the case of State, ex rel Bashford, v. Frear, 138 Wis., 536-557, in speaking of appointments to fill vacancies in public office, says:

“The provision of our Constitution relating to increase or diminution of salary is not limited to judicial offices, but in-cludes all public officers, and appears as a general limitation upon legislative power. It restricts the power of the Legislature with reference to different classes of persons; relates to the officer, not to the office, to his term, not to the term. It is as follows:

“ ‘Section 26. The Legislature shall never grant any extra compensation to any public officer * * * nor shall the compensation of any public officer be increased or diminished during his term of office.’

‘ ‘ I construe this as wholly personal to each of the classes therein mentioned, including the ‘public officer,’ and the expression ‘ during his term of office’ accords with this construction. Otherwise the framers of the Constitution would have used the expression ‘public office’ instead of ‘public officer,’ and ‘the term’ instead of 'his term.’ * * * 1 regard the provision as personal to the incumbent of the office. If he enters the office after, the change of the salary has taken place he is entitled to that salary, and as to him it can not' be increased or diminished; but if the office is vacated by death or otherwise before the expiration of the term the succeeding incumbent takes the office with the salary fixed by the Legislature for that office and in force at the time of the appointment or election of the succeeding incumbent, even though such appointment or election be for part of an unexpired term. I am strengthened in this view because this construction of the Constitution was arrived at by Chief Justice Whiton and by Chief Justice Cole, both of whom took part in framing the Constitution, and by Chief Justice Ryan and Justice Paine, and others, in drawing and accepting salaries pursuant to this interpretation. * * * I have no doubt and have had but little difficulty in arriving at the conclusion that the true interpretation of Section 26, Article IV of the state Constitution is that he who comes into an office lawfully by election or appointment to fill a vacancy caused by the death, disability, resignation, or removal of a different prior incumbent is not under the restrictions as to increase or diminution of salary which bound the prior incumbent, but takes under the law in force at the time of his appointment or election to fill the vacancy. ’ ’

It is said that an opinion is valuable only as it appears to be supported by reason and authority. The opinion last cited appears to rest on the interpretation of a constitutional provision forbidding a change in the salary of an officer during the time for which he was appointed, not unlike the constitutional provision in this state, and it appears to us as being logically sound in principle and in accord with the letter and spirit of the fundamental law and statute of this state..

We are aware that the question made has been decided pro and con in different jurisdictions, and while the question is not altogether free from doubt, still we are of the opinion that the weight of authority sustains the contention made by the relator herein and the judgment of the court of common pleas is therefore reversed. It follows that the writ may issue as prayed for and it is accordingly so ordered. Exceptions. . .

Powell, J., and Houck, J., concur.


author: Houck, J.

text:
    ACTION FOR. RECOVERY OF BENEFITS.
    Court of Appeals for Muskingum County.
    Zanesville Lodge, No. 867, Loyal Order of Moose, v. Jennie Fluharty, Administratrix of Thomas Fluharty, Deceased.
    Decided, July 7, 1917.

      Mutual Benefit Societies—Disallowance of Benefits—Jurisdiction of the Courts to Rehear Claim, Regardless of Provision by the Order to the Contrary—But Right of Appeal Provided by the Order Must be First Exhausted.

    In an action for recovery of sick or death benefits, technical defenses do not avail unless sound in fact and law; and where it appears that the claimant has exhausted the rights given him 'under the constitution and by-laws of the order without securing an allowance ■ of his claim, he may have the matter reheard before the courts, notwithstanding the constitution and by-laws of the order specifically provide that the decisions of its tribunals shall be final and conclusive and no resort can be had to,the courts.

      H. W. Kuntz, for plaintiff in error.
    P. E. Tcmnehill, contra.
   Houck, J.

Error to the Common Pleas Court of Muskingum County.

The plaintiff in error in this court was the. defendant in the common pleas court, and the defendant here was the plaintiff there.

The material facts necessary for a proper determination of this proceeding in error are as follows: On the 8th day of

April, 1912, Thomas'Fluharty, the plaintiff’s decedent, became a member of Zanesville Lodge, No. 867, Loyal Order of Moose; that his dues were fully paid to April 1st, 1914, and he was in good standing in the lodge when he took sick, on February 2d, 1914; that he died on the 13th day of December, 1914, and during his entire sickness he was unable to follow his usual or other avocation; that his sickness was not caused by intemperance, immoral or vicious conduct on his part; that on the 3d day of February, 1914, he duly notified said lodge of his sickness, as required by its laws, and that a few days thereafter the lodge physician, Dr. D. T. Matthews, as a member of the benefit board of said lodge, examined said Fluharty and made a report to it adverse to the allowance of sick benefits to him,and that immediately Fluharty took an appeal to the lodge from the adverse report of said physician and said benefit board in refusing to allow him such sick benefits, and the lodge, upon such appeal, voted and approved the action of its physician and benefit board, and refused to pay Fluharty any sick benefits, and duly notified him that it would not do so.

From the date of the notification of the said Fluharty by the lodge that it would not pay him sick benefits he was not away from his house, but was confined there by reason of his said illness until his death. Shortly after the death of Fluharty his wife, Jennie Fluharty, was appointed administratrix of his estate, and on the 11th day of October, 1915, presented a claim of $117 for sick benefits and $100 for funeral benefits to said lodge, and the same was by its.secretary referred to the benefit board of said lodge, and the said board refused to allow the claim, and an appeal was taken to the lodge, which approved the action of its benefit board and refused to pay the claim or any part of it. Suit was brought by ..the .administratrix against the lodge, before a justice of the peace, and a judgment was rendered in favor of the plaintiff for the full amount of the claim. The ease was appealed to the court of common pleas, trial had to á jury, and a verdict for the plaintiff for the ful] amount of the claim. Motion for a new trial was overruled and judgment entered on the verdict, and error is prosecuted to this court seeking a reversal of the judgment below.

The general constitution and laws of the Loyal Order of Moose provide as follows:

“Any beneficiary member, who is and has been in good standing in a subordinate lodge for a period of six months, and who, through sickness or other disability, is unable to follow his usual or other vocation, shall, after the first week of said sickness, or disability, and during the continuance thereof, receive a sum not less than five dollars and not'more than ten dollars per week, for not more than thirteen weeks, provided that such sickness or disability has not originated from the intemperance, immoral or vicious conduct of such a member.

“The benefit board shall receive and carefully consider all reports from the lodge physician or physicians.

“They shall have full power and authority over all matters pertaining to the payment of benefits as provided in the laws of the order.

4 4 It shall be the duty of the benefit board to receive from the lodge physician reports on all sick and disabled members, and they shall determine who are and who are not entitled to such benefits and submit their reports of the lodge. The report shall state the amount to which they are entitled, and a recommendation that warrants be drawn for the payment of same, subject to the approval of the lodge. If no objections are filed, the dictator shall direct that warrants be drawn for payment of the benefits recommended.

‘•When the benefit board shall report to the lodge that an applicant for benefits is not entitled thereto, their decision shall be final unless an appeal is taken to the lodge.

“At the next regular meeting after the death of a beneficiary member who is not in arrears for dues and who is otherwise in good standing, his lodge shall declare and draw warrant for such sum as the by-laws of the lodge may provide, which in no ease shall be more than one hundred dollars ($100) and. apply the same to the payment of funeral expenses.

"No member of the order shall apply to any civic authority in an attempted r.edress for any alleged wrong or injriry arising out of a matter pertaining to the order, until he shall first have exhausted all possible means of redress provided for by the laws of the order.”

'The by-laws of Zanesville Lodge, 867, Loyal Order of Moose, provide for the payment of nine dollars per week sick benefits, not to exceed thirteen weeks, and $100 funeral benefits.

Counsel for plaintiff in error insists that the judgment below be reversed for the following reasons:

First, that the civil courts are without jurisdiction in the premises.

Second, that Thomas Fluharty did not in his lifetime prosecute his appeal from the lodge’s refusal to pay his sick benefits through all of the tribunals of the Order, as required by its laws.

Third, if it be a fact that the claim, as presented by the administratrix of Thomas Fluharty, deceased, had been prosecuted through all the necessary tribunals of the Loyal Order of Moose, and the decision was adverse to her, it would be final, and she would have no right to appeal to the civil courts for redress.

The questions to be determined in this case are as to whether or not under the constitution and laws of the Loyal Order of Moose, as hereinbefore set out, and the conceded facts in this case, the alleged grounds of error are well taken.

The facts, as disclosed by the record, clearly show that the plaintiff’s claim had been prosecuted through all the tribunals of the order, as provided by its laws, rules and regulations, and that payment of the same had been refused. All of this proceeding was had before action to recover was brought in civil court.

A member of a fraternal beneficial organization consisting of a supreme lodge and subordinate lodges which are governed by a constitution wherein authority is given to the member to appeal from any decision made by any officer, committee or benefit board of said organization, wherein the same affects the substantial rights of said member, must pursue the remedy prescribed by the society, and fully exhaust all his rights of appeal therein, as provided by the constitution and laws of the organization, before resorting to the civil courts for redress. No provision is made in the constitution and by-laws of the Loyal Order of Moose for an appeal from the decision of the lodge in its refusal to pay sick benefits to a member to any higher tribunal of the order. The decision of the benefit board is final, unless an appeal is taken to the lodge, which was done in the case before us, and the lodge affirmed the decision of the benefit board in its refusal to pay sick benefits. Thus it will be seen that all the rights of the decedent to obtain the benefits which he claimed, so far as the laws of the order provided, had been fully complied with, and it was necessary to resort to the courts for such redress if any was to be obtained.

The law is well settled that where one becomes a member of a fraternal organization he is bound to exhaust the remedies provided by the laws of the order which are not in conflict with the state laws which provide for such remedies, and until the member has done so he can not seek relief in our courts.

This brings us to the discussion of the question raised by plaintiff in error as to whether or not it was prejudicial error for the trial judge to refuse to give to the jury before argument the following written request which was made by plaintiff in error, the defendant below:

“When a member of the Zanesville Lodge, Loyal Order of Moose, claims to be entitled to sick benefits, he must seek his remedy in the first instance in the lodge and the tribunals of the order, and a determination of the matter by such lodge and tribunals in substantial accordance with the laws of the order will be final and conclusive of the right to receive such benefits, and such member can not sue in the civil courts for the recovery of such benefits.”

If this request contains the correct rule of law, then the judgment in this case should be reversed. Is it thé law that when a fraternal beneficial society determines that one of its members is not entitled to benefits that its decision is final and conclusive, and that such member can not thereafter resort to the civil courts for the recovery of the same? Most certainly this is not the law.

The request to charge was properly refused. It was too broad, because it attempted to take from the civil courts their jurisdiction to hear and determine the questions concerning the right of one to receive money in advance of the right to sue, by an alleged agreement not to resort to the courts to do so. The law' in this respect is laid down by a long line of decisions in our own and other states, the rule being well settled in the ease of Myers et al v. Jenkins, Admr., 63 Ohio State, page 120, where the learned judge speaking for the court says:

‘ ‘ After a right has accrued or an obligation has been incurred a party may waive his rights or refuse and neglect to enforce them, or he may by contract bind himself to submit the matter to arbitration or other special remedy. But a party can not bind himself by contract in advance to renounce his right to appeal to the courts for the redress of wrongs. If this could be done an association might be formed in the state which would renounce our Constitution and laws, and set up a different system of government for themselves, and in ease of wrongs and oppression they would be debarred from resorting to our courts, and would be compelled to submit to the decisions of their own tribunals, and would most likely become dissatisfied and disorderly, resulting in riot and bloodshed. The whole state has an interest in ajd its inhabitants, and it is to its interest that the rights of all should be protected according to the course of jurisprudence it has • provided; and for that reason its courts are always open for the redress of wrongs, and no person can by contract in advance deprive himself of the right to appeal to them. * * * Contracts may provide for ascertaining and fixing certain matters in a particular manner, -but the ultimate adjudication of the questions of law must remain in the courts, unless waived after the rights have accrued, or the obligations have been’incurred.”

In the present case where the ultimate question is as to the right to recover an amount of money, certain facts may be ascertained and determined for. the purpose of carrying out the terms and provisions of the constitution and by-laws of the order; but the final determination of the question as to whether or not the plaintiff is yentitled to the benefits in dispute may be litigated in the courts, notwithstanding the constitution and by-laws thereof may specifically provide otherwise.

In the case before us plaintiff and her decedent having presented the claim now in suit to said Loyal Order of Moose, as provided by its constitution and 'by-laws, and the same having gone through the course required by its laws,, and having been rejected, the plaintiff had a legal right to resort to the courts for the purpose of establishing- her claim.

The real basis and in fact the underlying purpose of á fraternal beneficial organization such- as the Loyal Order of Moose is not to indemnify or secure its members against financial loss, but; to accumulate and maintain a fund obtained by dues received of its members for beneficial and protective purposes, and to be used by them for the purpose of aiding and relieving its members in the misfortune of sickness, .injury or death. 'Thus, in the practical application of the beneficial objects of a fraternal society it must not lose sight of the fact that where one of its members has departed this life leaving loved ones behind who are the natural objects of his bounty as well as the fraternal subjects of the brotherly love and financial help of the society, as provided by its constitution and laws, it can not escape such duties resting upon it by mere technical defenses; they must be sound in fact and law. The undisputed facts in the case at bar show that the decedent and this' plaintiff have fully and completely complied with all the requirements of the order necessary to entitle the plaintiff below, the defendant in error, to the relief prayed for in the petition in the common pleas court. '

¥e have examined all the alleged errors, as set out in the petition in error, and we find none that would warrant a reviewing court in reversing the judgment in this case as entered in the court below. Therefore the judgment of the common pleas court is affirmed.

Powell, J., and Shields, J., concur.


author: Richards, J. '

text:
    SLANDER. NOT ACTIONABLE WHERE INVITED.
    Court of Appeals for Lucas County.
    Edson Ely v. Frederick J. Borck.
    Decided, March 6, 1916.

      Libel and Blander—Action'for,-Does Not Lie Where the Publication Was Invited—But Failure to Urge this Defense Gives Validity to. a Judgment Obtained—Court Warranted in Confining Charge to Issues Made by the.Pleadings, When.

    1. The publication of a slanderous charge invited or procured by the plaintiff will not sustain an action for defamation.
    2. It is not error for the trial court to confine the charge to the issues made by the pleadings notwithstanding evidence on another issue was introduced without objection, there being no application to amend and no request to charge.

      Bay & Cordill, for plaintiff in error.

      Cornell Schreiber, contra.
   Richards, J. '

The action was brought in the common pleas court by Frederick J. Borck to recover damages for slander,-and resulted in a verdict and judgment in favor of the plaintiff for $200. The slander charged in the petition involved an accusation of larceny, and evidence was offered on behalf of the plaintiff to substantiate that charge.

The defendant, in his answer, and on the witness stand, denied uttering the slanderous words, but the answer which he filed, said to have been prepared by himself, contained no allegations raising the question of privileged communication.

'The testimony offered by the plaintiff tended to show the utterance of slanderous words at the home of the defendant, and in the presence only of the defendant and his wife and the plaintiff. Immediately after these words aré claimed'to have been so uttered, the plaintiff returned to- his own home some seventy rods distant and at once came back to the premises of the defendant, bringing with him on this occasion his hired man. The plaintiff claims that on his arrival with his employee, the slanderous charge was repeated without anything having been said by him. The defendant Ely testifies that, when the plaintiff and his hired man came to his premises the second time, the plaintiff said, ‘ ‘ Tell us now what you said in the house; repeat what you said; accuse me of stealing chickens.The charge upon which the action is founded is apparently based upon words claimed to have been uttered on this occasion by the defendant.

Because of the circumstances under which the plaintiff returned to the premises of the defendant, and because of the testimony above quoted, it is claimed that the words which were uttered on this occasion were invited or procured by the plaintiff, and that, therefore, an action for slander can not be based on them. '

The law with relation to founding an action for slander upon words which have been invited or procured to be uttered by the person claiming to be slandered, does not seem to be in serious doubt. "While the cases are not uniform on that subject, the great preponderance of authority, as well as reason, is in favor of the proposition that an action of slander will not lie under such circumstances. Irish-American Bank v. Bader, 59 Minn., 329; 17 R. C. L., 320; Nott v. Stoddard, 88 Amer. Dec., 633 (38 Vt., 25); Konkle v. Haven et al, 108 N W., 98 (a Michigan case); Shinglemeyer v. Wright, 50 L. R. A., 129 (a Michigan ease). ‘The court in this latter ease say that the maxim volenti non fit injuria applies to alleged slanderous statements made under such circumstances. A contrary doctrine is announced in the case of Rudd v. Cameron, 26 Ont. L. Rep., 154. That case, however, is annotated in 26 Amer. & Eng. Anno. Cases, 618, and the cases upon this subject are gathered in the note to the ease, in the course of which it is said that the holding of the reported case is not. in harmony with the authorities.

While we must, therefore, hold that the defense of privileged communication, or that the words uttered were invited or procured -by tbe plaintiff, would be a sufficient defense, if pleaded and established by the evidence, it does not follow that the judgment rendered in this case should be reversed.

The trial court did not charge the jury on this subject, and was not asked so to do, and the issue was not made by the pleadings. Under such circumstances it is not reversible error for the trial court to- confine the charge to the issues as made by the pleadings. It is true that the evidence above quoted went in .without objection, and the court would have been justified in charging the jury on the issue thus made, under authority of many decisions rendered by the Supreme Court of this state. But, in the absence of any request to amend the pleadings, and in the absence of any request to charge on the subject, the omission to so charge can not now be urged as a ground for reversal. I call attention to Mchurin & Son v. Stone, 37 O. S., 49, where the court said that if evidence was admitted without objection on a defense not pleaded, it is not error for the court to confine the jury, in their consideration of the case, to the issue made by the pleadings. See also, Columbus Railway Co. v. Ritter, 67 O. S., 53; State v. McCoy, 88 O. S., 447.

The Supreme Court was announcing no new rule when it said in Palmer v. Humiston, 87 O. S., 401, that the issues of a ease are defined by and confined to the pleadings; and this elementary rule of pleading ought not to be lost sight of. Certainly, if the court in the instant case had seen fit to charge the jury on the subject of the alleged slanderous statements having •been invited or procured, it would have been perfectly justified in so doing, as is stated in Rayland Coal Co. v. McFadden, Adm’r, 90 O. S., 183.

The evidence which was introduced by the plaintiff was amply sufficient to carry the case to the jury, and the court would not have been justified in directing a verdict for the defendant.

We find no error to the prejudice of the plaintiff in error, justifying reversal, and the judgment will therefore be affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Pollock, J.

text:
    INJURY TO ONE ASSISTING PASSENGER. IN PLACING CHILD ON CAR..
    Court of Appeals for Mahoning County.
    Mahoning Valley Railway Company v. Minnie Gorz.
    Decided, October 6, 1917.

      Negligence—Duty of Those Operating Street Cars—Toward Persons Entering Cars Without Intending to Become Passengers—Injury to One Assisting in Getting Child on Car—Charge of Court.

    1. In the absence of a rule of the company or a custom permitting persons to enter its car, when it stops to receive passengers, for the purpose of assisting passengers with children or baggage, a railway company, operating street cars by electricity over the streets of a city, is only required to exercise toward such persons ordinary care after it becomes aware of their presence within the car.
    2. Such railway company is chargeable with notice of the presence of such persons within its car, not only when those in charge of the car have actual notice, but when in the exercise of ordinary care they should have notice of their presence.
    3. Ordinary care charges such railway company with notice of whatever those in charge of the ear should know in the proper discharge of their duties in the operation of such car.

      Harrington, DeFord, Heins & Osborn, for plaintiff.

      Anderson, Lamb & Tetlow, contra.
   Pollock, J.

This is an action in error and is brought to reverse a judgment obtained by Minnie Gorz against the Mahoning Valley Railway Company in the common pleas court of this county.

Minnie Gorz, the plaintiff below, was a resident of the city of Youngstown, and on the afternoon of October 17th, 1915, her daughter, Mrs. Pritchard, with her chald two years old, was visiting her.

About nine o’clock on that evening the daughter wishing to go home, Mrs. Gorz took the child in her arms and in company with Mlrs. Pritchard walked down Berlin street to Federal street, upon which street the Mahoning Valley Railway Company, the defendant below, maintained its tracks and operated passenger cars over said tracks by electricity. 'They signalled an appproaching car which, when it .reached the, intersection of Berlin and Federal streets, stopped and four passengers alighted therefrom. This was a regular and usual stop for the discharge and receiving of passengers.

After these passengers alighted Mrs.’ Gorz set the child on the rear platform of the car, and just as she set -the child-dttwnj and before she had-released her hold on it, the car start'ed;and continued until it'crossed Berlin street.' ' "

Mrs. Gorz claims that when the car started it was started with a jerk, and she was thrown down on the steps of the cár' with her feet hanging over the steps, and was dragged in that way across, the street to where the car stopped. She did not intend to become a passenger on- the ear; she only intended placing the child on the platform and then withdrawing from the car and allowing the child’s mother, who intended to become a passenger, to take charge of the child.

This was. a large ear—possibly used in interurban traffic— with a partition across it, the front end being used as a smoking compartment and the rear end of the car occupied by ladies' and other passengers. This ear had two steps leading down from the rear platform. - ■

The conductor testifes that he. was standing in the rear compartment, perhaps near the partition, looking through the windows watching the passengers leave the car,-and 'to-see if anyone wished- to. become a' passenger. He testifies .that..'he did not see Mrs. Gorz. .' . ■ .

The errors complained of are in the charge of the .court, and also that'the verdict is excessive.' The first error which’ we will

notice occurs in. the charge. - - ' ■ .....• . ' -

•The court said to the -jury that the'wurd “dragged” as used by one or more of the witnesses, and also in the- petition, would ordinarily mean that some ' portion . of her. body.’ was dragged along the pavement, but he instructed the' jury .that they were not required to apply so narrow a construction, because under this pleading and- under the, evidence, whether her feet touched the', pavement or not, if she was dragged .along against her will forcibly by tlie car—whether she was lying on the car or had grasped hold of it. after, it had started—it would be within the. meaning .of the..word “¡dragged.”. No doubt this ex-, pression of the court was occasioned by reason of some remarks of counsel" during'the'arguments :of the ease, and'the?.court couples what he says in'regard to the petition with'the language, used byiwitnesses... '. k

It is required'of the court to' explain the petition and construe the words or language used therein, but it should be left to the jury'to determine the meaning of words and language used by .the witnesses while testifying, and the court has'no right to direct the jury to give to words used by the witnesses any other than their ordinary meaning, unless the words used had .a.technical meaning not known or understood ordinarily, and were so used by the witnesses. But the error complained of does-not'affect the substantial rights of the' defendant below and fpr that reason was not prejudicial.

Again the court charged , the jury in regard to the damages which the plaintiff below might recover that:

'“If she is entitled to recover, she is entitled to recover that fair amount of damages that you say would be to her full, compensation fon .that-which you shall determine from the evidence you have before-you she has suffered in the sense,of damages tp her person, as a result of what you have theretofore found was a .negligent oipission of duty on the part, of defendant. ”

It is urged that -the court erred in using the expression ‘ ‘ full compensation. ’ ’ Mrs. G-orz was a married woman and there was testimony tending to show that she had received medical attention from two or three doctors; that she was unable to perform her household duties, such as washing, cooking, baking, etc., and the objection -to this charge was that the jury would understand from the language that she had a right to recover for these things.

This objection would be well taken if there was no limitation or explanation in the charge of this language, but the court following this language limits the recovery to her pain and suffering and the disability inflicted upon her in the sense of affecting her ability to be up and about and to care for herself. The court by this part of the charge limits full compensation to her personal rights and the jury could not misunderstand the charge.

It is further urged that the court erred in the charge in regard to the care the railway company owned to Mrs. Gorz. After saying to the jury that this lady was not a passenger, but that the railway company owed a duty towards people who came for the purpose of assisting their friends, who had children or baggage, in getting on the car, and that that duty was not the high degree of care owed to passengers hut ordinary care, the court used the following language:

‘ ‘ In other words, while they did not know that she was there, yet the law assumes that'knowing that she had a legal right to be there the same as their passengers had to he there, although in fact they did not know it, they were bound to exercise every such reasonable precaution for her protection in the situation such as an ordinarily prudent person or corporation ordinarily would, considering "all of the situation and surroundings.”

Mrs. Gorz had a right to go out on the street with her daughter and child', who were intending to become passengers on this ear. The street ear company, and others using the street, must exercise ordinary care not to injure her. But, if she had remained on the street her injuries would not have occurred. It was only when she entered or placed her body within the car of the railway company that she received her injury. She did not enter this car to become a passenger, but to place therein this child who would become a passenger by reason of its mother being a passenger.

The testimony does not disclose that there was any rule of the company or any custom permitting persons to enter the car, when stopped to receive passengers, for the purpose of assisting passengers who might have either children or baggage, or that it was necessary for Mrs. Gorz to assist her daughter to enter the car by placing this child upon the platform. What she did was only for her own or Mrs. Pritchard's convenience.

When Mrs. Gorz entered this ear as she did, and under these circumstances, the railway company was not required to exercise towards her the degree of care required of it towards its passengers, but it owed her the duty of ordinary care after it was aware of her presence within the car. 3 Thompson on Negligence, Section 2658; 2 Hutchinson on Carriers, Section 997.

The real question in this case to be determined is the obligation resting upon the railway company to ascertain and know when a person not intending to become a passenger is within their car. ‘There is no testimony that the conductor or ■anyone in the railway company’s employ knew of Mrs. Gorz’s • presence within the ear, or that she was in such a position that the starting of the car would injure her.

It was the conductor’s duty to stop the car a sufficient length of time to discharge and receive passengers; but in the absence of a practice acquiesced in by the railway company permitting persons who did not intend to become passengers to enter the ear in order to give assistance to others who did, the railway company' did not owe the duty of detaining its car to allow such persons to withdraw therefrom, unless it knew of their presence therein. Neither was it required to know that all persons, other than passengers, had left the car before starting it. The obligation of the raiway company to others than passengers who might be within the car is not an absolute duty but a relative duty, and arises when those in charge of the car know of the presence of such person, or in the exercise of ordinary care should know of their presence. St. Louis & San Francisco R. W. Co. v. Lee, 46 L. R. A. (N.S.), 357; Hill, Admr., v. L. & N. R. R. Co., 124 Ga., 243; 3 L. R A. (N.S.), 432; Morrow v. Atlantic, etc., R. W. Co., 44 S. E., 12; Berry v. L. & N. R. R. Co., 60 S. W., 699.

The conductor or those in charge of an electric street car are not required, when the car stops to discharge and receive, passengers, to ascertain before starting if persons not intending to become passengers have entered the ear, or have placed themselves on the steps of the car in such a position that they may be injured by the starting of the ear, but they are chargeable with what they know and with whatever they should see and know in the proper discharge of their duties in operating the car. R. W. Co. v. Kessler, 66 O. S., 326.

The court in its charge in the case at bar said that:

“While they did not know that she was there, yet the law assumes that knowing that she had a legal right to be there the same as their passengers had to be there, although in fact they did not know it”—

they were bound to exercise ordinary care.

By this charge the court said to the jury that Mrs. Gorz had a legal right to enter this car, to set the child on the platform, and that the railway company was bound in law to know that she was there although they in fact did not know it. 'This would require an electric street ear company to know that everyone who did not intend to become a passenger had withdrawn from their car before they could safely start it, and is placing a greater burden upon the company with regard to third parsons than is required with regard to their passengers.

If the conductor knew, or in the exercise of ordinary care should have known, that Mrs. Gorz was , within the car placing the child on the platform, he would be required to exercise ordinary care towards her, and in the exercise at that degree of care he should have delayed starting the ear until she could withdraw therefrom.

We think that the giving of this instruction was error which requires a reversal of the case. We find no other errors in the record.

Exceptions noted.

Metcalfe, J.,- and Fakr, J., concur.


author: Per Curiam.

text:
    DETERMINATION OF THE TAXABLE VALUE OF BANK ASSETS.
    Court of Appeals for Clermont County.
    The Milford National Bank, of Milford, Ohio, v. Cleona Searles, Auditor of Clermont County, Ohio, et al.
    Decided, October, 1917..
    ’ Taxation—Value of Bank Assets, How Determined—Valuation of Beal Estate as Shown by the Bank’s Books Should be Used Instead of that Shown by the Tax Duplicate, When.

    Where real estate belonging to a bank is carried on its books at a ;■> valuation less than that appearing on the tax duplicate, the auditor or tax commission in considering the value of the bank’s resources for the determination of the tax, value of its shares are justified in.adding to the net resources shown in its •' report, the amount such valúe of the real estate ás it appears " on the tax duplicate exceeds its value as shown on the books • of the bank.

      D. W.,Murphy, for Plaintiff.
    . Joseph McGhee and Charles G. White, contra.
    In May, 1916, the cashier of the Milford National Bank duly filed with the county auditor of Clermont county in accordance with Section 5411, General Code, a sworn statement'of the resources and liabilities of said bank with a detailed statement of the names and holdings of the several stockholders therein.
    This statement showed that the stock was divided into 600 shares of the par value of $100 each, and'for the purpose of fixing the value thereof showed that the bank had capital stock, $60,000; surplus, $60,000; undivided profits, $5,450; unpaid ‘ dividends, $730,'making a total of $126,180.
    ■ Included in the resources of the bank making up this sum was the real estate investment consisting of the banking house owned - by'the bank,"in whieh it did business, which was carried on'the ’books of the bank at a valuation of $20,000, as set out in said statement. This real estate was listed for taxes as such, on the real estate tax duplicate of said county, at a valuation of $25,080.
    To fix the total value of the shares of stock in said bank the county auditor, acting by virtue of Section 5412, General Code, deducted from said total of $126,180 said real estate value of $25,080 and thus fixed the taxable valuation of said shares, excluding real estate, at $101,100.
    'The county auditor thereupon transmitted to the tax commission a copy of such report with the valuation of such shares so fixed 'by him. And the tax commission, in due course coming to act on such valuation and return under the provisions of Sections 5619 and 5620, General Code, made an addition to the total valuation of $126,180 as fixed by the county auditor, of the sum of $4,530, and fixed the total valuation of said shares of bank stock at $130,710.
    The amount of this addition is the difference between the valuation of the real estate of the bank as carried on its books and shown in its statement, viz., $20,000, and the. valuation as it stands on the tax duplicate, viz., $25,080, which is $5,080. But from this sum, however, the tax commission deducted an item, shown in the statement,’ bf "current expenses and taxes paid, $550,” making the net addition the sum of $4,530.
    Plaintiff -seeks an injunction against the collection of taxes upon this increase.
   Per Curiam.

The decision of this case involves a construction of Section 5412, General Code:

"Upon receiving such report the county auditor shall fix the total value of the shares of such banks, and the value of the property representing the capital employed by unincorporated banks the capital stock of which is not divided into shares, each, according to their true value in money, and deduct from the ■ aggregate sum so found, of each, the value of the real estate in- . eluded in the statement of resources as it stands on the duplicate. Thereupon he shall make and transmit to the annual state board of equalization for banks a copy of the report so made by the cashier, manager or owner, with the valuation of .such shares or property representing capital employed as so fixed by the auditor.”

The real estate of the bank is valued and listed for taxation on the regular real estate tax duplicate of the county under the general laws relating thereto just as all other real estate is valued and listed (Section 5409, General Code). If this particular real estate belonging to the bank is there listed at too high a valuation the law provides a method for securing a proper reduction. 'This valuation can not 'be changed or affected by any action taken in the valuation of the shares of stock in the bank.

The provision requiring the deduction from the aggregate valuation of the shares of stock of the value of the real estate, included in the statement of resources as it stands on the duplicate, is for the purpose of preventing double taxation on that part of the resources invested in real estate on which taxes are paid as such.

The bank can carry this real estate upon its books at such value as it may deem proper, but if that amount is less than the amount which stands on the tax duplicate, then to the extent of such excess it is not included in the statement of resources. The deduction to be made is the value on the duplicate which is included in the statement of resources.

In this case it can be seen that if the total resources of $126,-180 include real estate of only $20,000 in actual value, then there must be $106,180-in other assets instead of $101,100 as fixed by the- auditor, and the tax commission was justified in increasing that valuation. The deduction of $25,080, the full value of the real estate as it stands on the duplicate, from the total resources as returned by the bank, unless such increase is made, would decrease the valuation of such other assets $5,080, which would not be authorized by law.

'The value of the real estate for the purposes of taxation has been fixed by the agencies provided by law at more than $20,000, to-wit, $25,080; and if, that amount is to be deducted in fixing the valuation of the bank shares on which stockholders are to be taxed, at least that amount must appear in the statement of resources.

The action of the tax commission in increasing the valuation of the assets of the bank so that they would include the full value of the real estate as it stands on the duplicate, which is the amount deducted in fixing the value of the shares, was in accordance with the facts and the law.

The relief prayed for by plaintiff must therefore be denied and the petition dismissed. ' .


text:
    WAGON STRUCK BY ELECTRIC CAR.
    Court of Appeals for Lucas County.
    (Before Judges Powell, Houck and Shields, of the Fifth District, sitting in place of Judges Chittenden, Kinkade and Richards.)
    John Furrer v. The Ohio Electric Railway Company.
    Decided, April 21, 1917.

      Negligence at a Crossing—Competency of Testimony as to Speed of Car Which Caused the Accident—Ordinance Regulating Speed Not Admissible, When.

    Where the issue raised is as to whether the car which caused the accident was being operated at a high and dangerous rate of speed, in excess of the rate prescribed in a city ordinance, and also whether it was equipped with a proper headlight at the time of the accident, it is not error to refuse to admit testimony tending to establish these allegations as to the operation of other cars, where no testimony has been offered tending to show that such a state of facts’existed as to the car which caused the.accident; . and in the absence of such evidence relating .to .the..particular car involved in the action at bar it is not error to refuse to'admit in evidence" an ordinance regulating the speed of cars within the municipal limits.

      8. S. Burtsfield, for plaintiff in error.

      Cable & Cable and Smith, Beckwith & Ohlinger, contra.
   Houck, J.

Error to the Common Pleas Court of Lucas County, Ohio.

The parties here stand in the same position to each other that they stood in the court below.

The plaintiff in his suit below sought to recover compensation ffor personal injuries which he claims he received on the evening of February 18, 1916, when an electric ear operated by the.defendant struck a wagon in which he was riding, throwing him to the ground and thereby causing serious and permanent injuries' to his body, and for which he prays judgment in the sum of $25,000.

Plaintiff avers in his petition that said injuries were caused without fault or negligence on his part, and avers that they were caused by the negligence of the defendant, and particularly specifying in his petition a number of alleged negligent acts on the part of said defendant as being the proximate cause of the same.

The defendant filed an answer in the nature of a general denial, and in addition thereto avers that the plaintiff was bimself guilty of negligence directly causing and contributing to the injuries sustained by him in consequence of said collision in this, to-wit: that he negligently, recklessly and carelessly drove his horse and wagon upon the track of the defendant company in front of its approaching car, although he knew, or by the exercise of reasonable care on his part should have known of the approach of said car, and although he was in fact warned by the watchman at said crossing of the approach of the ear in time to have avoided the collision; that said negligence aforesaid of the plaintiff was the sole proximate cause of the accident.

'The plaintiff filed a reply to the answer of the defendant denying each and every allegation therein which was not affirmatively stated as a fact in his petition.,

' ""Upon 'the issues "thus raised by the pleadings the cause'proceeded to trial to a jury. After the plaintiff had offered his evidence and rested his case the defendant moved the court for a directed verdict for the reason that plaintiff had not sustained the allegations of his petition by that degree of proof which the law requires. 'The trial judge sustained the motion and a judgment for the defendant was rendered. The plaintiff in error seeks a reversal of the judgment below and relies upon the following grounds:

First. The exclusion of certain evidence by the trial court.

Second. In sustaining the motion for a directed verdict.

We have read the bill of exceptions in this case and given all of the grounds of alleged error careful consideration. Counsel for plaintiff in error urges that the trial court erred in excluding testimony as to the rate of speed cars generally traveled' over the crossing where the accident occurred; also as to whether or not cars generally passing over the crossing in question did so with or without headlights.

The issue raised by the pleadings was as to whether or not this particular car was running at a high and dangerous rate of speed, and in excess of the rate provided by the city ordinance, and whether or not it had a proper headlight at said time. The record fails to show any such proof as to the car in question* and certainly the trial judge did not err when he refused to admit testimony tending to establish these facts as to other cars than the one that is claimed to have caused the injuries to plaintiff. The record fails to show any evidence to establish these facts as to this car, and, further, there being no evidence offered in the case fixing the rate of speed at which said car was traveling at the time of the collision, the court was not in error when it refused to admit in evidence a city ordinance regulating the speed of electric cars while being operated within the city limits of Toledo, Ohio.

Counsel for plaintiff in error insists that the trial judge erred in directing a verdict for the defendant when the plaintiff below had rested his case, and insists where the facts necessary to a determination of the issues involved are in dispute, or where there is a conflict in the evidence as to the material facts,- and some of the questions of fact are of such a character that different minds might arrive at different conclusions, then these facts must be submitted to the jury to be passed upon and determined by it.

This is a sound proposition of law, but is not applicable to the proven facts in this ease. The facts here are not in dispute. No evidence was offered except by the plaintiff, and the motion for a directed verdict in effect was a 'demurrer to the evidence. So far as the motion was concerned, and the legal effect of same, the defendant admitted all the proven facts, but in doing so contends that in law they are not sufficient to warrant the re]ief prayed for in the petition of plaintiff. Our examination of the bill of exceptions and the entire record in this case convinces us that the claim of the defendant is well taken.

We think the injuries received by plaintiff were the result of an accident which was unavoidable, and for which no one in law is liable in damages.

Finding no error in the record prejudicial to the rights of the plaintiff in error, the judgment of the court of common pleas must be affirmed.

Judgment affirmed.

Powell, J., and Shields, J., concur.


author: Richards, J.

text:
    EFFECT OF FRAUD IN PROCURING RELEASE.
    Court of Appeals for Hamilton County.
    John P. Jones v. Walter Pickle.
    Decided, February 14, 1916.

      Release—Character of Evidence Required to Impeach—Is Void and Not Merely Voidable, When—Where Fraudulently Obtained an Averment or Proof of a Tender Bade is Not Necessary.

    1. Tbe validity of a written release of a cause of action can only be impeached when the invalidity is established by evidence which is clear and convincing in character.

      2. A release of a cause of. action obtained by fraudulent representing that the instrument is a receipt only, is void and not merely voidable, and the plaintiff may ignore the same in his petition and is not required, in such case, to allege or prove that he tendere^ back the amount received before action brought. ''' '

      D. W. Rogers and Michael Miñges, for plaintiff-in error. .
    ' J. G. O’Connell and Robert O’Connell, contra.
   Richards, J.

Error to the court of common pleas.

The original action was brought in the court of common pleas by Walter Pickle to recover for personal injuries claimed to have been suffered by him. He was employed in the construction of a trench adjacent to Bethesda Hospital in the city of Cineim nati, and was injured by the banks of the trench caving in. The case has been three- times tried in the court of/common pleas, the first two juries failing to agree on a-verdict, and the last jury returning a verdict in favor of the plaintiff for $500, on which verdict judgment'has been entered.

In the court of common pleas the defendant in his answer set up a release of the cause of action, claimed to have been given by the plaintiff to him before' suit was brought, and under which release he had paid the plaintiff the sum of $45 and had paid the hospital bill amounting-to $66.20. The plaintiff in his reply sets up facts which, if true, show that the alleged release was void because of the fraudulent representations of the defendant in inducing him to believe that the instrument which he signed was simply a receipt for some money which was being paid to him.

We have given careful consideration to all the assignments of error shown by the record, -but it will not be necessary to discuss them all in detail.

Among other things, it is contended that the judgment should be reversed because of misconduct of plaintiff’s counsel in argument to the jury. The language used in the argument was. not entirely justifiable, but was not so prejudicial as to require a reversal of the judgment. These remarks are undertaken .to be introduced into the bill of exceptions by affidavit and, in view of what was said by the Supreme Court in State of Ohio v. Young, 77 O. S., 529, some doubt may well exist as to whether these remarks are properly a part of the record.

Many exceptions are scattered through those portions of the bill of exceptions which -contain the oral testimony of witnesses. These exceptions are toó numerous to have separate- mention. We are of opinión that the trial judge was in error in rulings made-by him excluding evidence as-to the opinions of witnesses concerning-the mental condition of Walter Pickle at the time he executed'the alleged release. These witnesses detailed in their testimony-the conversation they had with him on that occasion, and what he did and how he aetéd, and should have been permitted, after giving the details of what there occurred, to give their opinions as to his mental condition on' that occasion when it is said that he executed the release. - • - ■ ■

The trial court charged the jury that the burden of proof rested on the plaintiff tó prove by clear and convincing'evidence that the release, as set forth in the amended answer, was void and of no effect in law as a release. If the contention of the plaintiff were true that the instrument- was no more than a receipt, and thht he was fraudulently induced to believe that he was signing a receipt and so misled into signing a release, then the instrument would be absolutely void. The quantum of evidence stated by the trial judge as necessary in order to invalidate a release claimed to have been obtained by fraud, is in accordance with the rule announced in the case of Edwards Manufacturing Company v. Perry, 22 C.C.(N.S.), 422, where it is said that such release can only be overcome by clear and convincing evidence. This rule appears to be laid down also in the following authorities: 11 Encyclopaedia of Evidence, 167; 2 The Modern Law of Evidence, by Chamberlayne, Section 1011; Steffen v. Supreme Assembly of the Defenders, 130 Wis., 485; Demark v. Milwaukee Electric Railway & Light Company, 142 Wis., 624, 126 N. W., 13.

All of the members of this court are not prepared to agree that this is the proper rule as to the amount of evidence required in such eases, but all are agreed, in view of the decision in 22 C.C. (N.S.), cited supra, that the rule as announced should be followed.

It is claimed that the plaintiff could' not maintain this action because of his failure to allege and prove a tender before beginning the action. The existence of the release and the fact that some money was paid to the plaintiff were not mentioned in the petition, but first appeared in the pleading filed by the defendant. The facts alleged in the reply would, if true, render the instrument void as a release, and not merely voidable. Under these circumstances, and in view of the holding of the Supreme Court in Perry v. O’Neil & Company, 78 O. S., 200, that such a release does not need to be set up in the petition, but that the issue can be made by filing a reply when the same shall have been pleaded in the answer, we hold that no tender was necessary. Surely, if the plaintiff was not required to plead or even mention the execution of the release, he should not be required to aver a tender back to the defendant of any amount received pursuant to such release. See Robinson, et al v. Easton, 14 C.C.(N.S.), 87.

From an examination of the evidence contained in the bill of exceptions, we are satisfied that the verdict is not sustained by the evidence, in so far as it involves a finding that the release should be set aside for fraud.

In view of the fact that this action must be remanded to the court of common pleas for a new trial, we follow our usual practice and refrain from commenting on the evidence; and this we do for the reason that such comment might be unfairly used on a retrial of the action.

. For the reasons given, the judgment will be reversed and the cause remanded for a new trial.

Chittenden, J., and Kinkade, J., concur.