text:
    NON-PREJUDICIAL OMISSION FROM INDICTMENT.
    Circuit Court of Wyandotte County.
    James F. Goodlove v. The State of Ohio.
    Decided, December 30, 1909.

      Criminal Law — -Indictment for Murder in the First Degree — Sufficient if the Accused is Apprised of the Charge Against Him — -Not Rendered Invalid hy an Omission of Words Commonly Used, When— Identification of the Accused hy -an Alias Name• — Technicalities Can Not he Permitted to Override Justice.

      1. - An indictment in the usual form for charging first degree murder, averring that accused with a certain pistol “unlawfully, purposely and of deliberate and premeditated malice did * * * strike, penetrate and wound with the intent aforesaid * * * in and upon ("deceased) * * . * one mortal wound * * * of which he died,” but failing, after the words “intent aforesaid,” to contain the statement “then and there giving to him * * * with said leaden bullets aforesaid,” may be deficient in perspicuity; but such an omission, not having prejudiced the substantial rights of accused in failing to give him accurate information of the prime charged, does not under Section 7215, Revised Statutes, invalidate the indictment.
    2. A phrase in an indictment for first degree murder charging that accused “did strike, penetrate and wound (the deceased, naming him) * * * one mortal wound” with a pistol and leaden bullets, is equivalent to charging the giving of such wound, and such indictment having stated all the essentials to charging such crime is valid under Section 7215, Revised Statutes.
    '3. The term “alias” as applied to an accused person is distinguished from that applied to the person wronged by accused in that greater strictness is required in identifying accused than is necessary in identifying the victim.
    "4. An indictment for homicide charging the killing of the deceased, giving deceased one name alias another name, and repeating the alias name without again referring to the former name is sufficient to support a conviction for the killing of deceased under the second mentioned name, particularly if the deceased person killed was identified by the alias name and in the absence of evidence that deceased was ever known by the former name.
    5. The policy of criminal law and practice does not allow mere technicalties to override justice, but accused persons are guaranteed such perfect protection that none shall be punished for crime except upon fair- trial, including every step from accusation to verdict and judgment.

      Meek & Stalter and J. M. Sheets, for plaintiff in error.

      H. H. Newell, Prosecuting Attorney, and D. C. Parker, contra.
    Hurin, P. J.; Kinder, J., concurs; Donnelly, J., dissents.
    Plaintiff in error was indicted for murder in the first degree. He was convicted of manslaughter and sentenced to the penitentiary. Prom this judgment he now prosecutes error. The various errors assigned as grounds for reversal will be considered in their order.
   First. It is claimed that the indictment is bad in that it charges nothing more than an assault with intent to kill one Percy Stuckey, alias Frank McCormick, and also the shooting with intent to kill, but not homicide.

It appears that the indictment-is in the usual form for charging first degree murder, but that the scrivener in copying that form omitted one phrase usually inserted, i. e., immediately after the statement “did strike, penetrate and wound with intent aforesaid” he omitted the following averment “thereby then and there giving to him, the said Frank McCormick, with said leaden bullets aforesaid.”

The omission of these words is said to make such a complete break in the language of the indictment that it in fact nowhere charges that the accused gave the deceased any mortal wound.

To make clear the effect of such omission it will be necessary to recite all of that portion of the indictment, which follows the clauses reciting the assault with intent unlawfully, purposely and of deliberate and premeditated malice to kill and murder the said Frank McCormick, and which reads as follows:

“And that the said James- F. Goodlove, a certain pistol then and there charged with gunpowder and.leaden bullets, which said pistol he, the said James F. Goodlove, then and there in his right-hand had and held, then and there, unlawfully, purposely, and of deliberate and premediated malice, did discharge and shoot off to, against and upon the said Frank McCormick, with the intent aforesaid, and that -the said James F. Goodlove, with the leaden bullets aforesaid, out of the pis-tol -aforesaid, by force of the gunpowder aforesaid, by the said James P. Goodlove then and there discharged and shot off as aforesaid, him, the said Prank McCormick, in and upon the upper right side of the back of him, the said Prank McCormick, then and there unlawfully, purposely, and of deliberate and premediated malice did strike, penetrate and wound, with the intent aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said James P. Goodlove, in and upon the upper right side of the back of him, the said Frank McCormick, one mortal wound of the depth of four inches and of the breadth of half an inch, of which mortal wound he, the said Frank McCormick, then and there died. ’ ’

It is urged that, because of the omission of the words before quoted, this indictment nowhere charges that James F. Goodlove gave to Frank McCormick a mortal wound; that there is nothing to connect the- alleged shooting with the would of which McCormick died, and hence the indictment is fatally defective, and that the prisoner should be discharged.

There can be no doubt that the .indictment thus recited is deficient in perspicuity. The serious question is, does it fail to contain such averments as would fairly apprise the accused of the nature of the crime with which he is charged?

As was said in Lamberton v. State, 11 O., 282:

“Every indictment should contain a complete description of the offense charged. That it should set forth the facts constituting the crime, so that the accused may have notice of what he is to meet, and the court, applying the law to the facts charged, may see that a crime has been committed.”

In Anderson v. State, 7 O. (2d part), 250, it was held that:

“The indictment must state every circumstance of knowledge, intention or action that constitutes the criminal design. ’ ’

The care necessary to be observed in drawing an indictment and the reasons for such care are well set forth in the case of Fouts v. State, 8 O. S., 114, where, after reciting the constitutional provisions that “no person shall be held to answer for á capital or otherwise infamous crime unless on presentment or indictment of a grand jury” and that “in any trial, in any court, the party accused shall be allowed to demand the nature and cause of the accusation against him, and to have a copy thereof,” the court says:

“Why these provisions in the fundamental law of the state? Why the ceremony and expense of a grand jury to find and return an indictment setting out the ‘nature and cause of the accusation’ ? And why guarantee to the accused the right to demand and have a copy of the indictment, if the written averments, descriptive of the crime, are not required to be made with certainly and truth,, charging the overt act with all the substantial and distinguishing ingredients which the statute creating the offense has made essential to constitute the crime ? ’ ’

The reasoning of this opinion is undoubtedly sound and the - case has been frequently cited with approval and never dis-affirmed by the Supreme Court.

See, also, the case of U. S. v. Cruikshank, 92 U. S., 542, and the case of U. S. v. Cook, 17 Wall., 174.

In the case of Knight v. State, 54 O. S., 377, it was held that “a failure to aver all the material facts necessary to a conviction is fatal as well since the statute as at common law. ’’

The statute there referred to is Section 7215, and in the case at bar the prosecution relies upon its provisions .as excusing the omission in the indictment.

Omitting the parts not especially applicable to this ease, that statute provides that:

“No indictment shall be deemed invalid * * * for any surplusage, or repugnant allegation when there is sufficient matter alleged to indicate the crime .and person charged; nor for want of averment of any matter, not necessary to be proved, nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

The question then narrows itself to this one issue, was the omitted allegation of this indictment so essential thereto that such omission was prejudicial .to the rights of the accused, depriving him of -accurate information as to the crime with which he was charged?

It may be stated as a general proposition that if an indictment substantially apprises the accused of the charge preferred against him, no mere technical omission and no surplusage will render that indictment invalid, and this is the plain intent of the statute just quoted.

Whatever may be said of the law and practice in criminal cases in other jurisdictions or at other times, it is not now the policy of the Ohio law, to allow technicality to override justice, to magnify the shadow and conceal the substance. Yet it has been ever the boast and the just pride of our state that to every man is guaranteed such perfect protection that no one can be punished for crime except upon a fair trial, which includes every step from the accusation to the verdict and judgment.

It was well said by Judge McIlvaine in the ease of Rufer v. State, 25 O. S., 464-468:

“While an indictment should not be construed favorably for the state, still the rule of pleading does not require the greatest certainty of averment in every particular of which the language is capable. It is sufficient that the facts constituting the crime be stated with certainty to a certain intent in general.”

And our Supreme Court, in the recent case of DuBrul v. State, 80 O. S., 52, has stated the test as follows:

“A criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged of that which he may expect to meet and.be -required to- answer, and so -that the court and jury may know what they are to try and the court may determine without unreasonable difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what the party has been put in jeopardy.”

It is contended by the prosecution that the only defect in the indictment as it stands, is that it contains superflous phrases and that by omitting the phrase next following the place of the already omitted phrase, the indictment makes good sense, and that therefore these phrases are superflous and should be regarded as surplusage and ignored.

Let us see: Omitting for the moment, for the sake of simplicity all the modifying -clauses and phrases, the indictment would then read: “That the said James F. G-oodlove, him, the said Frank McCormick, did strike, penetrate and wound one mortal wound, of which mortal wound, the said Frank McCormick then and there died”; or, if we transpose this sentence into the modern English order of words, without otherwise changing it, it would read, “That the said James F. Goodlove did strike, penetrate and wound him, the said Frank McCormick, one mortal wound, of which mortal wound the said Frank McCormick then and there died.”

All of this sentence, together with certain modifying clauses and phrases, descriptive of the manner of wounding and the intent, etc., is certainly to be found in the indictment.

The question is, did this language reasonably and sufficiently apprise the accused of the crime with which he was charged? If it did, the mere fact that other phrases, not essential to the sense, were also inserted would not under the statute make the indictment bad. Such phrases, if in fact unnecessary to the indictment must plainly be regarded as surplusage and under Section 7215 must be disregarded.

That it is an unusual use of words t'o say that one ‘ ‘ did strike, penetrate -and wóund” a man “one mortal wound” is true.

It is common to use the expression, “to strike a blow” or “to cut a gash” or “to penetrate a cavity” or “to‘wound a person” but can we say that one did strike another a wound, or that he did penetrate him a wound, or that he did wound him a wound ? There is nothing essentially inconsistent with good English usage in the use of any of these expressions and especially the last one. But each is unusual.

The use of the cognate accusative was as common in the Latin language, from which much of our legal phraseology is derived, as it is in English.

To fight a fight, to live a life, to dream a dream, to think a thought, are familiar modern examples. ‘ ‘ Thank me no thanks ’ ’ “Vow me no vows,” “Plot me no plots” and like expressions appear frequently in the writings of Shakespeare, Beaumont and Fletcher and their contemporaries, though sometimes used rather as oddities of speech than as common expressions.

In the case at bar, if the use of the expression did wound him a wound, or did strike or did penetrate him a wound, is at all legitimate, then the meaning of the indictment is clear. And we are not without judicial authority for the use of this exact expression in an indictment, for in the case of McDonnell v. People, 168 Ill., 93 (48 N. E., 86), the indictment charged that defendants “did strike, penetrate and wound” the deceased “one mortal wound, ’ ’ and this was held good. The court in that case said “to wound a person a mortal wound is fairly equivalent to giving such wound. The nature of the charge could be readily understood by the jury, and a judgment on that Count could be pleaded in bar to a further prosecution for the same offense”; and while we have been cited to no other case, and have found none, where this exact expression is judicially approved, we can see no reason why, in view of the evident intent of Section 7215 and the equally evident intent of the indictment as drawn, the accused was not fairly apprised of the charge against him.

We are of the opinion, therefore, that this indictment, while unfortunately drawn, does contain within it language which, if certain superflous words be ignored, as is expressly authorized to be done by Section 7215 of the Ohio Statutes, not only states the crime of murder in the first degree, but so states it that no one could reasonably be misled as to the nature of the crime charged.

In reaching this conclusion we have not ignored the well settled principle that nothing in an indictment can be left to inference.

It is only because, in our judgment, this indictment does, if not as clearly as might be desirable, yet certainly and sufficiently state every essential fact necessary to acquaint the accused with the nature and degree of the crime charged against him, that we have reached the conclusion just announced.

The phrase omitted, viz., “thereby then and there giving to him, the said Prank McCormick, with said leaden bullet aforesaid” and even the entire additional phrase following that phrase and which appears meaningless without that omitted phrase, viz.: “so as aforesaid discharged and shot out of the pistol aforesaid by the said James F. Goodlove, in and upon the upper right side of the back of him the said Frank McCormick” in reality adds nothing to what has been already averred, and both of these phrases are in fact mere repetitions of what had been previously stated.

That this is true will clearly appear from a reading of the indictment with all of these phrases, which we think superflous, omitted. I quote as follows from what is left of that part of the indictment:

“And that the said James F. Goodlove,, a certain pistol then and there charged with gunpowder, and leaden bullets, which said pistol he, the said James F. Goodlove, then and there in his right hand had and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said Frank McCormick, with the intent aforesaid, and that the said'James F. Goodlove, with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said James F. Goodlove then and there discharged and shot off as aforesaid, him the said Frank McCormick, in and upon the upper right side of the back of him, the said Frank McCormick, then and there unlawfully, purposely and of deliberate and premediated malice did strike, penetrate and wound with the intent aforesaid, one mortal wound of the depth of four inches and of the breadth of half an inch, of which mortal wound he, the said Frank McCormick, then and there died.”

It is evident that every.essential idea, included in all of these omitted phrases, is expressed in what is left after their omission and that these omitted parts are in fact mere repetitions and hence superfluous.

What is left in this indictment fairly, and we think plainly, charges murder in the first degree without the aid of any inference whatever.

We are cited to numerous cases from other states where the omission of apparently unessential words in an indictment was held to be fatally defective, and to one of these cases where the omission of the word “did” before the words, beat, bruised and wound, was so held. But the courts of this state have never sanctioned such extreme technicality and in our opinion the Legislature has plainly declared that no such palpably technical objection shall be upheld, and "such a construction is sanctioned not only by the Ohio authorities cited but by the United States courts and those of other states. See U. S. v. Fero, 18 Fed., 901.

The case of Drake v. State, 145 Ind., 210 (41 N. E., 799), is in many respects similar to the case at bar. There an indictment charged that “Ranph Drake killed deceased, shooting at and mortally wounding her with a revolver, which said revolver he the said Ralph Drake then and there had and held in his’hands, of which, mortal wound, deceased instantly died.” It was held that the indictment was not bad for uncertainty of defendant’s name, as the words “the said Ralph Drake” might be eliminated and yet leave the indictment sufficient. 2. In such indictment the entire allegation “which said revolver he, the said Ralph Drake, then and there had and held in his hands might be rejected as surplusage.” It will also be observed that in that case there is, strictly speaking, no direct averment that Ranph Drake did wound the deceased. There is only the participial phrase “shooting at and mortally wounding her with a revolver” followed by the clause “of which mortal wound deceased instantly died.” Grammatically this is bad English, yet its meaning is perfectly plain and the court held that language good in the indictment.

It follows from all of these authorities and from the reasoning suggested that the contentions of the attorneys for the plaintiff in error are unsound and that the indictment does fairly charge murder in the first degree.

The conclusion thus reached disposes not only of the first claim of error but also of the second, which is based upon it, viz.: that if the indictment does not charge murder in the first degree, then the jury, which was impanneled under Section 7275 of the statutes, was illegally impanneled, and that there was consequently a mistrial.

But another and third objection to the indictment is urged as a ground for reversal, and that is that, while the indictment charges an assault upon one “Percy Stuckey, alias Frank McCormick” the name “Percy Stuckey” nowhere again appears in the indictment but the deceased is constantly referred to as “the said Frank McCormick.” .

It is claimed that this can only mean the Frank McCormick whose real name was Percy Stuckey; and in connection with this claim is the singular fact to which our attention is called, that there is no proof that the deceased was ever known as Percy Stuckey.

It is proven that the man killed was commonly known by the name, Frank McCormick; that this was not his real name but an alias — a name assumed by him in order to avoid detection as a deserter from the United States Army. His sister was called upon to testify to these facts, and she did so. Certainly she must have known his real .name, but she was not asked to give it, and did not. No other evidence was offered as to what that real name was. There is absolutely no proof that any one named Percy Stuckey was ever killed. All of the proof was directed to the killing of Frank McCormick, and the killing of a man known by that name was not denied.

A very serious question is thus raised, viz., whether the indictment which charges an assault upon Percy Stuckey, alias Frank McCormick, and which proceeds to charge the murder of the said Frank McCormick, without again naming him as Percy Stuckey, can support a conviction for killing a Frank McCormick who is not shown to have been ever known as Percy Stuckey.

Had the indictment charged that the real name of the deceased was unknown but that he was known as Frank McCormick, no difficulty would have arisen. U. S. v. Davis, 4 Cranch C. C., 333; Broater v. State, 15 Ind., 190; White v. People, 32 N. Y., 465.

Or, had this been merely a case of variance between the name used in the indictment and the name proved by the evidence, the variance would have been cured by Séction 7216 of the Ohio statutes, which provides that:

“When, on the trial of an indictment, there appears to be any variance between the statement in such indictment and evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description of any person therein named or described, or in the name or description of any matter or thing therein named or described, such vaiiance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant. ’ ’

The trial court in this case made no such finding. Nor can we conceive of any possible prejudice that could arise to the accused from such variance, unless it be on the question as to former jeopardy in case of a future indictment and hearing. But of that later.

None of the cases cited as throwing light on the meaning of this section really aid us in the consideration of the case at bar.

In the case of Meads v. State, 26 O. S., 505, it was held that the names Elisha Davidson and Elijah B. Davison are different names and the description of a person in an indictment by one of these names is not in the absence of statutory provision, supported by proof of a person bearing the other name, but a variance of this kind * * * can not work an acquittal of the defendant unless it is found to be material to the merits of the ease or prejudicial to the defendant * * *. In order to prevent its working such acquittal, however, “it must appear that the person intended to be described in the indictment is identical with the person described in the proof, the variance arising from a mere mistake in the name. ’ ’

But in the case at bar the difficulty arises from no mere mistake in the name charged and proven, nor does the case fall within the line of cases where the doctrine of “idem sonans” ex-causes a variance in proof. As e. g., in the case of State v. Witt, 34 Kas., 488 (8 Pac., 769).

Nor is it a case where there is, strictly speaking, a variance in the description as to the person charged and the one proven as having been killed.

We are cited to a Massachusetts ease where the indictment described one Laura A. Fairbanks as of Worcester, county of Worcester, Mass., and it did not appear that there was any one of that name residing in Worcester, but it did appear tiiat the witness who had testified (falsely, it was claimed) resided in New Hampshire. This was held a fatal variance. Commonwealth v. Stone, 152 Mass., 498 (25 N. E., 967).

In that case the court held that:

‘ ‘ Although, in an indictment for subornation of perjury, the person alleged to have been procured to commit perjury need not be described by his residence, if such residence is alleged it must be proved, and a variance in the proof is fatal. ’ ’

But the case at bar does not, in our opinion, present the question of variance between indictment and proof. There is in fact identity of proof as to the person killed bearing one of the names given in the indictment, the alias.

If the indictment is good as alleging the killing of Frank McCormick, and if the name Percy Stuckey is either surplusage or a mistake, not vital to the case, the proof is ample that a man known as Frank McCormick was actually killed and the verdict must stand — unless set aside for other errors occurring at the trial.

And here it must be observed that there is a well recognized distinction as to the importance of the use of the term “alias” as applied to the name-of the accused and the same term as applied to the party injured by the accused, greater strictness being always required in the former case, because the identity of the accused is always vitally important whereas in the case of the injured person, the name by which he is known is not always of vital importance.

And the gist of all of the distinctions prescribed by statute and insisted on by courts is the protection of the accused from possible injustice.

The great purpose behind the statutes which require the preparation of indictments is that the accused — as well as the court and jury — may know precisely the facts essential to the charge, especially the fact as to who is accused and of what crime he is accused.

A mistake or defect in the indictment which can mislead the accused to his prejudice is always vital, and is fatal.

At common law and by the practice and statutes in many jurisdictions the utmost-strictness was required to prevent such prejudice.

In Ohio the former rules are greatly modified and Section 7215, before referred to, is again in point. To again quote from that'statute, it provides, that “no indictment shall he deemed invalid, nor shall the trial, judgment or other proceeding he stayed, arrested, or in any manner affected * * * for any surplus-age, or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged, nor for want of averment of any matter not necessary to be proved, nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’

Under a similar statute in Massachusetts, it was held that where the victim of the accused’s act was named in the indictment as “Peddy Ii-arvey” and also as “Peddy Hunt” thus “in and upon one Peddy Harvey did make an assault and her, the said Peddy Hunt, then and there did beat, wound and ill treat,” etc., the clause “and her, the said Peddy Hunt, then and there, etc., may be rejected as surplusage.” Commonwealth v. Hunt, 21 Mass., 252. See, also, Commonwealth v. Randall, 70 Mass., 36.

And where by mistake the indictment stated that defendant * * * did feloniously assault and wound one Dunlop by means of which wounding the life of the said Craighead was then and there endangered, etc., the defect was cured by the statute of that state; the mistake being merely clerical and in no way tending to prejudice the substantial rights of the defendant. State v. Craighead, 32 Mo., 561.

And if the name “Percy Stuckey” had been altogether omitted and the indictment had referred to the deceased merely by his assumed name “Frank McCormick” the indictment would undoubtedly have been held good, for the accused could not have been prejudiced.

Thus, it was held in New York that “any indictment for homicide, which states the name by which deceased was known among her acquaintances, is sufficient, even though it be not her true name.” Walter v. People, 32 N. Y., 147.

And again in Texas it was held that:

“The requirement that an indictment must allege the name of the injured party is to apprise the accused of the accusation against him, and is sufficiently done in an indictment for murder where the evidence shows that he was known to the accused by the name alleged. ” Rye v. State, 8 Tex. App., 163.

In the ease at bar it is abundantly proven that the man killed was known to the accused as Frank McCormick, and it is clear that the indictment does apprise him of the fact that he is charged with .killing Frank McCormick.

So in an indictment for murder, the person murdered may be described by the name by which he is commonly called and known, though differing from his name of baptism. Commonwealth v. Desmarteau, 82 Mass. (16 Gray), 1. See, also, Pyke v. State, 47 Fla., 93; 36 Southern, 577; People v. Woods, 65 Cal., 121; 3 Pac., 466.

It will be noticed that in all of the eases cited, and others might be cited indefinitely, the determining thought is the protection of the accused by requiring in the indictment sufficient certainty to fully apprise him of the crime with which he is charged. If it does not do this, it is bad. If it does do this, it is good.

The Supreme Court of the United States has stated the rule thus:

“The true test of an indictment is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises, the defendant of what he must be prepared to meet and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. ’ ’ Cochran v. U. S., 157 U. S., 286, citing Evans v. U. S., 153 U. S., 584.

As illustrating the application of this test the case of People v. Lake, 110 N. Y., 61 (17 N. E., 146), is interesting. There “the indictment (in a case of incest) gave the name of the daughter as Georgiana Towne, commonly known as Georgiana Lake. There was no question of her identity, for she was present during the trial and was identified by the witnesses. The proof show's that she was named “Georgiana Jeanette” and by an abbreviation of the middle name was generally spoken of as “Nettie Lake.”

“It was no misnomer (says the' court) to describe her as ‘Georgiana Lake.’ Her name was ‘Georgiana’ and she was commonly called ‘Lake.’ Her father acknowledged her as his daughter and she commonly bore his name, so that her true name in full was Georgiana Jeanette Lake and it was no variance to describe her as Georgiana Lake, and the question of identity was put at rest by her presence.”

Prom the somewhat meagre report of that case, it.appears that like the case at bar, the name first given, Georgiana Towne, was not again used but the name Lake was constantly used, yet the identity of the person being established, the indictment was held good.

So in the ease of Moree v. State, 83 S. W. (Tex.), 1117, “Appellant filed a motion to quash the indictment because it did not carry throughout the entire indictment the aliases of appellant. In the beginning of said indictment it is alleged that ‘Anee Moree, alias John Thomas, did unlawfully,’ etc. ‘Alias John Thomas’ is omitted in the succeeding portions of the indictment but, in stating the name of appellant, he is styled ‘the said Aneé Moree.’ This (said the court) is sufficient, and the court did not err in refusing to quash the indictment.”

And in Kennedy v. People, 39 N. Y., 245, it was held that:

“It is manifestly immaterial where a person is known by two names and the pleader for greater certainty deemed it necessary to aver such fact in his pleading, which of the two names is first stated, and also in such case which was the real name, and which was afterwards acquired.”

In the three cases last cited the reason behind the decisions was evidently the same; that is, that no prejudice could accrue to the accused from any change or omission of one -or more of the names given in the indictment, as those of the deceased, or even of the accused, if the identity of the deceased or accused was established by the proof.

Under the rule in Ohio, parol proof -of the name of the deceased and of the identity of the deceased with the person named in the indictment was properly admitted and such identity was clearly established.

The indictment informed thé accused that he was charged with killing a person having two names by which he had been known, one of which was Prank McCormick. The proof showed, without denial, that a person known as Prank McCormick, though that was not his true name, had been killed by the accused as charged in the indictment and that the accused knew him as Prank McCormick at the time of the killing.

There is no possibility that the accused was misled by the indictment as to the person whom he was charged with killing.

So far, he could not have been prejudiced.

But it is urged that possibly at some'future time, a new indictment might be framed against him, -charging him, not with killing this Frank McCormick but with killing Percy Stuckey, or some other Prank McCormick, and that he might not then be able to plead his former conviction in this case, as a bar to such indictment.

This is one of the elements of the test as previously stated in the quotation from'the decision of-the Supreme Court of the United States in the ease of Cochran v. U. S., 157 U. S., 256.

But we are clearly of the opinion that a conviction in the ease at bar might be pleaded as a bar to any future indictment for the .killing of the man.killed in this case. As to any other killing there is no reason why it should be pleaded in bar. ,

Should the accused in this case be again indicted for the killing of Percy Stuckey he might on a plea in bar establish by parol proof or otherwise the fact of the identity of such Percy Stuckey with the person named in this indictment, if such were the fact.

By whatever name the deceased might be called in the future indictment, the fact, if it be a fact, that such deceased person was identical with the person named in this indictment could be proved on a plea in bar and such plea must then be sustained.

This view is sustained by the case of Bainbridge v. State, 30 O. S., 264. Evidently then this conviction under this indictment can not deprive the accused of his right to plead it in bar and prove it in bar, in the possible event of his being hereinafter indicted for the killing of Percy Stuckey or one known by any other name if such person was in fact the person shown in this case to have been killed.

We can conceive of no other prejudice which the accused has sustained from the form of the indictment and can not therefore reverse the case on this ground.

Other errors are. claimed by counsel for the accused, such as misconduct of counsel, misconduct of the audience during the trial and excessive sentence. But we are unable to find in any of these matters ground for reversal of the sentence imposed.

That sentence, while possibly more severe than we would ourselves have been willing to impose under all the circumstances proved in this case, was clearly within the limits of the law, and was within the discretion of the court.

The judgment of the trial court will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    INJURIES RECEIVED IN EXPOSED MACHINERY.
    Circuit Court of Hamilton County.
    The Eight Hour Tobacco Co. v. George Koellner.
    Decided, March 12, 1910.

      Unguarded Machinery — Failure to Enclose Does Not Render a Master Liable for Injury in, When — Proximate Cause — Negligence—Doc- ' trine of Respondeat Superior — Charge of Court — Section J¡S64-89c.

    1. The fact that an engine was not surrounded with a guard-rail does not render the master liable for an accident to an outsider who was assisting the master’s own employes .in carrying a heavy piece of machinery past the engine, where it appears that under the circumstances a guard-rail would not have prevented the happening of the accident.-
    2. Where, in such a case, there is testimony tending to prove that the plaintiff tripped over a corner of the engine platform while walking backwards assisting in carrying the weight, and the accident was due to no fault of the workmen assisting him, it is error to refuse to charge the jury on that theory of the case.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The plaintiff in the original action, George Koellner, sold and delivered to the defendant, the Eight Hour Tobacco Co., a steam pump weighing about 400 lbs., and while assisting the employes of the defendant in carrying the pump through a narrow passageway, on one side of which was a revolving engine, suffered a fracture of his right arm by a stroke from the crank of the engine. The jury returned with a general verdict for the plaintiff the following interrogatory and answer:

“What act or acts, if any, on the part of the defendant, was the immediate cause of the plaintiff’s injury? In permitting an engine to operate at the time the pump was being carried in a narrow passage-way without said engine being guarded.”

Although the passage-way was only feet wide with a coal-bin' on one side and an engine operating on the other, the pump was bulky and heavy and three men were assisting plaintiff in the work, it does not appear that the work could not be performed with reasonable security provided each and 'all of the workmen exercised ordinary care. Had the engine itself been surrounded by an ordinary guard-rail, it would have afforded plaintiff’s arm no protection, unless placed at such height as would prevent his arm from extending over or under it and from coming in contact with the engine.

It is averred in the petition, and the evidence tends to prove, that the engineer, one of the three employes of the defendant, negligently caused said pump to be moved so as to force plaintiff over and upon the revolving wheel of the engine. If this be so, then the negligent act of the engineer was the proximate cause of the injury and the unguarded engine only a condition; but in that event the defendant would be liable as he was not a fellow-servant and the doctrine of respondeat superior applies. St. Railway Co. v. Bolton, 43 O. S., 224; Railroad Co. v. Marsh, 63 O. S., 236.

On the other hand there is testimony tending to prove that the plaintiff. accidentally tripped on the corner of the engine platform while walking backward and carrying the pump; and without any fault of the other workmen. This theory of the case was presented by special instruction No. 5 requested by the defendant but refused by the court. We think this was error, because under such circumstances the unguarded revolving engine was not the proximate cause of the injury; but the efficient and direct cause was the accidental tripping of the plaintiff.

The defendant objects to the charge of the court upon contributory negligence, because not in' issue; but it offered testimony tending to prove such negligence and it was received without objection, hence it can not consistently complain, of an appropriate instruction for the consideration and application of such evidence by the jury.

Special instruction No. 1 given by request of defendant, although most favorable to it, should not have been given, because it excludes all consideration of the negligence of the employes assisting in the work.

The judgment will be reversed for error in refusing special instruction No. 5 requested by defendant, and the cause remanded for a new trial.


text:
    INJURY OF A CHILD AT A CROSSING.
    Circuit Court of Hamilton County.
    Joseph Vetter, Administrator, v. The Cincinnati Traction Company.
    Decided, November 27, 1909.

      Negligence — In the Operation of an Electric Gar Approaching a Grossing< — Presumption as to the Manner in which the Gar will he Run — Proximate Cause — Doctrine of Last Chance — To he Made Available Must he Pleaded.

    1. An occasion requiring that a street car fender be dropped presents an instance of the doctrine of last chance, and to be made available must be pleaded.
    2. A pedestrian in approaching a street railway crossing is warranted in assuming that cars will be run at that point at a reasonable rate of speed and that the gong will he sounded, and where he is struck hy a car running at an excessive rate of speed and without being under control or the sounding of the gong, the negligence in so doing constitutes the proximate cause of the accident.

      Gogan & Williams, for plaintiff in error.

      Joseph Witty, contra.
    The intestate, a child four years of -age, was killed by being struck by a traction car at the Warsaw and Windfield avenues crossing.' The jury found in favor of the traction company.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Negligence is charged in the petition as follows:

“Said defendant by its agents, officers and employes, did so carelessly, negligently and unlawfully operate one of its said cars in this, to-wit, that said car was being operated at a very high and unlawful rate of speed, that the gong or warning bell was not sounded and that the fender - on said ear was not dropped.”

In the ordinary operation of a street car there is no duty on the part of the motorman to drop the fender. That duty arises only when he sees a person in danger of being run over by the ear, and presents an instance of the doctrine of “last chance,” which to be available must be pleaded.

The charge of the court upon this subject was, therefore, not prejudicial.

The charge that “preponderance of'the evidence means all the evidence” is of course erroneous, but it is manifest from other parts of the charge that the court did not intend to so instruct the jury, nor were they thereby misled. The charge of the court, at page 207 of the bill of exceptions, concerning the liability of the defendant and defining negligence, is misleading and prejudicial.

The concrete charge required to inform the jury what would constitute negligence of the defendant, under the pleadings, is expressed in the first proposition of the syllabus of the case of The Cincinnati Street Railway Co. v. Snell, 54 O. S., 197, to-wit: The failure to so regulate the speed of the ear and give such warning (sounding the gong) as that the footman, using ordinary care himself, may, in the absence of unavoidable accident, cross in safety. It is probably true that the accident was unavoidable after the motorman first saw the deceased boy; but if the car approached the crossing at an excessive rate of speed, not being under control, and without warning, such negligence was the proximate cause of the accident.

The evidence tends to prove such negligence and the boy was not bound to anticipate it. He is entitled to assume that the car 'if any (for he evidently did not see it until he passed behind the coach in the funeral procession), was running at a lawful rate of speed, or the gong would be sounded. The motorman admits that he did not see the brother of the deceased, who crossed in front of the car a few moments before the accident, although the conductor standing on the rear platform did see him. This admission shows that the motorman was not keeping a proper lookout, and if he had, that he would have been reminded of the necessity of keeping the car under control to avoid injuring any other boy or person who might attempt to use the crossing. The testimony tends to prove that the accident would not have occurred, if the car had been under control and running at a reasonable rate of speed.

The definition of ordinary care as applied to the deceased infant given by the court, although erroneous (Rolling Mill v. Corrigan, 46 O. S., 283), was most favorable to. the plaintiff and therefore affords no ground of complaint by him. The special charge requested by the plaintiff, was properly refused.

Other errors are assigned but we find none that is prejudicial. The judgment will be reversed for error in the general charge of the court and the cause remanded for a new trial.


author: Per Curiam.

text:
    THE RESTRICTION AS TO RAILWAY RELIEF ASSOCIATIONS.
    Circuit Court of Holmes County.
    State of Ohio, on Relation of D. T. Simpson, Prosecuting Attorney of Holmes County, v. The Pennsylvania Company and The Cleveland, Akron & Columbus Railway Company; and Same v. The Baltimore & Ohio Railroad Company.
    Decided, November, 1909.

      Constitutional Law — Railway Relief Associations — Talidity of the Restriction Contained in Section 3270 as Amended — Quo Warranto— Pleading.

    1. A prosecuting attorney may institute and prosecute an action in quo warranto to oust a railway relief association which it is alleged has been organized and is being conducted in violation of the laws of the state.
    2. It is competent for the General Assembly to enact proper restrictions with reference to the character of relief associations which railway companies may maintain or assist in maintaining, and the requirement as to such relief associations contained in Section 3270 as amended (99 O. _L„ -71) is not violative of any constitutional provision.
    These actions were brought by the prosecuting attorney of Holmes county for the purpose of ousting certain railway relief associations organized and maintained by or under the control of the defendant companies. The allegations were that the employes of these companies, as a condition of their employment,' are required to sign a contract which malíes them members of the relief association and contains the conditions of a policy of insurance, though the relief .associations are not organized under the insurance laws or for the protection of said employes; and that said contract contains the provision that the employe signing it thereby waives any claim for damages on account of personal injuries or death, contrary to the provisions of Section 3270 or of the insurance laws of the state.

      David T. Simpson, Prosecuting Attorney, and F. S. Monnett, of Columbus, for plaintiff.

      Gary <& Mullins, of Salem, for the Pennsylvania Co.

      Allen, Waters, Young & Andress, of Akron, for the Cleveland, Akron & Columbus Railway Co.

      Arrel, Wilson & Harrington, of Youngstown, and Geo. W. Sharp, for the Baltimore & Ohio Railroad Co.
    Taggart, Donahue and Voorhees, JJ.
   Per Curiam.

This cause was submitted to the court on motion of the Pennsylvania Company to require the plaintiff to make its amended petition more definite and certain in respects stated and set out in said motion.

We are of the opinion that this motion must be overruled, as the averments of the petition in our judgment are sufficient to maintain this action, in that the petition sets forth that the Pennsylvania Company has established and still maintains and has assisted in establishing and maintaining a certain relief association or society, commonly called voluntary relief association, which require of its employes to enter into contracts, agreements .or stipulations, which are contrary to the provisions of the statutes, provisions of Section 3270, as amended April 7, 1908, Volume 99, pages 71 and 72.

We think the petition with certainty and definiteness informs the defendant filing this motion what is asserted and claimed against it.

The motion may be overruled with exceptions and with leave to file a demurrer.

The Cleveland, Akron & Columbus Railway Company filed a demurrer to this amended petition. The grounds of the demurrer are:

1st. That the plaintiff has no legal capacity to sue.

In respect to this we think that the clear provisions of the statutes authorizes the plaintiff as prosecuting attorney to institute and prosecute this character of eases.

It is further contended, as a second ground of demurrer, that the amended petition does not state facts sufficient to constitute a cause of action on the grounds that said Section 3270 of the Revised Statutes, as amended April 7, 1908, is unconstitutional and void.

We are of the opinion that it is entirely competent for the Legislature to place proper restriction upon a corporation, such as a railroad company, in respect to its conduct and operation, and the character of relief associations that it maintains or assists in maintaining, and that it is not violative of any of the provisions of the Constitution.

The third ground of demurrer is that there is a misjoinder of parties defendant.

The provisions of the statutes are, that a railroad company may establish and maintain or assist in establishing relief associations, but they are not permitted to maintain or assist in maintaining relief associations having certain specific rules and regulations. It is averred in this petition that both of the defendants are engaged in maintaining such relief associations, and that there is such unity of action and consort of parties that would bring the case within the provisions of the amended section.

We are of the opinion that the demurrer to the amended petition should be overruled with exceptions. The defendants are given thirty days to answer herein, and the plaintiff thirty days thereafter to reply.

The same holding and judgment may be entered in the case of The State of Ohio, on relation of D. T. Simpson, v. The Baltimore & Ohio Railroad Company. And the same rule for answer made therein.


text:
    RECOVERY OF FEES ILLEGALLY PAID TO COUNTY OFFICER..
    Circuit Court of Hamilton County.
    Walter B. Weaver v. State of Ohio, ex rel Hiram M. Rulison, Prosecuting Attorney.
    Decided, January 15, 1910.

      Office and Officer — Settlement of Fee Account with County Commissioners — Misapplication of Public Funds Through Illegal Payments Section 12 77.
    An action will lie on behalf of the state for recovery from a county officer of moneys paid to him as fees for which there was no authority of law.

      Robert C. Pugh, for plaintiff in error.

      Hunt, Bettman & Merrell, for the state.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The court is of the opinion that the trial court properly sustained the demurrer to the answer of plaintiff in error. The recovery asked in this case is for a sum of money retained by plaintiff in error when coroner of this county, in excess of fees legally coming to him under the fee law.

It is claimed by plaintiff in error that the claim of the state against him for this excess had been adjusted between him and the county commissioners, and that he had paid into the county treasury the sum of eighteen dollars to balance the county, and therefore, this adjustment having been made, the state can not demand under Section 1277 the return of this excess.

The adjustment as had was simply a payment to the county of salary which he had theretofore drawn, and for which there was no authority of law, and the payment back to him on the part of the county commissioners the amount in excess- of the statutory fees to which he was legally entitled. This being so, we do not think the case of State v. Fronizer, 77 O. S., page 7, applies, as the basis of that case was a certain contract entered into between the county commissioners and Fronizer for the construction of a bridge.

The basis of the case at bar for recovery is the payment to a county officer by the county commissioners of fees in conducting his office for which there is no statutory provision. The payment was contrary to law. The county commissioners, therefore, could not authorize such a payment, and if consummated and the money paid, the amount so paid can be recovered back. We think the case of Lewis v. State, 57 O. S., 189, is decisive of the case at bar. In that case it was held that the board of county commissioners represents the county in respect to its financial affairs only so far as authority is given to it by statute. While it may pass upon and adjudicate claims against the county for services in a matter which under the statutes may be the subject of a legal claim against the county, yet it is without jurisdiction to adjudicate claims which in themselves are illegal and of such a nature as not to form a subject of a valid claim for any amount.

For the above reasons the judgment of the court below will be affirmed.


author: Kinkade, J.

text:
    ACTION FOR. FRAUD IN THE SALE OF CERTIFICATES OF STOCK.
    Circuit Court of Lucas County.
    Schuyler C. Schenck et al v. James W. Knott
    Decided, December 4, 1909.

      Judgment — Where the Action is Against Several Parties for a Wrong . Committed by One — False Certification of Stock — Damages Therefor and Measure of Damages for Fraudulent Sale of Stock — New Trial Will be Granted on Newly-Discovered Evidence, When.

    1. In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit an actionable wrong which, is capable of being perpetrated by the joint act of several or by the independent act of one, judgment may be recovered against one defendant and in favor of another, and the failure of the court so to submit the case to the jury that they may find for one defendant and against the other is error.

      2. It is error to charge that “If the party signed certificate of incorporation certifying that there had been $150,000 paid in, not knowing whether it was true or false, when in fact it was untrue, and such signing was done without knowledge thereof as to its truth or falsity, such statement would be recklessly made, and party making it would be liable for damages resulting, the same as though he knew the statement to be untrue.”
    3. It is error to charge as to a fraudulent sale of stock, that the measure of damages is the difference between the price paid and the value at the time of trial after the sale.
    4. On newly-discovered evidence offered by defendant in support of a motion for a new trial, a new trial should be granted when such evidence is competent for the purpose of rebutting the evidence to sustain the plaintiff’s action although incidentally tending to impeach the plaintiff, provided that its character be such that it ought to influence a different verdict.

      King, Tracy, Chapman & Welles, for plaintiff in error.

      Potter & Potter, for defendant in error.
    Wildman, J..; Parker, J., and Kinkade, J., concur.
    Error to Lneas Common Pleas Court.
   This is a proceeding in error to reverse a judgment rendered in the trial court. Mr. Knott brought suit against Schuyler C. Schenck and James E. Iiickox,. alleging that they had defrauded him in the sale to him of a number of shares of stock of a manufacturing corporation known as the Iiickox, Mull & Hill Company, a corporation organized under the laws of the state of Michigan. The case has received more .attention than we have usually been able to accord to cases before us, due to the fact that upon its presentation and argument one of the members of this court, Judge Parker, was not present, being at the time physically disabled from acting with the other judges. It was the view of Judge Kinkade and myself, to whom the cause was submitted, that the judgment rendered below for the sum of $5,000 in favor of Knott as damages claimed to have been sustained by him should be reversed, but some question having arisen upon the settling of a journal entry, it was decided to reserve the case for further consideration until the recovery by Judge Parker of his health, so that he would be able -to sit with us. At the present term the case has been entirely reargued before the full court, and We have arrived at a unanimous conclusion as to the judgment which should be entered.

The facts being recited, briefly perhaps, in the opinion which I formerly announced for the court as then constituted, I will not attempt any further review of them, but content myself with giving some attention to the specific matters of claimed error which in our judgment still justify a reversal of the judgment of the trial court. An examination of the record discloses that as to the claimed fraud in the statement in the articles of incorporation in Michigan that $150,000 on capital stock had been paid in, the court limited the power of the jury in making its findings to a verdict either for or against both defendants, that no opportunity as to that issue was given the jury to find that one of the defendants was not liable for any claim made by the plaintiff on the basis of that alleged fraud, while the other defendant might be liable, and in the final statement of the case to the jury near the close of the charge, the court presented to the jury two forms of verdict only. Those forms of verdict are not shown in the bill of exceptions, but it is quite clearly indicated that there was no halfway place at which the jury might rest their conclusions, finding one of the defendants liable and the other not. Indeed, the forms of the verdict, so far as indicated in the statement of their substance in the charge, would seem to show that the jury were directed to find as to all of the frauds charged in the petition that both of the defendants were guilty, or neither.

It is said, however, that the court was not in error in this regard. It is insisted that this action is one for conspiracy, and that if the conspiracy falls, the whole case must fall with it'. We do not think that this is so. The rule of our statute which authorizes trial courts to permit judgment against one or more of several defendants, or against all, as the case may require, is in Section 5311, Revised Statutes, which specifically provides as follows:

“Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. ’’

The case of Keit v. Wyman, 67 Hun., 337 (22 N. Y. Supp., 133), is in point, well reasoned and fortified by the citation of numerous authorities. The first paragraph of the syllabus is as follows:

“In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit an actionable wrong which is capable of being perpetrated by the joint act of several or by the independent act of one, judgment may be recovered against one defendant and in favor of another. ’ ’

We think that this is the correct view; that while a conspiracy to defraud is alleged in the petition, which is the assertion of the plaintiff’s claim in the case at bar, that conspiracy is but a combination to do acts which would be unlawful in themselves and could be made the basis of an independent action against either one of the defendants without a conspiracy. The decision clearly falls within the rule embodied in our statute, Section 5311, to which I have referred. In restricting the jury to the two forms of verdict, it is our judgment that the court erred.

Our conclusion is fortified by the fact that Mr. Schenck in his testimony,' which we have examined, says that he believed the statement certified by him with others in accordance with the Michigan statute to be true. He says that he was informed by Mr. Mull, who I understand was president of the corporation, that the fact was as stated in the certificate, and that he believed it, and I call attention to this now for its bearing upon the possibility of the jury under the evidence finding that the other defendant may have been guilty of fraud in the signing of the certificate, while Mr. Schenck may not be.

There is another .application which may be made of this testimony of Mr. Schenck, to which I will now refer: The trial judge in his charge to the jury, in response to a request made after argument by counsel for the plaintiff, substantially gave to the jury an instruction bearing upon the principle that one may not recklessly make statements which he does not know to be true. Of course, our common sense tells us, if there were no authorities, that although a person may not know a thing to be true, if he has a belief founded upon credible information given to him by others, he can not be charged with fraud in the expression of such belief. Of course there are instances where one asserts as a matter of positive certainty that a thing is a fact when, because he does not know it to be a fact, he is not justified in making the assertion; but there are many cases in which it would not be accurate to say that because one does not positively know that a thing is so, he is committing a fraud by asserting that 'it is so, and we think that the court was not sufficiently guarded in his language in this respect in the instructions given after his general charge. He had completed' the charge when the attorney for the plaintiff said:

‘‘ I think the charge perhaps covered all the points, except in one regard, where Your Honor, has spoken of reckless representations or statements, and to cover that point I ask Your Honor to charge the jury this: ‘ If the defendants signed the certificate of incorporation of the Michigan corporation certifying that there had been $150,000 paid in on March 5th, 1903, not knowing whether it was true or false, when in fact it was untrue, and such signing by said defendants' was made without knowledge thereof as to its truth or falsity, then such statement would be recklessly made and the defendants would be liable therefor, the same as though they knew such statements to be untrue at the time of so signing.’ ”

The court in response to that said, ‘ ‘ If made with intention of influencing the plaintiff or one situated as he was,” to which counsel assented by saying, “That is all right.” And then the court said to the jury:

“I will say to you further, gentlemen, that if the defendants signed the certificate of ineoporation of the Michigan corporation certifying there had been $150,000 paid' in March 5, 1903, not knowing whether it was true or false, when in fact it was untrue, and such statement was made without any knowledge as to its truth or falsity, then such statement would be recklessly made and the defendants would be liable therefor the same as though they knew such statement to be untrue at the time of so signing, if made with the intention of influencing the conduct of the plaintiff in the particular of which he complains.”

We think the court did not sufficiently guard this language against the criticism and objection to which I have called atténtion, especially in view of the testimony of Mr. Sehenck as to his information and belief. And this, without stopping to consider the question as to whether the petition itself in its allegations justifies any- instructions as to ignorant and reckless misstatements, we deem prejudicial error. The petition alleges an 'absolute knowledge on the part of the defendants with regard to these transactions. But it may be, as counsel maintain, that this allegation is broad enough to cover the contention that there may have been reckless misstatements deceiving and defrauding the plaintiff.

It is quite clear to us that the court erred in its charge as to the measure of damages. This ease was tried some time in February, 1908. The transactions which are made the basis of the suit occurred, the first of them, in the early part of March, 1903, and as to certain other purchases of stock in the fall of the same year. A period of four and a half and five years had elapsed between the times of the purchase of the stock and the trial of the case in court, and yet the court told the jury that the plaintiff was entitled as compensation to recover the difference between the prices which he paid and the value of the stock, “if,” as the court said, “it has any value, at the present time.” This can not be the true rule, and it is conceded by counsel that it is not; but it is said that the defendant was not prejudiced by the instruction because the stock had no value, as shown by the evidence, at the time when it was purchased. We do not feel that as a matter of law we can say that it is so, or even that the jury so found. We think there is evidence upon which minds might differ as to just what was the actual value of the stock at the precise times of these several purchases.

We think also that the court erred in overruling the motion for the new trial upon the ground that there was newly discovered evidence. . The evidence which was tendered as newly discovered was not such as would serve merely the purpose of impeaching the plaintiff. It may incidentally have had that effect, but we think it touched one of the vital issues in the case, and that it was evidence which should properly be received if the case were retried, for the purpose of sustaining the affirmative averments in the petition, and that' its use should not be confined to the mere impeachment of the plaintiff upon his offering himself as a witness. Its competency is not for the mere purpose of discrediting him, but also for the purpose of disproving the fact which he asserts as one of the bases of his action.

For the four reasons which I have stated, the judgment below should be reversed and the cause remanded for another trial. As to this last ground which I have stated, touching the, newly-discovered evidence, we have come to the conclusion unanimously, with full appreciation of the very able argument that counsel -have made, and without overlooking the rule that the court should not grant a new trial upon this ground unless the newly-discovered evidence be such as should .influence the finding of a different verdict. The case will be remanded for , another trial.

Kinkade, J.

I .want to say in addition to what Judge Wildman has said, that I think there is in the language of the court as found on page 82 in the two middle paragraphs, and in the last paragraph on .page 84, a clear assumption that the statements in the articles of incorporation filed in Michigan were false, wholly false. I think the language of the court in these two pages in that particular. goes further than the court was justified in going. I agree in the opinion of Judge Wildman with that added.


text:
    INJURY TO AN EMPLOYE FROM THE FALLING OF A PLATFORM.
    Circuit Court of Hamilton County.
    The Wm. Heffron Construction Company et al v. Maurice Coleman, Sr.
    Decided, January 8. 1910.

      Negligence — Safe Place to Work — Doctrine of Felloio-S-ervant not Applicable — Where Pleadings and Evidence are Governed by Section 42S8o — Error—Evidence.
    1. Error in charging a jury-as to the duty of a master to furnish the defendant a safe place to work is immaterial, where the jury has specially found that the injury was due to a defective timber.

      2. The overruling of an objection to a question to which the witness answered “I don’t know,” and then proceeded to state certain relevant facts which he did know, is not prejudicial..

      Wm. Littleford, for plaintiff in error.

      Thos. L. Micfw, contra.
    There was a recovery below of judgment for $1,125 on account of injuries to the minor son of the plaintiff from the falling of a platform on which a sewer construction gang was at work and with whom the boy was employed by the Heffron Company. In a subsequent action brought on behalf of the boy a verdict was returned for the company.
    Gieeen, P. J.; Smith, J., and Swing, J., concur.
   The jury having specially found that the falling of the platform which caused the injury was due to a defective timber which was not sufficiently strengthened when repaired, the alleged error in charging the jury that it was the duty of the defendant to furnish a safe place to work is immaterial.

The case presented by the pleadings and the evidence is governed by Section 4238o, Revised Statutes, and the doctrine of fellow-servant does not apply.

The alleged error in overruling the objection to the question at page 95 could not be prejudicial because the witness answered, “I -don’t know,” then proceeded to state certain relevant facts that he did know.

The special findings of the jury and the fact that the president of the defendant company had actual knowledge of the defective 'condition of the platform are conclusive on the question of defendant’s negligence, and as young Coleman was not required to inspect the platform before resuming work he was not guilty' of negligence. Hence, the alleged error in the charge at page 288 of the bill of exceptions was not prejudicial; and for the same reason the charge concerning the duty of the master to furnish safe material was not prejudicial.

Other errors are assigned, but we find none that requires a reversal of the judgment. It will be affirmed.


text:
    AS TO OWNERSHIP OF SURPLUS LIFE INSURANCE FUNDS.
    Circuit Court of Hamilton County.
    State of Ohio, ex rel Wade H. Ellis, Attorney-General, v. Union Central Life Insurance Company.
    Decided, April 2, 1910.

      Life 'Insurance — Quo Warranto Against Company for Misuse of Charter Bights — Ownership of Surplus Gathered by a Stock Company— Bights of Stockholders and of Policy Holders, Participating and Non-Participating — Contracts of Insurance — Commingling of Funds —iEstoppel.

    1. It is conclusively shown by the evidence submitted in this case that the surplus derived by the Union Central Life Insurance Company from its nqn-participating policies greatly exceeded the stock dividend of $400,000 declared out of its surplus funds.
    2. Where it is undisputed that a life insurance company is a stock company, the fact that the impression was conveyed by its agents that it was doing a mutual business, and that policy holders who elected to take participating contracts had written in their contracts that they should share in the profits “as apportioned by the company,” does not transform the company into a mutual company, or make even the participating contracts mutual insurance contracts, or estop the company from treating the surplus fund as belonging to the stockholders.
    3. Nor can resort be had to the doctrine of commingling of funds to show misuse of its charter privileges by a life insurance company, where neither contract, law nor usuage has required the company to keep its funds separate.
    4. In an action brought by the state in quo warranto against an insurance company for alleged misuse of its franchise, a court can not concern itself with the rights of policy holders or of' stockholders, but can only consider whether some public mischief is being done or threatened.

      U. G. Denman, Attorney-General, Einkead & Rogers, A. I. Vorys, W. H. Miller and Charles F. Williams, for tbe state.

      Lawrence Maxwell, Robert Ramsey and J. B, Foraker, contra.

      Swing, J.; G-ifeen, P. J., and Smith, J., concur.
    This is an action in quo warranto, wherein the state claims the company has misused its franchise in that it declared a stock dividend of $400,000 in the year 1908 out of its surplus funds.
   The company was organized in the year 1867 as a stock company, with an authorized capital of $500,000 — $100,000 of which was paid in. The company continued to do business on this capital stock until 1908, when the capital stock was increased to' $500,000. During the existence of the company it wrote both participating and non-participating contracts of insurance. Under able management the company became very prosperous, so that at the date last mentioned it had above liabilities a surplus of over $2,400,000. During the forty years of its existence no separate account of the expense and profits was kept of the paricipating and non-participating business. Beginning in 1907 several of the states passed laws requiring life insurance companies to separate the surplus derived from these two different kinds of policies and to maintain this separation, and about the same time the state of California passed a law requiring life insurance companies doing business in that state to have a paid up capital of $200,000.

To meet these requirements this company first attempted to ascertain the amount produced by the different kinds of policies respectively. The result of this investigation showed that' the non-participating business had produced nearly $800,000, and out of this the company declared the stock dividend of $400,000. The state challenged the correctness of the result arrived at by the company, and under the direction of superintendents of insurance of several states Mr. Wolfe, an actuary of New York City, made an investigation of the affairs of the company with the result that a different conclusion was reached from that made by the company. The trial of this case occupied about seven days, and the most of this time was occupied in submitting to the court evidence bearing on the question whether the company had the surplus of $800,000 arising out of its non-participating business. It is admitted, and it is self-evident, that it is impracticable to accurately separate these funds within any reasonable time, so that an approximation can only be had. And it is also admitted this approximation can be reached only by estimation after the proper determination of certain facts. We deem it inexpedient, and it certainly would serve no good purpose for us to enter into a review of the evidence in this opinion, but we content ourselves by stating that after a careful consideration of the evidence we have reached the conclusion that there was in this surplus at the time in question a sum largely in excess of $400,000, which was placed there by the non-participating business.

We mention two facts which we deem of great probative force in reaching this conclusion. One is that we find Mr. Wolfe’s result was not accurate, and when we say this we intend no reflection on Mr. Wolfe, or his ability, for he impressed us as being a very able man, but the mass of material that he had for investigation and the limited time at his disposal accounts for this; and secondly, we regard as the most convincing evidence in the whole case the result of the non-participating business for the years 1908-1909, which show beyond any question a very large surplus on the non-participating business for those years, and this was the same business that had been in existence in the years next previous. The surplus from this business in these two years was more than $400,000.

Beyond any question, therefore, we think there is in the surplus of the company derived from the profits of its non-participating business a sum largely in excess of the $400,000.

It is claimed, however, by the state that the company is estopped by representations made by it from treating this fund as belonging to the stockholders: A good deal of evidence was offered by the state on the trial pertinent to this matter. It consisted largely of extracts from certain publications made by the company in the nature of advertising matter, wherein it was stated that all the profits went to the shareholders, that the company did a mutual business, and that the policy holders got all the profits. And similar representations were made in reports to the insurance commissioner of the state, and evidence was offered as to the statements made by the company in a legislative investigation made by the state of Wisconsin to the same” effect.

That all of these statements so made were not true must be conceded; that they were ealuculatel to deceive prospective policy holders may also be conceded, and possibly it might be said that they were either recklessly made or intended to' deceive; but it is a matter of common knowledge that all representations made by life insurance companies and life insurance agents are not true. It is an undisputed fact that this company was not a mutual company and did not do a mutual insurance business; it was a stock company, and wrote participating and non-participating contracts of insurance, and these contracts of insurance, and what was necessarily a part of them, contained the measure of the rights and liabilities of the par-, ties to them. Nothing can be taken from and nothing can be added to them. They are fixed. The policy holder who entered into a non-participating contract knew he had no mutual contract- of insurance — the terms of his contract prohibited this —and the policy holder who took out a participating contract had stated in the contract the exact nature of the participation that he was to enjoy, and in these policies it was that they should share in the profits “as apportioned by the company.” Such a contract is in no sense a mutual insurance contract.

This company had at the date in question a surplus of over $2,400,000. To whom does this belong? Undoubtedly to the company. And who are the company? The stockholders. Not a penny of it belongs to any policy holder. This surplus was accumulated by the company through a wise and judicious management of its business — the foundation of which was from the premiums paid into the company by its policy holders, the most of which came no doubt from the policies long since matured and which have been adjusted to the entire satisfaction of the policy holder and the company. This surplus adds strength and stability to the company as a whole, and is not there for the benefit or protection of the participating policy holders. It was not so intended and could not have been so understood. The evidence in this case disclosed that during a large portion of the time that the company wrote non-participating policies they produced a loss, and such loss was more than made good from the profit derived from the participating business. The state of Ohio did not object to this, nor did any policy holder, so far as we are advised.

There was no law or contract that compelled the company to create this surplus, and so far as we are aware there is no contract or law that compels the company to maintain it. Its maintenance, like its creation, must rest in the sound discretion of its board of directors. It can never be returned to the policy holders who created it, for the most of these contracts have terminated.

It is claimed on the part of the state that the company is es-topped from declaring this stock dividend by its conduct and representations, and the doctrine of estoppel as laid down in the books is invoked in support of the claim. But in our judgment it has no application. The complaint here is that the company has misused its franchise, or has acted beyond its powers, to speak more accurately; and the only way that this writ can be invoked is on the theory that a wrong has been done the public. The court can not in this action concern itself with the rights of policy holders or stockholders, but can only consider wherein some public mischief is done or threatened. If the rights of any policy holder had been invaded it is for him to take such action as he may deem best for his protection, but not for the state to do it for him.

We are unable to see how the act of the directors in declaring this stock dividend has invaded any right of any policy holder, and much less inflicted any injury on the public. When the directors declared this stock dividend it took nothing away from the company, and added nothing to what it already had. If it had any effect at all, it was to increase the stability of the company and add to the security of the policy holder. The only change affecting the stockholder was that if the company earned the dividend he would receive dividends on this stock.

Looking at it in any light — if we are correct in our conclusion that the evidence shows that there is at the present time $10,000,-000 in surplus placed there from the non-participating business —the excess over the $400,000 would pay these dividends for twenty years to come, and there could be no possible injury to the public.

What has just been said applies as well to the claim of the state that the doctrine of commingling of funds applies here; that not having kept a separate .account -of -the funds produced by the participating and the non-participating policy holders, the company can not separate these funds. Now this principle has no application here. Neither by contract, law or usage was the company compelled to, or expected to, keep these funds separate. Until laws were passed requiring it, there were no separate funds. It was one fund, and one only, and there was no occasion to keep them separate.

The only other matter that we desire to refer to is the claim that the company had no power to change its by-laws so that this stock might be issued. It must be admitted that the same power that created the by-laws had the power to change them, and in this case we can not see -wherein in doing so any right of the-public has been invaded.

This case has been-fully and ably argued to us at length by learned and able counsel, and able and elaborate briefs have been submitted to us. In argument and in briefs numerous authorities have been cited in support of the legal propositions involved. We do not deem it expedient (however, to discuss these authorities in this opinion, but content ourselves by stating the law as we conceive it to be.

In our judgment the relief asked for must be denied, and the petition be dismissed.


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    INJURY TO MOTORMAN WHILE LOADING A HEAVY WEIGHT ON HIS CAR.
    Circuit Court of Hamilton County.
    The Cincinnati, Georgetown & Portsmouth Railroad Company v. George W. Martin.
    Decided, December, 1909.

      Master and Servant — Negligence—Pleading and Evidence — Malcing an Employe the Medium of Verbal Orders to Another Employe — Does Not Malee Him a Superior — Grounds for an Instructed Verdict.

    The fact that the president of the defendant traction company transmitted a verbal order through a station agent to the plaintiff motorman to assist in loading a certain heavy article upon his car did not, under the pleadings and evidence in this case, give the station agent authority and control over the motorman but they remained fellow-servants, and the company did not become liable to the motorman for an injury which he sustained through the negligence of the station agent while the order was being carried out and the station agent was assisting as a volunteer.

      Frank Dinsmore, for plaintiff in error.

      S. O. Bayless and John D. DeWitt, contra.
    Tbe defendant in error, a motorman on the C., G. & P; line, sustained injuries for which he was awarded a judgment below of $1,000,
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Negligence is charged in the petition as follows:

“A few. minutes before the schedule time for the leaving of said station of the car of which the plaintiff was in charge as motorman the agent of said defendant in charge of said station and having in charge the business of said company, ordered and directed plaintiff to assist in loading upon his said passenger car a heavy iron or steel bar or axle about four or five inches in diameter and seven or eight feet long and weighing five hundred pounds; that the plaintiff objected and protested against the loading of said iron bar upon the said passenger car, and demanded to know upon whose orders they were required to load said iron bar upon said car, and was informed by the said agent that Mr. Comstock, the president of said company, -had ordered said agent to have the said iron bar placed upon said car by the motorman and other employes of said car; that in pursuance of the order and directions of the president of said railroad company, the plaintiff left his car for the purpose of assisting the said station agent and other employes of defendant to load said .iron bar and freight upon said car, as directed by the president of the defendant company; that said bar of iron and freight was at the time loaded upon a two wheel truck on the platform or grounds of said station, near the said ear upon which the same was intended to be loaded; that said station agent, at the time had hold of the handles of said truck waiting the assistance of the plaintiff; that while this plaintiff was stooping to take hold of said freight or bar of iron, to place it upon said car, the said .agent negligently and carelessly lifted the handles of said truck, or negligently permitted the said truck to be tipped forward over and against this plaintiff,” etc.

The first defense of the -answer, excepting certain formal admissions, is a general denial. The second defense is that the station agent was a fellow-servant of plaintiff. By amendment to the answer defendant pleads contributory negligence.

The plaintiff by reply avers—

“That when plaintiff’s ear was at said station, or within the jurisdiction of said station, the said plaintiff as such motorman was subject to the orders, control and direction of said station agent and his assistant and especially so when the said station agent or his assistant was endeavoring to have carried out and executed special and specific orders of the superior and executive officers of the defendant company. * * * Plaintiff further denies that it was his duty to assist the agent, or the assistant agent, in loading the particular shafting or axle at the time referred to, and avers that what he then did was done under the express orders of said agent, or assistant, which orders emanated from one of the chief or executive officers of defendant. ’ ’

The pleader in stating the cause of action lays stress upon the imperative order of the president to the plaintiff to undertake apparently dangerous work,- without furnishing adequate protection; but there was nothing inherently dangerous in the iron axle except its weight; no defect in the truck, and no directions given as to the manner of doing the work.

The chief question in the case is whether the station agent was vested with authority and control over the plaintiff.

It will be observed from the petition that the plaintiff not only denied, but resisted, the authority of the station agent in this particular matter, until he was told that the order came from the president of the company, and that he attempted to do the work because of that order.

If the general authority and control of the station agent over the plaintiff, as shown by the rules and practice of the company, did not extend to this transaction, then there could be no other source except the special order of the president. This order was addressed directly to the motorman and other employes of the car, although delivered by the station agent. It contained no directions to such agent to take part in the work or to suggest the means of doing it.

The natural inference is that the president assumed the employes on the car could safely load the iron axle, especially as they were men of mature years, while the station agent was a boy of only seventeen years. It may be urged that because the latter exercised limited authority over the plaintiff when at the station, the power to control him in the execution of the order would be implied. That might be true if he had been directed to take part in the work, but the order on its face shows that he was not expected to assist, and the plaintiff avers that he was endeavoring to carry out the order of the president, whose, authority he acknowledged, while at the same time denying the power of the agent to control him. Nor does the fact that the agent voluntarily assisted in the work add to this authority, 'which must - be derived from the company or its executive officers.

There is no substantial variance between the allegations and proof of this issue as set forth in the petition and reply, and we are of opinion .that neither the pleadings nor the evidence show that the station agent was placed in authority and control over the plaintiff; but on the contrary that they were fellow-servants. The court therefore erred in overruling the motion of the defendant made at the conclusion of all the evidence to instruct the jury to return a verdict for defendant.

Judgment reversed and judgment for plaintiff in error.


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    INJURIES OTHER THAN THOSE ALLEGED IN THE PETITION.
    Circuit Court of Lucas County.
    The Tiedtke Brothers Co. v. Lucinda Williams.
    Decided, November 20, 1909.

      Pleading — In an Action for Personal Injuries — Evidence Inadmissible as to Injuries Not Alleged — Finding of Jury Where Evidence is Conflicting — Error—Charge of Court.

    It is prejudicial error to admit, over the objection of the defendant in an action for personal injuries, evidence as to injuries sustained ' by the plaintiff other than those alleged in the petition; and further error intervenes where the court charges the jury with reference to such other injuries.

      Frank E. Geer, for plaintiff in error.

      A. E. Coldham, contra.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
    This was an action in the court of common pleas to recover damages for injuries sustained by the negligence alleged of the plaintiff in error here, .the defendant below, in the constructing and maintaining of a toilet room in- their store, and negligence arising by reason of their having no light in the passageway leading to this toilet room. Plaintiff claimed to Have gone in without negligence on her part, and by reason of the darkness was unable to discover what she alleges to be a defect in construction, to-wit, a step leading into the toilet room at the end of the hall fartherest from the door through which she first' entered, and by reason of there being no light, she fell and injured herself seriously as set up in the petition. She describes in the petition what her injuries are. The defendant answered, denying all negligence and setting up contributory negligence,, and alleging particularly that the plaintiff was in such a state of intoxication that she was not in shape to take care of herself, and that her injury resulted from a fall that was induced by her own condition and. want of care.
   A large amount of testimony was taken on the issues presented by the pleadings, and the plaintiff recovered a judgment for the sum of $2,000. At the close of the plaintiff’s testimony, a motion was made by the defendant for a verdict, and a like motion was made at the close of all the testimony, and following the verdict, a motion made for a judgment notwithstanding the verdict. All of these motions were overruled, and as we think from an examination of the record, correctly overruled.

The testimony is in very great conflict as to one matter, .and that is as to whether the place that was complained of was lighted or not. There are a large number of witnesses for the defendant below, testifying that the light was there, and that the light was burning." There are witnesses testifying to the contrary in behalf of the plaintiff. The witnesses who testified on behalf of the defendant also testified that the party complaining, Mrs. Williams, was in an intoxicated condition, and many other facts pertaining to the injury. As I have said, the testimony is in great conflict in this regard, and we think it was very properly submitted to the jury. The plaintiff in the action below, Mrs. Williams, met the testimony relative to her intoxicated condition with testimony tending to show that was not only not her condition at that time, but that it was a trait or propensity that she did not have at all; that she was not in the habit of getting intoxicated, had never been intoxicated, etc. Therefore if the witnesses who testified as to her condition were mistaken in that regard by reason of its being some other party, if they were mistaken in the identity of the party, then they might have been mistaken as to the day they were talking about, and the volume of testimony which they offer relative to the light being there may have related to a different time. We think upon the whole that the court was entirely right in submitting that question to the jury, and was entirely right in not directing a verdict at either time it was requested, as I have stated.

We find prejudicial error in this record in one regard only, and that is with respect to the injuries that were produced. Evidence was admitted in the case over the objection of the defendant that the plaintiff had sustained injuries other than those set forth in the petition, and injuries of a serious character — injuries such as testified to by physicans in the case, as might have resulted from the intoxication, if that were true. It is not necessary to cite authorities upon the -proposition that the plaintiff should be required to state the injuries of which she complains, and that the action should be tried on the issues made in the pleadings, and no other. A very important case has recently been before this court, the case of The Lake Shore Electric Ry. Co. v. Hobart, in which it was held that the judgment of the court of common pleas must be reversed because the court permitted proof of an injury substantial in character, other than those alleged in the petition. Counsel are familiar with that case, or can become familiar with it very readily. ' And it is n-ot new law at all. It is in line with many other' decisions of the same character. This testimony was not only admitted over the objection of the defendant, but when the court came to charge the jury in this case, the court charged the jury that the plaintiff had claimed these additional injuries about which the testimony was received, when the fact is that they are not mentioned in the petition. The charge of the court is in accordance with the evidence, but we think neither the charge of the court nor the evidence is in accord with the petition, and for the two errors, to-wit, admitting the evidence of other injuries over the objection of the defendant and the charge of the court submitting these-matters to the jury, this case will have to be reversed. The judgment of the court of common pleas will therefore be reversed.


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    SIDEWALK ASSESSMENTS.
    Circuit Court of Hamilton County.
    Huddle v. Village of Madisonville et al, and Bramble et al v. Village of Madisonville.
    Decided, January 22, 1910.

      Sidewalks — Estoppel of Property Owner — Against Attack on Assessment — Benefits—Grade of Walk as Constructed — Assessments Against Corner Lot.

    1. The fact that a sidewalk as constructed is some feet below the grade of the intersecting street does not invalidate the assessment, where it appears that the grade of the sidewalk is at the proposed grade of the intersecting street, the improvement of which is in contempla- . tion.
    2. Payment of an assessment for a sidewalk on one side of a corner lot does not relieve the owner from payment of the assessment for the walk on the other street, where the improvement is one for which he himself petitioned.

      S. 17. Bell, for Huddle.

      17. 17. Clippinger, for Bramble.

      Harry 17. Vordenberg, for the village.
    Smith, J.; G-iffén, P. J., and Swing, J., concur.
   The court is of the opinion that all steps taken by the defendant, the village of Madisonville, looking toward the improvement of Home avenue by the construction of sidewalks were legal, and that the assessment of the cost thereof is valid. The grading for said improvement was necessary, and the assessment was uniform, as required by law.

We think, in addition, that plaintiff is estopped from questioning said assessment by reason of his petition asking for the construction of the improvement, in which he waived all defenses as to defects in proceedings, charges, etc., incurred thereby, and consequently agreed to pay for the same by the front footage upon the lots abounding and abutting upon Home.avenue.

It is also clear from the evidence that the assessment levied does not exceed the special benefits to the property; and this, is true of the property at the corner of Bramble and Home avenues, for while at present the sidewalk at the junction of these streets is some feet below the surface of Bramble avenue, yet, as the sidewalk is constructed to meet the grade of Bramble avenue when improved, which improvement is now in contemplation, the inconvenience in the use of the sidewalks at this point is merely temporary, and can in no way be construed as being detrimental to the property. The only correct method to pursue in the construction of the sidewalks was to have them meet at grade at Home and Bramble avenues.

As to the corner lot at Clason and Home avenues, while it is urged that said lot should be relieved from the assessment for the reason that it has already been passed for the walk on Clason avenue, yet what has been said in regard to the petition for the improvement applies to this property also. The owner of this lot asked for the construction of the sidewalk, and he is thereby estopped from objecting to the assessment, for otherwise the village could well have declined to construct the same, having knowledge of the prior assessment, and but for the petition would not have made the improvement.

The petitions will be dismissed.