text:
    RETROACTIVE PROVISIONS AS TO SUICIDE IN BENEFICIAL INSURANCE ASSOCIATION.
    [Circuit Court of Ashtabula County,]
    Protected Home Circle v. Perry P. Tisch.
    Decided, January Term, 1903.

      Beneficial Insurance — Legislative Power Lodged in Supreme Circle— Forfeiture of Benefits in Case of Suicide — Retroactive Amendment —Vested Rights — Public Policy.

    1. Where the charter of a beneficial insurance association provides for a supreme circle to become the legislative and governing body of the order, a member can not interpose the objection that, in as much as the order is a corporation, the legislative power must be lodged with the stockholders, who in such an association are the membership.

      2. In becoming a member of such an order, one agrees to be bound by all legal acts of the majority within the compact of the articles of organization, and he can not afterward question the validity of the constitution and by-laws under which he became a member.
    3. A provision in the constitution and by-laws that alterations and amendments may be made by the supreme circle, renders legal an amendment providing that all certificates shall become void and the benefits thereunder shall be forfeited in case the insured dies by suicide, whether sane or insane.
    4. It is not an invasion of vested rights to make such an amendment applicable to certificates in existence at the time the amendment was adopted.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Heard on error.
   Nell A. Tisch, wife of defendant in error, became a member of Rockcreed Circle of the Protected Home Circle, August 1, 1894, and died September 10, 1900, by committing suicide; whether sane or insane does hot appear. When she became a member she obtained a benefit certificate for the sum of $1,000 and designated her husband, Perry P. Tisch, as her beneficiary. In the written application which she signed to obtain the benefit certificate she stated:

“I do hereby agree that compliance on my part with all the laws, rules, regulations and requirements now in force or that' may hereafter be enacted by the association is the express condition upon which I am to be entitled to participate in the beneficiary fund to the amount named in the constitution and laws of the association.”

The Protected Home Circle is a beneficiary association organized under the laws of the state of Pennsylvania. The fifth clause of the charter provides :

“Said corporation shall have power to institute a supreme and •such state, district and local circles as may be deemed necessary in accordance with its constitution and law; and also to draft a constitution and laws for their government' which shall determine the time, place, and manner of election of officers, their number, names and terms of service; the reception of members, their rights, privileges, obligations, duties, dues, fees, and penalties; the right to control all funds raised for the prosecution of its work in accordance' with its laws; to determine the qualifications of its own members and also have the right to h'ave and use a common seal.”

Under the charter, the original incorporators adopted a constitution and by-laws. This constitution provided for a supreme circle, which is the legislative and governing body of the corporation; a grand circle which is a state organization, and local circles. The supreme circle is composed of the supreme officers of the corporation and of delegates elected by the grand circle; the grand circle is composed of delegates elected by the local circles, and the local circles are the divisions to which all the membership must belong. The supreme circle meets biennially, and at such meetings does all the legislating for the association, as provided by the fifth clause of the charter shall be done. The membership in 1902 was about fifty thousand and the number and amount of benefit certificates very large.

The first' constitution and by-laws were made by the original incorporators soon 'after obtaining a charter in 1886, and this constitution and by-laws were adopted at the first meeting of the supreme circle, with the amendments at that' meeting enacted, as the constitution and by-laws for the government of the supreme circle, grand circle, local circles, and the membership of the society. Ever since the organization began the constitution and by-laws have contained the provision that the same might be altered or amended by the supreme circle in the manner therein directed. The. manner of making the alteration or amendment by the supreme circle has been changed at different meetings of the supreme circle.

Three years after the certificate was issued to defendant in error to-wit, in 1897, at its meeting in Detroit, Michigan, the supreme circle for the first time made provision against death by suicide. At that meeting, in accordance with the manner provided in the constitution and by-laws for alterations and 'amendments, it provided in the constitution as follows:

“The benefit certificate issued to a member shall become void and all benefits thereunder shall be forfeited in case the insured shall die by suicide, felonious or otherwise, sane or insane, or by his own hand sane or insane, provided that in such case there shall be refunded to the beneficiary named in said certificate the amount of all payments made, together with interest thereon at the rate of three per cent, per annum.”

Immediately after the death of the member, Nell A. Tisch, proofs of death were filed with the corporation at its home office, which proofs of death showed that she came to her death by suicide. The association denied liability for any sum except the 'amount of payments made, with interest at three per cent, upon the ground that the proofs showed that the member died by suicide. The beneficiary instituted suit, recovered a judgment for the full amount of the certificate, and this proceeding in error is to reverse the judgment. The whole contention is upon the amendment respecting suicide. It is practically admitted by plaintiff in error that, if the constitution and laws of the society contained no provision respecting suicide, that the plaintiff should recover, ■and such we understand is the law of this state, where there is no showing that the assured was sane at the time of the commission of the act.

Defendant in error contends that the amendment is of no validity as against him, for the reasons:

First. The supreme circle had no authority to make the amendment; that it was not the act of the corporation, and that the corporation alone could make such amendment to the constitution or by-laws, under it's charter.

Second. That the corporation could not make such an amendment affecting certificates already issued.

Third. The amendment upon its face does not refer to certificates previously issued.

Fourth. The amendment is unreasonable and against public policy.

The court below held with defendant in error upon the first proposition and instructed the jury that the supreme circle had no authority to make the amendment and that it was therefore invalid.

The theory of the'defendant in error is that the corporation alone could make the amendment under its charter; that this association is analogous to an ordinary corporation, and in ordinary corporations the legislative power is lodged in the stockholders; that the membership constitute the stockholders, and that, in order to enact or amend the constitution and by-laws, the membership must act upon the same directly, either in person or by proxy given for that special purpose. This position is wholly untenable. We must look at the whole scheme of the association, as shown by the charter and as developed under the charter. It' is a beneficiary association. It was so incorporated. Such 'associations for many years prior to the issuing of this charter had a generally acknowledged place among the financial and social institutions of the country, all of them having supreme bodies which are the legislative and governing bodies of the society, made up of delegates selected by the members generally at meetings of the subordinate bodies with which the entire membership are connected. The charter of this association recognized this controlling characteristic of the order.

“Said corporation shall have power to institute a supreme, and such state, (district and local circles as may be deemed necessary, in accordance with its constitution and law.”

The membership make their will known through their delegates, selected by them, to the supreme body, as the elector makes his will known through the representative he sends to the General Assembly. These fifty thousand members, call them stockholders if you please, could manifest their will in no other way, and in our judgment it was never intended by the power that created the association, by giving it a charter, that they should act in any other way. The oases referred to by counsel for defendant in error are cases in which the supreme governing body delegated its power to legislate to a board of control composed of certain members of the supreme bod3r, instructing it to form a constitution and by-laws, and make amendments to the same, 'and the courts held it could not be done for the reason that the supreme body had no authority to delegate to any one the power to legislate, certainly not more than a Legislature could delegate its power to make laws. In our judgment the supreme circle is the corporation in its ultimate power; certainly so for the purpose of making the laws for its government'. This is shown by its entire operations from its beginning, and that has much force and effect in determining the original intention. The supreme circle has 'always controlled and governed the society; made all its laws for all its various branches, supreme, grand and local. This power has never been questioned before, in t'he state where it was chartered or in any other state or district. The certificate under which plaintiff below made claim emphasizes the fact. The contract made by it, as shown by the certificate, is between the supreme circle of the Protected Home Circle and Nell A. Tisch. Under the constitution the certificate must be so made. If the supreme circle is not the corporation or had not the power to so contract, then he has no claim he can enforce.

But, suppose we were wrong in our position, what right has defendant in error to complain of the exercise of t'he power to legislate by the supreme council? His rights are no greater than the member whose-beneficiary he is under the certificate. When she became a member of the association, by that act she subscribed to and agreed to be bound by all the laws of -t'he association. Furthermore she was presumed to have full knowledge of such laws. Such is the settled law respecting beneficiary 'associations. They resemble mutual insurance companies in some respects, but the community of interest theory is much stronger. They are not governed by statutory provisions regulating insurance companies; indeed are hardly considered as corporations for profit at all. In Bacon Benefit Societies & Life Insurance, Sec. 81, it is said:

“The by-laws of the society are binding upon all the members and all are conclusively presumed to know them.”

The Supreme Court of Indiana in Bauer v. Sampson Lodge, 102 Ind., 262, says:

“One who becomes a member of such an organization is chargeable with knowledge of its laws and rules and is bound by them. He can not be ignorant of them, nor can he refuse obedience to them unless, indeed, they are illegal or require the performance of acts .which the law forbids. By-laws not in themselves illegal and not requiring the performance of acts contrary to law must, therefore, be deemed binding upon all persons wlm become members.

The reason of this rule is that, by becoming a member, one impliedly agrees to be bound by all legal act's of the majority under the compact of the articles of association; and a member can not question the validity of the by-laws under which he became a member.

In a recent case, Pfister v. Gergwig, 122 Ind., 567, the Supreme Court of Indiana said:

“A person who becomes a member of a mutual insurance company assents to the by-laws under which he acquires a membership and he can not afterwards assail their validity on the ground they were not regularly adopted. * * * One of the duties of a person who becomes a member of a mutual insurance company is to inform himself of its by-laws and he can not escape then-force although he may have no actual knowledge of them. A very strong application of this rule was made in a mutual insurance company case, in which Chief Justice Gibson declared that without such a rule mutual companies could not exist.”

When the wife of plaintiff in error became a member of this association and secured the certificate under which defendant in error claims, there was a constitution and by-laws enacted by the supreme circle, which constitution and by-laws provided that the same might be altered and amended by the supreme circle, and we must hold, that the court below erred in saying to the jury that the amendment respecting suicide was not properly enacted, and therefore invalid as to defendant in error.

The second and third propositions of the counsel for defendant in error, taken together, involve the question as to whether or not this amendment affects this certificate which was issued prior to the amendment. In the first place it is claimed it is retroactive and affects vested rights.

It must be borne in mind that the constitution and by-laws which were in force at the time the wife became a member and procured this certificate and by which she was bound, contained that the same might be amended. That provision became part of the contract for insurance, to the same extent as if the same had been written in the application or certificate. In Bacon Benefit Societies & Life Insurance, Sec. 91a, it is said:

“Generally speaking, the same body -which can make by-laws has the power to amend or repeal them, subject to the additional restrictions and limitations of the by-laws themselves, as well as those of the articles of association or charter and the implied conditions of being reasonable and not contrary to law. Where the by-laws contained no provision for amendment it was held that a majority of the members could amend and the others by silence might acquiesce. The body of the members at an annual meeting-may adopt a rule in the nature of a by-law, which under the delegated power to the directors to make by-laws the latter would not have, even though it seems to impair vested rights. In order to be valid the amendments must be adopted at' a legal meeting of the association. The question of vested rights often arises in determining the validity of changes in by-laws. While tins question will be considered later, yet we may say here that, although generally speaking, it is true, that no by-law can be amended or repealed, so as to affect' an existing cause of action, or impair vested rights, and although a by-law that will disturb vested rights is unreasonable, yet where the member agrees to obey and conform to subsequently enacted laws as well as those existing at the time, or the by-laws themselves contain provisions for their alteration, a change regularly made and not unfair of itself will be valid and binding'although it may seem to impair vested rights.”

In Section 186 of the same work, it is said:

“It is often the case that after a person becomes a member of a benefit society the laws are changed and it then becomes a question to what extent the original contract is thereby affected. As the laws of every benefit society enter into the contract between it and its member, whether it be so stipulated or not in the certificate, it follows that when the laws provide for their amendment' or repeal, and changes are made in the prescribed manner, the alterations are equally binding upon all the members because this is the express agreement of such members and no exceptions can be made.”

The learned author in Section 186 refers to a case in the Supreme Court of Indiana, Supreme Lodge Knights of Pythias v. Knight, 117 Ind., 489, in which it says:

“The provisions of the established by-laws of an association, such as that with which the assured united are, as appellee’s' counsel justly affirm, elements of contract of insurance. They are factors which can not be disregarded. That they have this effect all who become members of the association must know. A person 'who enters an association must acquaint himself with its laws, for they contribute to the admeasurement of his right's, his duties and his liabilities. It is not one by-law of which the member must take notice, but he must take notice of all which affect his rights or intereste. Where, as here, there is an express and clear reservation of the right to amend, he is bound to take notice of the existence and effect of that reserved power. The power to enact by-laws is inherent in every corporation as an incident of its existence. This power is a continuous one. No one has a right to presume that by-laws will remain unchanged. Associations and corporations have a right to change their by-laws when the welfare of the corporation or association requires it, and it is not' forbidden by the organic law. The power which enacts may alter or repeal. The duly chosen and authorized representatives of the members alone are vested with the power of determining when a change is demanded and with their discretion courts can not' interfere. Were it otherwise, courts would control all, benevolent associations, all corporations and all fraternities.”

Mr. Bacon supports the text of -his work by the citation of numerous authorities, and it seems that little more need be’ added. Mrs. Tisch lived for three years after this amendment, during all of which time she was a member of the association, was presumed to know of the amendment and made no complaint.

The constitution and b^'-laws provided that amendments should be made. In her application she consented that' she would be governed by changes that might be made after the issuing to her of the certificate, and the beneficiary can not now be permitted to complain, except the amendment is an abuse of discretion and dearly an unreasonable, and arbitrary invasion of vested rights. "What vested rights had she or her beneficiaries at the time of the amendment ? Neither of them was a creditor of the association. A certain amount' was to be paid to him provided she kept and observed all the laws and regulations of the association. If she became addicted to the habitual use of intoxicants or committed a crime, she might be expelled from her local circle and the certificate became void, and after the amendment it' became void if she committed suicide. -No vested right whatever was affected.

In Stohr v. Musical Fund Soc., 82 Cal., 557, it is said:

“The term Vested right’ is often loosely used. In one sense every right is vested. * * * * The term, however, is frequently used to designate a right which has become so fixed that it was not subject to be divested without the consent of the owner, as contradistinguished from rights which are subject to be divested without his consent'. Now a right, whether it be of such a fixed character or not, must be a right to something; and, when a man talks vaguely of his vested right, it conduces to clearness to ask: ‘A vested right to what?’ * * * * if the plaintiff has any right' which is so fixed that it is not subject to change, we think it can only be to the fruits which ripened before the change is made; in other words, to such sums as become due before ,the new by-law was adopted.”

Upon the same subject see Bacon Benefit Soc. & Life Ins., Section 186, supra.

Two cases have been referred to by counsel directly in point. In Supreme Commandery Knights Golden Rule v. Ainsworth, 71 Ala., 436, the court held:

“Under a contract of life insurance issued by a mutual company conditioned to be subject to any by-laws thereafter to be enacted, the insured is bound by a subsequent by-law forfeiting such policies when the insured should die by his own hand, sane or insane.”

Also in Supreme Lodge Knights of Pythias v. La Malta, 95 Tenn., 157, it is held:

A. N. Williams and Perry & Roberts, for plaintiff in error.

A. G. White, for defendant in error.

“The holder of a benefit certificate who agrees to be bound by-all laws of the order ‘now in force or that may hereafter be enacted’ will be subject to a subsequent rule regularly passed destroying liability on certificates in case of the suicide of their holders.”

It is also claimed that the amendment was not intended to apply to certificates previously issued. We do not' think so. The language in the amendment is: “The benefit certificate issued to a member shall become void.” This language applies as well, to certificates issued before as after the amendment and covers both characters of certificates. Furthermore we must' arrive at the intent of the supreme circle, from the considerations that must have induced it to enact the amendment. Experience had, no doubt, shown that provision must' be made against losses arising from self-destruction. By making it applicable to future certificates, when it had a complete legal right to make it applicable to certificates already issued, would make the action of the supreme circle seem absurd; also if the amendment applied only to certificates issued subsequently to its enactment, there would be a class of members having certificates of greater value than the certificates held by another class; yet each class would be subject to the same assessments and the same duties.

Is the amendment reasonable and not against public policy? The law seems to be so well settled. that' an insurance company may provide by its policies or certificates against self-destruction by the .insured, whether sane or insane, that it is only necessary to call attention to a few of t'he leading authorities: DeGogorza v. Insurance Co., 65 N. Y., 232; Travelers’ Ins. Co. v. McConkey, 127 U. S., 661; Beach Law of Insurance, Sections 911 and 912, and cases therein cited.

Judgment of court of common pleas reversed for the reasons that the court erred in its charge and that the verdict is manifestly against' the evidence.


source: Caselaw Access Project

license: Public Domain

text:
    SUPPLY OF WATER. BY ONE MUNICIPALITY OR VILLAGE TO ANOTHER.
    [Circuit Court of Hamilton County.]
    John Wright, a Tax-payer, v. The Village of Kennedy Heights et al.
    Decided, December 18, 1902.

      Contract for Water Supply — Municipalities and Villages not Contiguous —Section 2425 Construed.

    A contract between one city or village and another for a supply of water, under the provisions of Section 2425, must be a contract mutually enforceable.
    Jelke, J.; Giffen, J., and Swing, P.-J., concur.
   Can the village of Kennedy Heights, not being contiguous to the city of Cincinnati, make a contract with the city to supply said village with water under E. S., 2425 ?

It is admitted that it can not under the first clause of the section, which provides: “Any city or village which has established, or hereafter establishes water-works, may enter into a contract' with any contiguous city or village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the councils of the respective municipal corporations.” But it is contended that such contract may be made under'the provision of the second clause, which provides, “¡and any city or village which has water-works, is hereby authorized and empowered to dispose of any surplus Water, for manufacturing' or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of the water-works, or public works, and approved'by the council of such city or village.”

It is to be observed that the first clause provides for a “contract” and for “the supply of water” under terms “mutually agreed upon,” while the second clause provides for the disposition of surplus water only, and that for manufacturing or other purposes. The Legislature, in providing wh'at relations may be established between contiguous municipalities, on the subject of water, has seen fit to prescribe that it shall be by contract mutually agreed upon, and, consequently, mutually enforceable, and that such contract must be for the supply of water. Having thus expressed itself upon this subject, this expression must be held to be exclusive. In contrast to this is the second clause, which authorizes the disposition of surplus water only, and that for manufacturing or other purposes. It is said that the sale of water to the municipality of Kennedy Heights is included under the expression “or other purposes.” But, in interpreting the expression “or other purposes,” reference must be had to the thing mentioned, to-wit, “for manufacturing.” If the power to dispose of surplus water were broad enough to cover every known purpose, including the supply of another municipality, there would have been no reason for mentioning “ananufacturing.” This expression “for manufacturing or other purposes” is used to signify consumption by private enterprise in contradistinction to public municipal supply treated of in the first clause. The Legislature was unwilling that the purchasing municipality should enter into any arrangement so uncertain as dependence upon a mere surplus. If the purchasing municipality is to expend its funds in laying water-mains and piping its streets, it must be for a supply which can be demanded and enforced under a mutual contract.

D. PL. Pottenger, for plaintiff.

O. W. Bennett, contra.

We are of opinion that the village of Kennedy Heights is not empowered by this second clause to make such contract with the city of Cincinnati.

As the issue of bonds proposed by said village and voted on at the election was expressly for the purpose of laying water-mains and pipes to receive water under such a cont3?aet, such issue must fail if the contract can not be made.

Decree for plaintiff.


text:
    FORGERY OF THE INDORSEMENT OF A CHECK.
    [Circuit Court of Richland County.]
    James Cosner v. State of Ohio.

    Decided, January Term, 1903.

      Criminal Law — Forgery—Indorsement of Check, the Subject of— Indictment — Failure of .Proof.

    1. An indorsement of a check is the subject of forgery under Section 7091, Revised Statutes of Ohio.
    2. An indictment charging the unlawful uttering and publishing as true and genuine a false, forged and counterfeit check, is not supported by proof of the forgery of an indorsement of the payee’s name thereon. The instrument having been issued by the drawer as his genuine act, forging an indorsement thereon of the payee’s name is a distinct and new contract, and the subject of forgery under the statute, Section 7091.
    3. To convict a party of forging an indorsement on a cheek otherwise genuine, the indictment must charge the particular act- complained of, namely, of forging an indorsement of the instrument; and where the indictment charges only an unlawful uttering and publishing of the instrument, there is a failure of proof where only a false and forged indorsement is shown.
    W. F. Yoegele, Jr.,
    representing the plaintiff in error, argued to tbe court that:
    The indictment was not specific, in charging tbe crime committed. Lamberton v. The State, 11 O., 282; Greenland v. The State, 6 Dec., 313; State v. Philbrick, 31 Me., 401; United States v. Hess, 124 U. S., 483; Am. & Eng. Ency. of Law, Vol. 19, p. 556.
    Sueb error is fatal since the enactment of tbe statute, as well as at common law. Ellars v. The State, 25 O. S., 385.
    To maintain the indictment charging the unlawful uttering and publishing of a false, forged and counterfeit check, the proof must show: that the instrument is a check for the payment of money as stated (which the proof did show); that the accused knew the same to be false, forged and counterfeited (which the proof failed to show); the uttering and publishing at the time and place by the accused to the person stated in the indictment, as true and genuine; and that the cheek was really forged. But there was not only no proof that the check was false, forged or counterfeited, it even appeared that it was genuine and had not' been altered in the slightest respect. This left' the essential element of the crime unsupported by evidence. Hauley on Criminal Law, p. 225.
    The court erred in permitting testimony to be introduced to the effect that the defendant forged the endorsement on the back of the check, ’ because if the check was genuine he could have no knowledge that it was a forgery, and because he was not charged with “uttering and publishing a forged endorsement.” Greenleaf on Evidence, Vol. 1, See. 52; Knight v. The State, 54 O. S., 379.
    In the definition of a check by the best authorities the endorsement of a check is nowhere described as a part of the check. But the check was.-a complete .instrument without the endorsement: Poage v. The State, 3 O. S., 230. Under this decision, if the defendant had been indicted for forgery of the endorsement, the indictment' would have been sustained on demurrer thereto.
    As between the endorser and the endorsee, every endorsement is a new bill: Ballingalls v. Gloster, 3 East, 481; Heylin v. Adamson, 2 Burr, 674; Slocum v. Pamroy, 6 Cranch, 211; Story’s Conflict of Laws, 261; Case v. Heffner, 10 O., 180; Montgomery v. The State, 10 O., 220; 19 Ark., 354; 81 Fed. Rep., 851; Miller v. The State of New York, 52 N. Y., 304; Commonwealth v. Ward, 2 Mass., 397; 1 Mass., 62; Hess v. The State, 5 O., 5, 9, 14; 2 Mass., 379; Burdge v. The State, 53 O. S., 512; Martin v. Cole, 104 U. S., 37.
    Who would be compelled to pay this cheek? Cincinnati Nat’l Bank v. Creasy, 18 Bull., 410; Dodge v. Nat’l Exchange Bank, 30 O. S., 1. And as to other points: Rex v. Hornwell, Moody’s Crown Cases, 405; Barber v. The State, 39 O. S., 660; Stoughton v. The State, 2 O. S., 566.
    W. H. Bowers, Prosecuting Attorney of Richland Count}'',
    argued on behalf of the State that inasmuch as the accused forged t'he endorsement on the check, and then uttered and published it, he certainly could not have been misled by the indictment, and was guilty of uttering and publishing a forged instrument, knowing the same to have been forged, within the meaning of Section 7091.
    It was further argued that the evidence that the accused wrote the name of the payee across the back of the cheek was competent to show guilty knowledge on his part, if for no other reason. 2 O. S., 563.
    The making of the endorsement upon the back of the check by the accused, without the knowledge of the payee, was an alteration of the entire instrument, 'and clearly within Section 7091, R. S., in which the word “alter” is used as well as “forge.” 2 O. S.,. 566. “An endorsement -of a promissory note is the subject .of forgery under the crimes act.” Swan’s.Statutes (new ed.), 272; 3 O. S., 230. It can not be contended that Section 7091 is less comprehensive.
    On the subject of variance, Mr. Bowers cited: 7216, R. S.; 7218, R. S.; 7215, R. S.; 38 O. S., 581; 53 O. S., 514; 48 O. S., 460; 49 O. S., 301.
    An affirmation of the common pleas court in finding the accused guilty was asked under the provisions of Section 7306a; State v. Bohn, 55 O. S., 555; State v. Hervey, 59 O. S., 218.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.
    Error to the Court of Common Pleas, Richland County.

       This case was affirmed by the Supreme Court without report, May 12, 1903. 1 O. L. R., p. 33.

   Plaintiff in error was indicted, tried and convicted under Section 7091, Revised Statutes, for uttering and publishing as true and genuine a certain false, forged and counterfeit cheek. The indictment in a single count, charges the crime substantially as follows:

“That he did unlawfully utter and- publish as true and genuine a certain false, forged and counterfeit cheek of the purport and value following, to-wit:
“ ‘No. 34. Eredericktown, Ohio, February 26th, 1902.
“ ‘The First National Bank,
“ ‘Pay to Chas. Wolf or order $12.42, Twelve and 42-100 Dollars. W. H. Boose.’”

The indictment further alleged that':

“Said check is indorsed as follows: Chas. Wolf, C. L. Culver, M. E. Fisher; with intent thereby unlawfully to defraud, he, the Eaid James C-osner, then and there at the timé he so uttered and published said false, forged and counterfeited check, well knowing the same to be false, forged and counterfeited.”

•To this indictment the plaintiff in error entered a plea of “not' guilty,” was tried and convicted and sentenced to the penitentiary for a term of seven years. Error is prosecuted to this court.

It is contended:

1. That the court below erred in overruling the defendant’s motion at the close of the state’s evidence, to direct the jury to return a verdict of not guilty.

2. That the verdict of the jury is not supported by the evidence.

3. That there is no evidence to support the charge laid in the indictment.

4. That there is no evidence to support the verdict and judg:nent, and they are contrary to law.

The errors assigned require the consideration of the case as presented in the record by the bill of exceptions, and the inquiry will embrace several propositions.

The material and essential allegations which were necessary for the state to prove, under this indictment, wherein the defendant is charged with unlawfully uttering and publishing a false, forged and counterfeited check, briefly stated, are:

First. That the instrument alleged to have been forged is a check for the payment of money.

Second. The uttering and publishing of the check, as true and genuine, at the time and place alleged, by the accused.

Third. That the check was in fact forged or counterfeited.-

Fourth. That the accused knew the same to be false,- forged or counterfeited.

If these facts were established on the trial by that degree of proof required in criminal cases, and no errors appear, the judgment of the court below should be affirmed.

The charge laid in the indictment is in the language of the statute, and is a charge of forgery, or signing and passing a check as genuine which was false and counterfeited.

The indictment is sufficient to charge a crime where the instrument was forged, that is, if the name of the drawer was forged, or unauthorized by him. But in this case the evidence shows, and it is conceded by the state, that this check was signed by the drawer,, Booze, and was intended by him to be made and delivered as a genuine instrument for the payment of the amount named therein to the order of Charles Wolfe, the payee. It was a completed instrument, so far as its issue was concerned, when mailed by Booze-to Charles Wolfe at Mt. Vernon, Ohio. • Just how the check got into the possession of the plaintiff in error, the record does not show. It is conceded; however, that it was not indorsed by Wolfe, the payee; 'and that the defendant was not the rightful owner thereof.

The proof shows that the forgery committed, if any was committed,- was in signing the payee’s name on the back of the check.

When a party signs a note, check, or other instrument for the payment of money, and the payee named therein indorses it, he makes' a new contract, and the law fixes its terms by implication.

The charge in this case is, that the instrument was uttered and published-as true and genuine. It was signed by Booze, the drawer; he intended to issue or make it just as it appears, without the indorsement. The defendant got possession of it in some manner, and indorsed Wolfe’s name,' the payee, on the back, and this indorsement of Wolfe’s name is a forgery. A forgery of what? Not a- forgery of the check, or instrument as originally made, but of the new contract arising from the indorsement.

The authorities, without doubt, sustain this principle, that forging an indorsement upon a note or check is covered by the statute, Section 7091, and is of the same character or grade of crime as the forging of the pretended maker’s name to the instrument when issued. Where the instrument is genuine, and only the payee’s name therein is forged, is it sufficient to convict, under the indictment charging the uttering and publishing the instrument as 'a forgery, to prove that the indorsement is a forgery? This is the vital question in this ease.

In this case there was no proof to show that this cheek was falsely uttered — the indorsement was the only forgery committed.

If an indorsement of a cheek or note by forging the payee’s name thereon is the subject of forgery under Section 7091, Eev. Stat., how is it to be proved? Is it proved by showing that the check was genuine, and was intended'to be drawn by the maker, and was a completed instrument, and after so drawn it gets into the possession, of a party, other than the payee, and he forges the payee’s name 'and receives value therefor? We think not, and therefore hold there is a failure of proof to sustain the charge laid in the indictment.

Without taking too much time to cite authorities in support of our conclusion, a few principles of criminal pleading may be referred to with propriety, and 'among them is the rule, that all the elements necessary to constitute the crime must be averred: in other words, the case must be clearly brought within the statute.

An indictment should set forth facts constituting the offense, so that the accused may have notice of what he is to meq,t, and the court, applying the law to the facts, may see that a crime has been committed. Redmond v. State, 35 O. St., 81, 82.

While it is the safer course to charge the offense in an indictment in the language of the statute, yet, it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient, for in many cases something more is necessary. Hager v. State, 35 O. St., 268, 269.

In Lamberton v. State, 11 Ohio, 282, the court held that an indictment which merely used the words of the statute in that particular instance is too uncertain, because of the generality of its terms. The court thought that the particular act complained of, and which was included in the general words of description in the statute, should be set forth; and, in illustration of their views said: “It (the indictment) is as general as would be an indictment for forgery, which followed merely the words of the statute, without specifying any act constituting the crime, or an indictment for perjury, which only set forth that a party swore falsely, knowing to the contrary, without setting forth what matters he stated to be facts, and falsifying them.”

An indorsement of a promissory note is the subject of forgery under ■ the crimes act, Section’ 7091, Revised. Statutes. Poage v. The State of Ohio, 3 O. St., 229.

Where there has been a genuine check or promissory note made, and that cheek or note 'after being regularly issued is changed by a forged indorsement, such forged indorsement is not charged in an indictment which simply alleges the unlawful uttering and publishing of the instrument as a forged instrument.

A party has 'a right to know the nature'of the charge'which he is expected to meet. If he is charged with the forgery of the check in its original inception, he is entitled to know that; if he is to be charged on the trial under such an indictment' with having forged an indorsement thereon, he has a right to be so informed.

It is not sufficient where a check has been properly and intentionally published by the maker as genuine, to prove a mere forgery of an indorsement of such check under an indictment eharging a party with forgery of such check.

We think that by analogy this case comes within the rule or principle of law announced in the case of Barber v. The State, 39 O. St., 660.

In that case it was held that the offense of cutting with intent to kill, and that cutting with intent to wound are offenses of the same degree, under the provisions of Section 6820, Revised Statutes; making it am offense for any- one tu-cut another, ¡person with intent to kill, wound or maim. The indictment charged a cutting with intent to kill; the verdict of the jury was, “guilty of cutting with intent to wound.” The court held that the indictment was not supported by the verdict, for the reason that the offense of cutting with intent to wound is not an offense inferior in degree to that of cutting with intent to kill. By a parity of reasoning it follows, that the unlawful forging and counterfeiting an indorsement on a genuine check, is not an offense inferior "to that of unlawfully uttering and publishing as genuine a like instrument; and an indictment charging the uttering and publishing of such instrument' would not be supported by evidence of a forged indorsement thereof. There would be in such case a material variance between the proof and the allegations.

The crime proved is a different crime from the one charged in the indictment. It is of the same degree within the same statute and subject t'o the same punishment. The defendant has a right to be informed that that is the charge brought against him — it is the purpose of criminal pleading that he may be thus informed— and where the rule is violated, such pleading would not be justified. There is no testimony in this ease to sustain the indictment of uttering and publishing a forged cheek.

W. F. Voegele, Jr., for plaintiff in error.

W. S, Bowers, Prosecuting Attorney, for State.

The court erred in overruling defendant’s motion to direct the jury to return a verdict of “not guilty” under this indictment, there being no evidence that the check was a forgery. On the contrary the evidence produced by the state showed the check was genuine, the only forgery being in the indorsement..

The court charged the jury that:

“The defendant is charged with knowingly uttering a forged instrument, that' is, when he uttered it, he knew it was forged. Remember, you are not trying him for the crime of forgery, and the fact.that there .has been testimony tending to show that he, himself, committed the forgery, you can only use for the purpose of ascertaining that he knew the instrument was forged when he passed it. If he came in possession of this check, payable as set forth by copy here, in his hands it was not an instrument for the receipt of money. It required to be completed by the indorsement of Wolfe in his hands, and if, for the purpose of passing this check, and rendering it an instrument upon which he could draw the money wrongfully, he indorsed the name, and then afterwards passed it, he would be guilty of uttering a forged instrument. And it must be uttered for the purpose of defrauding. He must have had a purpose of defrauding some person when he uttered it.”

There being no evidence of.the forging of the check in its inception, but only of the indorsement', and the indictment not charging, the forgery of an indorsement, there was nothing to call for the instruction given by the court, and it was misleading and prejudicial to the defendant.

The verdict of the jury is not sustained by the evidence, as under the indictment on which defendant was tried there was no evir dence even tending to show the check had been forged. The indorsement of the payee’s name was the only forgery shown, and with this crime the defendant was not charged in the indictment. For these errors the judgment is reversed with costs, and remanded for further proceedings.


author: Marvin, J.

text:
    NEGLIGENCE — REMOTE, PROXIMATE AND CONTINUING — AS BETWEEN A RAILWAY COMPANY AND ONE UPON ITS TRACKS.
    [Circuit Court of Cuyahoga County.]
    Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Henry Gahan, an Infant, by J. C. Lower, Guardian.
    Decided, December 9, 1902.

      Railway Grossings — Negligence—Trespassers—Duty of Railway Company toward — Boy Climbs between Cars Stanching on or near a Railway Crossing and is Struck by an Engine on the Opposite Track.

    1. A railway company does not owe to a trespasser the duty of watching for him upon its trades; but having discovered his position all reasonable efforts should be used to avoid injuring him.
    2. But where the public are so accustomed to crossing the tracks that the consent of the company thereto may be implied, it is under the same duty of keeping a lookout for one upon the track at that point as at regularly established crossings.
    3. Where one steps upon a railway track without looking to see whether there is a train approaching, or without keeping a lookout takes a position so near the track that a passing engine injures him, the railway company’ is not liable notwithstanding the engineer might have seen him in time to have avoided the accident; for in such a ease the plaintiff’s negligence was a continuing negligence, which co-operated with that of the defendant company in causing the accident.
    4. A boy fourteen years of age, who had lived -near railway tracks and understood the danger of being upon them, climbed between the cars of a train standing upon a crossing, and without watching for danger began looking under the train for his companion, and while so doing stood so near a second track that he was struck and injured by a passing engine. Reid: That there could be no recovery.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Error ¡to tbe court of common pleas.
   Harry Gahan, in March, 1897, being then nearly fourteen years of age, was injured upon the track of the plaintiff in error near Linndale, in this county. In his petition he says that he was endeavoring to cross the railroad upon a highway, and that the highway being obstructed by the train standing across it, when he reached the other side of the train he was injured by a train on another track, striking him while he was upon the highway crossing, and inflicting injuries upon him for which this action is brought.

The defendant (plaintiff in error here) claims, in its answer, that he was not on the highway when he was struck, but was at a considerable distance, some three hundred feet therefrom, on the private right of way of the railroad company.

There is testimony in the case to support the claim of the plaintiff (the defendant in error here) as to the place where he was injured, and also'testimony to support the claim of the defendant as to where he was injured. There is not much, if any, conflict in the evidence that the plaintiff, at the time he was injured, was so near to the track upon which the engine injuring him was run, that it struck him and caused the injuries complained of. As to what the plaintiff was doing, and where he was at the time he was struck, there is conflict in the evidence. The plaintiff’s evidence may be summarized by saying, that when he was struck he was upon the highway crossing, but was standing in a position near enough to the track, on which the engine was being run, to inflict the injury of which he complains, and that, while thus standing there, he was looking under another train — the train that had been standing across the highway and which was at that time moving forward — to look for the boy that was with him, and was paying no attention to the movement of other trains upon the railroad trades. The plaintiff’s evidence shows that had he looked for the approach of the engine that hit him, he could have seen it in time to have moved from his position of danger.

The defendant’s evidence tends to show, as above stated, that he u'as injured some'three hundred feet from the street crossing; that he was not then upon the highway, but had come on to the property of the railroad company not from the highway, but from another direction, and that he was injured by jumping out from between two cars where the engineer could not see him, directly in front of the engine, and was instantly struck and the injury was thus received.

There are complaints made in this action, as to the charge of the court. The court was asked to charge, before argument, this request by the plaintiff, which request was given:

“If the plaintiff, Harry Gahan, was guilty of negligence in going upon defendant’s tracks and if he was placed in a position of imminent peril, and the employes in charge of said engine could, by the exercise of ordinary care, have discovered the plaintiff and the perilous position in which he was placed, in time enough to have stopped said engine, or slackened the speed of the same sufficiently to have allowed the plaintiff to have escaped in safety, it was its duty to do so, and if the failure of the defendant to use ordinary care to discover the plaintiff in the perilous position in which he was placed was the proximate cause of the injury, the plaintiff would be entitled to recover, notwithstanding the plaintiff was guilty of negligence in going upon defendant’s track and being in that position.”

The court, on page 617 of the bill of exceptions, after reciting to the jury the defendant’s claim that Harry Gahan came on to the railroad property from another direction than from the highway, and that he was making no use of the highway crossing at the time of the accident, then said to the jury:

“If you find from the evidence that the plaintiff came upon defendant’s tracks and was struck and injured at a place where there was' no public highway, and at a place not commonly used by the traveling public in crossing the tracks, and where the public were not allowed or permitted to be, then and under such circumstances the defendant did not owe to him that degree of care which I have Said to you that it owed to persons using the highway crossing. Under such circumstances, the company would owe to the plaintiff the duty to exercise ordinary care for his safety after his peril became known to those in charge of the engine, or should, by the exercise of ordinary care, have become known to those in charge of the engine, and if the engineer, after discovering the presence of the plaintiff upon its tracks at such point remote from the highway, made every reasonable effort to stop the engine and prevent the injury, there would be no liability of the defendant in this case; and, if you find from the evidence that the plaintiff climbed upon the standing train and jumped out from between two ears on to the defendant’s tracks, whether upon the crossing or not upon the crossing, if he thus jumped in front of defendant’s moving engine and so near thereto that the person in charge of the engine had not time, in the exercise of ordinary care, to discover plaintiff’s position of danger in time to stop the engine or to prevent the injury, such act of the plaintiff would be contributory negligence on his part proximately contributing to his injury,' and, for that reason, he could not recover in this action. But, if the plaintiff so jumped upon the defendant’s track in front of the approaching engine and far enough from the engine to enable the person in charge of the engine to stop the same, after he saw, or, by the exercise of ordinary care, should have seen, the dangerous position of the plaintiff, then if the engineer failed to stop the engine, such failure would be negligence of the defendant, and, if the proximate cause of the injury, would render the defendant liable.”

Immediately after the charge quoted above, the court proceeds to say to the jury that if the plaintiff came upon the tracks in some other way than by use of the highway, he would be a trespasser upon the defendant’s premises, and would not be entitled to the exercise of such care upon the part of the defendant as he has heretofore told them that the defendant owes to persons using the public highway at the crossing; and then he proceeds:

“But even if the plaintiff was such trespasser, the defendant would not have the right wantonly to run upon him and injure him. In such case, if the person in charge of the engine discovered the plaintiff’s presence upon the track, or, if by the exercise of ordinary care under the circumstances, he should have discovered his presence upon the track, it would then be his duty to exercise such means as were within his power to avoid injuring the plaintiff, and if he did not exercise such means under such circumstances to avoid such injury, it would be negligence upon the part of the defendant for which the defendant would be liable in this action if it was a proximate and sole cause of the injury.”

There is more in the charge pertaining to the points complained of by the plaintiff in error. The first point is, that the charge makes the railroad company owe a duty to a trespasser upon its tracks 5 afore he is seen, and that duty is to exercise ordinary care for the detection of any one upon the tracks. And the second point is, that although the plaintiff was negligent in being where he was upon the tracks, yet if the engineer could have seen him by the exercise of ordinary care, it was his duty to have saved him, and that if he was injured after being thus seen or after he should have been seen by the engineer, the engineer of the railroad company, under the circumstances of the case as they were to be found by the jury, would be the proximate cause of the injury, and that the plaintiff’s negligence would not then be a proximate cause. In other words, if the railroad company had the least chance to save the plaintiff from injury and did not avail itself of the chance, then that would be negligence on its behalf, and would be the proximate cause of the injury.

The first question, as to what' duty the railroad company owes a trespasser upon its right of way, is discussed in a similar ease, although as to a depot building, in Pittsburg, Ft. W. & C. Ry. Co. v. Bingham, 29 Ohio St., 364.

The question is discussed to some extent in the case of the Cleveland T. & V. Ry. Co. v. Marsh, 63 Ohio St., 236.

In Cincinnati, H & D. Ry. Co. v. Aller, 64 Ohio St., 183, there is a discussion of the duty of railroads to persons using their right of way or their property as trespassers or licensees. The question came before the Supreme Court in the case of the Cleveland, A. & C. Ry. Co. v. Workman, 66 Ohio St., 509, 540, which case is reported therein:

“An employe of a railroad company, whose duties in the performance of his employment do not' require him to be on the main track of the railroad with a three-wheeled hand-ear called a ‘speeder,’ but who so goes upon the main track without any invitation or inducement therefor by the company, but with no objection on the part of the company, is at most a mere licensee, and his use of the track in such manner is subject to all the risks incident to the use of the track by the company, in the same manner it was used at the time the license was granted, and the company does not owe him the duty to especially look out for and protect him, when running its trains, except to use reasonable care to avoid injuring him after discovering him upon the track.”

In commenting upon the court’s refusal to give the defendant’s first request, the court' say:

“It was in this view, apparently, that the court refused to give to the jury the defendant’s first request to charge, and instructed the jury instead that the defendant ‘had a right to run its cars at the time and place of the -accident at any speed and in any manner consistent with safety, which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration however all circumstances surrounding the locality, and having a due regard to the safety of persons who might he upon its tracks. It was required to use ordinary care in running its train having due regard to the rights of others.’ Such a concept'ion of the law is opposed to reason because the bare licensee must know that his license is subject to all the risks incident to the use of the track by the company, in the same manner in which it was used at the time the license was granted, and the company assumes no new obligation or duty toward him. Therefore the company owed him no duty of active vigilance to especially look out for and protect him.”

And the court adds:

“It may be added here, that the rule is substantially the same as to trespassers or mere licensees, that is, licensees without invitation or inducement. An employe who goes upon the track or elsewhere upon the company’s premises not in the line or discharge of his duty, and without any invitation, express or implied, is at most a mere licensee to whom the company owes no duty to keep such place safe.”

This line of cases seems to establish the doctrine that a railroad company owes no duty to a trespasser or licensee upon its private right of way except to do what it can to protect such persons from injury after they are seen.

. But it is said that this court has made a different holding in the case of the Lake Shore & M. S. Ry. Co. v. Orvis, 12 C. C., 710.

The question was not involved in that case, and whatever was said on that question was outside of the facts. The trespasser in that case, if such he should be called, was seen by no one at the time he was struck by the train except the flagman, and his view of the boy was imperfect, owing to the fact that he could only see him as a train running at ten or twelve miles an hour between him and the boy would afford him an opportunity to look between the ears to see the boy, and he places the boy only a foot or two off to the west of the west line of the street and there is no evidence in the case that that was not on the traveled path of footmen crossing over the railroad tracks. The court treated the case as though the boy was upon the street crossing. The evidence placing him off of it, was very unsatisfactory, and even if he were but a foot or two from the ordinary line of travel, there being no visible line to mark the exact site of the highway as it crossed the tracks, the court was justified in treating him as upon the highway when he was injured. The judge, delivering the opinion, was led to make some remarks upon the question of a trespasser upon the railroad right of way, from much that had been said in the argument of the ease upon the question and from what he understood to be the question in the ease of the Lake Shore & M. S. Ry. Co. v. Canfield, 27 Bull., 311, which had been affirmed by the Supreme Court, and, as he thought at the time, upon the question here under consideration. But' an .examination of the record, in the case discloses that while that question was in the ease, it was not the question upon which the Supreme Court was called to pass in its determination of the case. But what was said in the case of the Lake Shore & M. S. Ry. Co. v. Orvis, supra, was not warranted by any facts in the case and should not be regarded as having any application to the same.

There are several decisions in the state where the language of the courts might warrant the conclusion that a railroad company is under the duty of watching for trespassers upon its tracks; but the eases above cited, we think, settle and determine the law to' be that the railroad company owes to a trespasser no such duty unless it be at some place where the public are so accustomed to crossing that the consent of the railroad .will be Implied, and it has become such a place that it is the duty of the railroad to protect persons crossing over the same.

This part of the charge is error.

The second question involved in this charge is one that has been many times before the Supreme Court of the state, and, to the minds of the majority of the court, has become settled law, and the difficulty is not so much to determine what the law is as to determine its proper application to the facts of the case. It was first before the court in Kerwhacker v. Railway Co., 3 Ohio St., 172. The eighth paragraph of the syllabus is:

“The doctrine that in case of an injury by negligence, where the parties are mutually in fault, the injured party is not entitled t'o redress, is subject to the following material qualifications, as appears from a review of the decisions, both in England and in this country, on this subject, to-wit:
“First. The injured party, although in the fault to some extent, at the time may, notwithstanding this, be entitled to reparation in damages for an injury which he has used ordinary care to avoid.
“Second. When the negligence of the defendant, in a suit upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote; consisting of some act or o-mission not occurring at the time of the injury, the action is maintainable.
“Third. Where a party has in his custody or control dangerous instruments or the means of injury, and negligently places or leaves them in a situation unsafe to others, and another person, although at the time even in the commission of a trespass, or otherwise somewhat in the wrong, sustains an injury thereby, he may be entitled to redress.
“Fourth. And’ when the plaintiff in the ordinary exercise of his own rights, allows his property to be in an exposed and hazardous position, and it becomes injured by the neglect of ordinary care on the part of the defendant, he is entitled to reparation on the ground that, although in allowing his property t'o be exposed to danger, he took upon himself the risk of loss or injury by mere accident, he did not thereby discharge the defendant from the duty of observing ordinary care, or, in other words, voluntarily incur the risk of injury by the defendant’s negligence.”

The question was before the Supreme Court again in Cleveland, C. & C. Ry. Co. v. Elliott, 4 Ohio St., 474. This was also an action to recover damages for the killing of stock trespassing upon the private right of way of the railroad. Judge Thurman, in the opinion (page 476), says:

"The remote negligence of the plaintiff will not prevent his recovering for an injury to his property immediately caused by the negligence of the defendant. The negligence of the plaintiff that defeats a recovery must be a proximate cause of the injury.”

In the case of Railway Co. v. Kassen, 49 Ohio St., 230, the first paragraph of the syllabus is:

"It is a well settled rule of the law of negligence that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

And the third paragraph of the syllabus is:

“The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

This ease has undergone, perhaps, as much discussion and contrariety of opinion in the bar of the state as any case that has. been pronounced by the Supreme Court in recent years; and it is contended that the first part of the syllabus is a direct authority that the railroad company owes the duty to strangers upon its right of way to look out for them and protect them from injury, but we apprehend that the Supreme Court only meant to say that if the railroad company has knowledge, or such facts have come to its knowledge, that it ought to know of the plaintiff’s presence upon its right of way, then it becomes its duty to protect him.

The question was before the Supreme Court in Schweinfurth v. Railway Co., 60 Ohio St., 215, 220, 221, 223. The second paragraph of the syllabus is:

“In an action for negligence, it is not error to refuse an instruction that the defendant can not' be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree or in any way to the injury of which he complains. Unless the negligence of the person injured contributed directly .to, or as a proximate cause of the injury, it' does not preclude a recovery.”

In considering the charge in the ease, Judge Williams quotes extensively from the leading text-writers upon this question as applicable to this proposition as to whether there can be recovery if the plaintiff was “‘negligent in any degree, or in any way,’ however remotely, to the injury which caused his death, and without regard to the other circumstances of the-case.” He says.:

“The rule is, that a party is only required to use ordinary care, and his failure to do so must, to defeat his recovery, contribute directly, or as a proximate cause to the injury of which he complains.”

And he quotes this language from Shearman' & Redfield on Negligence, See., 99.

“ ‘It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was more immediately caused by defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him.’ ”

And lie also quotes from other text-writers language to the same purport and with approval, and. adds:

“This well settled doctrine as maintained by the foregoing authorities, was followed and applied by this court' in the case of Railroad Co. v. Kassen, 49 Ohio St., 230, and had been recognized and approved in several eases before that.”

This same doctrine is recognized in the opinion of Judge Spear in Snyder v. Railway Co., 60 Ohio St., 487, 496; and in Railway Co. v. Heiskell, 38 Ohio St., 666, third paragraph of the syllabus.

The last time the Supreme Court’s attention was called to this proposition was in the case of the Cleveland, A. & C. Ry. Co. v. Workman, supra, so far as I have observed. In that case, Judge Davis says, p. 543:

“Up to this point, we have endeavored to consider the questions of law which were under review without complicating them with the subject of contributory negligence. It becomes necessary now to look at that' phase of the case. The court refused to instruct the jury as requested in the defendant’s fourth request. This instruction was sound and ought to have been given. If it were found to be true that the deceased chose to travel with the speeder ' upon the main track for no reason connected with his employment, other than his convenience; that he rode down the main track with a companion, on the speeder, in violation of the order of his superior, the station agent; that from the station to the south switch light there was a ‘passing track’ on which he could have placed the speeder and easily and with absolute safety have reached his destination, and that instead of doing so he chose to go down the main track, without keeping any lookout behind him, there can be no doubt he was guilty of negligence which proximately contributed to his injury, unless the defendant could have avoided the injury after discovering the deceased upon the track.”

And, after citing, authorities that sustain the request as asked of the court, the court adds, p. 544:

“It will be seen from these authorities that the instruction, as requested, states the law more strongly against the company than was necessary. It makes the qualification that ‘unless the jury shall further find that the defendant’s agents and employes * * * could have avoided said accident after they became aware of the presence of the said.Arleigh J. Mead, upon said track.’ Strictly speaking, the law would require the defendant, after discovering the deceased to be upon the track, to use reasonable care under the circumstances to avoid the accident, not absolutely to avoid it; but this being an error against the party asking the instruction, it should have been refused for that reason.”

The court not only approves the request with the criticism above, but says' the court erred in not giving it. If this proposition of law involved in it — the one we are here considering — was not the law of the case, then the trial court would be justified in refusing to give it even though the error in it was against the party requesting it. And we understand this case to be an approval of the.charge in question in the case before us for consideration.

All the authorities agree that if the engineer of a train sees a trespasser in danger of being hit by his engine, it is his duty to do what he can to save the person from injury, but they do not agree as to whether mere negligence on his part will make the company liable; many of them hold that there is no liability unless the negligence is such as to be want-on or intentional. But some of the court's that thus hold, that if the engineer should see the person in danger and should neglect to do what he could to ■save him, hold that his action would be wanton and intentional; .and such courts obliterate the distinction between mere negligence .and injury intentional where the party is seen upon the private right of way. But the real point of difference in the authorities, with which we are concerned here, is as to whether the plaintiff, if he has been guilty of contributory negligence, can recover if his negligence, in any way, contributed to the injury. Admitting that the defendant has been negligent, can the plaintiff recover if he has been negligent, even though his negligence is not remote and prior to that of the defendant? The rulé, as established by the courts, and in the cases heretofore referred to, is in cases where the plaintiff has, at some time prior to the negligent act of the ■defendant, been guilty of negligence, and the rule is on the ground that the two acts of negligence did not co-operate; that the plaintiff’s negligence created only a condition or circumstance upon which the defendant’s negligence thereafter acted; and where that is true, the defendant’s negligence is the proximate cause, or, as ■expressed by some courts, the “last chance.” In citing the foregoing authorities upon this proposition, it has not been the purpose to establish when the rule applies, beyond this fact that it applies •only when the plaintiff’s negligence is prior to that of the defendant’s, and to show that the plaintiff’s negligence in this case was not prior to, but' co-operated with, that of the defendant.

This rule does not apply where the plaintiff may have been negligent in not looking for danger from an approaching train upon the tratek, when it would have been possible for him to have stepped from the track, had he thus looked. Nor will it apply where he stands so close to the track without looking for approaching danger, that he is struck by a rapidly moving train. For, in these cases, his negligence, which co-operates at the same time with the defendant’s negligence, is his standing on the track without -any effort to see approaching danger or without effort to move from his position, which is a continuing negligence, until he is struck. In such cases he cannot complain.

This was the state of facts in the case of Lake Shore & M. S. Ry. Co. v. Ehlert, 63 Ohio St., 320. Although the deceased in that case was negligent in passing the gates that were down at the time he approached the track, yet that negligence was remote, as the negligence that caused his injury was his standing so close to the track that he was struck by the rapidly moving train, and, while standing in that position, not keeping any lookout for a train that would be likely to pass over the track; and he continued in that act' of negligence until he was hit, and that negligence co-operated as a proximate cause of the injury with that of the defendant.

In the case of the Cleveland, A. & C. Ry. Co. v. Workman, supra, from the facts in the case it would seem that the deceased, Arleigh J. Mead, continued in his act' of negligence until the moment of his injury, running the speeder upon the track where he was liable to meet the train, or where he was liable to be run down by the train. And yet the court may have regarded his act of negligence in not going upon the side track, where he would be out of danger of the approaching train, or it' may be that he was in such a position at the time that he knew of his danger, that escape was impossible; and there is plenty of authority under either state of facts for holding the company responsible if it did nothing to save him after seeing his position of danger.

In the case under consideration, the facts are such that, if the plaintiff had been an adult person, whether the accident occurred at the street crossing or upon the private right-of-way, he could not recover, for then it would appear that the plaintiff stood in a place of danger on or near the track over which the engine was run that hit him, without looking for its approach and without moving out of danger when he might' have done so had he been on the lookout for the engine.

The evidence in the case i§, that the boy either jumped from between two cars directly in front of the engine, or that he passed through the train standing over the street crossing, and then took a position so near the next track that an engine passing over that track would hit him, and there he remained without keeping any lookout for danger until he was hit. The engineer, if the injury occurred at the crossing, should have been on the lookout for persons at that place; he had an opportunity to see the boy; if he did not see him, and did not do all that he could to save him, he was negligent, and his negligence continuing until the boy was hit, was the proximate cause. The plaintiff took a place of danger and stood in it without looking for approaching danger until he was hit. The negligence of each was the same in character, in time, in duration, equally active in causing the injury; they cooperated each as a proximate cause. In such a case, there is no place for the charge complained of here. The proof was such that the proposition of law was foreign to the ease, and was prejudicial. The plaintiff’s request to charge before argument, and which was given, does not state the law correctly. It charges that, even though the jury may find that the plaintiff was guilty of negligence in going upon the track or being there, still he may recover; and casts upon the defendant the duty of looking for the plaintiff upon the track, whether he is at the street crossing or on the private right-of-way. And this charge is wrong in two regards: First, as to requiring the company to exercise diligence in discovering him on the private right-of-way; and, second, in making the defendant’s negligence the proximate cause, when the evidence shows that the negligence of plaintiff and defendant cooperated as a proximate cause. And these errors were prejudicial to the plaintiff in error.

The only remaining question for consideration is: Whether, under the facts as they appear in the case, the verdict should be regarded as sustained by the evidence? This question is, by a majority of the court, determined for plaintiff in error.

John T. Dye and F. A. Foote, for plaintiff in error.

John F. Clark and C. W. Sheldon, for defendant in error.

This boy was accustomed to being around the cars, had lived near enough to them so that he knew their mode of operation, and was well aware of the dangers attending such operations to persons who should get upon the tracks of the railroad company. The jury, no doubt, believed his story, that he passed through the train of cars that stood upon the crossing after waiting some minutes for the train to move, and, after being on the other side of the train, his position was so near the track that he was liable to be struck by any cars or engine moving upon that track; that he did not look for danger, but instead looked under the cars or through them to see what had become of his companion, and, while thus giving his attention to looking for his companion, he received his injury. It appears also that he could have seen along this track from the direction from which the engine approached him, for a considerable distance, and had he looked, he could have seen the engine in ample time to have stepped across the track or away from it entirely out of danger. As I say, if an adult had been injured under like circumstances, he could not recover. The act of negligence continued in the same manner, and under the same circumstances, from the time it commenced until the time of the injury; and, under such state of facts an adult could not recover. And, knowing what this boy did know about the cars and about their movements on the track, and all the circumstances that surrounded him, his 'acts were contrary to his knowledge and entirely contrary to the acts of boys of his age, possessing the knowledge and intelligence that he has. And we think that the jury should have found, under the facts of the case, only a few of which are here recited, that he contributed directly to his own injury without excuse, with full knowledge of the dangers to which he was exposed, and with full knowledge of his duty to look for the approaching danger that injured him.

The judgment of the court below is reversed for errors in the charge as hereinbefore found; and also because the verdict is not sustained by the evidence in the case. The case is remanded to the court below for a new trial.

Marvin, J.

I concur in the judgment of the reversal, but I do not concur in the last grounds stated.


text:
    SERVICE BY PUBLICATION TO ENFORCE CONTRACT FOR. SALE OF REAL ESTATE.
    [Circuit Court of Cuyahoga County.]
    Albert Safarik v. Joseph Greenwald et al.
    Decided, June 1, 1903.

      Jurisdiction — Specific Performance — Service by Publication — Motion to Dismiss on Ground that Defendants were not the Owners.

    1. An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the land lies, or where the defendants, or any one of them, reside.
    2. Jurisdiction, obtained by publication in such a case, is not defeated by a motion to dismiss for want of legal service, supported by an affidavit that the defendants were not the owners of the land when the petition was filed, for in so far as service is concerned it is immaterial whether or not they were the owners of the land, and were this not true, title or lack of title to real estate is not proved by affidavit.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   Plaintiff filed a petition in the Common Pleas Court of Cuyahoga County to compel the specific performance of a contract of sale of real estate situated in said county. Attached to the petition is an affidavit setting forth the nature of the action, the location of the land in Cuyahoga county, and the non-residence of the defendants who, it is stated, reside in Whiting, Indiana.

While not required by statute to do so, plaintiff also filed a motion that the court permit and allow service by publication, attaching to his motion an affidavit similar to the one attached to the petition. This motion was granted, publication of notice was made for six weeks, and proof thereof filed.

Thereafter defendants, appearing for the purpose of the motion only, moved the court to set aside the order for publication and “to dismiss the cause for want of proper and legal service and for want of jurisdiction as appears from the affidavit herewith.” Said affidavit is to the effect that the defendants were not the owners of the property described, in the petition at the time that it was filed, nor have they since been.

Myler & Turney, for plaintiff in error.

F. O. Friend, for defendants in error.

This motion of the defendants was granted, and the ease comes into this court on petition in error to reverse said order of the common pleas court.

Section 5024, R. S. O., provides:

“An action t'o compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants, or any of them, reside.”

The Supreme Court, in the case of Owens v. Hall, 13 O. S., 571, held that such action may be brought either in the county where the land lies, or in that' where one of the defendants resides.

Section 5048, R. S. O., reads:

“Service may be had by publication in either of the following cases:
“1.' In actions under the first three sections of the last chapter, when the defendant resides out of the state, or his residence can not' be ascertained.”

(Section 5024 is the third section of the “last chapter” above referred to).

It therefore appears that this action was rightly brought in Cuyahoga county, and that the defendant's, being non-residents, of the state, service might properly be made by publication. So far as service is concerned, it is immaterial whether defendants were owners of the property when the petition was filed, or not.

That fact, if proved as a defense t'o the action, might render a decree for specific performance ineffectual, particularly so if a third person not party to the action was in possession under claim of ownership. It may also be observed that title to real estate, or lack of title, for that matter, is not proved by affidavit.

For error in granting the motion of defendants to dismiss the cause for want of service, the judgment is reversed.