text:
    MASTER AND SERVANT.
    [Stark (5th) Court of Appeals,
    February Term, 1916.]
    Shields, Powell and Houck, JJ.
    Reeves Brothers Co. v. John G. Cochli.
    1. Model of Machine in Which Employe Injured Competent Evidence.
    In an action by an employee on account of injuries received, it is competent to offer in evidence for illustrative purposes a model substantially, representing the main parts of the machine in which he was injured.
    2. Comparative Negligence and Apportionment of Damages Dependent on Degree of Negligence of Both.
    The law is correctly given in an instruction to the jury as to comparative negligence which states that if they find from a preponderance of the evidence that the negligence of the plaintiff was slight and by a like preponderance of the evidence that the negligence of the defendant was gross and all the disputed matters are found in favor of the plaintiff, the damages suffered by plaintiff, if any, will then be compared and apportioned between the plaintiff and defendant in the ratio of their respective contributions of negligence to the combined negligence, and diminish plaintiff’s recovery, if any, in accordance with the ratio thus fixed and determined.
    3. Instruction as to Assumed Risk Rendering Statute Nugatory.
    An instruction to the jury which declares as a matter of 1SW that plaintiff assumed the risk of stumbling over or otherwise coming in contact with a necessary part of the machine which he was operating renders nugatory the present statutory provision as to the negligence of the employer.
    [Syllabus by the court.]
    Error.

      Welty <& Burt, for plaintiff in error.

      Hart & Koehler, for defendant in error.
   HOUCK, J.

This proceeding in error is brought to reverse a judgment for $2,000 recovered by the defendant in error for damages for personal injuries sustained by him on September ]0, 1910, while in the employ of the plaintiff in error as a machinist in the machine shop of plaintiff in error.

For some time prior to September 10, 1910, the defendant in error had been employed as a machinist by the Reeves Brothers Co., of Alliance, Ohio. He bad been directed by bis foreman to work upon a large boring mill, and on said day was boring holes through a large engine base on this particular boring mill, which was a large machine over fifteen feet in length and about ten to twelve feet high, set on a concrete base, so that it could be worked horizontally or perpendicularly, and adjusted to do the work it was intended to do. On this machine there was a bracket of east iron weighing about seventy-five-pounds, extending from its base to the north about one foot, and from the floor about six to eight inches, leaving a hollow space under the bracket. When operating this machine on the day in question something happened which loosened the cutting tool, by means of which the hole was being bored, and Coehli while hurrying to get to the lock wheel caught his foot on the inside of his leg under this bracket, injuring his left leg, which he claims resulted in necrosis of the bone.

Defendant in error (the plaintiff below) alleged in his petition that the defendant below was guilty of carelessness and negligence in the following particulars, to-wit:

First. In not providing him a safe place within which to work, taking into consideration the necessary operation of said machine, and in locating said controller so that plaintiff was compelled to pass over said bracket on the north side of said machine on and along the necessary path of travel of the-operator of said machine in going quickly, as necessity required, from the face plate or table on one end of the same to the feed nut on tHe spindle of the other end thereof.

Second. In leaving said bracket extended from six to eight inches from the floor, and leaving the same extended about one foot from the base upon which said machine was located.

Third. In permitting plaintiff to work on said boring mill equipped with a controller placed in such position as to compel the plaintiff in the operation of said machine to miove over and across said bracket hereinbefore described, and in leaving said bracket unguarded and.so placed that the operator in charge of said boring mill was liable to be injured.

Fourth. In failing to exercise proper care under the circumstances, taking into consideration the location and equip-ment of said boring mill and the necessary operation of the same for the safety of plaintiff.

The defendant below by answer denied that it was guilty of any negligence which contributed to or caused the alleged injuries to plaintiff; that the bracket complained of is a part of the framework of the machine and used to support the machine, and that said bracket is not in itself in any way dangerous or complicated and requires no care or protection, and that it was not necessary to go over or across said bracket in the proper operation of said machine; that said bracket and said controller and the entire situation about said machine was open and visible and known to plaintiff, and if there was any danger in the operation of said machine (which they deny) that the plaintiff realized, or in the exercise of ordinary care could have realized the same, and that whatever injuries plaintiff received, if any, were caused by his own negligence, and were not the fault or ■negligence of the defendant.

The errors relied upon in oral argument by counsel for plaintiff in error are:

First. _ That the court erred in overruling the demurrer to the amended petition.

Second. That the court erred in admitting plaintiff’s, model (Exhibit C) in evidence.

Third. That the court erred in its general charge as to the subject of comparative negligence.

Fourth. Error in the refusal of the court to give request number four, which was presented in writing before argument.

Fifth. That the verdict is against the weight of the evidence.

Coming now to the alleged errors, should the demurrer to the amended petition have been sustained? We think not. From a careful examination of the allegations and statements of fact contained therein we feel that the petition is sufficient in law, and that the charge of negligence on the part of the defendant is specific and definite, and that it fully comes within the provisions of Sec. 6245 G. C.

Was the plaintiff’s model improperly admitted in evidence? On page 17 of the record appears the following in the testimony of the plaintiff:

“Q. Mr. Coehli I hand yon now here what I ask the stenographer to identify as Plaintiff’s Exhibit C, and ask you to state whether or not this substantially represents the main parts of the boring mill, its location on the base on which it stands and the upright column of which you speak; the platform of the machine, the face plate, the lock nut and the controller, in their relative positions as they are on the machine in the shop ? (Objection by defendant; objection overruled; exception by defendant.) A. Yes, sir.”

It -will be seen from the above testimony that it is not claimed that the model is an exact duplicate of the original, or that it is drawn to actual scale, but that it only substantially represents the main parts of the machine, and was offered only for illustrating purposes,.which we think was proper and right, and that the court did not err in admitting it in evidence for that purpose.

Did the trial court, err in its general charge on the subject of comparative negligence? An examination of the language used by the trial court in discussing this subject might as a first impression lead a reviewing court to believe that it was not properly presented to the jury, but taking all parts of the charge upon this subject into consideration we are of the opinion that the charge is correct and states the law relating to comparative negligence properly. Whatever seeming failure to properly charge in this regard is certainly cured by the trial court in the general charge as appears on page 363 of the record, where the court instructed the jury as follows:

"If both the plaintiff and defendant were negligent, and their combined negligence operating together directly and proximately caused some injury to plaintiff, the plaintiff might still recover notwithstanding his contributory negligence, if you find from the evidence and by a preponderance of it that his negligence was slight, and at the same time find by a like preponderance that the negligence of the defendant was gross. In such case, if you find upon all the disputed matters in favor of the plaintiff, you will then compare and apportion the damage suffered by plaintiff, if you find be suffered' any, between the plaintiff and defendant, in the ratio of their respective contributions of negligence, and the combined negligence thus diminishing plaintiff’s recovery, if any, in accordance with the ratio previously found and fixed by you. In such ease the remainder of the damages thus ascertained will be the amount of plaintiff’s recovery, provided he recover at all, on the whole case. ’ ’

As we have already said, if we take the entire charge upon this subject into consideration we are of the opinion that it was a fair and proper exposition of the law as to comparative negligence.

Did the trial court err in its refusal to give written request No. 4 before argument, the same being as follows:

“If you find from the evidence that the bracket in question herein was a proper and ordinary part of the boring mill upon which plaintiff was working at the time complained of, then I will say to you as a matter of law, inasmuch' as plaintiff admits in his petition herein that he knew it was necessary for him in the operation of said machine to pass over said bracket, that he assumed the risk of stumbling over or otherwise coming in contact with said bracket, and that he can not recover damages against the defendant company for any injuries he may have received in so stumbling over or otherwise coming in contact with said bracket. ’ ’

We do not deem it necessary to discuss at length this proposition of law, but will only say if the court had given to the jury the above proposition of law it would have rendered nugatory the provisions of Sec. 6245 G-. C. and therefore the court properly refused to so charge the jury.

Was the verdict of the jury against the manifest weight of the evidence? We have read the testimony as contained in the bill of exceptions for the purpose of ascertaining whether or not the verdict of the jury is supported by the evidence, and while we find some conflict in the testimony, we are by no means prepared to say that the verdict was against the manifest weight of the evidence, and therefore the judgment below will not be disturbed on that ground.

We do not think the other alleged errors prejudicial to the rights of plaintiff in error, and finding no error in the record prejudicial to the rights of plaintiff in error the judgment of the court of common pleas should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


source: Caselaw Access Project

author: CHITTENDEN, J.

license: Public Domain

text:
    CORPORATIONS — INSURANCE.
    [Lucas (6th) Court of Appeals,
    December 23, 1916.]
    Adolph Brand v. Michael Murray.
    Contract Effected by Foreign Insurance Company not Void Because Company Fails to Comply with Statutory Regulations.
    Although foreign insurance corporations doing business in this state, before complying with certain regulations designated in •the statutes, are subjected to certain penalties, a contract of insurance effected by them is not void.
    [Syllabus by the court.]
    Error.

      G. 8. Curtis, for plaintiff in error.

      Lawton <& Saalfield and J. I. O’Connor, for defendants in error.
   CHITTENDEN, J.

This action was begun in the city and justice court by the defandants in error to recover a judgment against Adolph Brand because of monies advanced by them for insurance premiums-upon certain policies of accident and life insurance. The amount claimed was' $207.92, for which sum judgment was rendered. Error was prosecuted to the common pleas court where the judgment was affirmed; whereupon proceedings in error were prosecuted in this court. This action has been considered heretofore by this court upon certain features of the case that were then disposed of.

The policies were issued by the General Accident & Assurance Corporation, Limited, of Perth, Scotland.'

The principal error urged before this court is that the-plaintiffs failed to make proof of compliance by the insurance . i company with the laws of Ohio regulating the transaction of business in this state by foreign- insurance corporations. It i& also claimed that there was a failure to prove that the plaintiffs were properly authorized to act as insurance agents for this, company. The bill of exceptions is in narrative form and it is not entirely clear as to whether the plaintiffs in all respects,, had complied with the law providing for the authorization of insurance agents to act for foreign insurance companies. The only evidence as to whether or not the insurance company had complied with'The laws of the state is a letter received by the attorney for the defendant, from the secretary of state, in which it is stated that a search of the records of that office failed to disclose a corporation of the name of the General Accident, Fire & Assurance Corporation, Limited.

The defense is based, necessarily, upon the proposition that if the insurance company had not complied with the laws of the state, any policies issued by it would be void and that, therefore, there was no obligation upon the part of the assured to pay premiums. The premiums for which suit is brought accrued during the years 1911,1912, 1913 and 1914, and aggregate $352.50. Payments were made upon the premiums at various times during those years, amounting fo $175.00, leaving a balance of $177.50, which, with interest, is claimed to amount to the sum sued for. The policies for which these premiums were charged had all expired by their own limitation, except perhaps the last policies and those had substantially run the length of time for which they were written.

Our attention has been called to no statute which provides that policies shall be void that are written by foreign insurance companies that have not complied with the laws of this state. The general assembly seems to have relied upon the enforcement of the laws by the imposition of the penalties provided for a violation thereof.

The general rule of law applied throughout this country seems to be that, although foreign corporations doing business in the state, except after complying with certain regulations designated in the statutes, are subjected to certain penalties, a contract of insurance effected by them, is not ordinarily void. 14 R. C. L., p. 866, Sec. 37. And we think that is the rule that the. Supreme Court of this state has adopted. Union Mutual Life Insurance Co. v. McMillen, 24 Ohio St. 67; Newburg Petroleum, Co. v. Weare, 27 Ohio St. 343. See also, 22 Cye. 1391; Toledo Traction, L. & P. Co. v. Smith, 205 Fed. 643, 652.

During all the time that these policies were in force had the insured met with a loss covered by the terms of the policy, he might have recovered in an action against the company and that company would not be permitted to set up as a defense to such action that it had not complied with the laws of this state. Having had valid insurance, therefore^ under these policies, notwithstanding the failure of the company to comply with the laws of this state, the insured, after having accepted the insurance provided by the policies and retained the same during their life, will not be permitted to set up a defense of a failure on the part of the company to comply with the requirements of the statute, to defeat an action brought to recover the premiums earned.

The bill'of exceptions does not perhaps show express authority granted by the defendant to the plaintiffs to pay the amount of the premiums to the insurance company, but it is fairly inferable from the evidence that the defendant acquiesced in such payments and' from time to time paid to the plaintiffs various sums to be credited upon the amounts so advanced by them to the insurance company. The evidence is ample to show the right of the plaintiffs to maintain this action. The partnership name of the plaintiffs containing therein the names of all the individual partners, there is not shown to have been any violation of law upon their part in failing to have their partnership registered in the office of the clerk of courts.

The plaintiff in error also complains that the court erred in the admission of evidence upon certain items of account not set forth in the bill of particulars. We are unable to find from-the record that the justice committed any prejudicial error in the reception of evidence.

Finding no prejudicial error apparent in the record,- the judgment will be affirmed.

Richards and Kinkade, JJ., concur.


author: HOUCK, J.

text:
    INSURANCE
    [Muskingum (5th) Court of Appeals,
    May Term, 1916.]
    Shields, Powell and Houck, JJ.
    McDonald & Frazier (Partnership) v. Herb Schervish.
    Promissory Note Without Interest in Payment of First Premium on Life Policy'not Within Prohibition of Statute as Inducement.
    Where the evidence is to the effect that a contract was entered, into for a policy of life insurance and the amount of the premium agreed upon, and thereafter a note was accepted from the insured for the first year’s premium, due in sixty days without interest, the accommodation thus extended as to the time for-paying the first premium can not be regarded as an inducement for taking out the policy, or as within the inhibition of Sec. 9404 G. C.; and where the insured made no complaint until after-the note had become due and the agents receiving it had paid the premium to the insurance company, the defense that the note was void because in contravention with said section does; not lie.
    [Syllabus by the court.]
    Error.

      E. R. Meyer, for plaintiff in error.

      J. C. Bassett, for defendant in error.
   HOUCK, J.

The parties occupy the same position in this court as in the court below, the basis of the suit being a promissory note for $152 given to McDonald & Wagner by Herb Schervish in payment of the first premium on a life insurance policy in the Bankers’ Life Insurance Co-., of Nebraska, which was sold by McDonald & Wagner, the agents of said insurance company, to the said Schervish, the note being sold and transferred by said McDonald & Wagner to the plaintiffs in error, who filed suit, in the common pleas court of this county, the petition being-drawn under the usual short form of petition on promissory notes.

The answer contains three defenses:

1. Admits the plaintiffs are the owner and holder of the note in question; admits its execution, delivery, and the endorsements thereon, but denies all the other allegations therein,. and especially avers that the note was given without any consideration therefor*.

2. That it was null and void, and against public policy, and in violation of See. 9404 G-. C., because the plaintiffs’ assignors, in order to induce the defendant to take a $5,000 life insurance policy at the usual rate of annual premiums agreed to defer the payment of the first premium for sixty days, without interest, instead of requiring the same to be paid in cash .as the policy provided.

3. That the defendant was induced to take said insurance hy reason of certain false and fraudulent statements made by the original payees of the note to the defendant, in this, to-wit, that said policy, at the end of twenty years, if the insured paid the annual premiums thereon, would be entitled to receive in cash not less than $4,800, nor more than $5,200, and that this and other representations made to him at that time wei*e not true.

A reply to said answer was filed by the plaintiffs, admitting that McDonáld & Wagner were the agents of the said Bankers’ Insurance Co.; that the first premium was payablé on delivery of the policy, and that McDonald & Wagner, in lieu of payment in cash, accepted said note for such premium, and denied all the other allegations in the answer.

On these pleadings and the evidence the cause was submitted to a jury and a verdict returned for the defendant. The usual motion for a new trial was filed, heard and overruled, and a ¿judgment entered on the verdict. The plaintiffs in error seek a reversal of this judgment for the reason that the verdict of the jury and the judgment entered thereon are against the manifest weight of the evidence and contrary to law.

It is claimed by the defendant in error that there was a rebate in favor of him when he was permitted to give the note in suit for sixty days, without interest, in payment of the first premium on said policy in question.

We find from an examination of the bill of exceptions that the great weight of the evidence is to the effect that the contract for the policy and the amount of the premium was agreed upon before the execution of the note, and that the question of the time of the payment of the first premium could not have been and was not in any way an inducement to the defendant to take the policy.

The defendant claims that the note is void under favor of See. 9404 G-. C., which is as follows:

. ‘‘'No life insurance company doing business in this state, or any officer, agent, solicitor, employee, or representative thereof, nor any other person, shall pay, allow, or give, or offer to pay, allow, or give, directly or indirectly, as an inducement to insurance, nor shall any person, co-partnership or corporation knowingly receive as such inducement- to- insurance, any rebate of premium payable on the policy or any special favor or advantage in the dividends or other benefits to accrue thereon, nor any.special advantage in the date of a policy or date of issue thereof; or any valuable consideration or inducement whatsoever; or give or receive, sell or purchase, or offer to give or receive, sell or purchase, as inducement to- insurance or in connection therewith, any stock, bonds, or other obligations or securities of any insurance company or other corporation, association, partnership, or individual.” * * *

If we rely upon the facts as to the execution and delivery of the note in question, as disclosed by the testimony in the bill of exceptions, we have no hesitancy in saying that none of the provisions of said section of the code has been violated. The contract entered into by the defendant for said policy of insurance and the note executed and delivered by him for the first premium can not be set aside and held for naught, unless the same be established by clear and convincing evidence. The defendant made no complaint until after the note had become due, and not until after the payees had settled with the insurance company.

As to the misrepresentations claimed by the defendant in error, counsel earnestly urge that he did not receive the kind of policy he was led to believe he was getting; that the settlements shown and represented to be on similar policies were not only not similar, but were known by the agent not to be similar. It is not a question of opinion as to what the earnings of the company would be, but whether the representations as to the sameness of the policies were not only false, but known to be false by the agent and believed by the defendant. If the-contention of the defendant is sound, then a recovery could not be had upon the note in suit because it was obtained in fraud of the rights of the defendant.

Fraud is never presumed, but must be established by clear and convincing evidence. This, as we view the testimony as shown in the bill of exceptions, has not been done — the burden of establishing the facts alleged in the answer being upon the defendant — and we think it has not been done by that degree of proof required by law.

From what we have already said it necessarily follows that in our opinion the note is founded upon a sufficient consideration, and therefore we need not discuss that question-further.

We therefore find that the verdict of the jury was against the manifest weight of the evidence and contrary to law, and , that the trial court erred in entering a judgment on the verdict. Finding error in the record prejudicial to the rights of the plaintiffs in error, the judgment of the common pleas court, must be reversed, which is now done, and the cause is remanded to the court from whence it came for further proceedings.

Shields and Powell, JJ., concur.


author: LEIGHLEY, J.

text:
    ELECTIONS.
    [Summit (8th) Court of Appeals,
    April 27, 1917.]
    Carpenter, Grant and Leighley, JJ.

      James J. Baker v. Lewis D. Slusser.
    1. Election Expenditures by Candidate for Probate Judge in Excess of $500 Illegal.
    The provision of the corrupt practices act, which permits an expenditure of five dollars for each one hundred votes cast in excess of five thousand at the last preceding state election, is not supplementary to the fixed maximum sums named earlier in the act as the amounts which may be expended by candidates for the several offices designated, and the expenditure by a candidate for probate judge of a sum in excess of five hundred dollars is in violation of that act.
    2. Conviction for Corrupt Practices not Prerequisite to invalidating. Election of Official.
    A prior conviction under the corrupt practices act is not requisite to a judgment invalidating the election of one shown to have been guilty of expending an unlawful amount of money in promoting his candidacy, but the fact of such violation itself renders the election void, and a court will so declare.
    Error.

      8. A. Decker, for plaintiff in error.

      Musser, Kimber & Huffman, for defendant in error.

       Judgment reversed and that of the common pleas (Baker v. Slusser, 27 Dec. 169) affirmed, no op., Slusser v. Baker, 95 Ohio St. 000; 62 Bull. 314.

   LEIGHLEY, J.

At the August, 1916, primaries, defendant in error, Slusser, was a candidate, with others, for the office of probate judge of said county. He received the highest number of votes and was declared to be the nominee.

Subsequently and within the required time, he filed his statement of expenditures with the deputy state supervisors of elections, showing an outlay of $746.47.

His name appeared upon the ballot used by the voters at the November, 1916, election as a candidate for probate judge, with others. At said election he received the highest number of votes. Subsequent to the election, but not within the required time, he filed his verified statement of expenses of said election with the board of elections, showing an additional outlay of $251.09. Thereupon the board of elections declared him elected probate judge and issued to him a certificate of election. From this action of the board the plaintiff in error, as eontestor, under favor of Sees. 5148 to 5153 G-. C. perfected an appeal to the common pleas court, with the object of contesting the election of defendant in error, the contestee, upon the claim that the amounts expended by said contestee are in excess of the amount allowed by law, to be expended for the purpose of promoting and securing his election as probate judge, under Sec. 5175-29 G. C.

The trial of the appeal in the common pleas court resulted in a dismissal thereof, from which judgment of dismissal error is prosecuted td this court.

It is claimed by the eontestor that the court below erred in the following particulars:

1. In sustaining the claim of contestee that the expenditure of said sums was not a violation of Sec. 5175-29 G. C.

2. That under the provisions of the act itself a judgment to the effect that his -election was invalidated could only be predicated upon a prior conviction under See. 13323-1 G. C.

Section 2G clearly has for its purpose the enumeration of the various things for which money may be expended by a candidate, directly of indirectly, in promoting his candidacy. See. 29 of the act, by its express terms, refers to See. 26 and clearly has for its purpose the limitation of the amount which may be expended by a candidate directly or indirectly upon the matters and things enumerated in Sec. 26. Said Sec. 29 reads as follows:

“The total amount expended by a candidate for a public office, voted for at an election, by the qualified electors of the state, or any political subdivision thereof, for any of the purposes specified in See. 26 of this act, for contributions to political committees, as that term is defined in Sec. 1 of this act, or for any purpose tending in any way, directly or indirectly, to promote or aid in securing his nomination and election, shall not exceed the amount specified herein; by a candidate for governor, the sum of five thousand dollars; by a candidate for other state elective offices the sum of two thousand five hundred dollars; by a candidate for the office of representative in congress or presidential elector, judge of the court of appeals, the sum of two thousand dollars; by a candidate for the office of state senator, the sum of three hundred dollars in each county of his district; by a candidate for judge of common pleas, probate or insolvency court, the sum of five hundred dollars; by a candidate for the office of state representative the sum of three hundred and fifty dollars; by a candidate for any other public office to be voted for by the qualified electors of a county, city, town or village, or any part thereof, if the total number of votes cast therein for all candidates for the office of governor at the last preceding state election, shall be five thousand or less, the sum of three hundred dollars. If the total number of votes cast therein at such last preceding state election be in excess of five thousand, the sum of five dollars for each one hundred in excess of such number may be added to the amounts above specified. Any candidate for a public office who shall expend for the purpose above mentioned an amount in excess of the amounts herein specified shall be guilty of a corrupt practice. ’ ’

Certain public offices, state, district and county, are specifically mentioned and a limitation of the sum of money that may be expended by any candidate therefor placed opposite each. It is claimed, however, that although the sum fixed for a candidate for the office of probate judge is $500, that the provision permitting the expenditure of $5 per one hundred when the total vote was more than 5,000 at the last preceding state election, is supplementary to the specific provision. After offices and amounts are named, it will be noticed that the section reads “all candidates for any other public office to be voted for by the qualified electors of a county, city, town or village, etc.” This language can convey no other meaning than it would if it had after the word “other” the words “than those above mentioned.”

Next it is claimed that the next to the last sentence of the section beginning faith the word “if,” in view of the fact that the word “amounts” is used, indicates that the intention of the legislature was to permit the additional sum of $5 per hundred to be expended for election purposes over and above the sums, specifically named. If this claimed construction is right, necessarily the sentence qualifies the entire preceding sentence. That method of calculating would permit a candidate for governor1 to expend about $37,000; a candidate for this court over $10,-000; a candidate for secretary of state, a two-year term, about $35,000, which is several times his salary for the term; a candidate for common pleas judge in Cuyahoga county over $6,000. Can it be possible that the legislature intended to put such sinews of war in the hands of a nonpartisan judiciary for the purposes of political strife which would necessarily attend the expenditure thereof by the various candidates for judge? We-think that this construction is in conflict with the apparent intention of the legislature in enacting the corrupt practice act, viewed with reference to the trend of public sentiment of late-years which eventuated in the enactment of the nonpartisan judiciary laws.

We think the sentence of Sec. 29 last above referred to qualifies only the language after the last semicolon and only those offices and the amounts that may be expended by candidates for those offices which have not been specifically mentioned and opposite which no specific amount has been fixed by the legislature in the act. In short, we think that by law the eon-testee was -obliged to confine his expenditures at or below the-sum of $500.

The act was upon the statute books at all times while con-testee promoted his candidacy. It was then the law of the state and he was obliged to observe its provisions. His attention was expressly called to the act a short time after the primaries. He then prepares a brief and mails, a copy to the voters seeking to justify the violation. Can he be permitted to take advantage of his own wrong? He then proceeded to expend a further sum at the election in. the promotion and furtherance of his candidacy. We regard the expenditure of the total sum of over $1,000 at the election before mentioned as constituting a violation of the corrupt practice act.

It is urged, however, that even though the expenditure of this sura amounts to a violation of the corrupt practice act, it does not work an invalidation of his election, for the reason that Sec. 29 which he violated does not expressly provide that a violation of it invalidates the election; that Sec. 26 only provides for invalidation of the election for a violation of its provisions.

It will be observed that See. 29 expressly refers to’ Sec. 26 of the act. Section 26 enumerates for what money may be spent. Section 29, expressly referring to Sec. 26, provides how much may be spent. Section 29 must be read with reference to Sec. 26. And one who admits expending a sum in excess of that amount permitted under Sec. 29 for the purposes expressed in See. 26, is guilty of corrupt practice, and under the provisions of See. 26, invalidates his election..

It is further urged that proceedings must be had under See. 13323-1 Gr. C. resulting in conviction of corrupt practice, as a condition precedent to the invalidation of the election therefor: We think that all claims made in respect to this assignment of error are completely answered in the ease of Prentiss v. Ditmer, 93 Ohio St. 314, 323, et seq.

This section, now a part of the criminal code, was in fact See. 32 of the corrupt practice act, and, as stated in the opinion in Prentiss v. Ditmer, supra, the legislature evidently intended to provide two distinct remedies. If a candidate violates See. 29 in and about the promotion and furtherance of his candidacy and election, he thereby invalidates his election, and the remedy is a contest of the election, the proceedings had in the instant case. In this case it is admitted that over $1,000 was spent, and we hold that that expenditure amounted to a corrupt practice on the part of the eontestee; that the same invalidated his election that he Was hot and is not the duly elected probate judge Of Summit county, Ohio; that under the circumstances in this casé no prior conviction is necessary as a condition precedent to a judgment of invalidation of the election. .

For the reasons given, said election is held to be invalid; that said eontestee, Lewis D. Slusser, has no right and title to the office of probate judge, and a judgment of ouster is hereby entered. The costs are assessed against contestee, defendant in error.

Cí-rant and Carpenter, JJ., concur.


author: SHIELDS, J.

text:
    ABORTION.
    [Wayne (5th) Court of Appeals,
    September Term, 1915.]
    Shields, Powell and Pollock, JJ. •
    Judge Pollock of the Seventh District sitting in place of Judge Houck.
    Wylie Waite v. State of Ohio.
    1. Abortion Committed in County of Operation.
    Where a woman is induced to submit to and does submit to a criminal operation in one county and the resulting miscarriage occurs in an adjoining county, the venue is properly laid in the county in which the inducement took place and the operation was performed.
    2. Woman Voluntarily Submitting to Miscarriage Testifies as Accomplice.
    A woman who voluntarily submits to an operation for the purpose of causing a miscarriage is an aider and abettor of the crime, and in the prosecution of the one who caused the operation to be performed her evidence should be regarded as that of an accomplice.
    ERROR.

      A. D. Metz and G. W. Smith, for plaintiff in error.

      G. S. Starn, Pros. Atty., for defendant in error.
   SHIELDS, J.

The indictment herein was returned by the .grand jury of Wayne county, Ohio, at the April (1915) term of the court of common pleas of said county and charges that&emdash;

tTWylie Waite on the 23d day of November in the year of our Lord one thousand nine hundred and fourteen, at the county of Wayne aforesaid, unlawfully, wilfully and knowingly, 'did use a certain instrument, the name of which instrument, is to the jurors aforesaid unknown, in and upon the body and womb of one Margaret Hogue, she, the said Margaret Hogue, being then and there a pregnant woman, with intent then and there and thereby to procure the miscarriage of said Margaret Hogue, the said miscarriage not being then and there necessary to preserve the life orf said Margaret Hogue, and then and there not being advised by two physicians to be necessary for said purpose, and by means and in consequence of the use of said instrument, by the said Wylie Waite, with the intent aforesaid, she, the said Margaret Hogue afterwards, to wit, on the 26th day of November, 1914, miscarried and was prematurely delivered of a child.”1

A plea of not guilty was entered to said indictment by the accused and upon trial had he was found guilty. A motion for a new trial was overruled and he was sentenced according to law.

Numerous grounds of error were assigned in the petition in error filed herein for the reversal of the judgment of the court below, but the principal error alleged and urged was that the court below had no jurisdiction of' the offense charged in said indictment for the reason that said offense, if committed, was not committed in said Wayne county, but in Medina county, Ohio, and therefore the venue was improperly laid in said Wayne county.

That venue is one of the essentials in an indictment is not open to question, for the rules of criminal pleading require that the time and place of every act essential to the offense charged shall be stated. This necessity arises from various reasons, among which is that it must appear that the court taking cognizance of the case had jurisdiction of the same, and, further, that the offense charged was committed in the county where the defendant was indicted and tried for the same.

As stated, it- was contended on behalf of the plaintiff in error that the offense charged, if committed, was committed in Medina county and not in Wayne county. From the evidence introduced upon the trial, on the part of the state, it appears that after an intimate association between the plaintiff in error and one Margaret Hogue for a considerable period, followed by acts of sexual intercourse, the latter became pregnant with child, which fact was communicated to the plaintiff in error, who advised that she submit to an operation to effect a miscarriage, to which she assented. . Accordingly, and soon thereafter, as appears by the record, the plaintiff in error arranged for such, operation to be performed by one Dr. J. W. Lehr in Wooster, Wayne county, Ohio, and in pursuance of such arrangement and by special appointment with said Lehr, the plaintiff in error accompanied the said Margaret Hogue to said Lehr’s office in the evening of November 19,1914, when an operation by the use of an instrument in the hands of said Lehr, at the instance, by the procurement and in the presence of the plaintiff in error, was caused to be performed by the said Lehr upon the said Margaret Hogue, with the intent and for the purpose of procuring a miscarriage. It further appears by the record that it became necessary for the said Margaret Hogue to make a second visit to the said Lehr’s office for said unlawful purpose, whereupon the said Margaret Hogue, accompanied by the plaintiff in error, in pursuance of a prior appointment made by the plaintiff in error with said Lehr, again went .to said Lehr’s office in the evening of November 24, 1914, and at the instance, by the procurement, and in the presence .of the plaintiff in error, said Lehr again performed an operation by the use of an instrument upon the said Margaret Hogue, with the intent and for the purpose of procuring a miscarriage, and that on November 26, 1914, the said Margaret Hogue, as a result of said operation, had a miscarriage and was delivered of a child in Medina county, Ohio.

Under the foregoing state of facts it was contended that the venue was in Medina county, and that the court of common pleas of Wayne county had no jurisdiction of the case. In this contention of counsel we do not agree. Under the foregoing statement, if true, the physical act of using an instrument for the purpose and with the intent to destroy a vitalized foetus, prohibited by Sec. 12412 G-. C., was performed in said Lehr’s office in Wayne county, and said act so performed and prohibited was then and there completed, the premature delivery of the child being an incident to or the result of such unlawful act. Said statute seeks to prohibit and punish the unlawful act described therein; namely, the prescribing or administering of medicine or drug, or the use of an instrument with intent to procure a miscarriage of a woman and a miscarriage follows “in consequence thereof.” It will thus be seen that said statute aims to prohibit and punish the act — the act of using an instrument in this case for the purpose and with the intent to procure a miscarriage. Here such act was performed for the purpose and with the intent aforesaid and rendered complete in contemplation of law, in our judgment, before the victim left the office of said Lehr in charge of the plaintiff in error in the evening stated, leaving as she did only to await the “consequence” of the unlawful act then already performed'in Wayne county. Counsel for plaintiff in error seem to rely with no little confidence upon and refer us to the case of Bobbins v. State, 8 Ohio St. 131, as sustaining their contention herein. We find nothing in the holding in that case, under the facts therein stated, in conflict with the holding here. In that case it appears that a poison was prescribed in one county and taken in another, as a result of which death ensued, and the court held that the offense was not completed until the poison was actually taken, and in the opinion in said case it is stated that:

“It is not the place of the death, but the place where the criminal act is performed or consummated, to which jurisdiction to try the case is given. ’ ’

In the case at bar the criminal act consisted in the plaintiff in error causing said operation to be performed upon the person of Margaret Hogue for the purpose and with the intent of procuring a miscarriage on the evening stated in Wayne county. Obviously, the criminal act was then and there perpetrated. Other cases were also cited by the learned counsel for the plaintiff in error, but running through all of them is the principle that the unlawful act prohibited by the statute is the gist of the offense. If under the evidence here jurisdiction of the Wayne county court did not attach it is apparent that the provisions of said statute designed to afford protection to society against commercial traffic in human life are meaningless and a dead letter, thereby rendering escape easy from the punishment prescribed for a violation of said section by the convenient removaj of the victim to a foreign jurisdiction. As tending to show the action of the Supreme Court of this state in a ease involving a principle closely analogous to the principle involved here, we cite the case of Studer v. State, 29 O. C. C. 33 (9 N. S. 185), affirmed, no op., Studer v. State, 74 Ohio St. 519, wherein it was held that:

“In See. 7023 R. S. (See. 113027 G. C.) the gravamen of the offense is the decoying, the procuring and inducing, which being done in one county, while the house of ill-fame entered is in another, the venue to prosecute is properly laid in the county where the decoying, etc., was done.”

And the court in discussing the facts in said case on page 37, say:

“At the close of the state’s testimony a motion was made to direct a verdict on the ground that the record then showed that the house of ill-fame that was entered by these two girls was in. Stark county and not in Tuscarawas county, and that, therefore, the crime, if any crime was committed, was committed in Stark county. It is well known that a person shall not be held to answer for a charge except in the county where the crime was committed, and thus venue is important.
“It is claimed in this case that the proof shows this crime was committed in Stark county. This woman was charged with inducing, decoying or procuring these girls to enter a house of ill-fame for the purpose of prostitution. We think the gravamen of this offense is the decoying, the procuring, the inducing; and when there is the decoying, the procuring and the inducing, followed by the entrance to the house of ill-fame for this immoral purpose, you will then have the crime complete, the venue being where the decoying was laid, where the persuasion was exerted or where the inducement was held out. ’ ’

"Without further extending the discussion of this feature of the case, we are of the opinion that the venue herein was properly laid in Wayne county and that the court below committed no error in so holding.

It was also urged that the court below erred in its instruction to the jury as to the necessity of the prosecutrix being corroborated herein. On behalf of the plaintiff in error the following written request was asked to be given by the court in its charge to the jury, which was given:

“That a woman who voluntarily submits and permits an operation to be performed upon her for the purpose of proeur-ing a miscarriage is an aider and abettor of tbe crime described' in Sec. 12412 G-. C. and being the crime charged in the indictment in this case, and that her evidence should be regarded as that of an accomplice.”

In addition to giving said request the trial court also instructed the jury on this subject that—

“The testimony of an accomplice should be very cautiously received and suspiciously scrutinized, and it would be unsafe to. convict the defendant on her uncorroborated testimony alone as; to some or all of the material facts necessary to establish said crime. And in this case Margaret Ilogue is recognized as an accomplice by the law, having admitted her part in procuring said' miscarriage. * * * It is not necessary that the crime charged in this case be proven independently of the testimony of Margaret Ilogue, the accomplice, or that her testimony be corroborated in every particular in order that it may be said to be corroborated, but only that there is circumstantial evidence or' testimony of some witness other than said Margaret Hogue tending to connect the defendant Avith the crime charged, and prove some of the material facts as testified to by the said Margaret Ilogue. ’ ’

As tending to show the plaintiff in error’s guilty connection with the offense charged, testimony in the nature of confessional statements alleged to have been made by the plaintiff in error to sundry Avitnesses at different times and places was introduced, all of which was proper to be considered by the jury with reference to the evidence of the prosecutrix in determining whether’ or not the same corroborated her in some material matter and tended to connect the plaintiff in error with the offense charged.. The foregoing instruction we understand to be in harmony with, the rule laid down by our Supreme Court in the case of State v. Robinson, 83 Ohio St. 136 [93 N. E. 623; 21 Ann. Cas. 1255].

Other grounds of error are also alleged in said petition in error, among them, the improper admission and rejection of evidence upon trial, and that A'erdiet is against the manifest Aveight of the evidence, all of which Ave haA^e examined as to justify the reversal of the judgment of the court below.

Finding no error in tbe record prejudicial to tbe plaintiff in error, tbe judgment of tbe court of common pleas will be affirmed, and said cause is remanded to said court for execution.

Powell and Pollock, JJ., concur.


author: ALLBEAD, J,

text:
    AUTOMOBILES.
    [Fayette (2nd) Court of Appeals,
    May 17, 1916.]
    Ferneding, Kunkle and Allread, JJ.
    Allen v. Smith.
    1. Violation of State Speed Law by Automobile Is Negligence per se.
    Violation of the state law limiting the rate of speed for motor vehicles to twenty miles per hour upon public highways, is negligence per se.
    2. Requirement That Automobile Give Two-thirds of Highway When Meeting Vehicles Valid.
    Section 3490 R. S., requiring automobiles and motor vehicles when meeting carriages and vehicles to give two-thirds of the road, is valid and should be applied at least in all cases where the roadway is of sufficient width to permit its application with safety.
    3. Charge Misleading and Erroneous.
    In a case where the evidence shows ample width of road Jo permit the passage of vehicles, a charge to the jury that it was the duty of the defendant on meeting plaintiff to gire the statutory portion of the road, “if he could do so with safety to himself and the others then traveling with him,” is misleading and erroneous.
    Error.

      John Logan and E. H. Sanderson, for plaintiff in error.

      Post & Reid, for defendant in error.
   ALLBEAD, J,

On February 5, 1910, Frank M. Allen brought the original action for damages for personal injuries alleged to have been caused by the negligence of tbe defendant, T. T. Smith, in operating bis automobile. Tbe accident complained of occurred upon tbe public highway December 2, 1909. Plaintiff with a liorse and buggy approached from one direction and defendant with his automobile from tbe opposité direction. Plaintiff’s horse took fright as tbe automobile passed, resulting in the upsetting of the buggy and the injury to plaintiff.

Before issues were joined by the pleadings the ease was taken to the Supreme Court, which reversed the judgments of the lower courts and remanded the ease for trial, accompanying its decision with the opinion appearing in Allen v. Smith, 84 Ohio St. 283 [95 N. E. 829; 24 Ann. Cas. 611].

The negligence charged against the driver of the automobile, briefly stated, consisted of:

1. Speed in excess of twenty miles per hour.

2. Failure to give two-thirds of the road.

3. Excessive speed and failure to use due care under the circumstances.

The answer contained a denial of negligence and a charge of contributory negligence.

The case was tried to the court and jury, resulting in a verdict and judgment for the defendant.

A motion for a new trial having been overruled, a bill of exceptions was taken and the case brought to this court upon petition in error.

The trial court, in the general charge, gave the following r

"While the driving of an automobile at a' greater rate of speed than twenty miles an hour is in violation of the statute of this state and would subject the offender to criminal prosecution, still driving above the prescribed rate of speed is not negligence of such character as of itself to create a liability in damages; proof of driving a motor vehicle at a greater rate of speed than allowed by statute is competent to be considered by the jury in connection with all the other proofs as tending to show negligence. So that if you find from the evidence that at and immediately before the instant of passing Allen’s vehicle, Smith was driving in excess of the statutory rate of speed, you. should consider and give the fact such weight toward establishing the charge of negligence against Smith as you deem it entitled to in view of all the testimony in the case.”

This instruction is erroneous in view of the recent case of Schell v. DuBois, 94 Ohio St. 93 [113 N. E. 664].

The violation of the statutory regulation as to speed is now considered negligence per se, and it only remained for the plaintiff to prove that such negligence was the proximate cause of the injury.

The court further charged the jury as follows:

“It was the duty of the defendant on meeting plaintiff to turn his automobile to his — defendant’s—right of the center line of the road, that is, in the ■ direction of and towards the westerly side of said road so as to afford the plaintiff sufficient passageway for plaintiff’s horse and buggy if he could do so Avith safety to himself and the others then traveling with him. ’ ’

This may be considered in connection with special charge No. 4, to the same effect, given before argument.

Section 3490 E. S. [repealed 99 O. L. 546],- provides:

“All persons driving carriages or vehicles of any description on horseback, or on bicycle, tricycle, tandem bicycle, locomobile, meeting carriages or vehicles of any description keep to the right so as to leave half of the road free, and all persons riding on horseback, or on bicycle, tricycle, tandem bicycle, locomobile, automobile, or motor vehicle, shall, on meeting carriages or vehicles of any description, keep to the right so as to leave two-thirds of the road free.”

The trial court evidently took the view that the concluding clause above quoted, requiring automobiles to give two-thirds •of the road, was invalid, as the charge proceeds upon the theory that the driver of the automobile was required to give only one-half of the road. Counsel for defendant in error defend the ■court’s charge upon the theory that it would be impracticable and impossible in many instances to give two-thirds of the road, and that the statute in that respect is for that reason invalid. We can not, however, bring ourselves to that conclusion.

The control of the highways is largely legislative. Automobiles are of recent origin, and their use adds greatly to the •dangers of travel. There is no such inherent right in the OAvner of an automobile to the unrestricted use of a highway as would prevent the legislature from requiring the user of an automobile in passing vehicles to give two-thirds of the road.

It is a matter of common knowledge that automobiles are generally driven at a higher speed than horSe-drawn vehicles, ;and are more easily controlled.

The noise and appearance of the automobile being liable to frighten horses, it is important that the automobile be kept at a reasonable distance, so as to give the driver of the horse a better chance to pass in safety.

It is urged, however, as the highways of the state are at some points so narrow as to interfere with the application and enforcement of thp statute, that the law itself should be held invalid.

The court will, however, take judicial notice that the highways of the state are generally so constructed as to permit the enforcement of • the statute. The contention of counsel, that the entire act should be held void because at some places the roadway may be too narrow, could as reasonably be extended to a provision requiring the giving of half the road, and thus the 'law of the road would be left to the will and pleasure of the driver of the more powerful vehicle.

It is customary at points where the roadway is too narrow for safe passage of vehicles, or of a vehicle and an automobile, for the driver of one to slow down, and, if need be, stop, so as to allow the other to pass over the narrow place. It is aiso customary in eases where there is a considerable stretch of narrow road to adopt a somewhat similar method to facilitate the safe passage of both vehicles.

"While it, is probable that the strict letter of the statute could not be followed, and would not be enforced by the courts in a ■case where the roadway was too narrow to permit the rigid enforcement of the statute, yet we are clearly of the opinion that the statute requiring automobiles to give two-thirds of the road as against the driver of a vehicle should not be ignored or held invalid, but should be enforced in all cases where the width and condition of the road make it practicable and safe.

Mere inconvenience in the application and enforcement of a ■statute is not a sufficient reason for declaring it invalid. The wisdom and policy of a statute is for the legislature to determine, although the question of the inconvenience of .its application may affect its construction. Moore v. Given, 39 Ohio St. 661.

There was evidence in the case at bar tending to show that the improved and usable roadway was in the neighborhood of twenty feet wide at the point where the plaintiff’s injuries were alleged to have occurred.

One-third of the roadway reserved to the use of the automobile would be six and two-thirds feet, which was ample under the evidence to allow for the.safe passage of the automobile.

We think, under the circumstances, therefore, the trial court was not justified in ignoring the statute requiring the driver of the automobile to give two-thirds of the road.

There was evidence tending to prove that the defendant in passing the plaintiff’s vehicle failed to give two-thirds of the road, and on the contrary so kept the main part of the road as to crowd the plaintiff with his horse off the improved roadway, in such manner that the horse, frightened by the sudden and close passage of the automobile and the cloud of dust following the automobile, jumped sidewise into the ditch and overturned the buggy in which plaintiff was riding.

There was evidence introduced by plaintiff tending to prove that the plaintiff’s horse was gentle, thoroughly broken and used to automobiles. It is claimed on behalf of plaintiff that the. fright of the horse was due to the excessive speed of the defendant and the driving of his automobile so near to the horse that the plaintiff was unable to control the horse in the narrow portion of the roadway which the driver of the automobile had allowed him.

The petition having charged as a ground of negligence that the defendant failed to give two-thirds of the roadway, this issue should have been submitted to tbe jury under proper instructions.

We think the court was also in error in instructing the jury, in substance, that the driver of the automobile was required to give only one-half of the roadway, “if he could do so with safety to himself and the others then traveling with him.” This instruction would give the driver and the occupants of the automobile a superior right of safety, even though the condition of danger might have been caused exclusively by the negligence of the driver of the automobile.

The driver and occupants, of the automobile, and the driver of the vehicle, in the case at bar, had equal rights. The safety of tbe former could not be made a paramount consideration. Tbe driver of tbe automobile must exercise reasonable care, not only for tbe benefit of tbe occupants of his own car but as well for tbe driver and occupants of other vehicles upon tbe roadway. We think that it was erroneous, therefore, to instruct tbe jury that tbe driver of the automobile was bound to give one-half the road only in ease be could do so in safety to himself and the occupants of his car.

It is contended on behalf of defendant in error that notwithstanding the errors in the charge, the judgment of the court of common pleas should be affirmed under See. 11364 G. C. "We have carefully considered this contention. The evidence tending to prove negligence on the part of defendant was, in our judgment, sufficient to require the ease to go to the jury upon that issue.

There is evidence tending to show contributory negligence upon the part of plaintiff. This evidence -was not uneontra-dicted. Upon the contrary, there was a sharp conflict of evidence upon the subject of contributory negligence. We think that the case, both as to contributory negligence and contributory negligence, should have been submitted to the jury, and was of such a nature that this court would not be justified in holding affirmatively that the substantial justice of the case was so clearly in favor of the defendant in error as to require an affirmance of the judgment notwithstanding the errors in the charge.

We find no other prejudicial errors except those specified.

Judgment reversed, and cause remanded for a new trial.

Femeding and Kunkle, JJ., concur.


author: HENRY, J.

text:
    CHARGE TO JURY.
    [Lorain (8th) Circuit Court,
    April 29, 1908.
    Henry, Winch and Marvin, JJ.

      Cleveland & S. Trac. Co. v. Lisle E. Garnett.
    1. Refusal to Give Request to Find Specifically Upon Particular Questions of Fact Sustained.
    When what is intended to be a request that the court "direct the jury to give a special verdict in writing upon certain issues” amounts to nothing more than “a request to instruct the jury to find specifically upon particular questions of fact,” and is not couched in such terms as to require being given as the latter, there is no error in refusing to give it at all.
    2. Submitting Jury Interrogatories to Determine Negligence of Both Parties Proper.

    When the court in his charge to the jury in an employer’s liability case defines negligence as the want of ordinary care, it is not improper to submit to the jury interrogatories to be answered by it which require it to state whether or not the plaintiff, as well as the defendant, were negligent.
    [Syllabus by the court.]
    ERROR.

      Affirmed, no op., Cleveland & S. Trac. Co. v. Garnett, 81 Ohio St. 483.

   HENRY, J.

This proceeding in error is prosecuted by the Cleveland & S. Trac. Co. to reverse a judgment recovered against it by Lisle E. Garnett, for injuries sustained by him while1 in its employ and in consequence of an electric shock and burns by which he was crippled about the hands. Garnett was employed in the traction company’s Roekport shop and yard as a pitman, and had been in the service the better part of a year. TIis duties required him to work underneath cars, which needed repairing, in a pit provided for that purpose. He was accustomed also to perform other tasks about the yard, so that his knowledge of the use of electric currents and the presence of overhead electric wires about the yards may be presumed.

At the time Garnet was injured, he, with other employees of the company, were engaged in shifting ears in the yards, and in pursuance-of general directions in their behalf he was helping to place certain of these cars on a spur-track and was riding at the forward end of a flat-car. At the end of this spur-track was a railroad box car which had been fitted up with a transformer in order to change an alternating current of electricity into a direct, or vice versa. This car was known as a sub-station, and into the end of it, towards which Garnett and the ears upon which he was riding were approaching, some wires each of the diameter of a lead pencil were let in from a pole nearby in order to connect with said transformer. These wires entered the box car through the end and directly underneath its roof. They were insulated at the point of entrance and for a foot'or so outside the car, but beyond that they were bare. After leaving the car they extended horizontally for a short distance, before the curve of the sag carried them up to the top of the pole to which they were attached.

Garnett stood on the car with one hand on the brake, and with the other hand he gave a signal to stop, in order that the cars might not collide with this box car sub-station. While in this attitude, his upraised hand came in contact with one of the wires, and, a circuit .having been established through his body and the brake, he sustained the injuries already mentioned.

The men who were shifting these ears had not been specifically directed to put any of the cars on this particular spur-track, neither had Garnett been specifically directed to ride' on any car. He and the others chose their own way and manner of performing the work. He had not been specially warned about the particular hazard which resulted in his injuries, and he testifies that he did not know that the box car was a sub-station or that there were any wires entering it, or that any current of electricity was conducted to it. He knew, however, what a sub-station was, from his experience in the shop where another transformer was in use. The wires, moreover, which entered this sub-station were plainly before his eyes, had he been looking in that direction, and had he known of their presence he would probably have had reason to believe from his general experience, that they were charged with a dangerous electric current.

The surgeon who treated his injuries conversed with him ■ about the accident soon after it occurred, and both he and a bystander at the hospital declare that Garnett then admitted that he had known that, the wires were there and their character, and that when he raised his hand to signal he forgot about them. Garnett positively denies that he made any such statement and the jury evidently believed him. We are not prepared to say on all the evidence, that he either had or was chargeable with such knowledge. It is entirely conceivable that his notice had never been attracted to the wires entering the box car and to the danger of performing these common duties bf a brakeman in the usual manner in which he did perform them on this occasion. Under all the testimony we might perhaps differ from the conclusion to which the jury .came in this behalf, but we are not able to say that their verdict is clearly wrong, either with respect to the alleged contributory negligence and assumption of risk by the plaintiff below or on that of the negligence charged against the defendant below. We can not, therefore, disturb the judgment upon the ground that the evidence is insufficient to uphold the finding for the plaintiff in these respects.

Other errors assigned relate to the somewhat unusual matter of practice invoked by the defendant below in requesting the court to require the jury to find a special verdict under Secs. 5200 and 5201 R. S. (Sec. 11458 to 11463 G. C.) which provide that “the verdict of a jury must be either general or special” and “in all actions the jury, unless otherwise directed by the court, may, in its discretion, render either a general or special verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues. ’ ’

A special verdict is understood to be one by which the jury .returns findings upon the several issues of fact separately, leaving the court thereafter to render such judgment as the facts so found may require. When such a verdict is required the party requesting the same usually presents such form of finding as he thinks the evidence warrants, and the- court submits the same to the jury with such emendations as upon the suggestion of opposite counsel or otherwise, may seem to be required. The jury may vary the outline of the special verdict thus submitted to them in such manner as they may think the evidence makes necessary. Sometimes competing forms of verdicts are submitted representing the contentions of the opposite sides, respectively, as to what the evidence should be deemed to prove. If such forms are drawn up in a narrative style it is manifest that however useful they may be where the issue is single, they are quite unfitted to express the actual agreement of minds at which the jury will arrive respecting a great variety and complexity of issues and cross-issues, such as an employer’s liability damage ease usually presents. Generally speaking a jury is but poorly qualified to draw up a form of special verdict of its own or to materially vary a form prepared in advance for its use. In this case the narrative form of special verdict was not presented by the defendant when its request was made. Instead, a series of questions deemed by it to cover the issues in the ease' was offered, together with certain special requests to charge before argument, which were also proffered in writing. These requests to charge referred by number to various questions in the so-called special verdict submitted by the defendant, in such manner that if the form of verdict was disallowed, the requests to charge would have to be disallowed also. Both were in fact rejected by the court, and properly so, we think, under the authority of Gale v. Priddy, 66 Ohio St. 400 [64 N. E. 437], the per curiam in which at pages 403 and 404, is in part as follows:

“It does not appear that the court requested to instruct the jury ‘to find specially upon particular questions of fact,’ although questions seem to have been prepared and submitted to the court for the purpose of procuring such a special finding. Instead of such a request, the record shows that the defendant requested the court ‘to direct the jury to give a special verdict in writing upon certain issues,’ which is a very different thing. It does not appear that a special verdict on any ‘issues’ was prepared and submitted as is the general and proper practice in such cases (22 Ency. PI. & Pr. 993) ; but it does appear that certain ‘particular questions of fact’ were prepared, which counsel doubtless desired to have answered by the jury. A ‘particular question of fact’ is something different from, and less than ah ‘issue’ and the object of the statute is that these special findings, if inconsistent with the general verdict, may eontrol it. ’ ’

It thus appears that what was intended to bé a request -that the court “direct the jury to give a special verdict in writing upon certain issues,” amounted, in this case to nothing more than “a request to instruct the jury to find specifically upon particular questions of fact,” and it was not couched in such terms as that in either aspect the court was bound to grant it. The first two paragraphs of the syllabus in the same case are as follows:

“1. A request 'that the court will direct the jury to render a special verdict in writing, upon any or all of the issues in the case, is not a request to instruct the jury that if they find a general verdict, they shall find specially upon particular questions cf fact, as provided in Sec. 5201 R. S.
‘ ‘ 2. Section 5201 R. S. so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in ease a general verdict shall be rendered.”

Notwithstanding the futility of defendant’s request for a special verdict, the court did in fact instruct the jury to make their verdict special instead of general, thus heeding the request, so far forth, but substituting in place of the entire list of questions tendered by defendant below, a list prepared by the court, supplemented by certain of defendant’s questions, the same being submitted to the jury with their authorship thus distinguished. The alleged error in thus disclosing the origin of the questions in connection, with the court’s draft of special verdict is, in our opinion, without foundation. Some of the defendant’s questions so submitted, were answered by the jury in a manner as favorable to the defendant as it could ask, and in any event we can see no prejudice to it in this procedure. If the court could not of its own motion require the jury to return a special verdict under the statutory provision in that behalf, the color of the defendant’s request therefor, informal and invalid though that request was, would suffice to sustain the court’s action in this respect, and the same is true with respect to the court’s drafting in the form of interrogatories instead of in narrative form, tbis special verdict which it instructed the jury to return. The impracticability of formulating a special verdict in narrative form in this ease, in view of the complexity of the issues; the practice which the defendant had already sought to establish by drafting its request for a special verdict in the same manner; and its failure to withdraw its request for a special verdict; in the turn which the case finally took before submission to the jury, -render it impossible for us to hold that the court committed an error in the matters of practice which we have just discussed.

It is said, however, that the questions submitted to the jury with the answers thereto, can not collectively be considered as a special verdict on the facts alone, so as to dispense with the general verdict, for two reasons.

1. Because it does not exhaust all the issues in the case.

2. Because it includes findings other than those of mere fact.

On the first point it is true that many of the probative facts sought to be elicited from the jury in the form of the so-called special verdict, submitted by the defendant below, were of such a i-ature, within the rule of Gale v. Priddy, supra, as that ultimate material facts might have been inferred therefrom, and if the interrogatories of this character had been submitted with a proper request to the court to instruct the jury to find specially upon the particular question of fact to which they related, it would undoubtedly have been the duty of the court to submit them to the jury accordingly. Considered, however, as component parts of a special verdict, they were not essential questions, if all the issues of fact in the case were otherwise fully covered in the form of verdict actually submitted; and this after careful examination we find to be the case. It would perhaps be unprofitable to enter into a minute examination here of all of the issues of fact presented by the pleadings and in the special verdict found by the jury. Suffice it to say that point by point we have set the pleadings over against the verdict and find that the latter completely covers all issues made by the foreman.

On the second point (if the jury in returning a special ver-diet is confined by the statute to the facts), the question of neg-ligenceis, as frequently said by your Supreme Court, a mixed, question of law and fact; and.the form of special verdict submitted by the court to the jury in this case required them to answer specifically whether the defendant was negligent, and also whether the plaintiff was negligent. In the charge negligence was defined as want of ordinary care, and ordinary care iwas defined in the familiar terms laid down by our Supreme Court. If the jury had been asked to say whether plaintiff and defendant respectively exercised such care, in respect to the matters charged to be negligent in the pleadings, as persons of ordinary prudence are accustomed to employ under similar circumstances, such questions, together with the jury’s answers thereto, would, we think, have been within the realm of fact as distinguished from conclusions of law. With the term negligence defined as the court did define it to the jury, the circumlocution was avoided and the same result follows as if the more involved phraseology had been employed in the verdict itself.

We hold, therefore, that the errors assigned in regard to the special verdict were all unfounded.

It would extend this opinion to undue length to consider at large all the numerous exceptions reserved in respect to the production of evidence, the- charge and requests to charge, etc. Suffice it to say that we have carefully examined every point urged in the arguments and briefs of counsel, without finding any reversible error in the record, and the judgment is therefore affirmed.

Marvin and Winch, JJ., concur.


text:
    PRINCIPAL AND AGENT-VENDOR AND PURCHASER.
    [Lorain (8th) Circuit Court,
    April 29, 1908.]
    Henry, Winch and Marvin, JJ.
    R. F. Powell v. W. N. Little.
    :Real Estate Commissions not Collectible When Purchaser Introduced Was Without Desire to Purchase at Time.
    In an action by a hotelkeeper against a real estate agent to recover on a contract whereby the latter agreed to pay to the former one-half of all commissions on sales made “to customers desirous of purchasing real estate who should be introduced by the plaintiff to the defendant,” it is not error for the court to charge that should the jury find that a person to Whom the agent subsequently sold real estate was not, at the time of introduction to defendant by plaintiff, desirous of purchasing real estate, then the plaintiff has failed to establish the performance of the contract on his side.
    ERROR.
   HENRY, J.

The parties to this proceeding in error stand related as they stood below, the jury there having returned a verdict for defendant. The plaintiff in error, Powell, being the landlord of a hotel in the city of Lorain, claims to have entered into an oral agreement with the defendant in error, Little, a real estate •agent of the same place, whereby the latter was to pay to the former one-half of all commissions on sales made to customers desirous of purchasing real estate who should be introduced by Powell to Little. One Jane Miller was introduced by Powell to Little and the latter made a number of sales to her from which it is claimed that he received $3,675 in commissions. On plaintiff’s demand, the defendant paid him $400, but refuses to pay him the balance of $1,437.50 which he still claims.

The defenses interposed are, first, that no such agreement was entered into; secondly, that at the time of' Jane Miller’s introduction by Powell to Little, she was not in fact desirous of purchasing real estate; thirdly, that the $400 was paid by way of settlement of plaintiff’s entire claim which defendant dis-pitted, and that after said settlement, Powell, treating bis relations with Little as ended, sought to defeat further sales through him to said Jane Miller; and fourthly, a partial defense, namely,, that defendant received only $2,250 in all by way of commission on sales to Jane Miller.

The whole testimony of the defendant Little, who was called by plaintiff 'for cross-examination, with his cheeks and statements in writing made to Powell, and also the testimony of Gilbert Lackey and F. A. Wilder, seem to show that a contract substantially as claimed was entered into between the parties and if the verdict of the jury hinged only upon this issue we should be inclined to hold that it is unsupported by the evidence.

Upon the issue, however, of Jane Miller’s desire or intention in regard to the purchase of real estate at the time of her introduction to the defendant, she and Little both deny that she-entertained or manifested any such purpose until it transpired that her desire to lease a storage warehouse could not' be realized. The change of plan occurred, however, very speedily in Little’s negotiation with his new found customer, insomuch that having convinced her of the impracticability of leasing and the necessity of buying outright such property as she desired to use, if her object was to be attained at all, he actually sold her several parcels of land within the next twenty-four hours.

This is, Of course, a very narrow distinction to draw, and if the jury had found the other way upon this issue, in view of all the evidence relating to it, we should have been, perhaps, more-content with the accuracy of their deduction. The narrowness of the distinction is, moreover, emphasized by defendant’s third request to charge, which was granted, and the latter half of which is as follows:
‘ ‘ If you find from the evidénce in this case that the contract, alleged in plaintiff’s petition was entered into by the parties, thereto, then I say to you that it will be necessary for you to further consider the evidence in this case and determine whether the said Jane Miller was introduced to the defendant by plaintiff as a person desirous of purchasing real estate in the city of Lorain, Ohio, and should find.from the evidence which has been given to you that at the time of said introduction the said Jane. Miller was not desirous of purchasing real estate in the city of Lorain, then the plaintiff has failed to establish the performance of the contract on his side, if yon find there was one, your verdict should be for the defendant. ’ ’

This charge is complained of as misleading and as misstating the contract; and, indeed the words “introduced as a person desirous of purchasing real estate,” when considered by themselves might well be misleading, as laying stress upon a possible defect in the manner of introduction. But in the' next phrase of the same sentence, the point on which the jury’s finding on this issue is required to turn is, was or was not Jane-Miller, at the time of the introduction, in fact desirous of purchasing real estate in the city of Lorain1?” Narrow as the distinction undoubtedly is, the request to charge follows the language of the petition in this respect. This charge was requested in writing to be given before argument, and the court could only grant or refuse it. It could not be modified. If the. phraseology was ambiguous, it was plaintiff who first used it,, and not only so, but he retained it in his second amended petition after he knew from defendant’s answer to his former petition that it would be made the basis of this very distinction. Should the court have refused this request to charge that if the-jury were of opinion that plaintiff had not proved the fulfillment of the terms of his agreement as the same were recited in the plaintiff’s petition, their verdict must be for the defendant? A majority of the court think not. and we find no error in the particulars thus discussed.

The exceptions reserved during the production of evidence-we have examined one by one. Without rehearsing them here, we find that some exceptions to the exclusion of evidence are not supported by offers to prove.- Others, particularly in the examination of the witness Coulter, are not sustainable, because of the-hearsay rule. Suffice it to say that we find none of the assignments of error to be well founded and the judgment is affirmed.


author: GORMAN, J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    June 14, 1915.]
    Jones, Gorman and Jones, JJ.
    Cincinatti Trac. Co. v. Otto W. Edwards, Admr.
    1. Pedestrian Crossing Street Struck by Street Car Running at Excessive Speed Negligent if he Could Have Seen and Heard it Approaching,
    If a pedestrian at a street intersection saw or heard approaching street car in front of which he stepped and was struck, or could have seen and heard it had he looked and listened as an ordinarily prudent person would have done under the circumstances, his own contributory negligence will defeat recovery, notwithstanding the defendant company was negligent in running the car at a high and dangerous rate of speed.
    2. Instruction as to Last Chance Doctrine Erroneous When not Applicable.
    Por a trial judge to assume in his charge to the jury that an accident occurred at a given point, when there is uncertainty as.to the point at which it occurred and the question should have been left to the jury to determine is prejudicial; so also to Charge that decedent had a right to assume the motorman would not. approach the crossing in a negligent manner, when he could have seen had he used his eyes that the car was approaching at a very high rate of speed; to fail to charge on the subject of contributory negligence when a request so to do had been made; or to charge on the 'doctrine of “last chance” when there was no evidence showing that the doctrine was applicable.
    Error.

      George H. Warrington and Robert 8. Marx, for plaintiff in error.

      Fulford, Shook & Schwaab, for defendant in error.
   GORMAN, J.

Tbe defendant in error as administrator of Seburn Edwards, deceased, brought an action in the superior court of Cincinnati to recover damages resulting to the next of kin of Seburn Edwards, deceased, on account of the alleged negligence of the plaintiff in error which resulted in fatal injuries to decedent from which he died the day following the injuries. A verdict and judgment for $3,500 was given in favor of the defendant in error, and this proceeding is here to reverse said judgment.

Tbe facts of tbe case, as disclosed by tbe record, necessary to be set out are substantially as follows:

On tbe nigbt of November 9, 1911, at or about 9:30 o’clock,. Edwards, tbe decedent, undertook to cross Erie avenue from tbe' south to the north side thereof at or near tbe intersection of Shady lane in Hyde Park. Erie avenue, running east and west,, was and is eighty feet wide at this point and for a distance of several squares east and west of this point. Tbe sidewalks on cither side of this street are ten feet wide. There was a double street ear track on Erie avenue, the outer rails of which were eleven feet from either curb; the tracks between the rails were live feet in width; and there was a roadway of twenty-eight feet between the east-bound and west-bound tracks.

At the time Edwards stepped from the south curb to cross: to the north side of the street, a ear owned and operated by the plaintiff in error was approaching Shady lane from the east, and was about 1,000 feet east of Shady lane going west on the-north side of Erie avenue at a great rate of speed, estimated by two witnesses at from twenty to twenty-five miles per hour. The lights in the car were all lighted, the headlight was burning, and the gong according to most of the witnesses was being rung continuously from Paxton road, a point 900 or 1,000 feet east of Shady lane, down to Shady lane. From Paxton road to Shady lane the grade is quite sharp .towards the west. The testimony of some of the witnesses who observed Edwards crossing the street is that he staggered, walked zigzag or wobbled, and appeared to be intoxicated. One witness who observed him while-crossing saw nothing peculiar in his gait. There was evidence tending to show that he ordinarily walked with a swaying motion or a perceptible swinging movement. T,here was, evidence tending to show that he had been in the habit of drinking to excess at times and that his wife had secured a divorce from him about one yean before, among other grounds on that of habitual intoxication, failure to provide and extreme cruelty.

There were no other vehicles on Erie avenue except this ear for several squares east or west of Shady lane. There were no .obstruction on the street to prevent any ordinary person situated as Edwards was and possessing ordinary sight and hearing, from seeing and hearing this car.

Edwards was struck by- this west bound car at some point west of the northwest corner of Erie avenue and Shady lane, variously estimated at from 15 feet to 100 feet, and the body was found at this point near the north gutter. When taken up he was unconscious and was removed to the city hospital where he died the next day, from the effects of his injuries, without regaining consciousness, leaving, two sons as his next of kin. The •car that struek him ran a distance of about 100 feet before it was stopped.

All of the evidence as to the occurrence was offered by the plaintiff below. The defendant below did not offer the motorman or any other witness as to how Edwards was injured, but only offered two witnesses as to the earnings'of Edwards during the year prior to his death. No one riding on the car saw the .accident. The four witnesses who saw Edwards before and at .about the time he was struck were all on the north side of Erie .avenue east of Shady lane. One witness. Mr. Fening, was standing either on the northeast or northwest — probably the northwest — corner of Shady lane and Erie avenue, waiting to board the car and signaling it to stop, and did not see Edwards struek. The- ear passed him without stopping, and ran about 150 feet west of him before stopping. Edwards must have been «truck west of the place where Fening was standing, and the car when it struek him was interposed between Edwards and this witness thus cutting off his view.

These four witnesses who saw Edwards before and just .about the instant he was struek say that he walked upon the track just in front of the ear, one or two of. them stating that just as the ear was almost upon him he threw up his hands. They say that when he stepped upon the track the car was so near him that it was impossible to stop the car in time to avoid striking him because of the high rate of speed at which it was "traveling. 1

The defendant, among' other things, set up the plea of contributory negligence, and at the close of plaintiff’s evidence and again at the close of all the evidence moved the court to instruct tbe jury to return a verdict in its favor on the ground that the undisputed evidence showed that decedent came to his death by his contributory negligence.

These motions were overruled, and the principal error urged in this court is the failure of the trial court to grant said motions.

There are other errors urged such as gross exeessiveness of the verdict, errors in the charge prejudicial to defendant, and the admission of hearsay, incompetent and immaterial evidence over defendant’s objection.

Without undertaking to set out or analyze the testimony of the witnesses embraced in a voluminous bill of exceptions of 450 pages, we have come to the conclusion from a perusal of the record that the evidence is such that there is a presumption that decedent came to his death by reason of his contributory negligence. There is no question but that the defendant company was guilty of negligence in running its car at such a high and dangerous rate of speed at the time when and place where the injuries were indicted on decedent; but it is quite clear that the decedent could not have failed to see and hear the rapidly approaching car for a considerable distance before he was struck, if he had looked or listened. It was his duty to use his faculties and ordinary care under the circumstances to avoid being injured. We think that upon the evidence adduced on behalf of the plaintiff it manifestly appears that the decedent was negligent in going upon the car track at the time and place shown, when by the exercise of ordinary care he would not have been injured. Whether his conduct was due to carelessness, intoxication or premeditation, we can not say, but it appears clearly to us that plaintiff below failed to remove the presumption raised by his evidence that the proximate cause of Edwards’ death was his contributory negligence. The burden was upon plaintiff to remove this presumption by evidence sufficient to establish the fact that Edwards’ own contributory negligence did not bring about his fatal injuries.

If Edwards saw and heard the car when he stepped upon the track in front of the rapidly moving car, he was guilty of such contributory negligence as precluded a recovery in this case. If he did not see or hear the car when he could have seen or heard it had he looked and listened as an ordinarily prudent person would and should have done, then he was guilty of contributory negligence and plaintiff should not recover. There was no evidence adduced that his eyesight or hearing was impaired, and the evidence clearly shows that an ordinarily prudent person whose sight and hearing were unimpaired, situated as Edwards was at the time and place the car was approaching him just before he stepped upon the track could not have failed to see and hear the car and realize the danger of attempting to cross the track in the face of this fast moving car. Cincinnati Trac. Co. v. Charles, 33 O. C. C. 437 (14 N. S. 506); affirmed, no op., Charles v. Cincinnati Trac. Co. 87 Ohio St. 475.

As to the claim that the verdict was grossly excessive, we are not prepared to say that it was so if the plaintiff had a right to recover, although it is extremely doubtful if the evidence shows that his two sons would have benefited in a pecuniary sense to' the extent of $3,500 had Edwards’ life not been crushed out at the time and place of the accident. It is indeed a harsh, coldblooded rule which the law lays down in capitalizing the value of a man’s life to his next of kin, but there is no other rule known, to the courts in determining what damages shall be awarded for the wrongful death of one to those who have a pecuniary interest in his life, except to ascertain and speculate, as it were, how much is that human being worth to his next of kin as a moneymaking machine, taking into consideration his age, health, habits,” ability to earn money, how much he has earned, how much he gave to his next of kin and the probabilities of his life, and such other facts as would enable a jury to place a monetary value on his life to his children, his next of kin.

There were several errors in the general charge; for instance the assumption by the court that Edwards was struck at a. street crossing, whereas this was a question of fact to be submitted to the jury under proper instructions; the statement in the charge that Edwards had a right to act upon the assumption that the motorman would not be negligent in approaching the' crossing, when the evidence showed that Edwards saw or could have seen without assumption that the car was running at a high and excessive rate of speed. He knew, or should have known if be bad used bis faculties, that be could not at the time and place rely on any such assumption. Coal Co. v. Estievenard, 53 Ohio St. 43, 58 [40 N. E. 725]; Wahash Ry. v. Shiles, 64 Ohio St. 458 [60 N. E. 576].

The court failed to charge correctly on the question of con-tributqry negligence which was pleaded, and although asked to charge upon this point by defendant’s counsel there was a failure to respond to the request. This we think was error.

The court charged on the doctrine of “last chance” when there was no evidence, as we read the record, showing a last chance case. In order to make out a case of last chance it must be made to appear that the party billed or injured was in a position of danger caused by his own neglect and from which he can not extricate himself, and that his condition and danger are known to the other party who neglects or fails to avoid injuring or killing the person in a dangerous situation. Erie Ry v. McCormick, 69 Ohio St. 45 [68 N. E. 571]; Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. 282; 16 L. R. A. 674]; Davies v. Mann, 10 M. & W. (Eng.).

The court erred in the admission of the evidence of Mr. Conway, Edwards’ attorney, as to his opinions of Edwards’ habits.

All of these errors herein pointed out were, in our opinion, prejudicial to defendant below. We are, therefore, of the opinion that because of these errors substantial justice was not done in this case, and that the judgment of the trial court should be reversed and the cause remanded for a new trial.

Jones (E. H.) and Jones (O, B.), JJ., concur.