author: Parker, J.

text:
    (Sixth Circuit — Lucas Co. O., Circuit Court—
    Dec. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE L. S. & M. S. Ry. CO. v. MORTAL.

      Bail Boad — Ticket at reduced rate — Conditions not binding on *passenger unless actually known—
    (1) .' Where a party purchases a holiday ticket on a railroad at a reduced rate, such ticket having printed thereon special con ■ ditions, one of which is that the purchaser must sign the ticket in the presence of the ticket agent, at a certain blank space reserved therefor, at the time of purchasing the ticket ' and again at the place of destination before entering upon his return trip, for the purpose of identification, and where the agent who sold the ticket neglected to have the ticket signed by the passenger at the time of the purchase, and the purchaser is not aware of such stipulation on the ticket, and fails to sign the ticket in presence of the ticket agent before entering upon his return trip, and is in consequence of the fact that his ticket is not sighed expelled from the cars, the R. R. Co. is liable to him for damages for such expulsion as for a tort.
    Same—
    (2) . The purchaser of a railroad ticket, even at a reduced rate from the regular rate, does not by its mere acceptance acquiesce in and bind himself to all the terms and conditions' printed thereon in the absence of actual knowledge thereof..

      Same — Compensatory damages only proper under facts of case— (3) , Under the circumstances of this case, no vindictive or piunitive damages could be found, but only compensatory damages were proper; and a suggestion that unless a substantial verdict is returned against the railroad in cases of this kind, passengers would not be secure in their rights, and that their rights would be violated with impunity, can not be considered by tije jury where only compensatory damages are properly allowable.
   Parker, J.

On December 24, 1894, the defendant in error purchased two tickets from a ticket agent of the C., C., C. & St. L. R. R. Co., at Marion, Ohio, fora trip from Marion, Ohio, to Erie, Pa., and return tc Marion, Ohio. The tiokets were over the line cf railroad of said company to Cleveland, and thence over the line of the Lake Shore & Michigan Southern Railway Company to Erie, returning by the same course.

These tickets were purchased for the purpose of the passage of the plaintiff and his wife and family, the family, 'beside the wife, consisting of four children, their ages ranging from one year old to ten years old. When the defendant in error applied for the tickets, he was inquired of by the agent of the company at Marion whether he desired holiday tickets or holiday rates, and he nodded his head, or in some way indicated his assent. It appears that the rate for a holiday ticket was somewhat less than the regular rate over those roads between those points. It also appears that the holiday .tickets were limited in time for the passage, and that this was understood by the defendant in error at the time he purchased the tickets; that the limit for return upon these tickets was January 2,1895. He and his family took passage upon the road at Marion, proceeding to Cleveland, thence over the line of the road of the plaintiff in error to Erie, Pa., the tickets being accepted for such passage without question by the conductors of both lines of railroad.

Defendant in error with his family started from Erie to return to their home at Marion on December 81, 1894, boarding a train on the road of the plaintiff in error at about ten o’clock in the forenoon of that day. After the train had proceeded a short distance westward from the city of Erie on its course to Cleveland, the conductor passed through and the ticket were presented to him. He notified defendant in error and his wife that the tickets were not good for their passage. At that time he did not advise them why, but returning a few minutes later he informed them that the tiokets were not good and that they must pay fare or leave the train at the next station, which was Swanville, about ten miles west of Erie, because they had not procured them to be stamped by the agent of the plaintiff in error at Erie, and called their attention to a oertain provision printed upon the face of each of the tickets which reads as follows:

“4th. It is not good for return passage unless the original purchaser identifies himself cr herself as such to the authorized agent of the Lake Shore & Michigan Southern Railway, at point between punch marks, before commencement of return journey, and when this ticket is officially executed by being signed in ink, and stamped by such agent in space provided on baok of this contract, it shall then be good for return journey tc original starting point if used with — 'days next following date of such execution; provided further; such return limit shall not extend beyond date punched under hoad of “Extreme Return Limit,” which date, as I have said, was the 2nd day of January, 1895.

Because of this notification and requirement upon the part of the conductor, they alighted from the train when it arrived at Swanville. There is some dispute as to whether the conductor was himself present at the time they got off the train at Swanville, — 'whether it was not the brakeman, as contended by the railroad company, instead of the conductor as contended by the defendant in error, but that, in the view we take of the case, is immaterial. While there was no force or violence used to eject them from the tram, we find that the record supports the allegation that they were required by the conductor to leave the train. If they had been permitted to remain upon this train, it appears that they would have arrived at their home, Marion, Ohio, about 6 o’clock in the evening of that day. They were required to wait some time at Swanville, when they obtained passage upon another road running by the station of the road of the plaintiff in error, and returned to Erie, Pa., where they procured the tickets to be stamped, as required by this provision, by the agent of the plaintiff in error, and then they boarded a later train on the road of plaintiff in error and pursued their journey homeward, their tickets being aocepted by the conductor upon that. traiD, and arrived home about 1 o’clock of the following morning.

An action was brought by the defendant in error (plaintiff below) for the damage which he says accrued to him by reason of the tort committed by the plaintiff in error, (defendant below) through its servant in requiring him to leave this train at Swansville, he contending that bis ticket did not require a stamp upon it by the agent at Erie; that it should have been accepted by the conductor; that he should have been permitted to remain and ride upon the train, and that the action of the railroad company through its servant, the conductor, in requiring him to leave the train was wrongful. He claims damages on account of the loss of time, inconvenience, etc., incident to this action of the conductor,and for the injury to his feelings, the humiliation and mortification that he suffered ly reason of being required to leave the train in the presence of many passengers, who,.he says, were upon the train at the time and observed what occurred. Though the ticket held by or for his wife is identical in form with that held by defendant in error, yet as this aotion involves his right only, I shall hereinafter refer to his ticket only.

In addition to this provision which I have read, there are other provisions printed upon the ticket limiting the right of the passenger holding it and limiting the duties and obligations of the railroad company with respect to such passenger, making them somewhat different and less than the duties and obligations of a railorad company to an ordinary passenger holding an ordinary ticket. These are set forth in paragraph numbers 1 to 11 inclusive.

Following the provisions printed upon the face' of the ticket, is a space left for the signature of the purchaser of the ticket, and another space left to be filled by the signature of the agent selling the ticket as a witness to the signature of the purchaser, another space for the date of the sale to be filled by the agent selling.the ticket, and upon the back of the ticket is a blank form reading as follows:

“Agent of the Lake Shore & ] “Agent of the Cleveland,, Michigan Southern- R’y will ] Cincinnati, Chicago & St., stamp in space below and wit- [ Louis Ry Co, will stamp in ness signature of original pur- j space below, chaser. ¡
“In compliance with my contract with the Cleveland,. Cincinnati, Chicago & St. Louis Railway Co. and lines over which this ticket reads, I hereby subscribe my names as-the original purchaser cf this ticket.
.......................Original purchaser.
“Witness:........................
“Dated....................189. .
None of these blanks were filled in. The purchaser was not required to sign the ticket upon obtaining it and paying for it. The agent of the company at Marion did not sign it, the purchaser did not present the ticket to the agent at Erie before taking passage upen the train from which he was ejected, nor did he sign it in the blank upon the back of the tioket.

That the agent of the C., C., C. & St. L. R. R. Co. at Maricn was the agent cf the plaintiff m error in selling the ticket in question, is fairly established by the evidence in this case. The acceptance of the ticket on the going trip, the rejection for certain specific reasons only by the conductor of the plaintiff in error, tire subsequent stamping of the ticket by the ticket agent at Erie, the subsequent acceptance, etc., are sufficient evidence of agenoy, or cf ratification of the authority of the agent at Marion.

There is no evidence tending to show that the conductor did not act in entire good faith in requiring the defendant in error to leave the train; but the fact that the conductor may have acted in good faith and may have supposed that he was obeying the rules of the company, even if he was in fact obeying the rules of the company laid down for h'is guidance, would afford no excuse to the company in a suit brought against it for tort in the violation of its .contract with the passenger. This has been recently held, though perhaps it is so plain that it does not require the citation of any authorities in support of it, in the case cf the P., C., C. & St. L. Ry. Co. v. Reynolds, 55 Ohio St., 370. At page 384, Judge Minshall, in the closing paragraph of the opinion, uses this language;

■ ‘The genera] principle derived from the cases is, that where, by the fault of an agent of theoompany, a passenger takes the wrong train, or is without a ticket, or one imperfectly or erroneously stamped,or for any similar reason,and is ejected by the conductor of the train in pursuance of the rules of the company, it is liable to him as for a tort. The rule concedes to the company the right to make reasonable rules for the conduct of its business and to require their enforcement-bv its agents. The contingency that in certain cases the company will be made liable by the act of its conductor in following its rules, where the appearances on which the act is created by the fault of another agent, of which he had no knowledge, is a risk incident to the privilege enjoyed of making rules, and it should .suffer for the fault of the agent that caused the mistake, rather than an innocent person.

The principal question presented for our consideration arises upon the charge of the court as to the rights and obligations of the plaintiff below as a passenger, and of the defendant below as a carrier of passengers under the faot, and epecially with referenced this clause No. 4, printed upon the face of the ticket.

The court charged the jury in effect that if the plaintiff below knew or this matter printed upon the tioket before or at the time he purchased and received the tioket, or if by the use of reasonable prudence, care or diligence, he might or ought to have then known of it. he was bound by it as a part of the oontract respecting his rights to travel or be carried as a passenger, and that under such circumstanoes the conductor of the defendant company has a rigt to eject him from the train; but if he did not then know of it, or might, or ought net to have become aware of it, he was not bound by it, and his ejection from the train was wrongful.

Plaintiff in error contends that this is error; that the stipulations or conditions printed upon the ticket form a part of the contract for oarriage, and that the defendant in error was bound thereby whether he knew of or read the same before or at the time he bought the tioket or not; that he was bcund to know and observe what was printed plainly upon his ticket; that even if the omission of the agent at Marion to require him to sign the ticket at the time he purchased it amounted to a waiver of the requirement that he must sign it on the back for the purpose of identification at the Erie office, that that would not operate as a waiver of any of the other conditions printed on the tioket, and especially not that as to having it stamped by the agent at Erie.

Since the purchaser of the ticket did not sign this ticket at the office wher9 issued, and did not by knowledge and acquiescence, or otherwise, assent to these provisions and limitations, it would seem to present a.question whether they could have had any effect upon him in any aspect of the case rather than whether any thing was waived.

Did the company ever require or seek to require him to agree to these qualifications of the general duties of the company on the one hand, or of the rights of the passenger on the other hand? We are'of the opinion that under the circumstances which the testimony adduced on behalf of the defendant in error tends to show, that is, that these stipulations were not known to or noticed by him; that his attention was not called to them; that he was not required to sign the same before or at the time that he purchased the ticket, he was not bound by them, and that he would not have been bcund to observe or comply with this requirement even if it had come to his knowledge after buying the ticket. That that is true of the provision as to signing at the Erie office is conceded in argument by counsel for plaintiff in error, and we think properly. This point is decided in Kent v. Railroad Company, 45 Ohio St., 284. In that case the holder of a ticket was required by a conductor as a condition of his remaining upon the train, to sign the ticket, and declining to do so, he was ejected from the train. He objected to signing because he understood that by so doing he would assume oertain risks and waive certain rights against the company so as to modify materially his rights as a passenger as against the company. It appears that was no objection on the part of the plaintiff in that case to any part of the contract which he was asked to sign except that contained in the sixth clause, which reads as follows:

“6. That in consideration of the reduced rate at whioh this ticket is solo, and the privilege of using it on all regular passenger and suoh freight trains as are advertised to carry passengers, the purchaser assumes all risk of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence or fraud on tlie part of its agents, or otherwise, for any personal injury, or for any loss cr injury to his or her property or baggage while using the ticket, and agrees that he or she will not oonsider the company as common carriers, or liable to him or her as such. ”

Judge Owen says, in the course of the opinion, at page 288:

“There is nothing in the circumstance that the ticket in the oase at bar was sold'at a rate reduced from the regular fare, to take it out of the rule,” referring to the general rule stated in the preceding paragraph, as follows:
“It is well settled that the purchaser of a railroad ticket does not, by its mere acceptance, acquiesce in, and bind himself to, all the terms and conditions printed thereon in the absence of actual knowledge of them.”

It is urged that this amounts to an intimation that where a ticket is sold at a reduced rate, there is something in that oircumstance to take the case out of the rule. Read in the light of the facts of the case, we think that expression is of an opinion directly the opposite of that which counsel for the plaintiff in error believe is intimated. In that case the ticket was cf a special sort, and because the passenger was of a special class, that is, the agent of a shipper, was sold to him at a reduced rate. The court says these acts did not take the ease out of the rule stated in the preceding paragraph, which rule 1 have read.

In the case at bar the reduction in the fare does not appear to have been different from that given to all passengers making return trips at the holiday season. That the plaintiff below was fairly apprised of the special limitation as to time for the use of such ticket fairly°appears and may be held, but that he was by that circumstance apprised or even put upon inquiry as to any further special limitations upon the contract, we think does not follow. In the case of the B. & O. R. R. Co. v. Campbell, 36 Ohio St., 647. the same doctrine is held with respect to the provisions limiting the liability of the carrier as to baggage, suoh a provision as is found in clause 6 of the ticket in the case a bar the clause reading:

“6th. Baggage Liability is limited to wearing apparel not exceeding $100 in value.”

The rule that a railroad ticket with such stipulations printed upon it but not signed by the passenger or otherwise agreed to does not constitute an agreement including suoh terms, but is simply a voucher that the person who holds it has paid his fare, is very distinctly stated in the case last cited as a well-settled rule in Ohio. The reasons for the rule and the rule in our opinion apply with full force to such provisions on a ticket as those contained in clause 4 printed upon the face of the ticket in the case at bar. Derothea Rawson v. The Pennsylvania R. R. Co., 48 N. Y., 212, is a well considered case holding the same doctrine.

An authority to which we are cited in support of the contention that a ticket containing such a provision need not be signed hy the purchaser in order that he shall be bound thereby, is Drummand v The Southern Pacific R. Co., 7 Utah, 118, as digested in a note at page 1091 of vol. 25, of the American and English Encyclopedia of Law; but wheth-r the purchaser in that case assented or agreed to the provisions otherwise than by signing does not appear. We have not seen a full report of the case. If there was not such assent or agreement, the case cannot be reconciled with the oases of Kent v. Railroad Co. and Railroad Co. v. Campbell, supra.

Holding the views here expressed, it follows that we find no error in the charge of the court, or in the refusal of the court to oharge as requested on this proposition.

We find no other errors in the record material and prejudicial to the plaintiff in error unless it be in the ruling of the court upon the motion for a new trial, in which it was set forth as a ground for a new trial that the damages allowed are excessive.

In This case there is no evidence of any rudeness, violence or insult upon the part of the conductor who required the defendant in error^with his family to leave this train. It is said by them that he was firm — I believe that is the word used, something to indicate that he was decided and firm— in the requirement. It does not appear that the attention of any passenger in the car was attracted to them by what occurred between them and the conductor. So far as appears from the record the passengers in the oar other than these people might have supposed that they had taken passage for the village of Swanville, and Wore there alighting from the train because that was their destination. There is no positive evidence that the plaintiff in fact felt humiliated or disgraced by what occurred. He does not say so. There was nothing said to him by the conductor impugning his motives or impeaching his honor. The conductor appears to have simply called his attention to the fact that he had omitted a formal requirement which the conductor as an agent of the company was bound to insist upon before allowing him to continue upon the train.

It appears that he was accorded the privilege of paying fare tor himself and wife (the children being under the age at which fare was required of them) to Cleveland, and that it was said to him by the conductor that by so doing he might have his ticket stamped there and proceed upon his journey without delay. This would have required him to spend perhaps only temporally, a little over $5.00. There is nothing in this testimony tending to show that if he had done so he would have thereby admitted or conceded in the presence or with the knowledge of other passengers that he had been insisting upon something wrong, and that thereby he would be subjecting himself to any imputation of attempting fraud upon the railroad company.

It appears that the conductor or the brakeman — there is some dispute about which, it is immaterial which — assisted them to alight from the train, spoke to the agent at Swan-ville and explained the situation to him, and asked him tc secure passage for them free back to Erie; that they desired to go upon a train earlier than any furnished hy that railroad, and so were required to pay .their passage upon the other road that took them back to Erie.

It is not a case in which the jury was authorized to allow any vindictive or punitive damages. It has been suggested that unless a substantial verdict is returned against a railroad company in a case of his kind passengers will not be secure in their rights, and that their rights will be violated with impunity. We think such a sum might have been allowed by the jury as would have pervented the likelihood of anything of this kind resulting without its being as large as was returned in this case. That, however, if it had entered into the consideration of the jury, would have been a consideration proper if the allowance of vindictive or punitive damages had been proper, and not otherwise. They had no right to consider anything of that kind where only compensatory damage was to be allowed. We are of the opinion, that the verdict is excessive, and we conclude that if the defendant in error is willing to enter a remittitur as to all exceeding $350.00, with interest from the first day cf the term at which the verdict was returned, the verdict will be affirmed; otherwise it will be reversed because of the excessive damages.

Hon. C. P. Wickham and George E. Reiter, Attorney for Plaintiff in error.

Johnson & Young, and Phinney & Merrill, Attorneys for Defendant in Error.


source: Caselaw Access Project

author: Scribner, J.

license: Public Domain

text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    Sept. Term, 1892.)
    Before Haynes, Bentley and Scribner, JJ.
    CHARLES W. MILLEN v. S. M. YOUNG, Adm’r.

      Imbecile — Guardian—Opening up settlements of accounts—
    (1). After an account rendered by the guardian of an imbecile has been passed upon in due form by the probate court having jurisdiction exclusively over the matter — the court has no power, at a subsequent day, or in a subsequent year, upon the mere motion, suggestion, or request of the heirs of an imbecile, or of a ward, to open up the account, place the matter in statu quo, and impose upon the guardian the duty of going back and establishing by evidence every item of debt which is contained in his account. This can only be done where it is shown by the excepting parties that a mistake or fraud has entered into such settlements, and to that extent only can such settlements be reformed and corrected — Sec 6304, R. S., construed.
    Error to the Court of Common Pleas of Huron county. .
   Scribner, J.

In the case of C. W. Millen, guardian, v. S. M. Young, there are two cases in error here, identical in their facts and in the questions'of law, and they will be disposed of together, as they were argued together.

In this caso, or these cases, the plaintiff in error seeks to reverse the judgment of the oourt of common pleas, confirming certain orders madp by the probate court upon applications made in that court to open certain accounts of the plaintiff in error, the guardian of Fanny M. Post, imbecile, which had been settled, or passed upon and settled theretofore by the probate court of this county.

The facts are briefly these: Charles W. Millen as guardian of Fanny M. Post, imbecile, files his first partial account for settlement in the probate court of this county on March 21, 1888. I have not rhe date of his appointment, but that I do not regard as important. This account was passed upon and approved by the probate court on April 26, 1888. The entry of that action of the probate court reads as follows:

“This day came Charles W. Millen, guardian of Fanny M. Post, and files herein his account, as such guardian for a partial settlement. Notice by publication ordered. Thursday, the 26th day of April, A. D., 1888, is set for the hearing of said accounts, at which time the matter is continued. ”
“April 26, 1888. Notice cf the filing of the accounts of Chas. W. Millen, guardian of Fanny M. Post, heretofore filed for partial settlement having been duly given by publication in the Norwalk Reflector, a newspaper of this county, and this being the day named therein for the hearing of said accounts, the same came on to be heard, and no exceptions thereto being filed, and the court having carefully examined the same, and finding them in all things true and correct,orders that the same be,and they are hereby confirmed and settled. And the court further find a balance due in the hands cf said guardian, $4,283.22”

The said guardian filed his second partial account for settlement in the same court on January 17, 1891 This account was approved February 7, 1891, in terms similar, but not identical with those which have been read as to the aotion of the oourt upon the first account.

, The ward, Fanny M. Post, died in 1891, intestate, leaving W. C. Bailey, E. J. Bailey, Caroline M. Burdick and Daniel S. Platt her heirs at law. Stephen M. Young was duly appointed administrator of her estate, and qualified as suoh on December 30, 1891.

The heirs and administrator of the said Fanny M. Post each filed motions to open up both of the settlements before' mentioned,and for leave to file exceptions to those accounts.

The entry made by the court upon the motions to open up the accounts, is as follows: “December 31, 1891. This day the heirs of Fanny M. Post, deceased, and S. M. Young, administrator of the estate of the said Fanny M. Post, deceased, file herein, motions to open the first and second partial accounts of 01 W. Millen, guardian of Fanny M. Post, whereupon the court ordered that said guardian be given fifteen days’ notice in each case, and sets the hearing of this matter for January 14, 1892, at 9 o’clock, A. M. ”

On January 14, 1892, the day to which this case was adjourned, this entry was made in the journal of the court: “This cause came on to be heard, and is continued until suoh time as the parties agree upon.”

March 16, 1892, this entry was made: “This day came O. W. Millen and files herein a motion to strike from the files, the motions heretofore filed to open up the first and second partial accounts of C. W. Millen, as guardian of Fanny M. Post.”

At the January term — on April 7, 1892, the motion cf the present plaintiff in error, C. W. Millen, guardian, to dismiss this motion, or these motions, was overruled by the court, and on the same day an order was made opening up both partial settlements, and granting leave to the administrator and the heirs to file exceptions thereto, and this is the order that was made by the court: “April 7, 1892. This cause coming on further to be heard on the motion of the heirs of Fanny M.Post,deceased,asking that the first partial settlement of the accounts of C. M. Millen, guardian of Fanny M. Post, be opened up, and that they be permitted to file exceptions thereto; and the same was submitted upon record without evidence. In consideration whereof, the court do allow said motion, and said partial settlements of accounts are hereby ordered opened up, and said heirs are granted leave to file exceptions to said partial accounts, to which order said O. W. Millen, guardian of Fanny M. Post, by his counsel, excepts.”

The same order was made as to the second partial account.

Both settlements were set aside, and the administrator and the heirs at law were granted leave tc file their exceptions. The exceptions by these parties seeking to attack the accounts, were filed on April 16, 1892, the order, as appearing of record, having been made on the 7th cf the same month.

On April 21, 1892, being five days after exceptions were filed, and some fourteen days after the order opening up-the accounts had been made, the guardian filed a petition in error in the court of common pleas to reverse this action on the part of the probate oourt. These orders cf the probate court were confirmed at the May term, 1R92. Thereupon, petitions in error were filed in this court on July 6,. 1892, to reverse the action of the common pleas court, in affirming the order of the probate court, and also to reverse-the orders of the probate ccurt which are complained of.

Upon this condition of the record, the question as presented to us, and by the law, is as to whether or not the-probate court erred in granting the motions of the administrator and the heirs cf Fanny M. Post to open up the accounts, arid to permit them to file their exceptions theveto.The question so presented, calls for a consideration of the various provisions of the statute regulating matters in regard to the appointment of administrators, and the settlement of accounts of lunatics, idiots and imbeciles.

Section 6302, Rev. Stat., reads as follows: “The probate-court, upon satisfactory proof that any person resident of the county or having a legal settlement in any township thereof, is an idiot, imbecile, cr lunatic, shall appo-'nt a guardian for such person, which guardian shall, by virtue-of such appointment, be the guardian of the minor children-of his ward, unless the court shall appoint some other person as their guardian; an imbecile in this chapter, shall be understood to mean a person who, not bcrn idiotic, has become so; provided that no such guardian be appointed until at least three days’ notice to the persons next of kin resident of the county of such person is given to attend at the same time and place, which notice shall be served by delivering to each person therein named, a copy thereof, or by leaving such copy at his usual place of residence.”

Now, appended to this section is found this language — by the proviso of ihe act of 1872, 69 O. L., 174: “The appointment by the probate court of a guardian for an imbecile is to be regarded only as prima facie evidence of the imbeoility. ” That proviso,it may be remarked,is not contained in the section as it now stands in the statute. “The fact as to such imbecility may be inquired into by the alloged imbécil, in an action brought by him to enjoin the guardian from interfering with the oontrol and management of his property. In the revision of this statute, 75 O. L., 927, sec. 49, this provision was omitted. ‘‘Held, that the omission did not give an appointment made under the original act a more conclusive effect than, it had before such revision;” Messenger v. Bliss, 35 Ohio St., 587.

In a case which came before us-in Erie county a few years since, we had occasion to consider tííe question as to whether or not the appointment by the probate court, of a guardian for an alleged imbecile, the court in making the-appointment, finding that the war'd was an imbeoile, was-conclusive evidence of imbecility,' or whether it was to be-regarded as prima facie only.

In that case, the ward had made a last will and testament during the existence of the order finding that he was an imbecile and appointing a guardian for him. In that last will' and testament-he had disposed of a large estate. The will was contested, and it was argued that by necessity, he was not competent to make a will, .and it was argued upon us-that the finding of the judgment of the probate court of Stark county where a guardian had been appointed, was conclusive to set aside in the same maner, upon the fact of the imbecility on the part cf the ward, or, testator in the-case presented, and after careful consideration of the subject, and examination of the oases cited, we were of the opinion, and so held, that the appointment by the court of a guardian for an alleged imbecile was prima facie evidence only of the fact of imbecility upon which the appointment was based, and evidence having b6en introduced tending to show that the ward was entirely compos mentis— competent to make a will, at the time of making the will-fit was not very long after the appointment of a guardian for him, that the court, or rather the jury found that the will in controversy was the will of an alleged testator), we would not disturb the verdict upon the mere ground alleged, that the action of the probate court of Stark county was conclusive upon the question of meutal capacity, even while it was in force.

Section 6304 is the one under which the principal difficulty arises in the determination of this case: ‘‘The laws relating to guardians for minors and their wards, and all laws pointing out the duties, rights and liabilities of such guardians for idiots, imbeciles and lunatics and their children except as otherwise specially provided, shall be applicable-for guardians of idiots, imbeciles and lunatics and their children, except as otherwise especially provided; but in the settlement of the accounts of such guardians no voucher shall be received from, or allowed as a credit to the guardian of any idiot, imbecile or lunatic, which shall be signed, or purport to be signed by suoh idiot, imbecile or lunatic; and provided, that any settlement of the account of any such guardian heretofore made, in whioh any such receipt shall have been allowed as credit to such guardian, shall be held and deemed absolutely null and void, and any ssettlement made by any suoh guardian shall, at any time within two years after the appointment of another guardian, or after the disability of such ward may be removed, or such ward may die, be opened up and reviewed on the motion of suoh newly appointed guardian, cr legal representative, or of any other interested person, notice of which motion shall be given by publication, cr otherwise, as the probate judge may direct. ”

It will be seen by the terms of this section, in the first place, that the legislature has provided that all laws relating to guardians fcr minors and their wards and all laws pointing out the duties, rights and liabilities of such guardians and their sureties in force for the time being shall be applicable to guardians or idiots, imbeciles and lunatics and their ohildren, except as otherwise specially provided.

Now the laws relating to the matters recited in that portion of the section which I have just read are to be applicable to the guardians of idiots, imbeciles and lunatics and their ohildren, except as otherwise specially provided. We áre to inquire then wherein provisions, as made by the legislature for the administration of the affairs of an imbecile, a lunaiio, or an idiot, differ from the provisions of the statute relating to the guardians for minors and their wards.

We find in this section, in the first place, that in the settlement of the accounts of such guardian, no voucher shall be received frcm or allowed as a credit to the guardian of any idiot, imbecile or lunatic, which shall be signed, or purport to be signed by such idiot, imbecile or lunatic.

In this respect, Í take it, the law is different from that which is applicable to the guardians of miners, because I can see no good reason, or know of none, why a receipt, cr voucher signed by a minor may not be received in the settlement of the accounts of the guardian of a minor. Here it is expressly provided that no such receipt shall be received in the settlement of the accounts cf the guardian of an idiot, imbecile, or a lunatic.

Then it is further provided here that in the settlement of the accounts of any such guardian theretofore made — that is, cf course, prior to the adoption of this statute — in the settlement of the accounts of any such guardian heretofore made in which any suoh receipt shall have been allowed as a credit tc suoh guardian, the same shall be held and deemed absolutely null and void. That is applicable to the settlement of accounts that have been previously made in which any such receipts have been received and acted upon by the probate court.

By this provision of the statute, it declares that any settlement in which any such receipt is entered, shall be deemed null and void; in other words, such settlement is rendered ipso facto void, the mere fact of taking into account any such receipt has existed.

“Provided that any settlement of the accounts of any such guardian” — now, this is the provision which we are called upon to construe more particularly. “And any settlement made by any such guardian shall, at any time, within two years after the appointment of another guardian, or after the disability of such w'ard may be removed, or such ward may die, be opened up and reviewed, on the motion of such newly appointed guardian, or legal representative, or of any other interested person, notice of which motion shall be given by publication, etc.”

This ward died in 1891. The first partial settlement was made in 1888. The second partial settlement was made in 1891. This partial settlement, or account was settled in February, 1891, and the ward died sometime thereafter, during the same year.

This motion to open up this partial settlement was filed on December 80, 1891, so that it was filed within two years after the death of the ward.

Now, the principal question that arises here is this: Is it the right of the heirs of the deceased ward, or of the administrator of the decased ward,-or if a new guardian shall have been appointed within two years, is it the right of suoh new guardian within two years after his appoinment, upon the mere application, or request, so to speak, that the accounts shall be opened up and reviewed — is it his right, by simply making the motion that these be opened up and reviewed, and entitled to an order in accordance with his motion?

Now, here is one of the motions that was filed on December 80, 1891. This was the motion to open up the first partial settlement. They are all alike in that regard,so that by this one we understand precisely what is contained in them all.

“In the matter of the guardianship of Fanny M. Post, C. W. Millen, guardian. Probate Court, Huron county, Ohio. Motion tc open up the first partial settlement of said guardian. S. M. Young represents that Fanny M. Post died in the summer of 1891, and he is the duly appointed and qualified administrator of her estate. Said S. M. Yeung as said administrator moves the court that the first account filed by C. W. Millen in this court on the 21st day of March, 1888, for parital settlement* as guardian cf the person and estate •of said Fanny M. Post, which account was approved by this court on April 26, 1888, he opened up for the reason that said S. M. Young, as said administrator, desires to file exceptions to said account, and to dispute in substantial particulars, the credit claimed by said guardian therein, and the account with which he charges himself.”

Now, what is the reason that he assigns in this motion •upon whioh he asks the court to set aside partial settlement made in 1888? It is that he desires to file exceptions to said account, and to dispute in substantial particulars the credits olaimed by said guardian therein, and the account with which he charges himself.

Let it be observed that he dees not offer in this motion— he does net claim, nor suggest that any fraud has been practiced, or that any mistake has entered into the settlement; but he simply says to the court, as a reason why he •calls upon the court to set aside this settlement, that he desires to dispute the credits — to dispute the account in terms which I have just read, and the court adopted as correct the view upon which that motion is based, makes the order which is complained of which I will again read: ‘‘April 7, 1892. This cause coming on further to be heard on motion of the heirs of Fanny M. Post, deceased, asking that the ■first partial settlement of the accounts of C. W. Millen, guardian of Fanny M. Post, be opened up, and that they be permitted to file exceptions thereto, and the same was submitted on the record without evidence. In consideration whereof, the court do allow said motion, and said partial ■settlement of the account is hereby ordered opened up, and •said heirs are granted leave to file their exceptions to said partial account.”

The record, it will be observed, recites that this application was acted upon without evidence. We very much doubt whether it is competent to reserve exceptions by an entry in •a journal showing that no evidenoe was submitted. We think that the proper mode of reserving any rights that parties have in the matter, or in a matter of this kind,is tc bring upon record, by a bill oí exceptions, the fact that no evidence is submitted. It was so held in Brie • county not long since where the journal recited that a case had been submitted to the jury without evidence. There was nothing but the recital in the journal entry to show that no evidence had been submitted to the jury, and’ upon authority, we were of the opinion in that case that we could not regard suoh a statement in the journal entry as of any effect. That is, there is no finding in this order of the probate court, granting this motion to set aside the setlement which has been made, that any improper thing, or any impropriety existed ip the settlement of the account; that there was anything wrong in his account; that there were any false, or improper charges, or any improper conduct on the part of the guardian in conducting the affairs of the ward, or in rendering his accounts for settlement. Rut the court, upon the administrator and the heirs simply saying to the court that they desire to dispute the account' and for that reason ask that it be opened up, and they be permitted to file exceptions thereto, assuming "that it was their right to have the account opened whenever they chose to assert that right and granted the request as a matter of right to them, on the simple suggestion, and for the reason that they desire to controvert it, gave them leave to file their exceptions to the account, which were subsequently on the 16th of the month filed.

Now, the important question arises right here, whether, after an aooount, rendered by the guardian of an imbecile, has be»n passed upon in due form by a court having jurisdiction exclusively over the matter — whether it was intended by he statute regulating the conduct of the affairs of an imbecile — whether the court has the power, at a subsequent day, or a subsequent year, upon the mere motion, suggestion, or request of the heirs of an imbecile, or of a ward, to open up the account, place the matter in statu quo, and impose upon the guardian the duty of going back and establishing by evidence every item of debt which was contained in his account. It would impose a very serious hardship upon the guardian to plaoe him in this condition. We must confess that our inclination strongly is to hold that the statute shall not receive the construction that would place the guardian in this condition unless we are constrained to do so by the strict language of the law. The guardian in 1888 filed his account. It is true that it is an account of an imbecile — of the administration of the affairs cf an imLecile; that is true; but nevertheless,it will be seen by other provisions of the statute that it is contemplated that an imbecile, or tbe friends of an imbecile, may act in hiB behalf, if occasion would seem to require it. But he has filed his account with the proper tribunal. Notice of the filing of the account has been duly given, and the time when it will be passed upon has been given,and the court charged by the most solemn obligation devolving upon a public officer to see to it that the interests of the ward, especially of an imbecile ward, are properly protected and regarded, has examined that account; has examined the vouchers presented with the account; perchance, has examined the guardian himself, as he is fully warranted in doing, to ascertain from him all the facts in the matter that might be necessary for him to understand in order to determine whether the ward has been justly dealt with. He passed upon the aooount and approved it and makes an entry accordingly.

Four years afterwards, the ward having died, and an administrator having been appointed, that administrator and the heirs oome in and simply say to the court, charging nothing against the guardian, neither fraud, nor mistake, nor misconduct, and simply suggest to the court that they desire to dispute that account, and they oall upon the court to sec aside the settlement that has been made, thereby devolving upon the guardian the duty of, or the responsibility —imposed upon him the obligation of going forward step by step, and to establish his account precisely as if the court had never acted upon it.

Perchance a witness may be dead. Perchance the circumstances may render it not only difficult, but impossible for him to produce testimony that is cf vital importance in sustaining his acccunt. That is the case that was made here. The court, upon the mere application — a mere request, granted the order that was asked for and set the account down for a seccnd hearing. More than this; in the first account, items may be, and perhaps have been rendered for expenditure in nursing and in boarding the ward that have been submitted to the court passing upon that account as to the reasonableness of those charges, and a subsequent court, four years afterward, might differ with the original court as to whether those charges were reasonable or not. A subsequent court whioh is called upon to pass upon the account, and to act as a court of review might say, it is true that my predecessor, in passing upon this account, deemed these oharges just and reasonable and approved them, but in my judgment, they were too high; I don’t think it was worth as much to board this ward as the probate judge who passed upon this aooount originally, thought, and I don’t think that the charge for nursing is reasonable, even though my predecessor who passed upon this firt, may have thought so, and I think the charge should be reduced according to what in my view and judgment would be reasonable and proper under the circumtanoes, so that, upon a rehearing of the account in such a case, the judge or court who may sit upon that second hearing, upon a mere matter of difference in opinion as to the reasonableness of tne oharges, may impose upon a guardian the necessity of relying upon the first judgment — or rather the guardian, relying upon this first judgment of the probate judge in regard to this first partial account, has gone right along and continued to pay the sums whioh the first judge, upon the first settlement, approved; under such circumstances the guardian might fin<^ himself in a predioament for having paid oharges which were approved by the probate court whose duty it was to protect the interests of the ward, which, upon a rehearing, such as is claimed for here, may be found to be entirely inadequate — entirely excessive.

Now, let us look a little to the legislation upon this subject, and determine whether or not this statute requires the construction which is claimed for it.

Commencing with sec. 6828 and including all the secs, to 6382, we find the provision relating to the trustees of nonresident imbeciles, idiots, eto.

Now, one would naturally think that if a resident imbecile needed special care and protection, for a much stronger reason, a non-resident imbecile who perhaps had no friends present to look after her interest — that the interet of the non-resident imbecile wuuld need special care and protection.

Section 6328, Rev.Stathreads: “Any trustee of any nonresident idiot, imbecile, or lunatic, appointed as aforeaid, and any trustee heretofore or hereafter oreated by any last will or deed, or appointed by any competent authority, to execute any trust created by any such last will or deed shall, as often as once each two years,render an account of the execution cf his said trust, to the probate court of the county in which he was appointed, or in which such last will or deedfmay be recorded, in the manner provided by law for the settlement of the accounts of executors and administrators; provided, this section shall not apply in any case in which the will or deed creating such trust designates any other tribunal for the settlement of the trust, or in which any other tribunal shall have acquired jurisdiction.”

Section 6331,Rev.Stat., reads as follows: “The determination of the probate court on any such settlement, whether final or intermediate, may be appealed from in the manner provided for an appeal from said court on the settlement cf the accounts of executors and administrators, and the like proceedings shall be had on such appeal, and the result of such proceedings on appeal certified baok to the probate oourt.”

The statute seems to contemplate that there may be cases at least, in whioh an imbeoile may have sufficient judgment to exercise his rights of appeal, or if not, some friend in his behalf may exercise that privilege, “and the like proceeding shall be had on suoh appeal, and the result of such proceedings on appeal certified back to the probate court.”

Section 6332,Rev.Stat.. reads as follows: “The determination of the probate court on any such settlement, shall have the same force and effect as the like determination as to the account of an administrator or executor; and when an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account, at any time within eight months thereafter; and upon any settlement of an account by a trustee, all his former accounts may be so far opened as to oorreot any mistake or error therein, excepting that any matter of dispute between two parties, which had been previously heard and determined by the oourt, shall not be again brought in question by either of the same parties without leave of the court.”

We find, by these provisions of the statute, that the trustee of a non-resident imbecile,is to be regarded, so far as the question herein presented, standing precisely in the attitude of a guardian of a non-resident imbecile — the trustee of a non-resident imbecile, where the determination of the probate oourt, on his settlement, and from any settlement whioh is made, or required by a provision of the section, is protected precisely as an administrator or executor of an estate is protected, where the accounts have been settled by the probate court.

But, as I have read, it is provided that when an account is settled in the absence of any person adversely interested without actual notice to him, the account may be opened upon his filing exceptions to the aocount at any time within eight months thereafter. Any person may come in who has net had notice and whose interest may be affected — may come in within eight months after the filing of the settlement of his acoount and have that account opened, and upon any settlement of an acoount by a trustee, all his former accounts may be so far opened — as to what? As to correct any mistake or error therein — may be opened, but with that exception, they may not be opened upon the mere application of a party interested — his former accounts which have been settled may not be absolutely set aside and a burden imposed upon the trustee to go forward and prove his account precisely as if they had never been acted upon. A party interested has the right to come in and impeach an account, and the settlement that has been made in so far as he may conclusively impeach that account. To that extent, and no further, may it be reformed and restated.

Now, that is as to the trustee of an imbecile — a non-resident imbecile who should certainly have as much, if not more protection than a resident imbecile.

Now, as to the guardianship of a minor, sec. 6289, Rev. Stat., reads as follows: “The settlement made in the probate court of the accounts of a guardian shall be final between him and his ward, unless an appeal be taken therefrom to the court of common pleas in the manner provided bylaw; saving, however, to subsequent guardians during the minority of his ward, or to any such ward, the right of opening and reviewing suob settlements for fraud or manifest mistake by civil action in the court of common pleas of the county in which such settlement was made, for the county where such former guardian may reside when the petition is filed at the option of the plaintiff in such action, at any time within two years after the said ward shall arrive at full age. ”

It will he observed here that there is reserved at a minor the right to impeach an account of his guardian and he may exercise that right at any time within two years after he reaches his majority; but how is he to do it? The right is saved to him of opening and reviewing such settlement for either a manifest mistake by civil action in the court of oommon pleas in the county in which such settlement was made, for the county where such guardian may reside when the petition is filed; but he oan-not go into the probate court and sav, “Your honor, please, I request that this settlement may be set aside because I want to disput the account, and thereby have the settlement set aside and file his exceptions and then devolve upon the guardian the duty and responsibility of going forward and re-establishing his account. He cannot do that; neither can a non-resident imbecile do that under the provisions of this statute. He may attack the accounts which have been settled in so far as he can make it appear that there is fraud, or manifest mistake, and he may have them reformed.

Section 6187, Rev. Stat., may reflect some light upen this statute relating tp the settlement of administrators. Section 6187, Rev. Stat., reads as follows: “When an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened, cn his filing exceptions to the account at any time within eight months thereafter; and upon every settlement of an acoount by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein.” And the same provision is here found as in the section relating to the settlement of the accounts of a non-resident imbecile: “excepting that any matter of dispute between two parties, which had been previously heard and determined by the court, shall not be again brought into question by either of the same parties without leave of the court.”

Now, to go back again to sec. 6304, Rev. Stat., we find that all laws relating to guardians for minors, and sec. 6289, relating to the settlement of the accounts of guardians of minors, and all laws pointing out the duties, rights and liabilities of any such guardians and their sureties in force fer the time being shall be applicable to guardians for idiots, imbeciles and lunatics and their children.

Now, the provision which has already been read and commented upon, namely, any settlement made by any such guardian shall at any timo within two years after the appointment of another guardian, or after t'he disability of such ward may be removed, or said ward may die, be opened and reviewed upon the motion of said duly appointed guardian, legal representative, or any other person interested person gives, as we hold, to the administrator, and the newly appointed guardian and the heirs of the ward who is deceased, the right to come in, within the period limited, and attack the accounts which have been partially settled, upon the showing of good reason therefor; and if upon the .showing of the parties attacking the accounts, it shall be made to appear that any mistake or fraud has entered into these settlements, to that extent, and to that extent only, may they be reformed and correoted.-

G. T. Stewart and C. L. Kennan, for Plaintiff in Error.

Andrews Bros., for Defendant, in Error.

This being our view of the case, after very careful consideration of it — and we have devoted a good deal cf time and investigation to this question — it follows that the aotion of the probate oourt in setting aside absolutely, these partial settlements that have been made — one in 1888 and the other in 1891 — -without any showing whatever, on the mere request cf the heirs and the administrator as a simple matter of right — we think in that particular the probate oourt erred,and that the judgment of the probate court making this order should have been reversed,and that the oourt of common pleas erred in confirming this order and judgment of the probate oourt,and for that reason the judgment of the oourt of common pleas will be reversed,and this court proceeding to render such a judgment as the court of common pleas should have rendered, reverse the orders of the probate and remand all further proceedings to the probate court for a further hearing.


text:
    (Sixth Circuit — Sandusky Co., Circuit Court
    Dec. Term, 1897.]
    Before Haynes, Parker and Hale, JJ. (Judge Hale of the Eighth Circuit taking the place of Judge King.)
    RIVERSIDE RUBBER COMPANY v. HORACE S. BUCKLAND et al.

      Bill of Exceptions — Extension of time — What endorsement not proper—
    (1) . Where a court in extending the time for filing a bill of exceptions for ten days, endorses the order for such extension upon the bill, accompanied with a statement that such bill was not presented to the court for examination within forty-five days after the overruling of the motion for new trial, such statement can not be considered by the reviewing oourt on motion to strike the bill from the files, as under sec. 5302 R. S., the judge is only authorized to endorse upon the bill the extension . of time allowed by him. Nor can an affidavit by the trial judge setting forth the same facts as so endorsed on the bill, be considered.

      Same — Remedy to correct entry of allowance—
    (2) . Where a bill of exceptions allowed by the court below was not in fact presented to the court for examination within the statutory time,, the remedy of the party objecting is by seeking au amendment of the record in the court where it was made.

      Same — Jurisdictional fact—

    (3). It is a jurisdictional iaet for the court that the bill of exceptions was presented and signed within the statutory time, and the record and journal of the court should show affirmatively the existence of such jurisdictional fact or facts, authorizing the court to act in the premises.
    Error to the Court of Common Pleas of Sandusky county.
   Parker, J.

This is a case in which error to the common pleas court of this county is sought to be prosecuted in this court, on account of alleged errors made apparent by a bill of exceptions.

It is submitted to us upon a motion to strike the bill of exceptions from the files. In the court below there was a trial, a verdict of a jury, a motion for a new trial filed in due time, which motion was overruled on .Tune 28, 1897, followed by judgment on the verdict. On August 17, 1897, fifty days after the overruling of the motion for a new trial, the trial judge by endorsement on the bill of exceptions extended the time for examination and allowance of the same for ten days after August 17th, and the same was allowed and signed on August 23d and filed in the court of oommon pleas on August 24th. This motion to strike the bill of exceptions from the files is based upon the ground that the bill of exceptions was not submitted to the trial judge for his signature not less than five days before the expiration of fifty days after the overruling of the motion fora new trial, as required by sec. 5302, Rev. Stat. In support of this motion, and as evidence of the fact that the bill of exceptions was not presented to the trial judge until the 17th day of August, or fifty days after the overruling of the motion for a new trial, the defendant in error has produced — First, the bill of exceptions, upon which appears the following endorsement by the trial judge:

“This bill of exceptions first submitted to me this 17th day of August, 1897 (not having been presented five days prior thereto), and time for examination and signing is hereby extended for the period of ten days from this date.
“Defendant excepts. S. A. Wildman,
“Judge of Sandusky county Common Pleas Court.
“Sandusky, Ohio, August 17, 1897.”

Second — The journal entry of the allowance and signing of the bill of exceptions, which reads as follows: “Be it remembered that on this 23d day of August, 1897, this cause came on for hearing upon application for allowance and signing of the bill of exceptions heretofore prepared and submitted to the court, it being agreed by counsel, and the court finding that said bill of exceptions was presented by counsel for plaintiff tc opposing counsel on the 7th day of August, 1897, at 5:30 o’clock P. M., and net before, and was presented to Hon. S. A. Wildman, trial judge, on the 17th day of August, 1897, and not before, said judge not having been absent from his said district at any time after said trial, and said court having on theBaid 17th day of August, 1897, for the purpose of examining and signing said hill of exceptions, extended the time ten days, whioh extension was duly endorsed upon said bill of exceptions at the time, and the court having examined said bill of excepticns, and finding the same to be a true bill of exceptions, did on the 23 day of August, allow and sign the same and ordered it to be filed, but not spread upon the journal, to which extension of time and the endorsing of the same and to the allowing and signing of said bill, defendants, by their counsel, then and there duly excepted. And thereupon the defendants presented their bill of exceptions, which is here duly allowed and signed and ordered made apart of the record of this case and not to be spread upon the journal.”

Third — The affidavit of the trial judge to the same facts as are set forth in the journal entry just read.

Fourth — The bill of exceptions taken by defendant upon the allowance by the trial judge of plaintiff’s bill of exceptions, the allowance of which bill of exceptions for defendant, is recited in the'journal entry, which I have just read.

Objection to the consideration of the statement in the endorsement by the judge cn plaintiff’s bill of exceptions, to the effect that it was first submitted to him on the 17th day of August, and that it had not been presented five days prior thereto, is urged on the ground that the only statement the trial judge is authorized to endorse upon the bill is that of the extension of ten days, as provided by see. 5302, Rev. Stat. We held, following our deoision in the case of Dwelle et al. v. Wilson, Assignee, 14 Cir.Court Reps. 551, that such statements being unauthorized, cannot be considered as affording evidence of the fact stated with regard to the time when the bill was first submitted to the judge; and that leaves no evidence upon the face of the bill of exceptions that it was not presented to the judge in due time. Following the same decision, we also disregard the bill of exceptions taken on behalf cf defendants. We also hold that the affidavit cannot be considered; and thus brings us to the journal entry. We understand the case of Heddleson v. Hendricks, 49 Ohio St., 297, as holding that the record showing the allowance of the bill of exceptions imports absolute verity, net only as to what appears therein affirmatively, but also as to the faots to be presumed from what thus affirmatively appears, and that evidonce cannot be received to impeach the record either as to the faats affirmatively stated, or those presumed. In that case the bill of exceptions appeared by the entry of allowance, as well as upon its face, to have been allowed within the statutory time; and the oourt refused to hear evidence tending to show that it was not presented to opposite counsel within the statutory time, holding, as we understand it, that suoh faots where the record is silent, are presumed to have been found by the trial judge before signing, and that the record of the allowance of the bill of exceptions includes and is conclusive upon such faots. Of course it does not follow that if the bill of exceptions was not in fact presented within the statutory time, the party objecting to its allowance would be without remedy, but in such case he would probably be required to seek an amendment of the record in the oourt where it was made. Here, however, we have a journal entry showing affirmatively that the bill of exceptions was not presented to the trial judge within the statutory time. It is urged that there is no authority for stating suoh faots in the journal, and that therefore the oourt cannot take any notice of suoh statements when found there. That the statute provides simply for an entry of the allowance and signing of the bill of exceptions, and that all that may be stated beyond that naked fact is extra judicial.

In Neuman v. Becker, 54 Ohio St. 323, it is held that the conditions that the bill of exceptions shall be presented to opposite counsel and the trial judge within the period prescribed by the statute is jurisdictional. That the trial judge has no power or authority to allow or sign the bill unless these conditions have been complied with. As a rule we believe the record or journal of the court should show by affirmative finding or otherwise the existence of jurisdictional facts, or facts authorizing the court to act in the premises. If not always absolutely neaessary, it can hardly be said to be improper. We think from this holding with respect to the nature of these facts, and the holding in Heddleson v. Hendrioks, supra, it follows that a finding of these jurisdiotional faots, either affirmatively or presumptively, should appear upon the journal, and that when the affirmative finding rebuts the presumption of regularity in the steps taken, and when it shows that the statutory requirements have not been complied with, the court may, and on proper application must regard and give effeot to such findings. To say that the record imports absolute verity as to certain facts either actually or presumptively found therein, is to say that such facts properly appear or belong in auoh record.

Chatterton, of Toledo, for Plaintiff in Error.

Judge Wickham, John Graver & Love, of Fremont, for Defendant in Error.

The motion to strike the bill of exceptions from the files is sustained, and it appearing that all the errors alleged are predicated Gn the bill of exceptions, the judgment of the court of common pleas will be affirmed.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court —
    January Term, 1899.)
    Before King, Haynes and Parker, JJ.
    FARGO GAS LIGHT and COKE COMPANY v. JOHN T. GREER et al.

      Attorney employed by agent — Principal’s liability—

    Where it appears that an agent had full authority and control over the collection of-claims of his principal and the disposition of the proceeds thereof, and he employs an attorney to collect the same, the principal can not afterwards deny the agent’s authority to employ such attorney for that purpose, but will be held to the payment of reasonable compensation to such attorney for his services.
    Error to the Court of Common Pleas of Lucas connty.
   King, J.

The defendant in error, the plaintiff below, brought his suit in the court of common pleas, to recover the sum of about $1,782.00, which, it was claimed, defendant had and held in his hands belonging to the plaintiff, refusing to pay it over when demanded.

The defendant in his answer denied all the allegations of the plaintiff’s petition,and set up in defense that certain claims had been placed in his hands for collection, by a firm called Cray & Rood; that he had collected and disbursed the money collected from these claims amounting to something over ten thousand dollars, pursuant to their instructions, excepting that he still held $1,782.00 which he claimed as due him, at least that sum, as his reasonable compensation for his attorney fees and expenses incurred in collecting and disbursing this money. This answer I have not quoted in all of its terms, but the part of the answer, or particular defense setting this up concluded with the allegation that the plaintiff was estopped from claiming any part of the money in question.

There was a motion to strike out this particular defense, which was overruled. A demurrer was then filed to it, and that was overruled, to which the plaintiff excepted. A reply was then filed within time; the case went to trial to a jury, which resulted in a general verdict for the defendant.

A considerable portion of the able argument for the plaintiff in error is directed to what he claims is error of the court in overruling the motion and demurrer, and is based upon the theory that there was nothing in the case, or facts, involving the doctrine of estoppel. Considerable of the argument advanced by counsel for plaintiff in error, no doubt, is well reasoned and well stated; but, after all, it need not by us be considered seriously, for two reasons: (1), on the trial of the case the court instructed the jury to disregard this defense, so the plaintiff was not prejudiced by the action of the court for refusing to strike it out earlier in the case; (2), the averment in this part of the answer that plaintiff is estopped, is a mere legal conclusion, and amounts to nothing. We think that so much of this so-called defense as states facts is material to the issue in the case, and that the court should have overruled the motion and demurrer; and if the court committed any error it was in instructing the jury to disregard this defense. While this so-called defense might have been more artistically or properly stated,yet it was a defense, and should not be overruled.

There were many exceptions taken in the course of the trial to the introduction of evidence. We pass these by, saying that we think there was no error in the ruling of the court as to the admission and rejection of evidence, prejudicial to the plaintiff in error. A great deal of evidence was taken in the case, and much,no doubt, was finally found to be immaterial; and yet the matters were somewhat involved, and on the trial the court could not well tell which of the evidence^would be material and proper, and which would not.

The case is somewhat peculiar. Cray & Rood was a firm, composed of two persons whose names constituted the firm name. Rood was the principal manager, and talked for the firm. He had, for some years before, been connected with the plaintiff corporation, and at the time of this transaction was its president, if it had any. Several years before the transactions involved in this case, the corporation had sold all of its property to another, at least all of its tangible property. Rood was also connected with another corporation, called the Fostoria Light & Power Company, of which he was also president. Rood acted for the firm of Cray & Rood, and, knowing his insolvency and the insolvency of the firm, gave certain cognovit notes to persons to whom the firm was indebted, and preferred them as creditors, and directed the attorney of the firm to have judgments taken on these notes and levies made upon the property of the firm. He also, and in anticipation of these judgments and levies, took the book accounts belonging to the firm and bills receivable away from the place of business of the firm. These amounted to quite a sum, and he transferred or caused them to be transferred by written assignments, part to the Fostoria Light & Power Company and part to the plaintiff in error. Rood was the only person who acted, either for the firm or for either one of these two corporations, He made a list of these accounts; he wrote the assignments thereon to each of the corporations in question, or he procured it to be done. This was done with the knowledge of Cray, his co-partner, who seems, however, to have taken no further interest in the transactions. The business was transacted by Rood, and so far as any one of these persons or corporations was present or represented by any living person, Rood was that person. . He was the assignor, and the assignee in fact. He claimed that the firm of Cray & Rood was indebted to these corporations.

It is very difficult from this mass of testimony to ascertain what the fact is with reference to that. We cannot tell whether the firm of Cray & Rood was indebted to these corporations or not. But assuming^that it was, the corporations were represented by Rood, and nobody ■ else. He planned this scheme. He placed these accounts and bills receivable, personally, in the hands of the defendant, with instructions to collect the accounts and bills receivable and disburse the money upon his order. The defendant collected the accounts and bills receivable and paid the money out. He paid out the proceeds as Rood directed. Nota dollar is shown to have been paid out except by the direction of Rood,

Another peculiarity of this transaction is that they were not paid out to the corporations to whom they had been assigned, as shown by the checks, receipts and orders given. But a large part of this money was paid to the persons to whom Rood directed it to be paid, other than these corporations, and actually some of it was paid to Rood himself, or paid out to pay his individual debts and liabilities. The whole transaction, as conducted from beginning to end, indicates that it was a scheme of Rood to put these claims beyond the reach of the creditors of Cray & Rood, so that they might not be taken in any manner by levy or otherwise,and subjected to the payment of the creditors of Cray & Rood; and that, having gotten them from under the dominion of Cray & Rood, he then proceeded to take the proceeds and use them as he pleased.

It is claimed here that the plaintiff had no contract with Greer, by which Greer would have a right to charge it for collecting these claims, and that it might come here and sue Greer for the amount he still holds in his hands, because it had never employed him to do this work. It is true that the plaintiff expected that Greer should have something for his compensation, but insists upon the right to fix the amount of fees he should have It demands that he should accept something like $200.00 for his services, and agrees that this should be the sum recovered.

We think the jury decided this case correctly. It might be conceded that Greer rendered the services in these matters, conducted the .amount of business he claims — and whibh is not seriously disputed by the plaintiff — and the amount claimed by him as compensation is not shown to be unreasonable. But plaintiff states and insists that these services were rendered to Cray & Rood, and Cray & Rood must pay for them. This is certainly an anamolous sitúaiion and position so far as these transactions are concerned.

Mr. Greer knew nothing about the plaintiff except he knew that nominally these accounts had been assigned to it. He knew nothing further than what he was told by Rood that they had been assigned, as he was instructed himself to transfer them, and that they were a part of those owned by the plaintiff. But he also knew that after the assignment and the transfer had been completed, that Rood, and no one else, represented the plaintiff and controlled the disbursement of this money as effectually and completely as if Rood had been the sole owner of it, For all practical purposes he might as well have received all of it from his attorney or agent as the part which he did receive. Rood ■did not undertake to separate or cause to be' separated the proceeds of the accounts assigned to the plaintiff from those assigned to the Fostoria Light & Power Company, except incidentally, and those proceeds from the different claims that were collected were controlled by him; and, in effect, were owned by him, and so treated.

It is seriously disputed by the defendant in error that the plaintiff was the owner of these claims, or that Cray & Rood was indebted to it. We do not undertake to unravel that entanglement from the peculiar system of book-keeping which was instituted and carried on by Rood for and on behalf of this corporation. It is enough to say that the view which the jury took of this matter is the practical good sense view of this transaction. Looking upon the whole ■transaction as conducted by Mr. Rood, it is plain that he, to all practical purposes, was the owner, buyer, seller, assignor and assignee. He directed what should be done, how it should be done, and when it should be done, and to whom the results should all accrue. Hence the jury might well have found that the plaintiff had no interest in these accounts. If they could have found that, they were clearly justified in finding that the defendant had a lien upon the money collected from these accounts for his services. Having received his orders from Rood,and Rood being the only living person in authority, he was justified in paying his attorney from the proceeds of the collections. And when the moneys were distributed upon Rood’s order, the defendant had a right to say as he did say: “The balance I will hold until I receive pay for my services or until the amount of my compensation is agreed upon.” When that point was reached, the corporation steps in and says that Rood has no authority to settle with Mr. Greer for his services. The corporation was good enough to receive the assignment of these claims through the agency of Rood alone, but when the time came for the corporation to pay for the services rendered by Mr. Greer, then the agency of Rood seems to have terminated and ceased. We do not think the jury were called upon to treat his agency as terminated in that manner,or his authority to act for this company concluded. This, company had no other living representative so far as disclosed by this mass of testimony. Rood remained the agent, if he ever had been, and if agent, he had authority to pay the agent he had hired, and if he was not the agent, then the corporation never acquired any title to this fund,

J. W. & W. F. Brown, for Plaintiff in Error.

W. S. Thurstin, for Defendant in Error.

We think the verdict of the jury is correct, so that the judgment is affirmed.


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Gillen, JJ.
    THE P. C. & ST. LOUIS R. R. CO. v. DAN MILLIKIN et al.
    ■ Judgment against the evidence — Bill of exceptions — What required.

    (1) . To justify the reviewing court in reversing a judgment on the ground that the verdict was against the evidence, all of the evidence must be, or appear to be, in the bill of exceptions.
    Same—
    (2) . A bill of exceptions in such case therefore, which does not recite in the opening that it contains all the evidence offered at the trial of the case, but does recite that the plaintiff offered evidence tending to show certain matters which on the pleadings it was bound to show to'enticle it to recover, and then says, “and thereupon, upon the question of damages, the plaintiff offered the following witnesses who testified as follows” etc., setting out the evidence offered both by plaintiff and defendants on the question of damages only, is not sufficient.
    Error to the Court of Common Pleas of Butler county.
   Smith, J.

The error assigned in this case is that the court erred in overruling the motion for a new trial. The ground for a new trial alleged in the motion was, that the assessment of the amount of recovery was too small. That is, that the finding of the court was against the weight of the evidence.

It is objected that the bill of exceptions taken in the case on the overruling of the motion for a new trial, does not properly present this question for the consideraticn of the court, and, we think, this claim is well founded.

By the pleadings certain issues were made, and the burden was on the railroad company to establish the allegations made in its petition, to entitle it to recover anything in the case. The bill of exceptions does not, in the opening thereof, recite that it contains all the evidence offered on the trial. Indeed, it expressly excludes that idea, for it recites that the plaintiff offered evidence tending to show certain matters which on the pleadings it was bound to show to entitle it to recover, and then says, “and thereupon, upon the question of damages, the plaintiff offered the following witnesses who testified as follows”: Setting out the evidence offered both by plaintiff and defendants, on the question of damages only. But the bill then states that, “the foregoing was all the testimony offered by either party; and received upon the trial of said cause.”

As has been said, the bill itself shows that much other testimony was in fact received. If there was no other than that set out in the bill, the motion for a new trial was properly overruled, for the plaintiff had not made the proof which the law required of it, to entitle it to any recovery. If there was other evidence than that set out in the bill, it is clear that to justify the reviewing court in reversing a judgment on the ground that the verdict was against the evidence, all of the evidence must be, or appear to be, in the bill of exceptions.

We may say however that having looked over the evidence as to the amount of damages, we are of the opinion that the finding of the trial court on this point is not so manifestly against the evidence as would have required us to reverse the judgment on that ground.

The judgment will be affirmed.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Swing, Cox and Smith, JJ.
    ANNIE FLORIEN v. THE STATE OF OHIO.
    The statute, sec. 6816, R. S., makes it a crime to procure miscarriage. A verdict finding defendant “guilty of procuring abortion,” etc., does not define a crime known to the statutes, and is not responsive to the charge in the indictment.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

Annie Florien was indicted under section 6815, Revised Statutes, which section reads as follows:

“Whoever, with intent to procure the miscarriage of any woman, prescribes or administers to her any medicine, drug or substance whatever, or, with like intent, uses an instrument or means whatever, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, shall, if the woman either miscarries or dies in oonsequence thereof, be imprisoned in the penitentiary not more than seven cr less than one year.”

The indictment contained two counts. The first count, in substance, oharged Florien with using a certain instrument unknown to the jurors, upon the body of one Lulu Kate Fox, a pregnant woman, with intent to procure the miscarriage of the said Fox, and that by reason thereof, said Fox beoame wounded and diseased, from which said Fox died.

The second oount is as follows, to-wit: “And the grand jurors aforesaid, upon their oaths aforesaid,do further present that Anna Florien, on the sixth day of May, in the year 1896, with force and arms, at the county of Hamilton aforesaid, unlawfully, wilfully and knowingly did use certain means, to the jurors aforesaid unknown, in and upon the body and womb of one Lulu Kate Fox, she the said Lulu Kate Fox, being then and there a pregnant woman, with intent then and there and to thereby procure the miscarriage of the said Lulu Kate Fox, the said miscarriage not being then and there necessary to preserve the life of the said Lulu Kate Fox, and then and there not having been advised by two physicians to be necessary for that purpose, and in oonsequence of the use of said means by the said Annie Florien with the intent aforesaid, the said Lulu Kate Fox then and there became greatly wounded and diseased of her body,of which said wound and disease the said Lulu Kate Fox afterwards, to-wit, on the twelfth day of May in the year aforesaid,in the oounty aforesaid, died,contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

James D. Ermston, Hiram M. Rulison and C. S. Sparks, for Plaintiff in Error. Schwartz, Darby & Ballard, for State.

The statute provides that whoever, with the intent to procure the misoarriage of a woman, uses any instrument or means, shall, if the woman either misoarries or dies in consequence thereof, be imprisoned, etc.

The first count in this indiotment.oharged the use of an instrument, the name unknown, with intent to procure the miscarriage by reason of which the woman died.

The second count charged in the indiotment the use of certain means, tc the jurors unknown, with intent to procure a miscarriage by which one Lulu Kate Fox became wounded, diseased and died.

Under the statute one may be indicted for either producing death or miscarriage, or both, wlon produced by an in-teat to procure miscarriage. In this indictment the crime oharged was causing death, and not miscarriage. The jury returned the following verdict: ‘‘We, the jury on the issue joined, find the defendant, Annie Florien, guilty of procuring abortion as she stands charged on the second count in the indictment.”

The word abortion is not contained in the statute. There is no crime for procuring an abortion, the crime is procuring a miscarriage; and it is very probable that this verdict would not be responsive on an indiotment for procuring a miscarriage, but the defendant was not- indicted for even procuring a miscarriage. She was indicted for producing death in an attempt to procure a miscarriage, sc that even if the word miscarriage might be held to be synonymous with *he word abortion, still miscarriage not having been charged the defendant could not be found guilty of it. In order to have found the defendant guilty on the second count of the indictment as charged, if the jury desired tc specify that it found the defendant guilty, it should have said that it found the defendant guilty of producing death as charged in the indictment; but this it did not do, and therefore what the jury found was not responsive to the indictment, and there was no conviction any more than if it found her guilty of horse stealing or burglary as charged in the indictment. For this error the judgment should be reversed and the cause remanded for further proceedings.


text:
    (Sixth Circuit — Sandusky Co., O., Circuit Court
    Dec. Term, 1897.)
    Before Haynes, Parker and Hale, JJ. [Judge Hale of the Eighth Circuit,taking the place of Judge King. ]
    C. S. CORTHELL v. THE STATE OF OHIO.
    (See also a former decision in this case, Corthell v. State, 11 C. C. 570.)

      Explosives — Prosecution of manufacturer failing to make alterations—
    (1) . In a prosecution of a manufacturer of explosivos under sec’s 2573c. 2573e-l, and 2573c-2, Bates R. S., for failing to make certain alterations, etc., ordered by the inspector appointed by the chief state inspector of workshops and factories, to inspect establishments where explosives are manufactured, where the indictment charges that the defendant failed to comply with the order of the “inspector of high explosives”, the indictment is demurrable, as an officer of that name or title is not known to the statutes.

      Notice — What required—
    (2) . Where the statute requires notice of a proceeding, but is silent concerning its form or manner of service,actual notice is required.
    Error to the Court of Common Pleas of Sandusky oounty.
   Parker, J.

The plaintiff 'in error was indicted, proseouted and oonvioted in the court below on a charge of having failed to obey an order issued from a certain officer of the state respecting the removal of explosives and the alteration cf the construction of -a magazine in which said explosives were stored.

The prosecution is under sections 2578c, 2578c-l, 2573c-2, as found in Bates’ Annotated Ohio Statutes, Revision, 1897.

Section 25'73c-l provides: “That the chief state inspector of workshops and factories shall appoint from among the district inspectors of workshops and factories, whose appointments are now authorized by law, at least one inspector who shall be a skilled and experienced person, thoroughly conversant with the manufacture and use of powder, dynamite, nitro-glyoerine, fuses or other explosives and their compounds whose duty it shall be to inspect ail the manufacturing establishments in the state of Ohio wherein the manufacture of powder, dynamite, nitroglycerine, compounds, fuses or other explosives is carried on, and all magazines or store houses wherein such explosives are stored,and he shall personally inspect the process of manufacture, the handling and storage of suoh explosives and may direct and order any changes or additions that he may deem necessary in or about such manufactories, magazines or store-houses for the safety of the employes and the public, etc. I read but a part of the section.

Section 2573c-2 provides that said inspector of workshops and factories shall enforce the provisions of this act under the same conditions and penalty as are applied in section 2578c, Revised Statutes; and 2573c, with the other section read into it, provides that if a person owning or controlling suoh explosives or place of manufacture or storage, who is ordered to make such removal or change as is provided for by sectiop 2573c-l, fails to do so within thirty days after notice or within such time after notice, as such alterations can be made with proper diligence, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500.00 and not less than $50.00, and $10.00 additional for each day after such conviction until such alterations and additions have been made, which fine shall be paid into the treasury of the county in which conviction is had.

It will be observed that the authority to make this inspección and issue this order — disobedience of which íb made a crime under the statute, is vested in such district inspector as shall have been appointed to that duty by the chief state inspector of workshops and factories. It will be seen that it is a very important duty, a very extensive and important authority, and the notice is of prime importance in case of a prosecution under this statute.

The indictment in this case sets forth that Willard Du Comb, one of the district'inspectors of workshops and factories in and for the state ot Ohio, and “inspector of high explosives” in and for said state aforesaid, made this inspection and made this order, which it is charged the defendant disobeyed or failed to comply with. The title of ‘inspector of high explosives” is not given to this officer by the statute. There does not seem to be any such office or any such officer under the statutes of Ohio. As a matter of convenience in the administration of the affairs of the office of chief inspector of workshops and factories, it appears they have adopted this name and have applied it to a certain district inspector, and perhaps to the district inspector who was appointed under section 2573c-l, to perform these particular duties, but it is not so charged in the indictment.

Following the indictment all the way through, this officer is described as an inspector ot high explosives in and for the state of Ohio. It is nowhere stated that he was a district inspector of workshops and factories and that he was appointed by the chief state inspector of workshops and factories to perform this particular duty. It does not appear, from the indictment, that the person who made this inspection and issued this order was authorized by law to make the inspection or issue the order. It doss not appear from the indictment that the defendant was in default or had committed any crime by reason of his failure or refusal to obey and observe an order issued lyone authorized to make it. He committed no crime in failing to obey an order issued to him by one who was simply an inspector of high explosives in and for the state of Ohio, whatever and whoever that may be.

We hold, therefore, that the indictment in this particular is defective, and that the defect is of that character that the demurrsr tc the indictment should have been sustained, and that the court erred in not sustaining the demurrer to the indictment.

Very many questions that are debated before us here have already been passed upen by this court in the case of Corthell v. The State of Ohio, 11 Circuit Court Reports, 570, and we have net re-examined these questions. We are content with the conclusions arrived at in that case. There are other questions noted which are not likely to again arise upon a retrial cf this case. Such questions with respect to the omission and rejection of evidence, and certain things in the charge of the ccuit, we will not take time to consider particularly. There is one matter, however, that we will call attention te so that the same error may not be fallen into again. We hold that even if this notice had emanated from the proper authority, there is not sufficient evidence in this record of the service of the notice upon the defendant. The testimony upon the subject of the notice, I will read. E. H. Slack, an employe in the office of the chief inspector, called asa witness for the state, gives the only testimony upon this point. The important part is as follows:

“Q. I will ask you to whom you delivered a copy of the order which you hold in your hand? A. To C. S. Corthell, Manager, Findlay; mailed it to him.
“Q. Did you place the address of O. S. Corthell, Findlay, Ohio, on the envelope? A. Yes.
“Q. That you placed in the postoffice and duly stamped? A. Yes.
Cross-Examination.
“Q. Are you the mail carrier in your department? A. Nc.
“Q. Who carries the mail, who delivers the letters that are written over to the pnstoffice? A. We have a messenger.”

George Phelps, for Plaintiff in Error.

G. H. Withey, Prosecuting Attorney, for State.

It was suggested here that so far a3 appears from the record, this messenger may have been an .employe of the United States, a mail carrier,and not a private messenger; but we think it fairly appears from this answer that the messenger was not of this character, but was a messenger in the office Gf the state inspector of workshops and factories.

‘‘Q. What is his name? A. Frederick Shoub.
‘‘Q. When a letter is written it is left in a box and delivered to the postoffice? A. This was not.
‘‘Q. Did you deliver personally? A. No.
‘‘Q Who did? A. Messenger.
“Q. How do you know? A. I placed it in his hands.
"Q. Now, you have been telling us you mailed when you placed in the hands of a messenger? A. Yes.
“Q. You don’t know he mailed it? A. We have reasons to believe he did. ”

We repeat that upon notice of this order, if the order is not obeyed or observed, the person notified,or the person to whom it is addressed, becomes guilty of a crime, and subject to heavy penalties; therefore, the rules upon the subject of notice requiring that actual notice shall be given where no other kind of nutice is especially provided for by the statutes, should be strictly chserved and adhered to in a case of this character.

The general rule on tins subject is stated in the case of Moore v. Given, 39 Ohio St., 661, as follows: ‘‘Where a statute requires notice of a proceeding, but is silent concerning its form or the manner of service,actual notice will alone satisfy such requirement.”

Whether evidence that this notice was sealed in an envelope properly addressed, stamped and mailed at the post-office, would be sufficient, we do not consider or pass upon, but we hold that the proof of service in this case was net sufficient.

The judgment will be reversed and the defendant di« oharged.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    VANDUZEN GAS and GASOLINE ENGINE COMPANY v. FRANK SCHELIES.

      Injury to employe — Sufficient averment—

    A petition in an action by an employe against the employer for damages for injury,averring that he was peremptorily ordered by the employer’s foreman to perform a duty without providing proper safeguards for his protection, states a good cause of action, and unless it appears that the danger was so obvious that it would have been contributory negligence to work, he is entitled to recover.
    Error to the Court of Common Pleas of Hamilton county.
    The defendant in error recovered a verdict of $8,500 on account of the loss of a part of his hand while employed by plaintiff in error in operating a circular saw.

      Follett & Kelley, for Plaintiff in Error.

      Kittredge & Wilby and Frank D. Goodhue, contra.

    Swing J.; Smith, P. J., and Giffen, J., concur.
   The gist of the action against the engine company by Sohelies was that the company, through its foreman,peremptorily ordered him to perform a duty without providing proper safe guards for his protection, and that by reason thereof ha was injured.

The case does not come within the principle of the case of Coal Co. v. Norman, 49 Ohio St., 598, but is more like the case of Railway Co. v. Lavalley, 36 Ohio St., 226, and oases cited by defendant in error. It was the duty of Sohelies to obey the peremptory order of his foreman,unless the danger ito him in doing so was obvious and was so apparent to him •that it would have been contributory negligence on his -part to have obeyed the order. Whether it was cr was not in this case is a question under proper instructions to be left to the jury.

We think a case was alleged in the petition, and therefore was not subject to demurrer. We think the charge of the court was very fair and correct, and that the jury was authorized from the evidence in finding the verdict.

Judgment affirmed; no penalty.