author: BY THE COURT.

text:
    MECHANICS’ LIENS
    [Hamilton (1st) Court of Appeals,
    May 20, 1918.]
    Jones, Wilson and Hamilton, JJ.

      Agnes Park v. Williamson Heater Co. et al.
    1. Mechanic’s Lien Holders Protected When Failure to Follow Strict Letter of Law Due to Deception Practiced by the Owner.
    The validity of a mechanic's lien is not affected by failure of the contractor or material-man to follow the strict letter of the statute in the matter of furnishing to the owner or his agent a sworn and itemized statement as required by Sec. 1283 G. C., when such failure was due to deception practiced by the owner. In such a case the sending of a copy of the lien placed on record, addressed to the name used by the owner in making the contract, is a sufficient compliance with the statute and the lien so perfected will be held good.
    2. Mechanic’s Lien for Heating Apparatus Dates from Completion of Work not when Body of Work Done.
    Where heating apparatus was placed in a building and nearly all of the labor performed in June, but the registers were not installed or connections made until November, the filing of a mechanic’s lien within sixty days of completion of the work was within the time prescribed by the statute.
    3. Lien of Plumber Constructing Part of Work Filed after Expiration of Year and Completion by Another Plumber Void.
    But where a plumber does a part of the work on a building and a year later files a lien, the work in the meantime having been completed by another plumber at the instance of the owner, the lien is not filed within time and is void.
    4. Lien of Painter Leaving Work Unfinished Filing Lien after Sixty Days of Completion of Job Void.
    The lien of a painter, who left the job unfinished and filed a lien more than sixty days after the furnishing of the last material and labor, is also void for failure to file within the prescribed time.
    Appeal.

      Jas. E. Jordan and Hicks <& Hicks, for plaintiff.

      H. J. Buntin, for Williamson Heater Co.

      Bates <& Bates, for Nitzschman & David.

      G. S. Burdsall, for Gilbert Kerley and Max Liederman.

       Affirming in part Parle v. Williamson Heater Co., 28 Dec. 141.

   BY THE COURT.

Tbe original action was brought by Agnes Park against the Williamson Heater Co., Harry Nitzschman & Edward David, doing business under the firm name of Nitzschman & David, Gilbert Kerley and Max Liederman. Max Liederman was the principal contractor in the construction of a dwelling-house on Hawthorne avenue, in Cincinnati, Ohio; and the three sub-contractors, the Williamson Heater Co., Nitzschman & David and Gilbert Kerley, each claimed a mechanic’s lien of record against said premises.

Plaintiff’s action is one to quiet the title of the premises against these several liens.

Defendants by way of several cross petitions seek to foreclose their liens.

Plaintiff claims that these liens of defendants are void for the reason that they were not filed within sixty days from the last of the material and labor furnished as required by Sec. 8314 G. C. and further that neither the head contractor nor the subcontractor made out and gave to the owner or her agent a sworn and itemized statement, as required by See. 1283 of the mechanic’s lien law. Plaintiff admits the receipt of notices of the filing of the several liens.

Without entering into a general discussion of the lien laws applicable to the case we shall content ourselves by saying that any defect on the part of the defendants in following the letter of the law and in furnishing sworn and itemized statements was due to the deception practiced by the plaintiff, and the service of the copy of the lien filed must be held to be a substantial compliance with this provision of the statute.

We are of opinion, that the lien filed by the defendant, the Williamson Heater Co., was filed within sixty days from the furnishing of the last of the material and labor. The evidence shows that while all of the material was furnished and nearly all of the work and labor performed in the month of June, 1914, some work was done by way of connecting up of the furnaces and installation of the registers by the heating company November 28, 1914, and on December 5, 1914, the said Williamson Heater Co. duly placed its mechanic’s lien on record in Hamilton county, Ohio, and on the same date a true copy thereof with the notice of the furnishing of the heating apparatus and cost thereof was addressed to “Ana Mey,” the name under which plaintiff had contracted for the construction of the house. This was in compliance with the statute and this lien must be found good.

The lien claimed by the defendants Nitzschman & David is based on their claim for plumbing. The evidence discloses that the last work performed by these defendants on the plumbing was in the fall of 1914; that there was certain work to be done on the plumbing, but that the same was never performed by the said defendants, but was procured by plaintiff or her grantee to be done by other parties; that these defendants claimed they did not discover that some one else had done the work until April 18, 1917. The mechanic’s lien claimed by these parties was placed upon record October 22, 1915.' It is therefore clear that the lien having’ been, placed on the property more than one year after the last work had been performed and material furnished, it was filed too late. Neither can they successfully claim a lien by reason of the unperformed part of the work, as there is no claim that a lien was filed after the discovery that the work had been done by others, and the lien is claimed only on account of labor and material furnished prior thereto. We must therefore hold this lien to be void and of no effect.

The same facts appear from the testimony of defendant Gilbert Kerley with reference to his claim for painting, except as to some little difference in the dates as to when the last work was done and the filing of the lien. The filing of Kerley’s lien, as shown by the evidence, was more than sixty days subsequent to the furnishing of any material or labor, and said defendant admits that the unfinished part of his contract, if any, has not yet been completed, in so far as he knows. It is therefore clear that no lien can be predicated upon the unfinished work.

We therefore hold that plaintiffs entitled to the relief prayed for, upon the payment of the claim of the Williamson Heater Companjq and upon the failure to pay this money a decree in foreclosure and sale of the premises may be had to satisfy such claim; that the liens claimed by the defendants Nitzschman & David and Gilbert Kerley are void and of no effect, and the title may be quieted as against these two alleged liens.

Jones and Hamilton, JJ., concur.

Wilson, J., not participating.


source: Caselaw Access Project

author: GORMAN, J.

license: Public Domain

text:
    DIVORCE AND ALIMONY
    [Hamilton (1st) Court of Appeals,
    February 11, 1918.]
    Jones, Gorman and Hamilton, JJ.
    Flora Marklein v. George Marklein.
    Competency of Evidence as to Mutual Agreement for Payment of Alimony.
    At the hearing of a motion to terminate an allowance of alimony, it is error to refuse to permit the introduction of evidence tending to show that the allowance named in the decree was fixed by agreement and that said agreement was brought to the knowledge of the court at the time the decree was granted.
    Error to Insolvency Court.

      A. C. Fricke and Saul S. Klem, for plaintiff in error.

      Owen N. Kinney, for defendant in error.
   GORMAN, J.

It appears from the record that in 1911 George Marklein filed a petition in the court of insolvency for divorce against.his wife, Flora Marklein, averring that she was guilty of gross neglect of duty in that she had wilfully failed and neglected to take care of her home or perform her household duties. She was duly served with summons, and a return of such service was duly made.

On February 19, 1912, the court of insolvency entered a decree in favor of the plaintiff, George Marklein, for divorce on the ground that the wife was guilty of gross neglect of duty towards the plaintiff. The wife had filed no answer, and was in default for answer.

The court further ordered that the plaintiff pay to the defendant, Flora Marklein, the sum of $1,250 upon the endorsement of the decree, and further awarded to the defendant the sum of $3 per week, as alimony, for her support, the plaintiff to pay the costs.

It appears from the record that on February 17, 1912, two days before the decree was entered by the court of insolvency, Flora Marklein signed a paper which was thereafter filed in the court of insolvency on February 19, 1912, the day on which the decree for divorce and alimony was entered. This paper is a receipt to George Marklein, by Flora Marklein, for a municipal bond of $1,000 issued by the city of Henderson, Kentucky, and also a check for $250 drawn upon the Western German Bank, and two solitaire diamond rings. The paper further sets out the following statement:

“I also agree to accept the sum of three ($3.00) dollars per week as alimony in the case of Marklein v. Marklein, and authorize the court of insolvency to so correct the decree made this day.”

The plaintiff, George Marklein, continued to pay said alimony of $3 per week until April 16, 1917, upon which date he filed a motion in the court of insolvency asking the court to terminate the payment of alimony.

Upon the hearing of this motion the wife was represented by counsel, who sought to show to the court that the amount of three dollars per week was by agreement of the wife and the husband at the time the divorce was granted in 1912.

The court refused to permit this evidence to be introduced, and refused to permit counsel for the wife to show that this agreement as to the payment of the sum of $3 per week for alimony was brought to the attention of the court at the time the decree for divorce was granted. And the court upon final hearing made an entry in the case terminating the payment of the three dollars per week as alimony.

Error is prosecuted to this court on the failure of the court of insolvency to permit the evidence to be introduced to show that the amount of $3 per week as alimony was by agreement between the husband and the wife and that this agreement was brought to the attention of the court on February 19, 1912, the time of the granting of the divorce and alimony.

A motion was made for a new trial, which was overruled.

It is claimed in this court that the insolvency court erred, and that this error was fatal to the plea of the wife, and that the judgment below'should be reversed.

We are of the opinion that the court below erred in refusing to permit counsel for Flora Marklein, plaintiff in error, to show that the amount of the alimony was agreed upon between herself and her husband. It would appear that there was no way in which the court would grant her $3 per week as alimony because the defendant was in default for answer, unless it be by consent of the husband or by agreement between the parties. The record shows that the agreement consisting of a receipt by the wife, was signed two days before the decree was entered, and in ■this receipt it was set out, as we have above stated, that she agreed to accept $3 per week as alimony to be paid to her by the plaintiff, her husband. This paper was signed two days before the decree was entered and it was filed in that court, and presumably must have been shown to the court before the decree was there entered.

Aside from the fact that such paper was filed in the court, we hold that it was proper for the wife to show that there was an agreement between herself and husband before the entering of the decree, and that this agreement was for $3 per week to be paid by the husband; and further. that this agreement was brought to the attention of the court even though there were no written agreement between them. The entry itself fails to set out that the amount of $3 per week was by virtue of an agreement between the parties, but the admission of evidence to show that it was by virtue of agreement could have had no effect whatsoever in varying the terms of the agreement.

In the case of Wood v. Jackson, 8 Wend. (N. Y.) 2, the second paragraph of the syllabus is as follows:

“A former judgment may be given in evidence accompanied with such parol proof as is necessary to show the grounds upon which it proceeded, where such grounds from the form of the issue do not appear by the record itself, provided that the matters alleged to have been passed upon be such as might legitimately have been given in evidence under the issue joined, and such that when proved to have been given in evidence, it is manifest by the verdict and judgment that they must have been directly and necessarily in question and passed upon by the jury.”

This principle being applied to the trial court would make such parol evidence admissible, because this evidence would not tend to vary the terms of the decree, either to contradict it, or to make the decree more or less, or in any way to affect the validity or force of the decree.

Counsel for the husband has cited the case of Sargent v. Sargent, 11 Dec. 218 (8 N. P. 238), as tending to support his contention that this evidence was incompetent, but an examination of the case cited shows that the court in the trial of the case did admit the oral evidence but subsequently was of the opinion that it ought not to have been admitted, although the court did admit the evidence tending to show the terms upon which the decree was entered.

In the case of Olney v. Watts, 43 Ohio St. 499 [3 N. E. 354], the court says that if the party complaining could have shown and proved that the amount of alimony was by virtue of an agreement, then it would be admissible.

We therefore hold that the court below in the trial of this cause should have permitted the oral evidence to be produced, as well as any written evidence tending to show that the amount of alimony to be paid to Flora Marklein by George Marklein was by virtue of an agreement to pay $3 per week and that this agreement was brought home to the knowledge of the court at the time the court ordered the decree to be entered; and because of failure of the court below to admit this evidence the plaintiff in error was prejudiced, and the judgment is reversed and the cause remanded to the insolvency court for a new hearing.

Jones and Hamilton, JJ., concur.


text:
    ERROR — INFANTS
    [Hamilton (1st) Court of Appeals,
    May 27, 1918.]
    Jones, Wilson and Hamilton, JJ.
    Raymond Rupert v. Cincinnati Trac. Co.
    Minor May Prosecute Error Proceedings after Reaching Majority.
    When a petition in error alleges that the plaintiff in error has become of full age since the rendition of judgment in a certain proceeding in which his name appeared as plaintiff but in which he was not legally represented or his rights properly protected by the appointment of a guardian ad litem, it is error to grant a motion to dismiss the error proceeding on the ground that the court is without jurisdiction.
    Error.

      McNeill <$> Thompson, for plaintiff in error!

      Sherman T. McPherson, for defendant in error.
   BY THE COURT.

This is a proceeding in error seeking the reversal of a judgment in the common pleas court, wherein that court sustained defendant’s motion to dismiss plaintiff in error’s petition in error and rendered a judgment therein dismissing said petition in error. .This holding and judgment was based upon a finding that the court of common pleas had no jurisdiction to entertain or consider said petition in error in that court.

The action in the court of common pleas was a petition in error filed by the plaintiff in error in this proceeding against the defendant in error herein, seeking to review and set aside certain proceedings wherein a confessed judgment for thirty-five dollars was entered January 9, 1913, before a justice of the peace in an action brought by one Joseph Schillmoeller who alleged that he was “the guardian and next friend” of plaintiff, who was then a minor, against the defendant the Cincinnati Trac. Co.

Said petition in error, in addition to the statement of the judgment and proceedings in said court sought to be reviewed, made certain allegations of fact which plaintiff in error deemed necessary in order to secure such review, among which were the allegations that he became twenty-one years old on May 7, 1916; that said Joseph Schillmoeller was a mere volunteer in bringing said suit'as guardian and next friend and had no warrant or authority in that capacity; that he was not appointed by said justice of the peace as guardian or next friend to the plaintiff nor was he ever appointed by any court as guardian of plaintiff; that no trial of said cause was had before said justice of the peace nor was any testimony heard or any investigation made into the facts of the case, but that said judgment was entered' to carry out an agreement of settlement theretofore made between said Joseph Schillmoeller and the Cincinnati Trac. Co.; and that said justice of the peace never acquired jurisdiction to hear and determine said cause.

It is held in Roberts v. Roberts, 61 Ohio St. 96 [55 N. E. 411], that it is proper to aver such extrinsic facts, in a petition in error, as may be necessary to show that plaintiff in error has succeeded to rights under the judgment or has reached the age of majority, and as to such extrinsic facts the petition in error should be verified, as was done in this cáse.

The petition in error in this case was filed June 19,1916. It alleges that plaintiff in error became of age May 7, 1916. This is an allegation of fact upon which issue may be taken by defendant in error and, if found to be true, brings plaintiff within the terms of Sec. 12270' G. C. and entitles him to prosecute the proceedings in error. The fact that the record in the court of the justice of the peace may show a different age as to plaintiff in error, does not prevent him from averring his true age and establishing his right to bring error proceedings in the court of common pleas.

The court of common pleas clearly erred in holding that it was without jurisdiction to hear and consider the petition in error and in entering a judgment of dismissal.

How far plaintiff in error can go in proving facts contrary or in opposition to the record of the case below, and the effect of such record, is not at this time presented to the court. The purpose of the law is to afford a minor an opportunity to be heard, upon arriving at full age, in a case where he has not been legally represented and where his rights have not been properly protected by the court by the appointment of a guardian ad litem, as provided by Sec. 10234 G. C. or otherwise as may be provided by law. Such issues of fact as are properly alleged in the petition in error must be heard and considered by the court of common pleas, if issue is taken thereon by the defendant in error. But as no hearing upon these issues was had in that court it would be premature for us to discuss and consider them.

The judgment of the court of common pleas must therefore be reversed and the cause remanded for further proceedings.

Jones, Wilson and Hamilton, JJ., concur.


author: GRANT, J.

text:
    CIVIL RIGHTS
    [Summit (8th) Court of Appeals,
    November 12, 1918.]
    Grant, Dunlap and Lawrence, JU.
    Puritan Lunch Co. v. Leonard H. Forman.
    1. Right of Negro on Repayment of Price of Meal Purchased, to Leave Restaurant without Waiving Right of Action for Civil Rights.
    3. Discriminating against Negro Patron because People Kick against Negros’ Patronizing Restaurant.
    A negro having been served with a meal at a public restaurant for which payment has been accepted, on request an employe thereof to withdraw to a place by himself in a room of inferior accommodation and separate from white patrons, may accept repayment of his money and leave the premises without waiving his cause of action provided by Secs. 12940 and 12941 G. C., and this notwithstanding by not remaining he was unable to ascertain what would have been the result if he had refused to comply with such request.
    2. Back Room of Restaurant Used for Dishwashing not Place of Equal Accommodation.
    A back room of a public restaurant used for washing dishes and storing ice, in which some dining room chairs have been placed, is not of equal accommodation in all respects to the regular dining room where there are chairs and tables and no dishes are washed or ice stored.
    Since the reason assigned for requesting a negro patron to eat his meal in the back room was that “the people have been putting up so much kick against it that we are losing a great deal of business,” the jury is justified under the circumstances in concluding that the discrimination was based on race or color.
    Error.

      Otis, Beery & Otis, for plaintiff in error.

      Smoyer & Clinedinst, for defendant in error.
   GRANT, J.

The parties will be designated here as they were in the court below — being in the reverse order of their present standing.

The plaintiff declared as for a violation by the defendant of Secs. 12940 and 12941 G. C., statutes once called and still commonly known as the civil rights act.

The specific thing aimed at by this enactment is the unlawful discrimination against patrons and customers and guests of taverners and others holding themselves out to the public as performing like functions, based on the prejudices of race, color or previous condition of servitude and not on merit or the want of it.

To make such laws effectual, they are made gwcm-penal in the consequences denounced upon offenders against them.

The trial was to a jury; there was a verdict for the plaintiff, upon which the judgment called in question here was entered, a motion for a new trial having been overruled.

Three principal grounds of error are alleged and argued in the brief and at the bar. The first involves a question of pleading, and has to do with the granting of a motion by the trial court, made by the plaintiff, to strike from the amended answer certain words.

The words occurred in the third defense, the entire paragraph as it first stood being as follows:

“Further answering, this defendant for its third defense herein adopts all of the allegations and averments of its foregoing first and second defenses, and makes the same a part hereof the same as if again rewritten, and says that it specifically denies that it ever refused to serve plaintiff with food in its restaurant. That on the contrary, it did serve him with the food which he desired to purchase and it says that in refusing to avail himself of the privileges extended to him by the defendant to eat said food in its restaurant and in demanding and receiving money which he had paid as the purchase price of said food, plaintiff voluntarily waived his right to be served with food in said restaurant, and also waived any cause of action he might have had against the defendant herein.”

The words which the court, censored out of this answer were the following:

“* * * And it says that in refusing to avail himself of the privilege extended to him by the defendant to eat said food in its restaurant.”

The material thing to the now complaining party in that paragraph, was to plead as a defense to the action a waiver'of its cause by the plaintiff. This defense, this alleged waiver, was sufficiently pleaded by the answer as it was left after the words were stricken out. „ It was proper certainly, if not necessary, that the facts relied on to establish the waiver should appear in the pleading somewhere. We. think they did appear in what had gone before in the answer, and that this was what was referred to when a refusal was alleged by the words eliminated on motion. If they did not appear in the pleading in so many words, the testimony supplied them, abundantly. All the facts-tending to prove what was claimed to be a waiver were finally before the jury, and the defense to establish which they were addressed still remained in the answer, intact, ready for the jury to deduce from them the consequence of a surrender by the plaintiff of his cause of action, if the jury should conclude that such consequence flowed from them. So it appears to us that the defendant got, or could have had, had it so urged to the court and jury, the full benefit of the deleted words — even upon the hypothesis that they were properly in the pleading in the first place, which we assume now only causa arguments. It need not, however, be admitted.

Without much question, what the court below saw in the words which made them obnoxious to destructive criticism was the assertion that the plaintiff refused to avail himself of the privileges of the restaurant. It was a conclusion and not a fact. The plaintiff’s theory of the ease was that when the only choice left to him by the keeper in charge was to eat in a room aparted to inferior uses not shared by white customers, a declining to eat the food was not a refusal to eat it. A refusal requires volition on the part of the refuser. It must be voluntary and not under compulsion, and a requirement or even a request to eat in a room implying the ignominy or humiliation of being herded as a being of an inferior race, might work a giving back of the food tendered on such conditions, without carrying with it, necessarily, the consequence of a waiver at law. We can see no merit in this assignment of error.

It is next complained that the court below erred in refusing to give in charge to the jury the defendant’s requested instructions Nos. 2 and 3, made before argument.

Request No. 2, was in the following language:

“The court says to you as a matter of law that the mere statement made by the employee of the defendant to the plaintiff that the plaintiff would do said employees a favor if he would eat his lunch in the rear room of said restaurant, unaccompanied by any demand expressed or implied, is not sufficient to constitute an unlawful discrimination, and does not make the defendant liable in this case. ’ ’

An instruction before argument is regarded as giving to the jury the last word as to the law of the ease. It must state the law exactly, because it can not be modified or explained or otherwise adapted to the facts by the court, and in that unaided state it is taken by the jury when they retire to consider of their verdict. Of course it can not state the law correctly except in its application to the facts disclosed by the evidence. If therefore, it assumes as a fact proved that which has not been proved, it' contains the double vice of mis-stating the law and misleading the jury. Because it can be good- law only so far as the facts to which it refers and is addressed and applied, are good facts — that is, facts in evidence and from which its application arises. This requested instruction is bottomed upon a fact which it assumes but which did not exist. The man in charge of the restaurant and with whom the plaintiff dealt, did not request the latter to go into the back room to eat his meal, as a favor to himself. His own testimony is that if the black man would go out into that room to eat, “he would be doing us a great favor.” This he repeats in another answer, and still again, all in the same words. This talk was had in the presence of Henderson, the manager, to whom the matter was at once referred by Calhoun, the employee, and by Henderson’s direction the plaintiff was given back the money he had paid for his uneaten meal. Beyond all controversy, Calhoun’s use of the word “us” in this matter was understood both by the plaintiff and himself and also by Henderson, as meaning the proprietor, the restaurant, the concern with which the plaintiff alone was dealing or had any present business. Calhoun was in no shape to be asking favors from a negro, and if he had been taxed with such an unseemly thing, such a low-down thing, then and there — where, as Calhoun says, the guests of the Howe Hotel were accustomed to eat and may have been looking on — if, we say, such a thing as requesting a great favor personally from a black man, had been then imputed to one who was perhaps a lineal descendant of the great South Carolinian, the latter would have resented it hotly.

The request did not state the law because it did not state the facts upon which it was predicated and to which it purported to apply. As it did not state the facts as the jury had them, its tendency, had it been given, would have been to bewilder and mislead the jury in their consideration of the case.

It was, for both reasons, properly refused and there is no error at this point.

Request No. 3 — the refusal to give which in charge to the jury is claimed to be error — reads as follows:

“Unless you find from the evidence in this case that what was said to the plaintiff by defendant’s employee, together with the facts and circumstances in connection with their conversation, amounted to something more than a request and furnished reasonable ground for the plaintiff to believe that if he did not comply with the request, he Avould be denied the full enjoyment of the accommodations, advantages, facilities, and privileges of the restaurant, then your verdict must be for the defendant in this case.”

We are unable to see how the plaintiff could have'tested the soundness of this request otherwise than by standing his ground vi et armis, and in that way finding out whether the defendant’s servants would follow up their invitation for him to eat where the Howe hotel people would not see him, by force and arms also. It seems clear that the law was not made to invite or encourage breaches of the peace in order to interpret it.

That the request might by suitable additions and modifications have been made to state the law correctly, is likely true, but is nothing to the purpose, since it was beyond the power of the court to make an incomplete instruction complete and so proper. Had the request been to add its purport and effect to the general charge, the court might have moulded it into a form by which it would have wholly, instead of partly, stated the rule; perhaps it would, in that case, have been the court’s duty to do so. But this is not that case; it is a request which, unless it propounds the entire rule of law as to its subject, without comment, addition or subtraction, is nothing and should not, and csin not be given.

The point is overruled.

The last charge of error in the record appears in the brief of the complaining party in the following language:

‘ ‘ Third. The verdict and judgment are contrary to the evideuce and the law in that defendant in error failed to show an unlawful discrimination which was authorized or was within the scope of the authority of plaintiff in error’s servant who dealt with the defendant in error. ’ ’

We shall not review the evidence in detail. It was for the jury and not us, if — there being a conflict in it- — the tendency of it was such as to support that view of it and that result of it which the jury’s verdict says is the right view and which for that reason may be held to support and not negative the verdict.

It is our sole business then to see if there was such tendency or not.

The thing to be proved under the statute which is the enabling act of this class of litigation, is a discrimination in service by one holding itself out as a public taverner, and which discrimination must be based in this ease on race or color. These qualities are wholly adventitious and accidental; they are not under the control of their possessors, and discriminations on account of them are not founded on merit or the want of it, but spring from prejudice or contempt, undeserved by those upon whom it is visited. Such discriminations are peculiarly galling to their victims. They carry with them a sense of ignominy because they are an injustice which the subject of it can neither resent nor remedy, and they publish him to the world as one who, without fault on his part, is to be gibbeted at the cross roads of public scorn and contumely. The height of this unmerited social outlawry was reached when the Supreme Court of the United States declared judicially that the ostracized race could not be citizens and were regarded when our constitution was framed as having no rights which a white man was bound to respect.

To correct this judgment of barbarism was the purpose of what is generally known as civil rights legislation, of which the statute being considered is a part. Its history is so well known that more particular reference to it is unnecessary.

This class of legislation has received various interpretations by the courts, varying much with the color line. South of Mason and Dixon’s line — where under federal compulsion there are such laws at all — -they have received a grudging construction, and even the federal courts, with more acuteness than candor, have gone a long ways towards emasculating them so far as securing the rights meant to be created by them is concerned.

We need attempt no reconciliation of these variant and often grotesquely incongruous holdings. And we may, for the purposes of this case, accept the pro-Southern view as the rule of law applicable. It is perhaps, as well laid down as anywhere in Chilton v. St Louis & I. M. Ry. 114 Mo. 88 [21 S. W. 457; 19 L. R. A. 269]. It goes of course only to the extent of the discretion necessary to bring the fact within the denunciations of the statute; the motive inspiring the fact is quite another matter.

That case holds as follows:

“A passenger may not dictate where he will sit, or in which car he will ride. If he is furnished accommodations equal in all respects to those furnished other passengers on the same train, he can not complain..”

This rule of requirement does not call for identity of accommodation, but it does mean substantial equality of service, and by that measure of duty we may test the defendant’s obligation of service to the plaintiff in this ease — the former being admittedly a publican in conducting the restaurant in question.

The evidence material to the determination of both questions — rthat of equality of accommodation and the motive of the defendant in excluding the plaintiff from the front room of its establishment — may be found in the testimony of Calhoun, the •man in immediate charge at the time. So much of this as can be brought to bear upon the real issue of the case, is the following :

“ A., I told him he would be doing us a favor if he would eat in the next room. He asked me why.
“Q. Yes. Now, then, after you made this request or when you made this request of Mr. Forman, to carry his food to this room, what did he say, as you recall it? Give the conversation that took place between you, as nearly as you can. A. He asked me what was in that room. I explained to him that there was an electric dishwashing machine in there, an ice box, and chairs provided for them, just the same as they were out in front. Then, he wanted to know why he could not eat out there; wasn’t his money as good as anybodjr else’s? I told him it was, but he would be doing us a great favor by going out there. He would not go out there, and we gave him his money, and he went out.
‘ ‘ Q. When this man came np to the counter, Mr. Calhoun, and bought these articles, you sold them to him? A. Yes, sir.
“Q. Took his money? A. Yes, sir.
‘ ‘ Q. Put it in the cash register ? A. I did.
‘ ‘ Q. Where did he go ? Did he go to one of these enamel-covered, white tables, or to a chair ? A. He went to a chair.
“Q. Arm chair, did he? A. Yes, sir.
‘ ‘ Q. What did you do then ? A. I went around and told him he would be doing us a favor if he would eat—
“Q. Tell this jury what you said to him. A. I said: ‘You would be doing us a great favor if you would eat your dinner in the rear room, there. ’
‘ ‘ Q. What did he say, to that ? A. Wanted to know what was the matter with eating out there. I told him, I said the people had been putting so much kick against it, we were losing a great deal of business about that, explained to him, the Howe Hotel were all eating there. I asked him'if he would go back there. He said, no, he would not go out there. He said: ‘ If you will give me back my money, I will go out. ’
‘ ‘ Q. What did you say ? A. I said: ‘ Shall I give him his money, Mr. Henderson?’ He said‘Yes.’ I gave him the money.
‘ ‘ Q. What instructions, Mr. Calhoun, did you have, on thq subject of serving colored people that came in that restaurant? A. Only that Mr. Henderson instructed me—
‘* A. —that I should say — ask them, in a manly way, if they would go back there to eat. ’ ’

This, we think, sufficiently exhibits the character or quality of the room to which the plaintiff was asked to go to eat the food he had bought and paid for, to put the question to the jury for determination. Upon Calhoun’s own showing the jury had a right to find — as by their verdict they did find — that the accommodations in the latter room were not.identical with those of the front room, that they were not equal, but were inferior. It was a back room; it was the place for washing dishes and for storing ice. The only things it had in common with the other room — the only dining room — were chairs. Upon the whole case, it was not intended to be the equal of the other room; if it had been, there would have been no point in inviting the plaintiff into it and he would not have been so invited; this, in tendency at least, may be gathered from the testimony as a whole. The question remains, was this invitation to the plaintiff to segregate himself in to the g-M<m-kitchen while eating his bought meal, purposeful on the part of the defendant? Was it from an intention to discriminate against the plaintiff, not from necessity, but because he was black?

We may be sure that a white man bearing the great name of Calhoun would not be likely to be asking a negro for “a favor,” or “a great favor,” unless some ulterior motive lay behind the request. Unless there was such motive, very different language would have been used, we think. We can think of no such motive, nor can we suppose that the jury could think of any, unless it was the statute, with its apprehended pains and penalties, under which this action was brought. This inference is more than strengthened; it rises nearly to the level of demonstration, when we apply to it what Calhoun said as to the reason of the invitation to the rear room. He says: “ I told him, I said the people had been putting so much kick against it, we were losing a great deal of business about that; explained to him the Howe Hotel were all eating there. ” That Calhoun, the factotum, had been instructed to notify black customers that they were of an inferior race by telling them to eat apart from the “man and the brother” of a lighter visage, in “a manly way,” is inconclusive as to the compulsory element of the message. Prize fighters call their bruising methods “the manly art,” and the newspapers also so characterize it.

Upon no reasonable hypothesis could the guests of the Howe Hotel put up “a kick” against Forman’s eating- in the front room, unless he was in some way personally offensive to them, and in no way could he personally offend them, consistently with the record, unless he was in some way deemed to be their inferior. He was not personally known to them. How was he inferior? For aught that appears he was cleanly, of good manners and decent demeanor, used no bad language, and it does appear that he had paid for what he got — something that could not be said of all the offended ones, we take no risk in supposing.

No line of cleavage that we can think of remains, except that of color — meaning race.

It is enough that this is the very thing which the statute we are administering denounces and forbids. There is sufficient history behind it — and indeed in its presence — to admonish the courts why and how it became necessary and commended its prohibition to the law-making- power, and to administer it in the light of that history. Its purpose was to contradict the pitiless affront to a being created in the image of a common and impartial Maker, embodied in the rather coarse but still accurate translation which a large and influential section of the country made of Judge Taney’s dictum — “A nigger ain’t a man.” The unthought design, the perhaps unconscious purpose, of this discrimination — and certainly its effect- — is to constantly remind the black man that his is an inferior race, whereas our constitutions, our legislation, our avowed public policy, all say it is an equal race in the eye of the law. Historically speaking, of course, our constitutional and legislative declarations and our loud professions of being “the land of the free and the home of the brave,” are right. The race over which the shield of the statute extends its protection, is not an inferior race; it is a belated race — made late in the race for success by the systematic and legalized robbery for two hundred and forty years of that which alone makes a man ennobled — his right to labor and eat the bread which in the sweat of his own face he has earned.

Insensibly, of course, but not the least less, Calhoun’s invitation to Forman to adjourn to the semi-kitchen'was to the latter a reminder of the inferiority of his race which many, perhaps most, white men still in opinion maintain, but which the law in this manner and in such places, does not allow, but expressly denies.

It is not for courts to argue for the wisdom of the law they are sworn to administer in its integrity. But there is reason for reminding litigants that the spirit of law should be observed in courts, when elsewhere there is a general disposition to ignore and condemn it.

Assuredly, the newspapers of our cities do not mean to prejudice their readers against those of whom the laws are tender because of their inability to take their own part effectually, but unconsciously they are doing this every day. Whenever a black man is arrested, the fact that he is a black is faithfully recorded. If Pompey is caught shooting craps, risking no money but his own, it is always printed “Pompey, a negro.” If Bill Smith shoots a man, intending to get the latter’s money, it is plain “William Smith,” if so be his title of “Mister” or “Colonel,” or “Judge” is inadvertently omitted.

This is spoken of only to call attention to how many ways there are to remind the under dog that he is under, and that without fault of his own he belongs to a race of under dogs. That he is so regarded by many is nothing to the purpose when it comes to the point that their idea is not to be indulged in places held out as places of public entertainment for which black money is taken indifferently with white money; this is the very thing the law forbids.

It may have been disagreeably reminiscent for some of the white “uncles,” guests at hotel, to bé served in the same room with men of the exact complexion of the late Daniel Webster or Thomas Corwin, the one a Senator from Masachusetts and the other a Senator of Ohio, but if they are to be catered to in this respect as well as in that of food and lodging, it must be at the caterer’s risk of a lawsuit by the Webster or Corwin, as the case may be. It is commonly thought that Webster got the better of Calhoun in the constitutional argument, when they tried conclusions with each other some years ago.

And that is exactly the kind of lawsuit we have here.

We have no difficulty in finding that in this case there was evidence which justified the jury in concluding there was a discrimination attempted when Calhoun told Forman to eat in the back room; that such discrimination was based alone on Forman’s color, evidencing his race; that it was purposeful in its intent; that, therefore, it was an unlawful discrimination, not permitted by the statute, and subjecting Calhoun’s principal, the defendant here, to this action.

In so holding we are not departing from our opinion in Anderson v. State, determined in Cuyahoga county at our last term.

It follows that there is no error apparent in the record under review and the judgment complained of, doing substantial justice between the parties, is, for those reasons, affirmed.

Dunlap and Lawrence, JJ., concur.


author: HAMILTON, J.

text:
    SALES — WARRANTY
    [Hamilton (1st) Court of Appeals,
    May 27, 1918.]
    Jones, Wilson and Hamilton, JJ.

      Talge Mahogany Co. v. John N. Quinn.
    Refusal to Admit Evidence Tending to Establish Express Warranty Held Erroneous.
    When plaintiff has declared upon a written contract for certain equipment sold to defendant at a specified price, and defendant hy way of counterclaim sets forth certain representations in the nature of guaranties or warranties as to the economy which would he effected hy the use of said equipment, which representations were not realized but on the contrary the new equipment proved to be more expensive to operate than the old, Sec. 8392 G-. C. relating to express warranty applies and it is error to limit the introduction of evidence tending to prove an implied as distinguished from an express warranty.
    Error.

      Howard N. Ragland and Horace A. Reeve, for plaintiff in error.

      Burch, Peters & Connolly and Walter D. Murphy, for defendant in error.

       Reversing in part Talge Mahogany Co. v. Quinn, 28 Dec. 103 (21 N. S. 221).

   HAMILTON, J.

This action was brought in the municipal court by John N. Quinn, doing business as Quinn & Co. against the Talge Mahogany Co., defendant below, to recover the price of what is known as a “Dutch oven” which had been installed in the factory of the defendant at Indianapolis.

As disclosed by the evidence, a “Dutch oven” is an attachment to a furnace under a steam boiler for the purpose of lessening the amount of fuel required, and to increase the steaming capacity of the boiler.

The ease was tried to a court and jury and resulted in a verdict in favor of the plaintiff for the amount claimed. A motion for a new trial was overruled, and judgment was rendered upon the verdict.

The Talge Mahogany Co. thereupon prosecuted error to the court of common pleas, where the judgment of the municipal court was affirmed. Thereupon this proceeding was brought by ■the Talge Mahogany Co. to reverse the judgment of the court of common pleas and of the municipal court of Cincinnati, and for a new trial.

Plaintiff in error urges three points of error upon which it bases grounds for reversal: first, that the verdict is against the weight of the evidence and contrary to law; second, that the court erred in excluding evidence concerning an express warranty — holding that an express warranty can not exist at the same time as an implied warranty; and, third, that the court erred in its charge to the jury.

Plaintiff below declared upon a written contract or order as set forth in exhibit “A” in the record, which is in the form of a written proposition from Quinn & Co. for the furnishing of the equipment at a specified price of $482 delivered f. o. b. Cincinnati, and in which they agree to furnish a man to install the furnaces, the Talge Mahogany Co. to pay him $5 a day and expenses. ■ This proposition was accepted by the Talge Mahogany Co., and is as of date September 17, 1912.

The defendant by its answer admits that the plaintiff’s claim was for the goods, merchandise and services as itemized in plaintiff’s bill of particulars, but denies every other fact claimed, and by way of counterclaim sets up certain representations and statements which it claims constituted guaranties and warranties to the effect that the installation of the “Dutch ovens” would effect a great economy of fuel used under said boilers and would add greatly to the capacity and efficiency of the boilers in said plant, and that said Talge Mahogany Co. relying upon such statements, representations, guaranties and warranties so made by the said plaintiff, which they believed to be true, gave the order for the ovens as above stated. The defendant further in its counterclaim stated that said “Dutch ovens” failed in every respect to do the things claimed for them, but instead of effecting a saving in the amount of fuel required, it was necessary and the defendants did use — until the furnace equipments were removed by them — a large quantity of coal and fuel in excess of that required prior to the installation of the furnaces and ‘ equipment, and that they were put to great trouble and expense on account thereof, for which they ask damages in the sum of $875.26; that after making every possible effort to use said furnaces in its plant with, economy and efficiency the said defendant was compelled to and did cause same to be removed; and that they lost much time and were compelled to expend a large sum of money .on account thereof.

Plaintiff in error contends that the court erred in refusing to permit the defendant below to introduce evidence tending to prove an express warranty, and restricting it to the proof of an implied warranty.

On page 29 of the record, the court says:

“The court will not permit the introduction of evidence tending to prove an express warranty, but it will admit evidence tending to prove an implied warranty,” etc.

And, further, the court charged the jury that the inquiry should be limited to the question of whether or' not there was an implied warranty in the ease.

In this ruling on the introduction of evidence, and in its charge to the jury, the court was in error. Section 8392 G. C., is as follows:

“Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.”

It is urged by defendant in error that this section does not apply in this ease as it would contravene the rule that oral evidence can not be admitted to vary the terms of a written contract.

The language of the statutes is clear and unambiguous. The section defines what shall constitute an express warranty and nowhere limits its application to any special class of contracts. We are therefore of the opinion that Sec. 8392 applies to the ease at bar and the defendant was entitled to put in evidence of an express contract, and to have the consideration of the jury on that question.

Section 8395 G. C., sub-section (6) provides:

“An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith. ’ ’

Evidence offered by the defendant which in effect tended to show an express warranty was admitted, but was restricted by the court in its application to the purpose of deciding whether or not there was an implied warranty of fitness under all the circumstances of the case. This evidence may have clearly shown an express warranty and being admissible under the statute as above stated should have been admitted for that purpose also, as an express and an implied warranty are not inconsistent in this case.

We are further of the opinion that the verdict and judgment were manifestly against the weight of the evidence. Mr. Talge, president of the defendant company, testified that Mr. Quinn twice before the “Dutch oven” was installed came and examined his‘plant: that he stated to Talge and represented to him that the company was burning entirely too much fuel and that with the oven installed it would save twenty to thirty per cent of the fuel and the boilers would then have sufficient capacity to carry the load required and it would be unnecessary to install another boilei', which had been contemplated by the company, and that the capacity of the boilers would be largely increased. These statements and representations were denied by Mr. Quinn, who was unsupported by any other witnesses. Mr. Talge was supported in his testimony by three witnesses — the engineer, the fireman and the stenographer — who were at that time in the employ of the Talge company, but who had some time prior to the trial in the municipal court severed their connections therewith and had no interest in the matter so far as the record shows.

Mr. Talge testified that all these statements and representations and affirmations of fact were made to him prior to the ordering of the ovens and induced him to purchase the goods, and that he purchased the goods, relying upon these affirmations, statements and representations.

It appears further from the evidence that the defendant made every’ effort to use the ovens which had been installed by the man sent by the Quinn Co., and after ten days ’ trial notified Mr. Quinn that the ovens had been a disappointment and had failed to do the work as represented. Mr. Quinn some time later, after the receipt of this letter, visited the plant, and after looking it over, attributed the failure of the ovens to an opening in a brick wall between the boilers which he claimed interfered with the drafts and further suggested the raising of the stack of the boilers some twenty feet to give the furnaces more draft. The Talge Co. was not bound to make these changes, as the conditions were just as they were when Mr. Quinn first visited the plant at Indianapolis and after examination made the representations with reference to the working of the ovens.

These are the salient'points in the evidence as shown by the record, and as we view it this evidence did not warrant the verdict and judgment rendered in the municipal court.

For the errors above stated the judgment of the common pleas court and of the municipal court will be reversed and the cause remanded for a new trial.

Jones and Wilson, JJ., concur.


author: LAWRENCE, J.

text:
    NEGLIGENCE — PLEADING
    [Summit (8th) Court of Appeals,
    October, 1918.]
    Grant, Lawrence and Dunlap, JJ.
    Howard McMillen v. City of Akron.
    1, Alleging Specific Facts Constituting Prima Facie Negligence without Stating Negligence in Terms Sufficient against Demurrer.
    Demurrer to a petition, which alleges specific facts constituting a prima facie cause of negligence, does not lie on the ground that the negligence is not alleged in terms.
    2. Alleging Obstruction in Street Causing Injury to Automobile Sufficient against Demurrer.
    A petition, alleging in effect that an iron standard, four feet in height, weighing fifty pounds and of the kind sometimes placed near the outer rail of a street car line for the purpose of regulating traffic, was left on a very dark night in a street near an intersection and while plaintiff was driving his automobile slowly along said street he ran into said obstruction and damaged his car for which he asks judgment against the municipality, states a cause of action and the petition is not open to demurrer.
    Error.

      Jonathan Ta/ylor, for plaintiff in error.

      Owen M. Roderick, for defendant in error.
   LAWRENCE, J.

The plaintiff in error, who was plaintiff below, commenced an action against defendant in error, the city of Akron, before a justice of the peace, wherein a default judgment was rendered in his favor. The case was appealed to the court of common pleas by defendant, in which court a demurrer was sustained to the petition of plaintiff on the ground that it did not state facts showing a cause of action; and the sole question presented here for our consideration and determination is, did the court below err in sustaining said demurrer.

The petition, in substance, alleged that South Main street is one of the main thoroughfares of the defendant city, and that there is a double track street car line running through its center ; that the city had placed on both sides of said tracks, near the intersection of Main street with Market street and within a couple of feet from the outer rails of said tracks, iron standards weighing approximately fifty pounds and of a height of about four feet; that these standards are placed on and removed from the line of traffic as the city considers proper for the regulation thereof; that at or about 9 o’clock p. m., May 5, 1917, the plaintiff was driving his automobile northerly in a proper, careful and lawful manner at a speed of about 5 miles per hour at the right hand side of Main street; that the evening was extremely dark; that near the intersection of said streets his automobile crashed into one of the standards which had been left standing through failure of defendant city to remove the same, and damaged and injured his automobile in the sum of $250; that there were no lights, warning or marking of any kind on said standard and the presence of the same was unknown to plaintiff, and that because of the failure of the defendant city to light the same or indicate in some way or by some warning the presence of the standard, plaintiff’s automobile was damaged as aforesaid.

We are of the opinion that the petition alleges specific facts making a prima facie case of negligence and is not demurrable because negligence is not alleged in terms, and we therefore hold that the demurrer to the petition was improperly sustained in the court below, and its judgment will be reversed and the case remanded for further proceedings.

Grant and Dunlap, JJ., concur.


text:
    ALIENS — CONSTITUTIONAL - LAW — MUNICIPAL COBPORATIONS
    [Hamilton (1st) Court of Appeals,
    November, 1918.]
    Hamilton, Jones and Wilson, JJ.
    State ex rel. Charles Balli v. George P. Carrel, Aud.
    1- Ordinance Prohibiting Granting to Aliens Licenses to Operate Billiard and Pool Tables not Unconstitutional.
    A municipal ordinance, prohibiting the granting to one who is not a citizen of the United States of a license to operate a billiard or pool table for hire, is not violative of rights conferred by the fourteenth amendment to the federal constitution, but is within the discretion of the municipal authorities.
    2. Police Ordinances to Regulate Morals.
    Municipal authorities may exercise a degree of discretion in the enactment of laws regulating, under the police power, the operation of such lines of business as affect the morals of the community.

      George S. Hawke, for relator.

      Saul Zielonka, City Sol., and Dennis J. Ryan, Asst. City Sol., for respondent.
   HAMILTON, J.

The relator seeks by mandamus to compel the respondent to issue a license to him to operate a pool table in Cincinnati, Ohio, application for which was made by relator together with the tender of the license fee. The issue of the license was refused by respondent.

The answer of respondent claims to justify his refusal to issue the license upon the ground that relator is not a citizen of the United States, but is a citizen of the country of Greece, and that the ordinance of the city of Cincinnati prohibits the issuance of a license to keep a pool table to a person who is not a citizen of the United States.

The ordinance providing for the issuing of licenses under which application was made by relator, is as follows:

“An Ordinance, No. 76 — 1918, ‘Providing for the licensing of billiard and pool tables by amending original Section 777 of the Code of Ordinances of the City of Cincinnati. ’
“Be it ordained by the council of the city of Cincinnati, state of Ohio:
“Section 1. That original Section 777 of the Code of Ordinances of the city of' Cincinnati be and the same is hereby amended to read as follows:
“Section 777. Billiard Table, etc. — Bach proprietor of a billiard or pool table shall pay a license of twenty-five ($25) dollars per annum for one such table and fifteen ($15) dollars per annum for each additional table; provided, however, that no license shall be granted to a person who is not a citizen of the United States.
“Section 2. That said original Section 777 of the Code of Ordinances be and the same is hereby repealed.
“Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law.
“Passed February 26, A. D., 1918.
“Carl M. Jacobs, Vice Mayor.
“Attest: Fred Schneller, Clerk.
“Approved: John Galvin, Mayor. Feb. 28, 1918.

The relator admits that he is not a citizen of the United States, but urges that the provision of the ordinance “provided, however, that no license shall be granted to a person who is not a citizen of the United States," discriminates against him because he is an alien and is therefore unconstitutional under the fourteenth amendment of the constitution of the United States.

Sections 3659 and 3670 G. C. empower municipalities to regulate and license pool and billiard tables, etc., and under the authority delegated to , it by said sections the ordinance in question was passed by the council of the city of Cincinnati. The case is one, therefore, relating to the police power of the state, and is consequently a question concerning the peace and morals of the community. Does the ordinance transcend the police power conferred upon a municipality by the statutes and recognized by the law of the land?

In determining the question the same rules of construction will apply as are applicable in passing upon the constitutionality of an act of the general assembly.

It must be conceded that “private interests are frequently found in opposition to public good; that public morals, public health, public order, public peace and tranquility are objects of cardinal importance to the well being of society. ’ ’ To preserve and protect these objects for the public good many states, including our own state of Ohio, have passed laws limiting the granting of licenses to engage in the business of retailing intoxicating liquors to citizens of the United States. Such laws have been uniformly upheld, and in no instance held to be violative of the fourteenth amendment to the constitution of the United States.

The leading ease on this question is that of Trageser v. Gray, 73 Md. 250 [20 Atl. 905; 9 L. R. A. 780; 25 Am. St. 587]; wherein it was held:

“A state’s denial to persons not citizens of the United States of the right to obtain licenses to sell spirituous liquors within its borders is not a discrimination against them or an abridgment of their rights within the prohibition of the fourteenth amendment of the constitution of the United States.”

And on page 786 the court says:

“We are unable to conceive that anyone, citizen or alien, can acquire rights which could in any way control, impair, impede, limit or diminish the police power of a state. Such power is original, inherent and exclusive; it has never been surrendered to the general government and never can be surrendered without imperiling the existence of civil society. ’ ’

It seems clear that this ease, together with like cases on the question of the sale 'of intoxicating liquors, is analogous to the one at bar on the question of regulation.

In the case of Commonwealth v. Kinsley, 113 Mass. 579, the court say: “The keeping of a pool table for hire is one of the many things affecting the public morals which the legislature can absolutely prohibit or can regulate,” thus classifying pool tables for hire with the business of retailing intoxicating liquors as effecting public morals.

While it is true the element of the sale of intoxicants is not involved, it is a matter of common knowledge that pool and billiard tables are mostly frequented by young men many of whom are minors, with the opportunity ever present of forming habits detrimental to their future citizenship, and it is only fair and proper to presume that as a class citizens who are interested in the laws of our country may be better entrusted with the conduct of a business which directly affects social conditions, than an alien whose only interest is pecuniary.

The cases cited in the brief of counsel for relator are not in point, as in those eases the acts declared unconstitutional were clearly passed for the sole purpose of depriving the Chinese in the city of San Francisco of the right to earn a living in the laundry business. As the court say in the case of Wright v. May, 127 Minn. 150 [149 N. W. 9; 54 L. R. A. 151].

“A statute arbitrarily forbidding aliens to engage in ordinary kinds of business to earn their living would be unconstitutional. * * * But where the calling or occupation is one which, though lawful, is subject to abuse, and likely to become injurious to the. community, there is good authority for holding that the state may limit it to its own citizens and deny the right to all others.”

In the ease of Commonwealth v. Hana, 195 Mass. 262 [81 N. E. 49; 11 L. R. A. (N. S.) 799; 122 Am. St. 251; 11 Ann. Cas. 514], the Supreme Court upheld the law of that state restricting the granting of peddlers’ licenses to citizens and those who have declared their intention to become such.

In the case of Patsone v. Pennsylvania, 232 U. S. 138 [34 Sup. Ct. 281], the cases of Commonwealth v. Hana, and Tragreser v. Gray, supra, were cited with approval in the United States Court.

In the case of Patsone v. Pennsylvania, supra, the court upheld the statute of that state making it unlawful for unnaturalized foreign born residents to Mil wild game except in defense of person or property, and to that end making the possession of shotguns and rifles unlawful, holding the law not unconstitutional under the due process and equal protection provisions of the fourteenth amendment. Mr. Justice Holmes after stating the right of the state to classify with reference to the evil to be prevented, said :

! ‘ The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens where the peculiar source of the evil that it desired to prevent. # Obviously the question so stated is one of local experience on which this court ought to be very slow to declare that the state legislature was wrong in its facts. * * * If we might trust popular speech in some states it was right; but it is enough, that this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. ’ ’

It will be seen from the above that the court had in mind the proposition that local authorities possessed discretion, to some extent at least, in the passing of laws under the police power regulating the operation of certain businesses as affecting the morals of a community, which discretion will not be interfered with by the court unless clearly shown- to be an abuse thereof to the extent that it was manifestly wrong.

We are therefore of the opinion upon sound reason and the authorities cited, that the ordinance in question does not violate the fourteenth amendment to the constitution of the United States, and the peremptory writ of mandamus is denied.

Jones and Wilson, JJ., concur.


author: WASHBURN, J.

text:
    DEATH — SURVIVORSHIP
    [Cuyahoga (8th) Court of Appeals,
    January, 1919.]
    Grant, Dunlap and Washburn, JJ.
    Liberty B. Ware, Exr. v. Joseph Kinch et al.
    1. Evidence, Meager or Conflicting, not Presumption Determines Survivorship in Common Disaster at Sea.
    When in an action involving a determination as to which died first of two persons who perished in a common disaster at sea, the issue must rest on the evidence unaided by any presumption, and if the evidence fails to establish a probability of survivorship, the party having the burden fails. Conflicting evidence necessitates a higher degree of proof than meagerness of evidence, but such as it is the evidence must give rise to something more than mere conjecture and rise to a degree of probability which will enable a fair minded man to come to a conclusion.
    2. Son, Having Been Seen on Upper Deck After Cabin Containing Mother Was Flooded, Deemed Outliving Mother.
    When the question as to which outlived the other lies between a mother and her son, and the evidence is to the effect that the mother was last seen in her state room of the sinking ship, and a few moments later the son was seen on the upper deck after the part of the vessel in which the mothers room was’ located had sunk beneath the water, and there is no further testimony and no conflict, a court will conclude that the son outlived the mother and took under her will.
    Appeal.

      L. B. Ware, for plaintiff.

      D. M. Bader, for defendants.
   WASHBURN, J.

Mrs. Eunice Kinch, in contemplation of a trip to England, executed her will on April 29, 1915, and, together with her son, William Mustoe Kinch, sailed on the Lusitania from New York about May 1,1915.

The Lusitania, while .off the coast of Ireland, was torpedoed by a German submarine on May 7, 1915, at a little after two o’clock p. mv and sank in about twenty minutes, and both Mrs. Kinch and her son perished in the disaster.

By the will of Mrs. Kinch she bequeathed $5,000 to Liberty B. Ware, as trustee for her said son, directing said trustee to invest said sum and pay the income, after deduction of expenses, to said son in annual installments until he arrived at the age of thirty-five years, and then to pay the principal to him.

Liberty B. Ware, who is also executor of the estate of Eunice Kinch, brought this action, requesting the direction of the court as to the disposition of said $5,000, and also .requesting the construction of another item of the will, which has been disposed of by agreement of the parties.

Liberty B. Ware, as trustee, filed an answer praying also for the instruction of the court as to said matters.

William H. Chapman is the administrator of the estate of said son, and by proper pleading is claiming that said son survived his mother, and that he, as said administrator, is entitled to said bequest.

Legatees under the residuary clause of said will of Eunice •Kinch, claim that said son did not survive his mother, and that said bequest lapsed and passed to them under the residuary clause of the will.

Other defendants, brothers and sisters of Eunice Kinch, filed answers claiming said bequest lapsed and that it did not pass to the residuary legatees, but became intestate property and should be distributed, one-half to them and one-half to the brother of the deceased husband of Eunice Kinch from whom she inherited the property, under Sec. 8574 G. C.

The record is largely made up of the testimony of survivors of said disaster, for it is recognized that if said son survived his 'mother, the estate vested and the bequest should go to his administrator.

As said son did not leave issue surviving his mother, the common law rule applies, and no estate vested in him unless he survived his mother. It therefore follows that the burden of proving survivorship of the son is upon his administrator. We do not feel that the fact that this legacy was given to a trust.ee for the son changes the rule as to the burden of proof, for the trustee could not take a beneficial interest for the son unless the son was alive at the time of the death of his mother, and the foundation of the claim of the son’s administrator in this case is that the trustee took a beneficial interest for the son, which by his death passed to such administrator.

To state the proposition in another way: Where there is no presumption that two persons who perish in a common disaster die at the same time, still if there is no evidence which establishes by the degree of proof required that one or the other died first, when the fact of survivorship can not be ascertained and the law is applied as if they both died at the same time. In other words, the impossibility of proving which died first, so far as the question of burden of proof is concerned, leads to the same conclusion as a presumption that they both died at the same time.

If the mother and son both died at the same time, the administrator of the son has no interest in the funds in question, and if he has any such interest it is because the son survived the mother, therefore the burden of proving survivorship is upon the administrator.

On the question of survivorship, the party having the burden of proof is not aided by any presumption and has no presumption to overcome. It is purely a matter of evidence. If there is no evidence on the subject, or if the evidence does not establish a probability, the party having the burden fails. In eases where the evidence is conflicting or where the inferences to be deduced from different proven facts are conflicting, the degree of proof to sustain the burden is greater than where the uncertainty results from merely the meagerness of the evidence. In the latter case very slight evidence may be sufficient to sustain the burden of proof, for courts settle questions of fact upon probabilities rather than upon certainties, although mere possibilities will not sustain a legitimate inference of the existence of fact. Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. 642; 131 Am. St. 709]; Davis v. Guarnieri, 45 Ohio St. 471 [15 N. E. 350; 4 Am. St. 548],

If there is no evidence in this record beyond the fact that the mother and son perished in a common disaster, we can make no. finding as to survivorship, but there is some evidence in the record on that subject, from which, it is claimed, the natural inference is that one probably survived the other. It was not an unknown calamity or one of instantaneous operation, nor yet one to which there were no surviving witnesses. It is clearly a case to be determined by the evidence, although the conclusion we reach may not be a certainty, and there may remain some obscurity and doubt; still, if the,evidence gives rise to not merely conjecture, but is such as creates a probability and leads a fair-minded man to a conclusion in which he can honestly say he is convinced, that is all that is required.

The evidence discloses that the Lusitania was a passenger vessel, slightly more than 750 feet long and about 88 feet in breadth, and that it had six decks for the accommodation of passengers, known as A, B, C, D, E and F; decks A, B and C, being farthest up from the water, were open decks, while there was no open promenade on decks D, E and F. Mrs. Hindi, who was forty-five years of age, occupied cabin D-92, and her son, twenty years old, occupied cabin D-90, both on D deck and close together, and both were second-class cabins. There were over 1,250 passengers in all and only approximately thirty-five per cent, of the passengers were saved.

The vessel was near the coast of Ireland. The day was clear, and the ocean calm. The torpedo struck the vessel on the starboard, or right-hand side, somewhat forward of midships, tearing a hole in her side, but the explosion was not loud and the officers of the boat acted for a time, at least, upon the theory that there was no immediate danger of the vessel sinking, but very soon after the explosion' — almost immediately — the vessel started to list to starboard and to sink by the bow, the stern raising somewhat, and she continued to sink in that manner, bow first and listing to the right, until she disappeared gradually and with comparative little or no suction, about twenty minutes after being torpedoed. The listing of the vessel prevented use of the lifeboats on the port side, but a few boats were launched from the starboard side, some of which were overturned in the launching. Some passengers jumped into the water before, and just as the vessel went down, and many went down with the vessel. As has been said, Mrs. Kinch occupied cabin D-92 on D deck and her son occupied cabin D-90 on D deck. These cabins were in the stern of the boat, the end of the vessel last to go under water.

The testimony is conflicting as to when the water reached the part of D deck where these cabins were, but the evidence establishes that these cabins were under water an appreciable time before that part of A deck, which was above these cabins, was under water.

Mrs. Kinch was not seen after the torpedo struck, but there is in the record the testimony of a witness who was with the son at the time the torpedo struck, and who saw him on A deck, 28 feet above D deck, at the time the boat disappeared. He was on A deck on the part of the vessel last to go under the water.

If at that time his mother was in her cabin on D deck, it is certain that she perished before the son. The testimony as to her whereabouts, is as follows:

Arthur Gasden, a survivor, testified that he knew Mrs. Kinch; that he occupied cabin D-90 with the son, which was close to cabin D-92 occupied by Mrs. Kinch; and three times in his testimony he swears positively that Mrs. Kinch was in her cabin on D deck when the boat went down. How he knows that, does not appear from the evidence. His testimony was taken by deposition and was given in answer to interrogatories, and there were no cross-interrogatories or cross-examination. There is testimony that it was the custom of Mrs. Kinch to take a nap after the noon-day meal, and that the son put in the time after the torpedo struck looking for his mother and did not find her. Mr. Gasden testifies that he was with the son on A deck at the time the torpedo struck, and that he and the son started to go to the cabins in question on D deck, and that when they got part way down between C and D decks they turned back on account of water being on D deck.

The testimony of other witnesses is such that if this trip was undertaken immediately after the torpedo struck, or at any time within a few moments before the vessel disappeared, the probabilities are that there was no water on D deck at that time, so that there was ample time for Mrs. Kinch to leave her cabin and go up higher on the boat. The testimony of Gasden is that he and the son turned back, and he secured a lifebelt from a cabin on C deck, and that they then separated, the son having said on the way down that he would try to get to and save his mother; and that later on he met the son on A deck, and that he said that he had tried and could not find his mother; that this statement was made very shortly before the vessel disappeared and while the son and the witness were on A deck, above D deck, that being the part of the vessel last to disappear under the water, and that the witness jumped into the water and last saw the son standing on said part of A deck just before the vessel disappeared. The testimony of this witness is not contradicted in any particular except that there was not water on D deck until shortly before the vessel disappeared.

There is testimony of other survivors who occupied cabins on D deck near Mrs. Kinch, who left their cabins after the torpedo struck and survived, and of course there is the possibility that Mrs. Kinch was some place else in the boat, or that she left her cabin and escaped to the top deck and either got into some of the life boats that were wrecked or went down with the boat, or that she jumped overboard before the final disappearance of the vessel, but the testimony is that the son was looking for her and did not find her, and that Gasden, the' witness knew her and did not see her; that both of them were moving about in different parts of the ship and that she was not seen.

Gasden was in a position where he would likely know something about the whereabouts of Mrs. Kinch. He occupied a cabin with her son and in close proximity to her cabin. He knew of her habits and condition. He started with the son to her cabin. He knew that he did not see her any place, and he knew that the son was looking for her and did not see her, and he testified positively that she was in her cabin. Cross-examination might have weakened or strengthened his statements, but we are of the opinion, considering all the facts and circumstances disclosed by the record, that the evidence preponderates in favor of the claim that the mother was in her cabin and that the son survived her.

It follows that a decree may be drawn directing the executor to pay said bequest with interest from May 7, 1916, to William H. Chapman, administratof of said son, less general taxes on said bequest and less all unpaid costs in common pleas court and in this court in this action, and in case No. 2208 in this court, which costs shall include a fee of $500 hereby allowed Liberty .B. Ware.

Judgment accordingly. Case No. 2208 dismissed, no record.

Grant and Dunlap, JJ., concur.