text:
    PROSECUTION FOR. EMBEZZLING BONDS.
    Circuit Court of Cuyahoga County.
    Harry E. Hayes v. The State of Ohio.

    Decided, February 7, 1910.

      Criminal Law — Embezzlement of Bonds by Brokers Held to Have Been Complete — Premature Pledging of Bonds for Loans and Conversion of the Proceeds — Misconduct of Court and Prosecutor — Evidence— Agreements■ — Agency—Partnership.
    1. Where an agreement between a railway company and brokers handling the bonds of the company provides that the right of the brokers to retain the bonds should accrue contemporaneously with actual payment .therefor, an indictment for embezzlement lies for the pledging of the bonds by the brokers for loans and the conversion of the proceeds of the loans by the brokers prior to a call for funds by the company.
    2. Evidence is competent in such a case which tends to show .that the pledging of the bonds and use of the proceeds therefrom by the brokers was not due to an honest misunderstanding by the brokers of their rights in the matter.
    3. Misconduct by the court or prosecuting attorney is of little moment to an accused person against whom evidence has been presented which establishes hite guilt completely.
    4. An agreement to make mutual contributions to the subject-matter of an enterprise and to share .the profits, can not be taken as establishing a partnership, where there is nothing else in the agreement which is at all characteristic of a partnership.

      Dawley <& Sullivan and A. A. Stearns, for plaintiff in error.

      John A. Cline, Prosecuting Attorney and Walter D. Meals, Assistant Prosecuting Attorney, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed without opinion, Hayes v. State of Ohio, 83 Ohio State, 490.

   The plaintiff in error was indicted jointly with his partner in the firm of W. J. Hayes & Son, for embezzling on August 7, .1907, 198 one-thousand-dollar bonds of the Cincinnati, Bluff-ton & Chicago Railway. Upon separate trial he was found “guilty of embezzlement, as charged in the first count of the indictment,” of property valued by the jury- at $18,000, and was sentenced to five years’ imprisonment.

The transaction evidently contemplated by the verdict is the pledging by the defendant below to the Pearl Street Bank, in Cleveland, on January 25, 1907, of twenty of said bonds to secure their note for $15,000. Their rights at that time with respect to these bonds are defined by the following contract:

“This Agreement, made and entered into this 22d day of December, A. D. 1906, by and between S. H. Bracey, of Chicago, Illinois, party of the first part, and W. J. Hayes & Sons, of Cleveland, Ohio, parties of the second part, Witnesseth:
“ Whereas, the party of the first part is the owner of 10,080 shares of the capital stock of the Cincinnati, Bluffton & Chicago Railroad Company and of 1,275 bonds of said company, and.is desirous that the said W. J. Hayes & Sons shall act as his brokers in the sale of said bonds;
“Therefore, in consideration of the sum of one dollar, and other good and valuable considerations, each to the other in hand paid and received, it is mutually covenanted and agreed by and between the parties hereto as follows, that is to say:
“1st. That, subject to the conditions hereinafter expressed, the said parties of the second part shall have and are hereby given exclusive sale of the said 1,275 bonds owned by the said first party and issued by the Cincinnati, Bluffton & Chicago .Railroad Company..
“2d. The said party of the first part agrees to give to the party of the second part, pro rata as sales are made, as compensation for services, the total aggregate of 35 per cent, of the'total issue of the capital stock of the said railroad; it being understood, however, that none of said stock can be physically delivered until there is a sale of the 575 .bonds provided to be sold in Clause 6, so that the moneys derived from such sales can be used to.release such stock from present collateral liens; provided that said stock shall be contracted to purchasers of bonds, or if retained by the second party, shall be retained with the understanding that said 10,080 shares of stock are pooled and that no stock shall be transferred unless all is sold and that each share shall participate equally and impartially in the proceeds of any sale thereof.
“3d. It is mutually covenanted and agreed that the 666 bonds of the said railroad now in the hands of Lóuis D. Davenport, of Bluffton, Indiana, as well as 34 of the bonds now in the control of the Reorganization Committee of said Railroad, making a total of 700 bonds, shall be sold and the proceeds thereof shall be devoted entirely to the cost of engineering, right-of-way for and construction of extensions of said railroad, as hereinafter described, including the. securing of necessary and. adequate equipment therefor. Said second parties shall have the right to sell the first 350 of said bonds at 75 per cent, of their face value, and the next 350 of said bonds at 80 per cent, of their face value, and all amounts received by said second party over and above said 75 per cent, for said first 350 bonds and 80 per cent, for said second 350 bonds shall be retained by said second parties as their compensation and commission for the sale thereof. The amount realized from the said sales of the said 700 bonds shall, from time to time, and as fast as sold, be placed on deposit with some responsible bank to the credit of the said railroad, to be drawn out and expended only for the purposes herein provided, upon checks signed by said railroad company and upon vouchers which shall be approved as being for such purposes by some responsible certified public accountant.
“4th. The party of the first part agrees to supervise the expenditure of the sums of money above provided, and to furnish necessary tools and construction equipment for the construction of said railroad, and shall receive for his compensation 10 per cent, of the actual cost of labor and materials used in the construction and equipment of said extension. It is agreed that the said extension shall be built from a point of connection with the present terminal of the said railroad in Bluff-ton, Indiana, to Huntington, Indiana, and form the present terminal of said railroad in Portland, Indiana, to Union City, Indiana; the construction to be.in accordance with the present general standard of the construction of that portion of the railroad now in operation between Portland and Bluffton, Indiana, in relation to weight of rails, ties, grade, curves, roadbed and ballast; said entire railroad from Union City to Huntington, Indiana, to be built and placed in operation by August 1st, 1907, provided said second parties shall meet and pay all of the calls provided for in this contract in clause 7.
“5th. It is further mutually agreed that in ease there shall be any profit represented by the difference between the amount of said bond sales of the 700 bonds as herein provided for, plus all subsidies and municipal add voted or to be voted in aid of said railroad and the actual cost of the construction of said extension and equipment therefor as provided in elause 4 (including the 10 per cent, compensation to first party) shall be divided equally between the parties hereto.
“6th: It is further mutually agreed that the remaining 575 bonds owned by the said S. H. Bracey may be sold by the parties of the second part at 85 per cent, of their face value, and that the said second parties shall retain in full for their compensation and commission all that they shall receive on the sale of said bonds in excess of 85 per cent.; all moneys received from 'said sales of said 575 bonds shall be used to release the same from collateral liens and the balance shall be paid to the said party of the first part.
“7th. It is further mutually agreed that the said party of the first part shall have the light to call upon the parties of the second part for the payment of twenty-five thousand dollars ($25,000) on the 15th day of February, 1907, upon the delivery to the said parties of the second part of bonds at the rate of 75 per cent, of their face value to the amount of said call, and the second party agrees to make said payment on said date to be used for the purposes herein provided for and upon the delivery of said bonds as aforesaid; subject to the right of refusal exercised as hereinafter provided; like calls for $25,000 each upon like conditions can be made by said first party, and the payment of the amount thereof shall be made by said second parties on delivery of bonds at said rate on the 15th days of March and April, 1907; and the following like calls for the following amounts upon like conditions can be made by the party of the first part, and payment thereof shall be made by the parties of the second part upon delivery of bonds at the rates herein provided for the sale thereof, that is to say:
“One hundred sixty-seven thousand five hundred dollars ($167,500) on May 15th, 1907, or later if not required for construction.
“Two hundred thousand dollars ($200,000) on June 15, 1907, or later if not required for construction.
“One hundred thousand dollars ($100,000) on July 15, 1907, or later if not required for construction.
“Four hundred eighty-eight thousand seven hundred fifty dollars ($488,750) on August 15th, 1907.
“Provided, however, and this contract is upon the express condition that the parties of the second part shall have the right to refuse any call above provided for, except the first call ■of February 15th, 1907, in the following manner, viz.: the said : party -of the first part shall give to the said party of the seeond part, a notice in writing, fifteen days prior to the March and April calls, and if said parties of the second part, shall neglect or refuse within five days after such notice to notify the party of the first part of -their election to meet such call, then such neglect or refusal to so notify shall amount to a refusal of such call, and said party of the first part shall give to said parties of the second part at least thirty-five days notice of all other calls provided for in this contract (meaning to except the calls of February, March and April), and if said second parties shall neglect or refuse within five days after such notice to it of such calls to notify the said party of the first part of its election to meet such call, then such neglect or refusal to so notify shall amount to a refusal of such call. All notices above referred to shall be given by mail, postage prepaid, addressed to the party of the first part at the Tribune Bldg., Chicago, Illinois, and to the parties of the second part at the Chamber of Commerce Bldg., Cleveland, Ohio; in case of such refusal and notice thereof, then the parties of the second part shall not be liable to meet and pay such call so refused, and this contract shall thereupon, at the option of the party of the first part, become null and void. The said parties of the second part shall have the right, however, to retain the bonds delivered to them for the payment of all previous calls; all other bonds to be returned to said first party.
“8th. It is further mutually agreed that the said party of the first part shall have the right to purchase materials and labor for construction, to be charged up to the construction account at the same rates and prices provided herein for the sales hereof, and in case the said first party shall sell bonds at par, said sales shall be 'turned over to the said parties of the second part, and the difference between the price for which said second parties are given the right to sell such bonds and the par value thereof shall be divided equally between the parties hereto.
“9th. It is understood and agreed that all bonds delivered to said second parties for sale shall, have all coupons prior to the year 1907 clipped off and canceled.
“10th. This contract shall not take effect or become operative unless one P. F. Earling shall fail to perform a certain contract with party of the first part which expires by its terms December 24th, 1906, or unless said P. F. Earling shall, in the meantime, cancel or release the same. -
“11th. Said first party agrees to cause the bonds to be delivered to said second parties as fast as sold, and shall deposit with second party in any event not less than 400 bonds on or before January 5, 1907, and to give a good and sufficient bond satisfactory to second parties, with a penalty of not less than $50,000 for the faithful performance hereof by the said first party, said bond for performance to be furnished second parties on or before January 1st, 1907.
“Witness the hands and seals of the parties, the day and year first above written.
“(Signed) S. H. Bracey. (Seal.)
“(Signed) W. J. Hayes & Son. (Seal.)”

Of the bonds contemplated by this contract 664 were delivered to W. J. Hayes & Son in Cleveland as follows: 400 Jan. 4, 1907; 164 March 19, 1907; and 100 June 3, 1907.

Of these, Hayes & Son subsequently returned 399; sold 42, and hypothecated the residue for money borrowed by them at various banks from January to October, 1907. As before stated twenty bonds were thus hypothecated on January 25, 1907, three weeks before anything was done or due to be done under the contract of December 22, 1906. Twenty-four more were similarly hypothecated to banks in New York and Iowa on February 19 and 20, 1907; but not until $7,500 had been paid February 16, 1907, to apply on the installment then due. On March 2, 1907, Hayes &. Son paid $5,000 in short time paper; and on March 13, $18,500 more in-long.time paper. A call for the second installment of $25,000 to be paid March 15, 1907, had been duly made, but by mutual agreement the time of payment was postponed a month. Subsequently, all but $10,000 of the paper issued by Hayes & Son to complete the payment of the first two installments of $25,000 each was paid.

On the 10th day of March, 1907, a modification of the terms of the contract of December 22d was entered into by the parties, wherein it was agreed that Hayes & Son would issue their accommodation acceptances to the amount of $200,000 to enable the railroad company to immediately supply the funds for construction purposes, and it was agreed that the 400 bonds already delivered to Hayes & Son and the 164 bonds that were to be delivered on March 19th should be pledged to Hayes & Son as collateral security for these acceptances. Later, and on June 3d, 1907, the additional 100 bonds were delivered by Davenport to Hayes & Son under a receipt which -recited that they were to be used in accordance with the contract of December 22d, 1906, as modified by the arrangement 'of March 13th, 1907.

Thereafter on the 27th day of March, 1907, a further modification of the arrangement between the parties was made, wherein Hayes & Son were authorized to pledge upon mixed loans or otherwise, in their own business, the same as if they were their own, any and all of the bonds in their possession.

It was doubtless intended that the avails of such loans should be applied to the payment of the acceptances; but such application was not properly safeguarded. Thereafter without technical criminality, the funds derived from systematic hypothecation of the bonds were diverted by Hayes & Son until they could no longer conceal the insolvency in which they had involved not only themselves, but the railroad as well.

The plaintiff in error claims that Hayes & Son gained abso-: lute title to the 66 bonds authorized to be retained by them in connection with the calls payable February 15, and March 15, 1907, and that the 48 bonds pledged before the contract of December 22, 1906, was modified were therefore their own bonds,- or at least that Hayes & Son may well be deemed to have so supposed in perfect good faith. But there are several complete answers to this contention.

First, the letter of June 11, 1908, from the defendants below, reports “that out of the bonds which were purchased from you and. which were paid for, the following have been sold,” listing 42 bonds with names of purchasers.

There is no pretense that Hayes & Son ever purchased more than 66 bonds, and none of the 42 bonds so sold by them can be identified with the 48 bonds pledged in January and February, 1907. Ninety bonds were thus treated by them as their own, which is twenty-four in excess of the most they can cl aim to have owned. Moreover, as already pointed out, 20 bonds were hypothecated by them three weeks before they had any right to retain the same, and before they had any conclusive knowledge that they would be called upon to make the February 15th payment. Retail sales of bonds or construction delays, or other contingencies might meanwhile make such call unnecessary; or they themselves might not be, as in fact they were not ready to respond promptly to their absolute liability to meet such call if made. It is not as if they had pledged the bonds at the time and for the purpose of applying the avails in payment of the call. For it is plainly provided by the contract that their right to retain the bonds should accrue contemporaneously with actual payment and not before. And their entire subsequent course' of conduct and concealment conclusively shows that they themselves never put any other construction upon the contract.

Right here, also, it may be said, that the evidence of transactions after the modification of the contract, was properly admitted for this very purpose of showing that the defendants had erred under no honest misconstruction of their rights in converting the bonds to their own use. The court properly instructed the jury that they could find no embezzlement after February, 1907; and if further instruction were required as to the use which the jury were to make of the evidence of subsequent transactions, the court’s attention should have been seasonably called to the omission.

The evidence of the unlawful conversion by the plaintiff in error of twenty bonds on January 25, 1907, is perfect .and complete. It consists essentially of documents whose authenticity is conclusive in view of the papers produced by the plaintiff in error himself and introduced by him in connection with the cross-examination of the state’s witnesses.

Unless, therefore, some other elements of the crime of embezzlement as charged in the indictment remain unproved, the alleged misconduct of court 'and prosecuting attorneys in the trial of the ease becomes of little moment so far as the accused is concerned. We do not at all approve of the persistence of .the state’s attorneys in demanding letters and documents of the accused across the trial table 'and in the presence of the jury, especially after the court had specifically, repeatedly and correctly ruled against their right to do so.

True, the accused was not thereby compelled to give evidence against himself and hence his constitutional right was not invaded. But his statutory right to exemption from comment upon his failure so to do would have been seriously invaded if his guilt were not incontestable and the court’s cautions to the jury had not therefore sufficed to cure the errors thus complained of (Sisson v. State, decided by the Circuit Court of Lorain County, December, 1909). And the same is true of certain inflammatory appeals of the state’s attorneys in their argument to the jury. The public prosecutor may appeal to the consciences of the jurors, but not to their prejudices. He may argue upon the facts as disclosed by the evidence in the case on trial, but not upon the demands of public opinion that the jury shall at all hazards convict persons accused of particular classes of crime.

There remains for consideration the contention that the contract of December 22, 1906, was an agreement of partnership between Bracey and Hayes & Son. We do not so construe it. True, it contemplates a certain sharing of profits and a mutual contribution to the subject matter of the enterprise. But these are often incident to contracts of employment or agency, such as this undoubtedly was. There is nothing else in the agreement that is at all characteristic of a partnership.

It is farther claimed that Bracey was not the real party in interest, but that the railroad was at the outset his undisclosed principal and the real owner of the bonds, and that its status as such was fully revealed and acknowledged before the alleged embezzlement took place.- The fact is that Bracey was the owner of the stock of the railroad and was expressly given plenary authority by the corporation to handle and dispose of the bonds for construction purposes. He testifies moreover that the bonds were his and the contract so recites. He had at least a qualified ownership, and this, as the court properly charged, is sufficient to support the allegation of the indictment that he was the owner. State v. Kusnick, 45 O. S., 585; Stole v. Tillett, Ind. Supreme Court, November 4, 1909; State v. Spaulding, 24 Kan., 1.

• Upon the remaining assignments of error it is sufficient to observe that conviction under this indictment is a bar to eonyietion of the plaintiff in error under any other indictment for the1 embezzlement of any of these bonds or the proceeds thereof prior to August 7, 1907. Nor was the state required to elect under this indictment which of the various transactions prior to. that date it would rely upon for conviction. Revised Statutes of Ohio, Section '6842; Brown v. State, 18 Ohio State, 497; Gravatt v. State, 25 Ohio State, 162.

It would unnecessarily prolong this opinion to enter upon a discussion and analysis of the cases cited in support of these views. Suffice it to say that we deem these decisions to be controlling, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ELECTRIC CARS AT STREET CROSSINGS.
    Circuit Court of Hamilton County.
    Cincinnati Traction Co. v. Morgan Charles, Administrator.
    Decided, February 3, 1912.

      Negligenoe — Necessary Precautions of Electric Gars at Street Grossings _Not Incumbent to Sound the Gong, When~Gharge of Court.

    In an action for damages on account of, fatal injury to a pedestrian from being struck by an electric car at a street crossing, it is error for the court to charge the jury that it is the duty of the company to cause a gong to be rung as a car is about to cross a street. All that is necessary is that a warning be given as a car approaches the crossing, and this duty only arises when an ordinarily pru.dent person would give such warning under similar circumstances.

      Miller Outcalt, for plaintiff in error.

      Theodore Horstman, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   ' Anna Charles, the decedent, about 5 o’clock p. m., on November 23d, 1909, while crossing Broadway from the west side to the east side thereof at New street in Cincinnati was struck by the right front end of the car of plaintiff in error running north on the east side of Broadway, receiving injuries from which she subsequently died.

The petition alleges several grounds of negligence as follows: that the car was running at an excessive rate of speed; the lack of proper control of the ear; the failure on the part of the motorman to sound the gong, to drop the fender, and to slow up the car after he saw her; the lack of proper appliances to stop the car speedily.

The answer denies these acts of negligence and sets up that if she received the injuries complained of that caused her death, the same were due to her own negligence.

Upon the trial of the above issues a verdict and judgment were rendered in favor of the defendant in error, to reverse which this action is brought..

The evidence of the plaintiff discloses that at the time the decedent stepped from the curb to cross Broadway', the car that struck her, was at Sixth and Broadway about. 200 feet distant, and that no wagons, other cars or any obstruction was in the street to prevent her from seeing the approach of the car.

One witness testifies that she saw the deceased during all the interval before and up. to the time that she was struck by the ear, and that she did not look to the south or the north before attempting to cross. Another, who was just at her side, testified that she did look up and down Broadway and then started across.

All the witnesses agree that the headlight was burning, that the car was lighted inside, and that in running it made a noise like other cars; one witness saying that it made a great deal of noise and that the car could be plainly seen by its headlight. The evidence further discloses that she was a strong woman, never had been sick and “nothing was the matter with her.” There is no evidence that her senses of sight or hearing were impaired.

. It was the duty of the decedent to look for a car before crossing the street, and if she did not so look as testified to by one of her witnesses, then she was negligent.

On the other hand, if she did look as another testified, then she was again guilty of negligence, because from the evidence, her view being unobstructed, she must, and necessarily would have seen the ear approaching; and if her looking had been effective, which it should have been, then no injury would have resulted. Besides, it was her duty to listen, and had she done so, she would have heard the noise made'by the car as it approached equally as well as. the witnesses who testified in her behalf, notwithstanding the fact, if true, that no gong was sounded.

As to the remaining acts of negligence complained of they are not borne out by the evidence, the great weight thereof being against their existence.

It was erroneous for the court to charge the jury that it was the duty of plaintiff in error “to ring its gong at street crossings.” All that is rquired is that a warning be given as a car approaches, and this duty only arises when an ordinarily prudent person would give such warning under similar circumstances.

From the pleadings and particularly the evidence we can not see that .the doctrine of last chance was involved in the case, and the charge of the court in this respect is also-erroneous.

For the above reasons the judgment of. the court below is reversed.


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    EFFECT ON SUIT IN ATTACHMENT OF DISCHARGE OF DEFENDANT IN BANKRUPTCY.
    Circuit Court of Cuyahoga County.
    The Sleepy Eye Milling Co. v. E. M. Welsh.

    Decided, February 16, 1908.

      Estoppel — Available, Notwithstanding Want of Express Allegation of_ Where the Facts are All on the Face of the Record — Attached Property Released on Bond — Appeal Talcen by Defendant — Defense of Subsequent Adjudication in Btmlcruptcy.

    A defendant in a suit in attachment, who filed bond for release of the property attached and thereafter gave bond for .appeal, is estopped from subsequently setting up a discharge in bankruptcy, where the attachment proceeding and giving of bond was prior to the proceedings in bankruptcy.

      B. H. Lee, for plaintiff in error.

      Klein & Harris, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
    Error to the court of common pleas.

       Affirmed without opinion, Welsh v. Sleepy Eye Milling Co., 84 Ohio State, 495.

   This litigation originated in a justice court, and in all the courts the parties have stood related as they stand here. In the justice court plaintiff sued out an attachment, but the attached property was restored to defendant upon bond given by him. Upon the rendition of judgment sustaining plaintiff’s claim and attachment, defendant appealed to the court of common pleas. Pending this appeal he filed his petition in voluntary bankruptcy and was discharged. Thereupon, he applied for and obtained leave to file a supplemental answer setting up this fact. Plaintiff replying to this supplemental answer alleges that its claim was not scheduled, by the defendant in his bankruptcy proceeding, and that no notice of the pendency of-that proceeding had ever been served upon it; but upon this point it is practically conceded that at the time of filing this reply the bankruptcy proceeding was still pending and open to the presentation of plaintiff’s claim. This, of course, is sufficient.

Plaintiff’s reply to the supplemental answer alleges further that if defendant is permitted to maintain his defense of discharge in bankruptcy, plaintiff’s claim, though just, can not'be put into judgment for the purpose of recourse to the liability of the sureties on the appeal bond. In argument it is urged that a similar inequitable result will follow as to the security upon the bond for the release of the attachment. If judgment goes against plaintiff by reason of this defense the condition of neither bond is broken, and unless defendant is estopped to interpose the defense of discharge in bankruptcy," we see no escape from the reasoning and conclusion of the court in Merritt et al v. Pritchard, 4 N.P.(N.S.), 571, wherein Farrell v. Finch, 40 Ohio State, 337, and Hill v. Harding, 130 U. S., 699, seem to us to be properly distinguished.

It would have been entirely proper under the circumstances for the court to have refused leave to the defendant to file the supplementary answer, but the record does not disclose any objection made or exception reserved to the granting of such leave in this case (Holyoke et al v. Adams, 59 N. Y., 233). The reply does not sufficiently allege any estoppel; but inasmuch as the facts in regard to the attachment, filing of bond for release, the filing of bond for appeal, filing of a voluntary petition in bankruptcy, the discharge in bankruptcy, and the attempt by supplemental answer to set up the discharge of defendant are and were all disclosed upon the record, ánd inasmuch as it is thus plainly inequitable to permit defendant, under these circumstances, to have and maintain this defense and thereby deprive plaintiff of its recourse against the sureties On the attachment and appeal bonds, we think-the court below should have so applied" the doctrine of estoppel as to prevent the interposition, of this defense (State, ex rel, v. Smith, 44 O. S., 348, 361). The want of express allegation of such estoppel does not prevent it from being available when the facts are all on the face of the record (The Castalia Trout Club Co. v. The Castalia Sporting Club et al, 8 C. C., 194, 208; affirmed 56 Ohio State, 749). Section 17 of the bankruptcy law should be construed with Section 16 thereof, so as to prevent, if possible, any discharge of a bankrupt’s sureties.

Without this defense we can not say that the court would have rendered judgment for the defendant. If, upon retrial, judgment should be rendered against him, he can and no doubt will have his proper remedy against the enforcement of such judgment against him. Because, however, the judgment as rendered is contrary to law, it is reversed and the cause remanded.


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    NECESSARY ALLEGATIONS IN AN ACTION FOR A DOG BITE.
    Circuit Court of Hamilton County.
    Leopold Kleybolte v. Clifford D. Buffon, a Minor.

    Decided, January 6, 1912.

      Pleading — In an Action for Injuries from the Bite of a Dog — Misconduct of Counsel — Sow Presented to Reviewing Court — Section 4212-2, Revised Statutes.

    In an action for damages on account of injuries resulting from a dog bite, it is not necessary to allege that the dog was vicious, or that its vicious disposition was known to the owner, and it is not error to admit evidence as to the character of the dog with reference to his being vicious or otherwise.

      Kramer & Bettman, for plaintiff-in error.

      L. E. Pummill and J. A. Ruclel, contra.

      Smith, P. J.; Swing, J., and Jones, J., concur.

       Affirming Buffon v. Kleybolte, 12 N.P.(N.S.), 80.

   As Section 4212-2, Section 2, R. S., now reads it" is not necessary that the petition in this case should have stated that the dog owned and harbored by plaintiff in error was vicious and that this viciousness was known to the owner.

We see no error in the admission of evidence as to the character of the dog, whether or not he was or was not a vicious animal, nor in the charge of the court upon the question of damages. Under the facts as disclosed by the record we think the special charges and general charge correctly state the law in the case.

The verdict for $366 is not excessive.

The alleged misconduct of counsel for defendant in error in his address to the jury can not be considered by this court under the case of State v. Young, 77 O. S., 529, where it is held, that “remarks of counsel in addressing a jury, to be the predicate of a proceeding in error on the ground of misconduct, must be brought into the record of the trial by the certificate of the trial judge as are other matters occurring upon the trial and in his presence. They can not be introduced by affidavit.”

As there are no errors in the record the judgment is affirmed.


text:
    ACTION FOR CANCELLATION OF A CONTRACT.
    Circuit Court of Cuyahoga County.
    Henry C. Bowman v. Bernhard Schatzinger et al.

    Decided, June 8, 1908.

      Contracts — Waiver of Breach of Performance by Entering into a Supplemental Agreement — Agreement for Allotment cmd Improvement of Lands.

    Where time for performance of an agreement is by mutual consent of the parties extended in a supplemental contract, the right is waived to subsequently sue for a cancellation of the original agreement for breach of its conditions by the other party thereto, and the parties will be’understood to have covenanted, at the time of the making of the supplemental agreement, to treat the contract as in force in all respects, notwithstanding anything which may have happened prior to that time.

      Weed, Miller & Nason, for plaintiff.
    P. J. KassuVker, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
    Appeal from the court of common pleas.

       Affirmed without opinion, Bowman v. Schatzinger, 81 Ohio State, 565.

   This is an action for the cancellation of record of a contract entered into between the parties February 7, 1900, as amended by supplemental agreement between them entered into on or about May 20, 1903, but dated May 1, 1903, and to quiet plaintiff’s title to a part of the real estate therein described.

Plaintiff and defendant were the owners of adjoining lands situated in what was formerly the village of Glenville, but now a part of the city of Cleveland. The original agreement recites that “said parties, for their mutual interest, desire to allot said lands”; that “said Schatzinger is -familiar with the allotting of lands, improving the same and handling allotments,’.’ and therefore it is agreed, “that the said Schatzinger is to make an allotment of the lands of said two parties substantially like the plat,” which was made part of their agreement.

A reference to the plat discloses that the lands of the plaint-' iff, Bowman, consisted of two long narrow tracts of six acres and one acre respectively, the west end of the one-acre tract slightly overlapping the east end of the six-acre tract. The east, end of, the smaller parcel fronts on Doan street, and, at the time the agreement was entered into, this small frontage afforded the only street access to and from the plaintiff’s lands. The proposed allotment contemplated the opening up of streets • in, .such-manner as to give ample additional access to both of these tracts, through the defendant’s lands. One of the proposed streets, called South Boulevard, was to run westward from- Doan street, a short distance south of and parallel to. the general trend of plaintiff’s lands. This street was to be' intersected by Haven and.Hampden streets and to terminate in the North Boulevard, which was so laid out as practically to bisect plaintiff’s six-acre tract lengthwise.

Thus plaintiff’s lands were to be opened up in connection with defendant’s lands in such manner as to facilitate the sale of lots in both. Without some such arrangement with either the defendant or some other adjacent land owner, it was manifestly impracticable for plaintiff to market his property in this manner.

The contract further provides:

“Said Schatzinger is to grade, flag and curb said streets; put 'in 'sewer, water and gas pipes and also pave the same with suitable' brick, and'further improve said lands as, in his opinion, is wise and practicable; the work to be started as soon as possible in the,spring .of 1900; South Boulevard from Doan to Haven street to be first improved and in all respects finished, but no further work to be done on North Boulevard until after said Schatzinger shall have sold three-fourths of the lots in said proposed allotment lying south of North Boulevard. . So soon as said proportion of said lots are sold, then said Schatzinger to proceed with the improvements on North Boulevard and on Hampden street, completing the same without unnecessary delay.
“In ease the lots on the north side of South Boulevard between Doan .and Haven streets are not sold by May 1st, 1903, the interest in said lots at that time owned by said Schatzinger, MS .heirs or assigns, shall be appraised by disinterested persons as follows: one to be selected by said Schatzinger, his heirs or assigns; one by said Bowman, his heirs or assigns, and if the two can not agree, then they to select a third, and the decision of any two of the three thus chosen shall be binding on both parties; and said Bowman, his heirs or assigns, shall thereupon pay to said Schatzinger, his heirs or assigns, the value of the interest of said Schatzinger so established by said appraisers, upon receipt from said Schatzinger, his heirs or assigns, of lawful conveyance of said interest, free and clear of all encumbrance, accompanied with abstract of title. ’ ’

' The remainder of the original contract relates to the manner of meeting the expenses of the undertaking and the division of the proceeds, specifically providing, however, that "said Schatzinger is to have full charge of alloting, improving and disposing of said lands.”

The key to the opening up of plaintiff’s lands was manifestly the opening and improving of South Boulevard from Doan street to Haven street, and thence along Haven street northward to the south line of plaintiff’s property.

The contract provided, as already indicated, that the street improvements were "to be started as soon as possible in the spring of 1900; South Boulevard from Doan to Haven streets to be first improved and in all respects finished. ’ ’ This was not done, but, on the contrary, the defendant proceeded to open up and improve other streets in the allotment in such manner as to facilitate the sale of his own lands.

For three years scarcely anything was done to improve the east end of South Boulevard between Haven and Doan streets, nor has.anything been done to this day upon Bowman’s lands, excepting a little grading and the planting of some trees along the proposed line of North Boulevard.

During said three years plaintiff gave little personal attention to the defendant’s management of the allotment, although he kept informed of its progress from time to time through defendant’s engineer. Soon after the 1st of May, 1903, and about three and a quarter years after the making of the original agreement, plaintiff advised defendant that the time having arrived for the appraisal provided for therein, he had appointed as appraiser Daniel R. Taylor, and requested that defendant appoint an appraiser also. The defendant replied that he had given the matter of an appraisal no thought and suggested an extension of the time therefor; whereupon both parties entered into the following supplemental agreement modifying the original contract :

“This is to certify that all the terms and conditions to be performed by Henry C. Bowman and Bernhard Sehatzinger on May 1st, 1903, under the terms of a certain written contract between Bernhard Sehatzinger and Henry C. Bowman, dated February 7, 1900, are by mutual consent to be performed on or before June 1st, 1903, to which time the performance of saicl terms and conditions are extended, without, however, invalidating or changing any other provision of said contract. ’ ’

Nothing further was done by the parties until the later date agreed upon had come and gone. On the 9th of June, however, plaintiff served upon the defendant notice of cancellation of the entire agreement and demanded that defendant execute a quitclaim deed of plaintiff’s part of the property, so that plaintiff’s title might be relieved of the cloud which their agreement and the recording thereof cast upon it.

The defendant paid ho attention to this notice and demand, but soon afterwards went forward with and completed the improvement of the east end of South Boulevard and the north end of Haven street nearly up to plaintiff’s line. Not until defendant had completed all the street improvements with respect to which he was in default did plaintiff commence this action to enforce the rescission contemplated by his notice and demand of June 9, 1903. Except for the defendant’s delay in fulfilling the agreements by him to be performed, plaintiff at 'the time he began his action had acquired nearly all of the access to and from his lands which he sought to gain under the agreement. During the pendency of the suit enough lots have been sold in defendant’s part of the allotment to make it incumbent upon him, •under the terms of the original .agreement, to go forward now with the improving of North Boulevard, which, as already stated, practically bisects longitudinally plaintiff’s larger tract, and which when improved, will open up the lots in said tract to immediate sale for building purposes.

The defendant offers two excuses for his failure to improve the east end of South Boulevard at the outset of the undertaking: First, he says that the agreement should be so construed as to qualify his obligation in this behalf and limit it by the words “.and further improve said lands as, in his opinion, is wise and practicable.” Secondly, he shows that because Doan street was not so improved when said agreement was entered into nor at any time within the next three years as to permit proper drainage from the east end of South Boulevard, it was not wise and practicable to improve that portion of South Boulevard during that period of time.

We do not regard either of these excuses as valid, for we do not construe the agreement as defendant construes it, nor do we find anything in the agreement to indicate that the covenant requiring South Boulevard from Doan to Haven streets to be first improved and in all respects finished, was in 'any sense dependent upon the action or non-action of the public authorities in sewering Doan street.

Were it not, therefore, for the supplemental agreement, already quoted, we should have no hesitation in holding that the plaintiff was entitled to rescind the contract for defendant’s failure to perform the same. At the date when that supplemental agreement was entered into, the terms and conditions required by the original contract to be performed by defendant were essentially unperformed. The plaintiff, however, instead of standing upon this breach by defendant and refusing to be further bound by the contract, covenants with him “that all the terms and conditions to be performed by Henry C. Bowman and Bernhard Sehatzinger on May 1st, 1903, under the terms of a certain written contract between Bernard Sehatzinger and Henry C. Bowman, dated February 7th, 1900, are by mutual consent to be performed on or before June-1st, 1903, to which time the performance of said terms and conditions are extended, without, however, invalidating or changing any other provisions of said contract. ’ ’

This amounts to nothing else, as we view it, than an agreement that whatever remained undone on May 1st, 1903, which should have been done on that date, was not to be accounted such a breach of the contract as to authorize either party to repudiate it. It was, on the contrary, a covenant by both parties that they would treat the contract as in all respects in force, notwithstanding anything that might have happened prior to that time.

True, the extension contemplated by the supplemental agreement expired by its terms .on June 1st, and it was not until after that date that plaintiff assumed to rescind the- entire agreement. But plaintiff meanwhile took no new steps to secure an appraisal and it was certainly not in the contemplation of the parties that the improving of the east end of South Boulevard, which had theretofore been neglected, should all be done in the interval of twelve days, between May 20, 1903, when the supplemental agreement was actually executed, and the 1st of June next succeeding. It simply provided, as we read it, that the performance of all the terms and conditions which were to have been accomplished May 1, 1903, might be postponed until June 1, 1903, and that nothing which had theretofore failed of due performance should be fatal to the continuance of the contract. The right of rescission, for any breach, of the original contract occurring before the execution of this supplementary contract, was effectually waived when the latter was executed, and it can not be said that there w.as any such breach intervening between that time and the 9th of June as to authorize a court of equity now to aid an attempted reeission on that date, especially as the plaintiff waited two and one half years longer before bringing his suit.

The original agreement was then so far executed (and still more so now) as to make it utterly impracticable to restore the defendant to his former position. When, therefore, after the lapse of more than three years, and in spite of defendant’s dereliction, the plaintiff expressly reaffirmed that agreement and consented to extend the time of its performance, he can not be heard to change such affirmance into disaffirmance before three weeks had elapsed and without any new.cause intervening save mere inaction for that period. By such disaffirmance he seeks to retain all the realized advantage of his contract and to condemn defendant to all the disadvantage of its annulment. Whatever advantage or remedy at law may be available to plaintiff under the circumstances, he can not, after having entered into the supplemental agreement and for cause theretofore arisen, successfully invoke the interposition of equity in furtherance of the result thus indicated. Leeds v. Simpson and Knox, 16 O. S., 321.

There are many other questions of fact in the voluminous transcript of testimony admitted in evidence before us here, •but we think it unnecessary to examine them in view of the conclusions which we reach regarding the effect of the supplemental agreement, as we construe it.

The plaintiff is not, we- think, entitled to the relief for which he prays, and he must be remitted to his remedy, if any, in damages, for the matter of which he complains.

The petition will be dismissed.


text:
    PROCEEDINGS IN AID OF EXECUTION.
    Circuit Court of Lucas County.
    Frank Hopper, Doing Business as Hopper & Kulp, v. Siren Gallier.
    Decided, December 23, 1911.

      Aid of Execution — Not Necessary that the Affidavit Allege the Malting of a Preliminary Demand — Sections 101/36 and 10%72.
    Tbe requirement that a demand must be made in writing for tbe excess over and above ninety per cent, of tbe personal earnings of a debtor, bas no application to a proceeding brought in aid of execution under Section 10436, General Code.

      Marion W. Bacome, for plaintiff in error.

      Frank 1. Isbell, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the court of common pleas.
   The original action out of which this proceeding in error grows, was brought in justice’s court and was a proceeding in aid of execution. Upon motion filed by the defendant, the justice dismissed the proceeding. From this ruling, proceedings in error were prosecuted in the court of common pleas, where the judgment of the justice of the peace was affirmed. A bill of exceptions was taken before the justice, but it does not purport to' contain all of the evidence which was introduced.

The affidavit which was filed before the justice of the peace avers that upon July 26th, 1910, the plaintiff in an action then pending before said justice duly obtained a judgment against the aforesaid defendant in the sum of $30.27 and for costs therein taxed at $4, that the Northwestern Ohio Bottle Company is liable to the judgment debtor in a sum of money which is now due to said debtor, and that said money is not exempt from execution or attachment.

The motion, which was filed in the justice’s court by the defendant to release the money said to have been reached in the proceedings, contains four grounds:

1. That the facts in the affidavit are false and that the affidavit is insufficient.

2. That the defendant is a married man and the support of a family resident in Ohio.

3. That no demand was made upon the defendant for ten per cent, of his personal earnings.

4. That no summons or copy of the order issued by the justice has been served upon the defendant, althought he is a resident of Lucas county, Ohio.

By reason of the fact that the bill of exceptions does not purport to contain all of the evidence which was introduced before the justice of the peace, we are not advised as to the basis of his decision, except as recited in his docket entries which are before us.

It appears from the docket entries that the motion filed by the defendant was sustained upon the grounds that the affidavit was insufficient in law and that no demand had been made upon the defendant for ten per cent, of his wages. It does not appear at any place in the' record that the justice of the peace found the property sought to be reached by this proceeding to be the personal earnings of the defendant, exempt from execution.

The contention made before us relates to the question whether in the proceeding in aid of execution brought under General Code, 10436, a preliminary demand must be made and tbe fact of sueb demand inserted in the affidavit. It will be noted that the section to which reference has just been made is -found in Title 2, Chapter XI of the General Code, entitled "Proceedings in Aid of Execution.” The statute providing for the preliminary demand is General Code, 10272, and the section is found in Title 2, Chapter II of the General Code, and under the subdivision headed "Attachment.”

As we construe these sections the requirement that a demand must be made in writing for an excess over and above ninety per cent, of the personal earnings of a debtor has no application to a proceeding brought in aid of execution under General Code, 10436. The method of procedure contemplated in Chapter II is complete in and of itself, and no reason is apparent why the requirement for the preliminary demand which exists in certain cases where proceedings in attachment are brought, should have any application to the case at bar. The point has been so ruled by the court of common pleas of Columbiana county in Ammon v. Delaney, 21 Ohio Decisions, 251.

It appears from the facts contained in the case of Duffy v. Reardon, 70 O. S., 328, in which the Supreme Court affirmed the judgment of this court, that an affidavit in all respects similar to the one in the case at bar was held to be sufficient. The affidavit contains every requirement set forth in General Code, 10436, and in our opinion is entirely sufficient. We do not, of course, pass upon the question of whether the property reached is exempt from execution or attachment.

The judgments rendered by the common pleas court and the justice’s court will be reversed and the case remanded for further proceedings in accordance with this opinion.


text:
    ACTION FOR. DAMAGES FOR ASSAULT AND BATTERY.
    Circuit Court of Hamilton County.
    Hamilton County Agricultural Society v. Harry Helmann.
    Decided, February 10, 1912.

      Pleading — Necessary Allegations as to Injuries Received and Expenses Incurred — Where the Action is for Assault and Battery.

    In an action for damages on account of assault and battery, it is error to admit evidence as to tbe permanency of the injuries received or tbe impairment of earning capacity, where these grounds of damage were not specially pleaded.

      Frank F. Dinsmore and Stanley W. Merrell, for the Agricultural Society.

      W. W. Bellew, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   This was an action in the court below to recover damages for assault and battery made upon defendant in error by a private policeman employed by plaintiff in error, who struck defendant in error upon the head with his mace while he was attending one of its “fairs” at Carthage, Ohio.

The allegation, in the petition in respect to the act complained of is as follows:

“Plaintiff further avers that on said day aforesaid, he was sitting on the fence which encloses the race track on its ground, watching a balloon ascension which was then being given by said society, when the said Joseph Werbel aforesaid, private policeman, appointed by, and in the employ of said defendant’s society, without warning, struck and knocked plaintiff in the head with his mace, inflicting a cut three inches in length and otherwise beat this plaintiff about the body and dragged this plaintiff from about the place where he had been sitting, through and over the grounds of said defendant’s society, to an exit gate of said grounds a distance of at least 1000 feet, and ejected this plaintiff from the grounds, fair and exhibition of said society.”

At the trial of the case evidence was allowed to be introduced as to the permanency of the injury received by the blow and of the impairment of the earning capacity of defendant in error. To the admission of this evidence objection is made upon the ground that these grounds of damages were not specially pleaded.

In 2d Sedgwick on Damages, page 607, general damages are held to be such as the law implies or presumes to have occurred from the wrong complained of. Special damages are such as really took place and are implied by law.

It is a well settled rule that in a civil action for assault and battery it is unnecessary to specifically allege such damages as are the necessary and usual consequences of the act complained of, and in an action to recover damages for assault and battery the plaintiff may recover such damages as are the natural result of his injury without specific averment. Morgan v. Kendall, 124 Ind., 454.

So in an action for assault and battery it Is only necessary to set forth in the declaration such damages as the law will not presume to be the -necessary or usual consequences of the injury complained of. 2 Ency. Plead. & Prac., 862.

It would seem, therefore, from the assault and battery as alleged in the petition, permanency of the injury and loss of time, or lack of earning capacity would not be the necessary and natural results thereof, and, therefore, to recover damages for the same they should be specially pleaded. In this regard they differ from humiliation, bodily pain and mental angnish, which would be the necessary and natural results of assault and battery and for which one might recover on a general plea of damage. The rule seems to be that only such damages as may be presumed necessarily to result immediately and directly from the blow or force inflicted, need not be particularly and specially set out in the declaration (Birchard v. Booth, 4 Wis., 67), and permanent mental disorder can not be said to be the ordinary results of an assault and battery and unless specially pleaded can not be proved. Kuhn v. Freund, 87 Mich., 545.

. But the law infers bodily pain and suffering from personal injury and applies also to an injury to the feeling and mental anguish as results of personal injury. Stewart v. Watson, 133 Mo., 44.

Loss of time, labor and medical expense in such an action must be specially averred. 2 Bates Plead. & Prac., 967; O’Leary v. Roawn, 31 Mo., 117.

Under tbe evidence in the case we do not think that the consequences of permanent injury and impairment for work, necessarily flow from the act of assault and battery, and hold they should have been alleged in order to recover therefor.

We think the agency of the private policeman, who is alleged to have struck the blow, is sufficiently alleged in the complaint and we see no prejudicial error in the charge of the court in this regard. In our view of the case, therefore, we are of the opinion that the court committed error in submitting to the jury the special charge relative to the recovery of damages for loss of time and diminished earning capacity; nor do we think that the trial court, in whose mind it was doubtful whether evidence of such damages could be introduced, could cure this error by reducing the amount of the verdict by such sum as he thought the verdict had been increased by the admission of incompetent evidence.

The various elements going to make up the verdict by way of damages could not be separated, and- in such • event a new trial should have been granted, as the question of the amount of recovery is solely for the jury.

We find nothing further in the charge prejudicial, and for the above reasons the judgment of the court below is reversed and a new trial granted.


text:
    GROUND FOR REFUSAL OF ALIMONY TO WIFE.
    Circuit Court of Cuyahoga County.
    Caroline Quallich v. John E. Quallich.

    Decided, March 28, 1905.

      Alimony — Wife Living Apart from Her Husband — Hot Entitled to Alimony, When — Section 5702.

    An action for alimony by a wife who is living apart from her husband must he brought clearly within the statute, and where it appears from the evidence that the husband has offered her a suitable home and no reason appears why she should refuse the offer, the petition will be dismissed.

      Myer & Mooney, for plaintiff.

      Hart, Canfield & Crohe, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed without opinion, Quallich v. Quallich, 72 Ohio State, 671.

   This cause is here on appeal. It was begun by Caroline Quallich, who is here seeking alimony for her support while living apart from her husband. It is clear that a case must be made within the statute to permit the allowance of alimony without divorce (Nelson on Divorce and Separation, Section 1,000). None of the grounds for alimony without divorce, enumerated in Section 5702, Revised Statutes, has been proved. It is most certainly neither abandonment nor gross neglect of duty for a husband to refuse to support his wife while she is living elsewhere than in the home which he provides or tenders, if the home so offered her is a reasonable .one under the circumstances.

In this ease we find from the evidence that the husband has tendered to his wife a suitable home, and no reason appears why she should refuse this offer. The petition is dismissed.


author: By the Court.

text:
    SALE BY SHERIFF.
    Circuit Court of Richland County.
    C. F. Ackerman, Receiver, v. L. T. Cornell et al.
    Decided, January Term, 1912.

      Judicial Sales — Foreclosure—Successful Bidder Entitled to Prosecute Error — Sale Will Not be Set Aside to Permit of Higher Bid — Option Obtained by One of the Appraisers from Successful Bidder.

    1. A purchaser at a sheriff’s sale, under a decree in foreclosure, is sufficiently a party to the action in which the sale is made to prosecute error to the circuit court to reverse the judgment of the court of common pleas, upon a motion sustained by said court in setting aside the sale of the real estate made by the sheriff.

      2. In tbe absence of fraud, irregularity or misconduct affecting tbe validity of a judicial sale, sucb sale will not be set aside and confirmation refused in order to' allow tbe bid of the purchaser to be advanced by another bidder.
    3. Tbe fact that one of the appraisers of tbe real estate did on the day of tbe sale obtain an option from tbe purchaser for a one-half interest in tbe premises, does not affect tbe regularity and validity of tbe sale, in tbe absence of any showing that said appraiser did in any wise prevent any one from being present or bidding at said sale.

      C. H. Workman and W. 8.. Kerr, for Rollin H. Cockley.

      R. V. Owen and Cummings, McBride é Wolfe, contra.
   By the Court.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas of this county, arising upon a motion sustained by said court in setting aside the sale of certain real estate made by the sheriff of said county.

It appears that after the sale of certain real estate was advertised by said sheriff, to be sold at public sale, that said real estate was so offered by said sheriff when one Rollin H. Cockley bid to pay for the same the sum of $4,000, which said sum was two-thirds of the appraised value of the same. That said Cockley thereupon paid to the said sheriff the sum of $100 to apply on said purchase price for said real estate, and by arrangement with said sheriff, and to his approval, he was to pay the balance of said purchase price two days later, to-wit, Monday, December 11th,- 1911, said sale being on Saturday. That on said December 11th, 1911, the- said Cockley tendered said balance of said purchase money to said sheriff when he refused to accept the same because of a motion filed in said court by the receiver of the Farmers Merchants National Bank of Mt. Vernon, Ohio, to set aside said sale for reasons stated therein.

• That upon a hearing of said motion by said court, supported by affidavits and oral testimony, said court set aside said sale, from which finding and judgment of said court the said Rollin IT. Cockley, the purchaser of said real estate at said sheriff’s sale, prosecutes error to this court.

The first question presented is, whether said Cockley can prosecute this proceeding in error? Does he sustain such a relation to this proceeding a!s that he is a proper party thereto ? We answer the question in the affirmative, for the courts hold:

“That a purchaser at a sheriff’s sale,- under a decree in chancery, is sufficiently a party to the action in which the sale is made, to move for confirmation thereof or to take any necessary steps therein to protect his rights in the premises. ’ ’ 6 Hun., 138; 2 Page, 339; Sugden on Venders, Vol. 1, page 83.

Rut it is contended that one James. Geiselman, one of the appraisers of said real estate, and ’the purchaser, Rollin H. Cockley, acted collusively if not fraudulently in the sale of said real estate; that said Cockley on the day of said sale, but after said sale, gave said Geiselman a written option to purchase a half interest in said real estate for two thousand dollars, that said real estate, if properly advertised could and would have been sold for a much larger sum for which the same was bid off, and that a deposit of $1,000 was made in said court by one Milton Wise as guarantee that said real estate if re-advertised and put up to sale again would be sold for at least $5,000. An examination of this record shows that said property was regularly and legally appraised and advertised for sale on the 9th day of December, 1911, by the' sheriff of said county; that on said day said property was duly offered for sale by the sheriff of said county, at public auction, that there was only one bidder for the property, that said bidder was the said Rollin H. Cockley to whom said property was sold by said sheriff for the sum'of $4,000, said sum being two-thirds of the appraised value of said property.

Said record further shows that while said Geiselman, one of the appraisers of said real estate, took a written option from said Cockley, after said sale, to purchase a one-half interest therein, it does not appear that said Geiselman in any wise prevented any one from being present or bidding at said sale, or that said sale was in any respect whatever irregular, and it further appears that said sale was regularly advertised and said Milton Wise had knowledge of the time of said sale, as evidanced by the testimony of witnesses introduced upon the hearing of said motion to set aside said sale.

Upon the facts found as hereinbefore stated, we are of the opinion that said court of common pleas erred in setting aside said sale, and for such error the judgment of said court is reversed.

And it appearing to the court from the return of the sheriff of the writ of execution issued herein with his report of his proceedings and sale of the land under said writ, that said proceedings and sale have been duly and legally made, and being satisfied that said sale has in all respects been made in conformity to the provisions of the statutes in such eases made and provided, and in all respects legal, the sale to R. H. Cockley is hereby approved and confirmed, and the sheriff of Richland county is ordered to make to the purchaser, R. H. Cockley, a deed according to law for the property so sold to him upon the full, payment of the purchase price of said premises, to-wit, the sum" of $4,000, and the said cause is remanded to the said court of common pleas for further proceedings according to law.

And it is ordered by the court that the deposit of $1,000 made with the sheriff by said Milton Wise be returned to him. Exceptions noted.


text:
    ALTERNATIVE REMEDY BARRED BY ELECTION.
    Circuit Court of Cuyahoga County.
    Joseph Kesting v. The East Side Bank Company.

    Decided, November 10, 1905.

      Election of Remedy — Action to "Vacate Judgment After Term — Barred "by Election to Prosecute Error — Failure to Set up All Defenses— Sections 5305, 5309 and 5354, Revised Statutes.

    An action to vacate a judgment after term will not lie where it appears that the petitioner had previously and without success prosecuted error to the same judgment, without then alleging as ground for a new trial the matters of complaint of which he was then aware and on which he now relies.

      Blandin, Bice & Ginn, for plaintiff in error.

      Shmurh «& Thompson and Hills, McGraiu & Van Derveer, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.

       Affirmed without opinion, Kesting v. East Side Bank, 76 Ohio State, 591.

   The parties to this proceeding in error stand in the same relation as in the court below. That court dismissed plaintiff’s petition, filed under favor of Section 5354, Revised Statutes, to vacate a judgment rendered against him at a previous term on a cognovit note for more, as he now claims, than was due. The failure of the court to vacate that judgment is the error here assigned.

The parties live in Toledo, and plaintiff was an accommodation maker of the cognovit note in controversy, to the East Side Bank as payee. He claims that at the time of the delivery of the note, the bank agreed with him that the same was to be amply secured by a chattel mortgage of the principal maker; that the plaintiff’s name was required upon the note merely to comply with the bank’s rules, and that he would never be required to pay the same. He further claims that such a chattel mortgage was. in fact given soon afterwards; but that the bank, at the instance of the principal maker of the note, omitted to file it, whereby the lien was lost; that the principal maker having meanwhile departed from the state leaving no property here, the bank, without notice to the plaintiff, procured judgment to be rendered again'st him in Cuyahoga county. The plaintiff further claims that he is ignorant of the residence of the principal maker of the note, and that on this state of facts he is entitled to have the judgment vacated.

On the trial below the defendant offered in evidence the record in the primary ease, from which it appears that a proceeding in error was then unsuccessfully prosecuted in this court for alleged error consisting of misnomer of the defendant therein. But the points made in the present action were not litigated in that proceeding. No reason appears why the plaintiff might not have done so; for, when he became aware of the judgment, he was entitled, under Section 5309,'.Revised Statutes, and chapter 5, commencing with Section 5305, to apply for a new trial upon the ground of accident or irregularity. He chose not to take this course, preferring instead to rely wholly upon the.alleged misnomer. No doubt Section 5354, which he now invokes, afforded a cumulative, or rather an alternative, remedy. That is to say, he was entitled to resort to it, in the first instance, rather than to Section 5309, if he desired to do so. But having prosecuted error to the former judgment, without first applying for a new trial upon the grounds then known to him, we think he is now debarred, by his election, from seeking anew the relief which was then available. Becker v. Walworth, 45 O. S., 169, 173; Buell v. Cross, 4 Ohio, 327, 330.

In Pollock v. Cohen, 32 Ohio State, 514, it was held that a second petition in error, upon the same record, but upon new grounds, known but not asserted before, will not be entertained.

In Kunneke v. Mapel, 60 Ohio St., 1, it was held that a party defending is bound to set up all matters which are strictly matters of defense, and if he fails to do so, he can not afterwards relitigate the controversy, upon the omitted issues. See also Neugut, Trustee, v. Brinkenhoff, Sr., 67 Ohio State, 472, and, Jenkins v. Easterly, 24 Wis., 340, a case very like the one before us. It is true there is a contrary intimation in Parker v. Haight, 14 C. C., 548; but that was a mere dictum and not necessary or even pertinent to the decision.

Entertaining the view thus indicated, we find it unnecessary to discuss the sufficiency of the defense to the primary action as rww offered; though it may be doubted whether the prayer of the petition to vacate should have been granted on its merits, in view of the seeming authority of Shaul v. McCauley, 34 B., 278, affirmed without report, 53 Ohio State, 676.

The judgment below is affirmed.


author: Parker, J.,

text:
    PUBLICATION OF COUNTY COMMISSIONERS’ REPORT.
    Circuit Court of Wood County.
    State, ex rel The Sentinel Company, v. Commissioners Wood County.

    Decided, October 28, 1910.

      Publication — Necessity of, in Case of Financial Report of County Cows missioners — Competency of Newspaper May Be Determined in an Injunction Proceeding.

    1. Injunction lies to determine the competency of a newspaper to publish the financial report of the county commissioners, required under Section 2508, General Code.
    2. Necessity for the publication of such a report is not determined by the comparative amount of money involved in the report or by the cost of its publication.
    3. A newspaper having a circulation of eight hundred in a county containing a population of fifty thousand distributed over twenty .townships, and in fifteen of those townships containing a population of thirty-five thousand a circulation of only thirty-six, is a newspaper' of general circulation within the meaning of the statute providing for the publication.

      N. B, Harrington, McClelland efe Bowmasi, for plaintiffs.

      B. F. James and William Dunipace; contra.

      Kinkade, J. (orally) ; Wildman, J., concurs; Parker, J., dissents in a separate opinion.
    Appeal from common pleas court.

       Affirmed without opinion, 84 Ohio State, 447.

   In the court below this was an action brought by the Sentinel Company, as a tax-payer of Wood county, after the statutory requirement (General Code, 2922) for requesting the prosecuting attorney of the county to bring the action had been complied with, to restrain the county commissioners and the county auditor from entering into a contract under General Code, 2508, to print the county commissioner’s report in a paper known as the Weekly Beacon, published at North Baltimore.

The ground for the injunction set up in the petition is that the Weekly Beacon is not a paper of general circulation in Wood county. That is the only ground set up in the petition for this injunction, and it is said that because it is not a paper of general circulation in Wood county, that, therefore, the county commissioners and county auditor are unauthorized (as of course they would be if that is so) in making a contract with Mr. Wilkinson, the proprietor of the Weekly Beacon, to publish this report in that paper.

The position taken by tbe Sentinel Company is denied by Mr. Wilkinson. • In the court of common pleas a temporary injunction was granted restraining the completion of the contract. A motion was made to dissolve that injunction, the motion overruled and the injunction continued in force until the final hearing in the court of common pleas, and it is stated by counsel, but not shown in the papers here though undoubtedly a fact, that the case passed on to final hearing in the court of common pleas and the injunction was made perpetual.

An appeal was taken to this court from the order of the court of common pleas refusing to dissolve .the temporary injunction, and the question presented here is on a motion to dissolve this injunction, and the case is also on its merits here.

Several grounds are presented by the defendants raising questions of procedure in this case. It is said that the only proceeding that could be brought would be one in mandamus.

It is not admitted that such action may have been brought and maintained, neither is it contended by defendant' that it could have been maintained at all, but it is said that if the matter could have been interfered with in any way, it must have been by mandamus, not by injunction. We think that is not the case. We are unanimously of the opinion that the proceedings were correct in form. We call attention to the case of Schloenbach v. State, 53 Ohio St., 345. The opinion of the court, found on page 346, recognizes the correctness of the practice pursued in this case, and if any authority was necessary to show the correctness of the procedure here we think this particular decision of the Supreme Court covers that question.

We see no question in this case we have in controversy at all except the question as to whether the evidence in this case shows that the Weekly Beacon published at North Baltimore at the time this contract was attempted to be entered into, was a paper of general circulation in Wood county as provided by statute— a question of fact, which the court of common pleas held that it was not, the paper having, as shown by the evidence, some eight or .nine hundred of circulation, going to many of the townships in Wood county in small numbers, it is true, and no affirmative showing that it went to five of these townships of the county — ■ that papers went to these townships and may have been delivered in the townships we think the record fairly shows, but it is not shown affirmatively in the record that it had a circulation in every township in the county. It is shown that it had a circulation in fifteen of the twenty townships, of a limited circulation.

It is set up in the petition that the county commissioners advertised for bids for this work, but states that there was no requirement that they should advertise for bids. It. is stated in the petition that the contract about to .be let will involve an expenditure of about $50, and it is stated in argument that if the printing were allowed under the legal rates to the Sentinel it would amount to something like $350. It does not occur to us that the amount involved cuts any figure in the case either with reference to the Sentinel or Weekly Beacon — the sole question in issue in the case being, is this a paper of general circulation in Wood county with which the county commissioners may make this contract and comply with the statute ? After examining the ease fully it is the judgment of a majority of the court that it was a paper of general circulation in Wood county, and that being true, the motion to dissolve the injunction will be granted, and the petition of the Sentinel Company will be dismissed.

Parker, J.,

dissenting.

I find myself unable to concur in the conclusion of my associates. We have been furnished with a transcript of the able opinion of the judge of the common pleas court who decided this case, and it seems to me that his findings, reasonings and conclusions are sound and just, and conclusive against the defendant. I shall not attempt to add much to it. With respect to the circulation, as pointed out in that opinion and as shown by the testimony of Mr. Wilkinson, of the ’Weekly Beacon, the bona fide circulation of the Beacon in Wood county as nearly as he himself can state it, at the time this suit was instituted, was 636 copies. In addition to that he states there were somewhere in the neighborhood of ninety or one hundred sold from week to week at news stands, and there were other copies that went to Toledo and elsewhere outside of the county; but he gives in his testimony in detail the number going to actual subscribers in this county. For- the townships of Milton, Liberty, Henry, Jackson and Bloom lying at the south side of the county, he says the circulation was 600. Those are five of the twenty townships of the county and they lie contiguous to one another. In the other fifteen townships of the county there were sent thirty-six copies according to the testimony of Mr. Wilkinson; that is, that many copies were sent to the post offices of those townships. Perrysburg township received at the post office three; Middleton, two; Washington, two; Grand Rapids,'two; Weston, three; Plain, nine; Center, eight; Freedon, three; Portage, two; Montgomery, two. No papers were sent to the post offices in Ross, Lake, Troy, Webster or Perry townships, though, as has been stated in argument, it is quite probable that some of these papers sent to adjoining townships may have gone into those townships where there appears to have been an entire dearth of circulation. But assuming that that happened, it still remains true that in those townships having a population of 35,457 according to the census of 1900 (probably 10 per cent, greater now) the thirty-six papers sent would amount to a paper to over 1,000 residents, or to a paper to about one-tenth of one per cent, of the population of those fifteen townships.

The population of the whole county in 1900 was 51,733 and this was (and the present population is) distributed over the whole county with substantial evenness. In the other five townships, 600 papers were sent, which was a little more than one paper for each 100, or for 1 per cent, of the population. Conceding that there is enough circulation in the five townships to amount to a general circulation, I am of the opinion that there is not enough circulation in the other fifteen townships to amount to a general circulation therein. My construction of this statute as to general circulation in a county is that it means a general circulation throughout the county. By that I do not mean that the paper must gó into every township in the county, but that it ought to be a substantial circulation throughout the county.

Where the population is distributed evenly, as in Wood county, the circulation in numbers sufficient to make it general, should be distributed over more than one-fourth of the territory of the county.

The report to be published and to be paid for out of the public funds is a report of expenditures made by the county commissioners during the year for all the various things for which they may have expended public funds throughout the county, and the citizenship of the county at large is interested in reading this report.

The evident purpose (if there is any legitimate purpose at all) of the publication, is to give information throughout the county as to the proceedings of the county commissioners in this regard — what they are doing and what they are spending the public money for.

It seems to me that it can not be said that a paper has á general circulation throughout the county, if this circulation is substantially limited to a certain block of townships at one end of the county comprising one-fourth in territorial extent of the county, and where the population amounts to substantially one-fourth of the population of the county; that to make it a general circulation, at least the greater part in territorial extent of the county should be supplied with the paper in some substantial numbers. But here we have a solid unbroken territory comprising three-foürths of the townships and containing three-fourths of the population of the county with a supply of papers so meager as to amount to no circulation amongst such population and throughout such territory.

It is, of course, impossible to lay down any hard and fast rule as to the number of papers that shall go out to constitute a general, circulation; it must depend upon the population and upon thevdistribution of the population. There may be townships containing comparatively few inhabitants where it would be right and proper to say there would be a general circulation in such townships if but few papers were there, whereas there may be townships where it would seem to be proper that there should be a greater number of papers circulated to make the circulation general. I say it is impossible to lay down any hard and fast rule upon the subject, and yet if the circulation is confined substantially to one-fourth of the population and one-fourth of the territorial extent of the county, it is my opinion that that is such, a preponderance of territorial extent and population unaffected by the circulation of the paper as to make it not a paper of general circulation in the county.

If the circulation might be confined to one-fourth of the county and still be a general circulation in the county, I can not see why it might not be confined to a smaller extent of territory and'a smaller population. If you circumscribe the limits to five townships, why not four townships, or three townships, or two, or even one. Why not say of some obscure paper published in some little village or cross roads in some township that has a general circulation in that township, that it is a paper of general circulation in the county?

As has been said, this is really the only question that is presented in this case. The question of the price to be paid for printing this report is not involved in this case. The question of the wisdom or unwisdom of the policy pursued by the county commissioners with respect -to this matter, is not involved in this case. The question of whether or not the county commissioners may by competitive proceedings requiring bidding, or by other proceedings, obtain or require the publication of the report at a less figure than a dollar and a half per square, is not involved in this ease. The question as to whether there may or may not be some other newspaper published in the county and of general circulation therein, is not involved in this case. For aught we know there may not be a newspaper published in the county of general circulation in the county. There may not be one entitled to make this publication and receive pay for it from the public fund. We have simply this one question as to whether the Weekly Beacon comes within the purview of the statute as .to circulation. This is a mixed question of law and fact. -In all other respects it is conceded that the Beacon meets the requirements of the statute. That it is a newspaper of general character and that it is a political paper and printed in the county is conceded.

We find very little authority bearing directly upon this question. We were cited to one criminal case in the reports of the Supreme Court of Nebraska in which a question somewhat like this was decided, and it was there said in a foot-note by the reporter that that was the first case in which any of the higher courts had ever attempted to define “general circulation.” This appears to be a mistake, for I think the precise question has been settled by the Supreme Court of Ohio in the ease to which we were cited and which we have examined, viz., Craig v. Fox, 16 Ohio, 564. This ease I regard as being directly in point and conclusive, and if so it is an authority not only entitled to our respect, but it is an authority absolutely binding upon this and all inferior courts.

This was a case of a publication of a legal notice in a newspaper — the Sunday Enquirer — made under a statute which required that the notice be published in a newspaper of general circulation in the county. The requirements, so far as this question is concerned, are precisely the same. The notice was pub-listed in the Daily Enquirer and also in the Weekly and TriWeekly Enquirer. The court found the fact to be that the Daily Enquirer .did not circulate outside of the city of Cincinnati. None of these daily papers went out. into the county beyond the limits of the city. The court also found that the notice had not been published a sufficient length of time in the Tri-Weekly or Weekly Enquirer, so that the publication therein could be considered to supplement or assist the publication in the Daily, and the publication in the Tri-Weekly and Weekly had to be disregarded. Coming to consider the publication of the Daily, which seems to have had a sufficient circulation within the city of Cincinnati to entitle it to be regarded as of general circulation there, the court held it was not a general circulation in the county, and therefore the publication was held to. be invalid.

We know as a matter of general information — a thing that courts may take judicial notice of- — that the population of the city of Cincinnati, even in that early day (1847) comprised a large part or a large majority of the population of the county; yet the circulation among that population was held to be insufficient. I can not see that 'that case fails to meet this one. It appears to me to meet the situation exactly; and if a publication of legal notice required to be published in the county, is not sufficient where it is published in a city like Cincinnati, having a majority of the population of the county, that it ought not to be held sufficient where the publication is substantially limited to five townships in one corner of a county containing but one-fourth of the territory and one-fourth of the population of the county. That decision has stood as the law of the state since 1847. We can not find by searching authorities or digests that it has ever been qualified or criticized. The court there regarded the requirement that the publication should be a general circulation in the county as having some reference to the territorial conditions and held that the territorial idea was involved; that the circulation should be substantial throughout the county. Now, it seems to me that this statute is even clearer in support of the contention that the territorial idea as well as the population idea is involved. ■ It is held in a number of cases where the question was raised, that general circulation was used as contradistinguished from special circulation; that a circulation among those of a certain profession or among certain tradesmen, or members of a certain religious body, would be special, and that general means it must not be of that character, but it must be.a publication that contains general news and that goes out generally to the'people.

Here the requirement is that it must be a newspaper, and a political newspaper, and in addition to that, it shall have a general circulation in the county. Now, in the same section of the statute (and I read from the old statutes — R. S., 917) upon the subject of publishing in a German newspaper, that idea appears to be emphasized — i. e., the idea that the population of a territory ought to be considered in determining whether or not the paper has a general circulation (reads) :

“And in addition to the publication therein required, be published in one newspaper printed in the German language and having a bona fide circulation of not less than 600, if there be such paper printed and in general circulation among the in-' habitants speaking that language in the county,” etc. There the terms “general circulation” are used in the same section of the statute and used as it seems to me, with this idea in mind. It is not necessarily sufficient if it is a circulation of 600, it must have a circulation of not less than 600 (it does not imply that such circulation in a population of 100,000 for instance, would be sufficient) and in addition to that number it must have a general circulation. And this 600, or whatever number the court may find, would be sufficient in point of numbers, must be a general circulation in the county. The general code changes the phraseology somewhat, but it seems to contain and enforce the same idea.

For these reasons, I am of the opinion that the injunction ought to be made perpetual; that the Beacon is not a paper of general circulation within the purview of the statute.


text:
    INJURY TO EMPLOYE IN UNGUARDED MACHINERY.
    Circuit Court of Cuyahoga County.
    Robert R. Lee v. Standard Tool Co.

    Decided, June 8, 1908.

      Negligence — Master and Servant — Doctrine of Assumed RisTc Abolished by the Act Relating to Unguarded Machinery — Limitation of Liability — Application of Section 1027, General Code, Relating to the Safe-Guarding of Machinery — Section 62J/3.

    1. The effect of Section 6243, General Code, providing that the risk of unguarded machinery shall be assumed by the employer, is to abolish the doctrine of assumption of risk by employes who continue in the service with knowledge, express or implied, of dangers in consequence of which they may suffer injury, if the sufferance of the source of danger amounts to a violation by the employer of a penal statute, state or national; and it follows that a petition by an injured employe, which alleges that he was without means of knowledge of the danger, but fails to allege that he was without equal means with the defendant of knowing the source of danger, or by the exercise of ordinary care would have known thereof, is not defective in a cause of action arising under said section.
    2. Inasmuch as the limitation to $3,000 of damages for wrongful death resulting from failure to guard or protect machinery, creates no new cause of action, but may be invoked in any action involving employer’s liability for injury to an employe, a petition praying for $10,000 is not an election not to invoke the limited liability contemplated by this act when the right of recovery depends solely upon its provisions.
    '3. The provision of Section 1027 as to the safe-guarding of machinery applies to a space of eighteen inches, on one side of which cogwheels are revolving at the height of a man’s coat; and although such space was not intended for nor used as a passage-way, an employe passing through such a space at the direction of the foreman comes within the protection of the statute.

      McGrath & Stern, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKeeha/n & Andrews, contra.

      Henry, J.; Marvin, J., and Winch, J., concur.
    Error to common pleas court.

       Affirmed without opinion, Standard Tool Co. v. Lee, 83 Ohio State, 501.

   This was a personal injury damage case wherein a verdict for defendant was directed by the court. It is complained here that this action was taken by the court before plaintiff had rested, but an examination of the bill discloses the fact that plaintiff announced the conclusion of his evidence bearing upon the cause and maner of the accident before this action of the trial court was taken, and we find no error in this behalf.

The facts are as follows:

Plaintiff was an experienced employe in defendant’s shop, and on October 4, 1906, he went into a room or department where many lathes were in operation and where he had been only once or twice before. He was in search of a certain tool, which, after some delay, he caught sight of and started to go by a passageway, around certain moving machinery, to get it. His foreman thereupon accosted him and ascertaining what he wanted, told him to go directly between certain lathes which stood fifteen or eighteen inches apart, and get the tool in question. In doing so his coat was caught in cogs that were revolving at the end of one of said lathes and he was severely injured.

. The conversation with the foreman is not set up in the petition, but is alleged in the reply. Thus it has no bearing upon plaintiff’s cause of action, but bears only upon the defense of contributory negligence set up in the answer. The petition, moreover, fails to allege that plaintiff was without equal means with the defendant of knowing the source of danger from which he suffered his injury, or that by the exercise of ordinary care he would not have known of the same, although it does allege that he was without knowledge thereof.

It is claimed, however, that notwithstanding this omission the petition states a cause of action under R. S., 4364-89c (General Code, 1027) and R. S. 4238o-1 (General Code, 6243, 6244). The former section requires, under penalty, that owners and operators of factories and workshops provide for “the enclosure of all exposed cog-wheels,” and the latter section provides that:

“In any action brought by an employe, or his legal representative, against his employer, to recover for personal injuries, when it shall appear that the injury was caused in whole or in part by the negligent omission of such employer to guard or protect his machinery or appliances, or the premises or place where said employe was employed, in the manner required by any penal statute of the state or United States in force at the date of the passage of this act, the fact that such employe continued in said employment with knowledge of such omission, shall not operate as a defense; and in such action, if the jury find for the plaintiff, it may award such damages not exceeding, for injuries resulting in death, the sum of five thousand dollars, and for injuries not so resulting, the sum of three thousand dollars, as it may find proportioned to the pecuniary damages resulting from said injuries.”

The effect of the section last quoted is in all cases to which it applies, to abolish the doctrine of the assumption of risk by-employes who continue in the service with knowledge, express or implied, of dangers, in consequence of which they suffer injury, where the sufferance of such source of danger amounts to a violation by the employer of any penal statute, state or national; and in any such case the rule of pleading prescribed in Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St., 598, can have no application.

If the cause of action pleaded and proved in- the court below falls within the purview of these statutes, and there was no contributory negligence on the part of the plaintiff, the action of the court below in directing a verdict for defendant was erroneous and the judgment should be reversed.

It is said, however, that R. S., 4238o-1 does not apply to the case before ns for two reasons: First, because plaintiff has elected not to invoke the limited liability contemplated thereby in praying for $30,000 damages instead of confining the amount demanded to the sum of $3,000 as in said section provided. Secondly, the petition alleges that he had no knowledge of the exposed cog-wheels, whereas said section contemplates only cases in which the employe continues in the employment “with knowledge” of the omission to comply with the statute in any such particular.

We are unable to accept this construction of the statute in question. It does not purport to create any new causé of action, hut instead its provisions are applicable by its express terms “in any action brought by an employe * * # to recover for personal injuries,” etc. The amount of recovery in such cases is indeed limited to $3,000 for one having knowledge of the absence of statutory safeguards, but the fact that plaintiff has prayed for more than, under this statute, he can recover, does not, we think, render a petition demurrable, when the right of recovery depends solely upon this section. Inasmuch as this section may be invoked “in any action” of employer’s liability for injuries to his employe, there is no opportunity for election between the common law and a so-called statutory action. In many states where'employer’s liability codes have been enacted, such right of election is specifically reserved to the plaintiff, and it is undoubtedly true in' all cases where a new right of action is created by statute to exist in addition to and parallel with similar common law actions, the plaintiff must elect between them, and having elected, be held to pursue his rights accordingly. But such is not the ease here.

• It is objected further that the evidence in the case before us clearly shows that there were “no exposed cog-wheels,” within the meaning of R. S., 4364-89c. It is urged that if cog-wheels are left uncovered at some point near the ceiling of a room, where employes can not in the ordinary course of things come in contact with them, or when they are revolving elsewhere than upon the exterior of any machine, or indeed in any place where employes will not, in the diie course of their employment be apt to come in contact with them, the statute does not apply. This contention is no doubt correct, but we are not able to say from the evidence adduced in this case, and we think the court below could not properly say, that such was the state of facts here. Of course a space fifteen or eighteen inches wide, on one side of which cog-wheels were revolving at the height of a man’s coat, can hardly be said to be intended for a passageway, and the evidence introduced or offered here does not tend to show that prior.to the happening of this accident this space in fact was used as a passageway for employes; but it is in evidence that both plaintiff and his foreman thought proper for him to use it as such, and if the cogs had not been exposed, it is not unreasonable to suppose that a space fifteen or eighteen inches wide might safely be used as such. To say that the revolving cog-wheels were in themselves a warning that the space was not intended for the purpose and must not be used by employes to walk through, is but to beg the question. If anyone did go through there, the cog-wheels were manifestly exposed as to him. Plaintiff says that he did not know that there were any exposed cog-wheels there, and if so, he did not know that this bar to the use of the space in question, as a passageway, to walk through, existed.

It remains, therefore, only to determine whether the court was justified in directing a verdict upon the theory that the plaintiff was, as a matter of law, guilty of contrihutory negligence. We think, in view of his testimony that the foreman directed him to go through that space and that he had no knowledge of the uncovered cog-wheels, the conclusion can not be drawn as a mere a matter of law, that he was wanting in the exercise of ordinary care in taking this route. It was rather a question of fact for the jury to determine.

We hold that the court below erred in directing the jury to return a verdict for the defendant, and the judgment of the court of common pleas is reversed and the cause remanded.