author: Russell, J.

text:
    (Fourth Circuit — Scioto Co., O., Circuit Court,
    March Term, 1896.)
    Before Clark, 'Cherrington and Russell, JJ.
    RICHARD KEAR v. VIRGINIA GARRISON.

      Action under Adair law — Exemplary damages—
    1. In an action under the Adair Liquor Law, by a wife against the owner of a saloon, for selling'intoxicating liquor to her husband, a person in the habit .of getting intoxicated, and whose name has been by her placed upon the “black list,” the jury may, when actual damage has been established by the evidence, award exem-. plary damages, although the liquor-was sold in the absence and. without the knowledge of such owner, by his bar-keeper, to whom he.had in good faith given strict orders, to sell to no one on the “black list,” intoxicated, or in the habit of getting intoxicated, and although such husband, when he purchased the liquor, was not intoxicated, and the bar-keeper did not know that he was in the habit of getting intoxicated, or the party named in the notice.

      Same — Sickness of plaintiff cáused by nervousness—
    2. In such an action the jury may award compensatory damages to the wife, for sickness caused by nervousness, occasioned by the verbal abuse of her by her husband while so intoxicated.

      Error to the Court of Common Pleas of Scioto ccunty.
   Russell, J.

This-is an action under the Adair Liquor Law, and the plaintiff alleges that she is the Wife of George Garrison; that he is a man who, when sober, can earn a good living, and whose services are worth from three to five dollars per day; but when intoxicated, he cannot and will not work, and she says that he is in the habit of getting intoxicated. She further says that on the 4th day of June, 1894, she filed with the clerk of the city of Portsmouth, a legal notice, in writing, as provided by section 4358, of the Revised Statutes of Ohio, warning the saloon keepers of the city of Portsmouth not to sell her husband any intoxicating liquors. She says that the notice was in force on the 11th day of July, 1895, when the defendant Kear wrongfully sold a drink of whisky to her husband, and he became intoxicated; that by reason of the intoxication, he lost time, and that she lost the means of support she would otherwise have had; that by reason of his abuse of her, while he was in this state , of intoxication, she became sick. She asks for damages in the sum of one thousand dollars. The answer is a general denial.

, The case was tried to a jury, and a verdict was rendered in favor of plaintiff against Kear, the owner of the saloon, for the sum of $323.00. Mr. White, the owner of the property, was also defendant, but the jury found in his favor. The defendant, Kear, filed his motion for a new trial, on the grounds that the amount of the damages was excessive, and the verdict against the manifest weight of the evidence; also, that the court erred in admitting evidence on behalf of the plaintiff, and excluding evidence on behalf of the defendant. The common pleas court reduced the verdict to $150.00, and on that amount being accepted by the plaintiff, the motion was overruled.

On the trial of the case there were three'exceptions taken by tbe plaintiff in error, to the 'ruling of tbe court on the evidence. The first, on the examination of the plaintiff, Virginia Garrison, when the question was asked her:

“Q. What effect do these sprees have-upon you? A. It makes me nervous. ”
(Objection by the defendant; overruled by .the court, and exception noted.)
”Q. What effect did his condition have, (this particular spree), on your health? A. It made me very nervous and weak. I am not able to look after myself, much less him; I have both to look after.”
”Q. How long were you nervous and sick at this time? A. I could not exactly tell you- — -some two or three week3-~ it takes that long for this nervousness to wear off, on account of my nervous system being shocked.”

Now, while counsel only objected to the first question, that was asked, it is claimed that where there is' a series of questions asked that are on the same subject, they are only required to object to one question; therefore, they claim their objection to the first question was ample. We think the objection was not well taken, and shall rely in support of this position, on the case of Mulford v. Clewell, 21 Ohio St., 191, to which I shall refer later. We are satisfied that they were mistaken as to what the plaintiff had a right tq-_ prove.

Nervousness may cause sickness; if it causes sickness, it becomes a physical injury under the statute. The party is just as incapable, if suffering at the time from abuse and.) cruel treatment — -just as incapable of attending to business,' and suffers physically as much and sometimes more, than if' actually struck a blow by tbe other party; and we think that the decision to which reference is made, bears out our views in that respect.

The next objection is in the cross-examination of the plaintiff, on page 16, of the Bill of Exceptions:

‘‘Q. You thought of demanding,” (that is, the plaintiff; she was on the stand), “you thought of demanding some money from him, didn’t you?”

(Referring to Jordan, the man she thought sold her husband liquor, at another and a different time from the one Sued on.) ' .

(Objection by plaintiff; not considered competent by the court. Objection sustained. Exception noted by defendant J

Now, what could be the object, on the trial between Kear and the plaintiff, in introducing testimony to show that this woman had demanded money of Jordan because Jordan had so.\d her husband liquor? We can all see, at once, that it. does not bear upon the issues in this case. It was not the same sale, or the same intoxication for which she was demanding money from Kear for the selling to her husband; she was simply demanding money of Jordan because he had sold whisky to her husband at another time, and hao injured her. She had a perfect right; to do that. But it is claimed by counsel that they expect to show -that she also demanded money of others, and that there was a conspiracy between plaintiff and her husband. Well, now, they have not introduced a particle of evidence to sustain that claim, as the record shows. If they could have found anything of the kind, that would be a matter of defense. If plaintiff and her husband had entered into a conspiracy by which he was to obtain the liquor, and then she was to demand money of the saloon keeper sailing the same to him, that would be something to set up in the answer, and if found true, it would be a defense. But nothing of that kind appears from the evidence, and counsel did not state the basis of what they expected to show in proving that statement, and it is enough' to say that they did not attempt to do so in the case.

The exception noted on page forty-three of the bill of exceptions is simply the same question as before; it was asked of Jordan himself, and objected to. He was asked whether or not plaintiff had demanded of him the sum of fifty dollars, and whether she did not afterwards agree, or say, that she would take a less sum? Suppose she did. ' She had a right to go around the town and demand damages from any one who had sold her husband liquor in violation of the law, and the notice she had given.

That was not trying the question of whether or not she had a cause of action against Kear for selling her husband liquor; but it was a cause against somebody else. The court, in tüe case at bar, was not trying any question of that kind, and we think the evidence was not competent.

Now, the next question is, was the verdict against the manifest weight of the evidence. We think this is a very slim case; we think it would so appear to any court, or jury, and if the case had come up on error, with the amount of the judgment that was originally rendered by the jury, $323.00, we should not have hesitated a moment to set it aside

Here, in this case, the evidence-shows that the party took one drink in Kear’s saloon in the morning, and that the same forenoon he followed that drink up by two more at other saloons. There is nothing in the evidence to show that there was any great or considerable amount of damage occurred from this drink, as the result of it, or in connection with the others. But he did, as I have said, drink at the other two places, then went home and continued in a drunken and sick condition. Counsel have attempted to prove by the neighbors that he did not remain sick; that on the forenoon of that day he was out on the street hunting work; but I think the evidence shows that he was in no condition to hunt very much work; he was not in that kind of business. He took a spree, he went home and verbally abused his wife; she became afflicted from it, in a nervous way, and became sick, as she states.

Now, counsel say that that is not any disability; that nervousness is not such a physical or personal injury as that she can maiuatin her cause of action upon it. In the first place, I may say that we are satisfied that there was evidence here showing that he had expended some money, he had been out of employment for several days, in a drunken condition; so that she had shown some injury outside of the matter of physical injury.

Counsel for plaintiff in error rely upon the case of Mulford v. Clewell, 21 Ohio St., 191. I only propose to read the third paragraph of the syllabus:

“3. Under the acts to provide against the evils resulting from the sale of intoxicating liquors (S. & C., 1431, and 67 Ohio Laws, 101), an action against the vendor for injuries to the ‘person’ of the plaintiff occasioned by the drunkenness of the vendee, cannot be sustained without showing an assault, or some actual violence, or some physical injury to the person or health; and it is not sufficient to show mere mental anguish, disgrace, or a loss of society or companionship.”

Now, nervousness, as I said a moment ago, (to throw this woman into a nervous condition, and to make her sick from that), is a physical injury, and is recognized by this authority cited by counsel for the plaintiff in error; it arises from some physical injury to the person or health. Now, was not this nervousness an injury to the health? The authority of the case is directly against the counsel on that proposition; they have misconstrued the language of the court in that case. *

Now, it is claimed by counsel for the plaintiff in error that exemplary damages cannot be given (and it is admitted that they were given),unless it is shown that the defendant, Richard Kear, sold the liquor to George Garrison, knowing him to be the man named in the notice filed in the city clerk’s office on the 4th of June, 1894. And because the evidence shows that Kear did not himself sell this liquor to Garrison, and did not know him, but that it was, in his absence, sold by some of his bar keepers, (to whom Garrison was also unknown), to whom he had given strict orders not to sell to any one on the black list, or who was drunk, or in the habit of getting drunk, no exemplary damages could be properly allowed by the jury, That the jury could, in such a case, only assess compensatory damages, and that exemplary damages can only be allowed by the jury in a case where the defendant sold the liquor, knowing that the person to whom he makes the sale is iheyme named in the notice filed under the law, and that he is a person in the habit of getting intoxicated. That because'fhe evidence in this case shows that George Garrison was totally unknown either to Kear, or to the bar keeper who sold him the liquor, to be the man named in the notice, no exemplary damages could be allowed by the jury. We cannot agree with counsel in that respect. We think the statute very plain on that proposition, and a simple reading of it will show that the counsel’s position is wrong; that the filing of the notice permits the jury so give, in the way of damages, exemplary damages, if the party selling intoxicating liquors sold the same after the notice was filed, to one in the habit of getting drunk.

Section 4357: “Every husband, wife, child, parent, guardian, employer, or other person injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall, after the giving, and during the exist\^ ence of the notice provided for in the next section, have a right of action in his, or her own name, severally or jointly, against any person or persons who,-by selling or giving intoxicating liquors have caused the intoxication, in whole or in part, of such person; and the owner of any building or premises, and the person renting or leasing the same, having knowledge that intoxicating liquors a're to be sold therein, in violation of law, or, having leased the same for other purposes, knowingly permit intoxicating liquors to be sold therein that have caused the intoxication, in whole or in part, of such person, shall be liable severally or jointly vs ith the person or persons selling or giving intoxicating liquors as aforesaid, for all damages sustained, as well as exemplary damages. ” \
Now,so far as the dealer or seller is concerned, the written notice is sufficient as to him; but so far as the lessor of the property is concerned, he must have actual notice; but no actual notice need be given to the seller; therefore, though Kear, in this case, notified his bar keeper not to sell to any person who was on the black list, yet if the bar keeper did so sell to him, he is responsible, not only for damages, but for exemplary damages, if'the jury so decide. This is the view of the matter taken by the Supreme Court in the case of Schneider v. Hosier, 21 Ohio St., 98, the sixth syllabus of which reads as follows:

A. T. Holcomb and Duncan Livingsione, for Plaintiff in Error.

J. L Dodge, for Defendant in Error.

“6. In all actions under said section, in which the plaintiff shows a'right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation.”

The court, in its opinion, on pages 113 and 114, says:

“3rd. Whatever may be the rules of the common law, as to the state of facts necessary to justify the assessment of exemplary damages, it is clear to our minds that exemplary damages may be recovered in any action brought under this section, in which the evidence shows a right to recover actual damages. The amount of such damages is left to the sound discretion of the jury, subject to be controlled by the court when such discretion is abused. In actions under this statute the jury, in the exercise of its discretion as to exemplary damages, ought to consider all the circumstances properly before them tending to aggravate or mitigate the conduct of the wrongdoer.”

As I stated a moment ago, this is a very thin case, and the court below,probably considering that the plaintiff's expenses and counsel fees would be worth $150.00, reduced the verdict to that- amount. We think we would not be justified in disturbing the verdict now, since the action of the common pleas court.

We therefore think the jury was warranted in giving exemplary damages. The judgment will be affirmed, with costs.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., Ohio, Circuit Court
    Jan. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    BENJAMIN RAITZ v. EMMA B. GREEN.

      Arrest without warrant— Duty of Police officer — False imprisonment—
    A police officer is authorized to arrest without a warrant a person who’ he believes is guilty of having committed an offense and to detain ■ him until an affidavit and legal warrant can be obtained; and-where he arrests such person on Saturday, and takes all necessary steps for his trial at the next session of the police court on Monday, and being on Monday detained by important duties, he may suppose that the duties connected with the case of such person will be properly attended to by the officers of that court, and he is not bound to leave more weighty matters and remain, for the purpose of prosecuting this suit, or to see that the affidavits were filed that morning. At least the question should be submitted to the jury,-to determine whether he had been guilty of any unreasonable delay in the omission of any duty which he was called upon to perform in connection with the case.
    Error to tbe Court of Common Pleas of Lucas county,
   Haynes, J.

Tbe petition in error in this case is filed for the purpose of reversing the judgment of the court of common pleas in an action that was brought in that court wherein Emma B. Green was plaintiff,and Benjamin Baitz was defendant, with other parties at that time.

The question that is submitted t<? us arises upon the charge of the court, and is á question affecting the rights and liabiliites of Raitz, as chief of-the police force, oras an officer charged with the preservation of the peace, order and law of the city of Toledo.

The plaintiff, in the petition below, stated that she was arrested by the order of Raitz without any affidavit being filed or any warrant issued,, and was imprisoned for the space of fifty-six hours in the city prison. The testimony shows this state of facts: that parties on the limits of the city were complaining, and did complain, on the morning of the 7th of July, 1894, which was Saturday, and it came from two or three different sources, that buildings of at least three different persons had been broken into and relieved of some of their contents, which consisted of chickens. Raitz sent two of his officers to make an investigation. They went out into the neighborhood, and commenced their researches, and discovered such facts as that they charged this woman, her husband and daughter, with having been guilty of stealing the chickens. Both Mr. and Mrs. Green offered to come to town with the officers, and did come with them, and perhaps the daughter. After they arrived here, they went into the office of the chief, and he had a long conversation with them, and the result of that investigation was that sometime during the afternoon, perhaps one or two o’clock, he ordered them to be locked up, and then himself went out to the premises during the afternoon or early in the evening, and made further investigations, and found feathers and entrails of chickens buried, and ascertained from different sources that these parties had not only had chickens in their possession, but had been selling them to hotels in this city. The next morning, Sunday, on his arrival at the station, he was informed that Mrs. Green wanted to see him. He accordingly directed that she be brought up into the office of the chief. Mrs. Green then told Raitz, the chief, that she never had been in any trouble before,and was of a respectable family; and she proceeded to state to him that she and her husband, on the night in question, started from a residence in North Toledo, got into the western part of the city, where they stopped. She and her daughter remained in the wagon for quite a while, and her husband went away, and came back, heavily laden, in his arms and across his back, with chickens, all dead, They were loaded into the wagon, and taken back to their residence in North Toledo, ana dressed that night, and the next morning they were brought to town, and sold. It was in evidence that they owned no chickens, and never kept any themselves. There was other evidence of facts which had been brought before Raitz, with regard to where the heads of the chickens had been found. Upon that state of facts, during the day,the chief sent word to the parties to whom the chickens belonged which had been stolen, to come in early on Monday morning to make their affidavits, so the cases could be heard in police court that morning. On that morning, the 9th of July, about 7 o'clock, the chief received information that there was a riot in progress somewhere in the neighborhood of the Air Line Junction; that matters were very serious, and demanded his immediate attention. He thereupon called out certain of the reserves, and started for the Junction, and remained there during the whole of that day, or at least until about 5 o’clock. He was engaged during the balance of the week out there in the line of his official duties, with the force under his command, in preserving order and maintaining the laws. When he returned on Monday afternoon, at 5 o’clock, he was told that a writ of habeas corpus had been left for him to produce the body of these persons before the probate judge. Raitz found that the officers who had charge of the prison had taken them over to the probate court. He started for the probate judge’s office, and arrived there just as the Greens were being discharged. The chief had none of his officers with him who had made the investigations into the charges upon which the Greens had been arrested. They were engaged in the line of their- duties at Air Line ‘Junction. So the prisoners were discharged. Thereupon Emma B. Green commenced this action against the chief. The case proceeded to trial. Testimony was given setting out all these facts, and the court procéeded to give his charge, as follows:

“It appears in the evidence, uncontradicted,that the plaintiff here was brought to the station house in the afternoon of Saturday. The n.ext morning being Sunday, there could be no session of the police court on that morning, but in the absence of proof to the contrary, it will be presumed that there was such a session on the next Monday morning; and the defendants, under this rule, were only authorized to detain the plaintiff from the time on Saturday when she was at the station house, whether brought there by the officers Nichter and Ashby, or whether there voluntarily, until the next session of the police court.”

Referring to some rules of the police board for the government of the police force:

“I say to you, as a matter of law, that her detention after that time without warrant, and without producing her to the court upon Monday morning — not producing her there until after she had been released by the probate court — was without warrant of law and illegal, and that, too, whether she was in the first place properly arrested or not, or whether she was before that time legally or illegally detained, under the rules of law which I have given you, and upon the evidence before you. And the plaintiff having been thus arrested without warrant, I say to you further, that the burden of proof is upon the defendants to show such a state of facts as justified the officer^ in making the arrest without the warrant, and also that they did not detain the arrested party an unreasonable length of time before the issuing of a legal warrant; and whether the circumstances stated afforded the defendants reasonable grounds to suppose that the plaintiff had committed a felony, or whether the circumstances justified the detention of the plaintiff; and for how long a time it justified the detention, are to be judged by you, upon the evidence; except as I say, that under the rules of law which I have given you, the defendants, or either of them, were not justified in holding the plaintiff in custody without a warrant,after the session of the court upon Monday morning. * * *
‘‘Defendant Raitz, as chief of .police, admits that he did arrest her at the station house, and that she was detained under his orders until released on the following Monday, and that he detained her without warrant. You will, therefore, for these reasons, find that, so far as he is concerned, this arrest was illegal, and that this detention was illegal. But if you do not find that she was arrested by Nicheter and Ashby, and that they did not, as I say, participate in her subsequent arrest, or detention, then they or either of them would not be liable; but if, while they were together and acting in concert either arrested her, the other would be equally liable with the one with whom he was acting in concert,”

With all respect to the learned court who delivered this charge, we are unable to agree with him in respect to the correctness of it. The statute provides, and to that he did refer the jury, section 2179, that:

‘‘A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman, or police officer, shall arrest and detain any person found violating an;y law of this state, or any legal ordinance of a city or village, until a legal warrant can be obtained.”

It is conceded that so far as the officer was concerned, , these persons were not then found by him committing an offense.

‘‘Sec. 7130. When a felony has been committed, any person may, without warrant, arrest another who he believes, and has reasonable cause to believe, is guilty of the offense, and may detain him until a legal warrant can be obtained.”

It is sufficient to say, under the facts as detailed by the witnesses, if the facts were true that an offense had been committed, that the officer was justified in acting under this section of the statute, if he kept himself within its proper limits. He was arresting a person whom he believed, and had reasonable cause to believe, was guilty of the offense, and he could detain him until a legal warrant could be obtained. The police court is a court of record, has authority to hear and determine all offenses against the ordinances of the city; in certain cases it has the right to hear and determine finally offenses against the law of the state; and it has the same right as a magistrate to hear and determine as an examining magistrate whether a felony has been committed, and to bind the party oyer to the proper court for a hearing of the case, It has a judge and prosecuting attorney, who is required to prosecute all actions before that court for all offenses. Such being the condition of affairs, the chief, on Saturday, upon what he conceived to be sufficient evidence, and which, we have no doubt, was sufficient evidence to authorize him, ordered this woman to be detained and brought before the court on Monday. Under the charge of the court no real objection was taken to that. He was acting, as the court finds, within the proper limits of his authority. On Monday morning the court would be in session, and the chief had then taken steps to have these respective parties present to prosecute that suit — to make affidavits, which, we suppose, were all to be prepared by the prosecuting attorney; or, if it was a misdemeanor, it might be brought by an information. In the line of his duty, the officer is called away upon matters of the gravest importance; but he has put in operation the machinery of the law; he has the person detained, he is to have the witnesses here, he knows the city prosecutor and the duties he has to perform. We think he had a right to suppose that those duties would be performed in the due and ordinary course of things, and that he was not bound to leave these other and more weighty matters, and remain here for the purpose of prosecuting this suit, or to see that the affidavits were filed that morning. At any rate we are clearly of the opinion that the question should have been submitted to the jury, on all those facts, to determine whether he had been guilty of unreasonable delay in making these affidavits, or of any unreasonable delay in the omission of any duty which he was called upon to perform in regard to this matter, and let the jury say whether he had been thus guilty; but the court proceeded to charge,as a matter of law, that inasmuch as he did not, even under these circumstances before the court, file the affidavit that morning, so that the person would from that time have been detained on a warrant, that he was guilty of unlawfully imprisoning these persons; in other words, .he was guilty of unreasonable delay, which rendered him liable to a prosecution for unlawful imprisonment. We do not agree with the court in the view it took of the law in regard to the case. For this reason we shall reverse the judgment of the court, set aside the verdict, and remand the case to the court of common pleas for a new trial.

F. M. Sala, for Plaintiff in Error.

J. A. Jones and M. B. Lemmon, for Defendant in Error.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1897).
    Before Haynes, Scribner and King, JJ.
    GEORGE DOUGLASS v. MOSES PLOTKIN.

      Representation as to size of lot untrue in fact — Right of purchaser to recover—
    Where the vendor in selling a lot of ground represents the lot to be one hundred feet in depth, whereas it afterwards appeared that the lot is only eighty feet in depth, and the purchaser was misled and deceived by such representations, he will be entitled to recover damages for the deficiency of ground whether the representations were wilful or innocent.
    And where such purchaser has already paid the whole purchase price before he discovers such deficiency, he may bring an action for damages, and to recover he need not prove actual fraud on the part of the vendor.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

The defendant is error, Moses Plotkin, recovered a judgment in the court of common pleas against George Douglass for about |425.00,to reverse which judgment this proceeding is brought.

The claim made by the plaintiff below, as set forth in his amended petition, is, that about November 8, 1889, he purchased of Douglass, at his request, a strip of land 20 feet wide and 100 feet deep; that as an inducement to buy it, and with the intent to deceive and defraud him, the defendant represented that the land was 100 feet deep and 20 feet wide. The plaintiff relied on this, believing it to be true, and did, upon the faith of the representations, purchase the said land, and paid for it in due time the price agreed upon. He alleges that the representation was untrue in fact,and was ,so known by the defendant when he made it; that it was made falsely and fraudulently, for the purpose of inducing the plaintiff to enter into the purchase of said property; that the land in fact was but eighty feet in depth, and was so known to the defendanst. The damage claimed was for the difference in the value of the land on account of the shortage. There was an answer denying the allegations of fraud, and some things were set up by way of defense which do not affect the question here. The case went to trial, and resulted in a verdict for the plaintiff, as before stated.

It is claimed here that the verdict is contrary to law, and to the evidence; that there was error in the charge of the court; also, that certain evidence was admitted which ought not to have been. All these objections I can consider all together.

The evidence indicated that the defendant made the representations stated in the petition, to-wit: that the lot was one hundred feet deep. It further showed that after the representations were made, the plaintiff put the matter in the hands of an attorney to see that the papers should be properly drawn, and he, with the attorney, went to the office of the defendant, Douglass, and there a written contract was entered into, which provided that the plaintiff, purchasing the lot, should pay a small sum down — I think $200 — and the balance in small payments. At the office there was some discussion between Mr. Douglass and the attorney and the plaintiff about the depth of the land, and there is no doubt from the evidence that Mr Douglass again reiterated the' fact to be that the land was one hundred feet in depth. The attorney for the plaintiff expressed some doubt in his own mind about that being the fact He said he had looked at some atlas, and he thought it was not one hundred feet in depth, but didn’t say how deep he thought it was. He testified upon the trial, howevef, that from the map he looked at he thought it was ninety feet deep. Mr. Douglass showed him a map hanging on the wall of the room as proof of the statement which he had been making that the land was one hundred feet deep, and all agreed that by the map ft was one hundred feet deep. The contract was thereupon drawn up, It did not express the width or depth of the property, but described it by some other appropriate description. It is conceded that at the time of the purchase there was an alley in the rear of the lot, though not in apparent existence. It existed somewhere among the records of the city, but never had been opened, or was not at that time. It was a rough sort of territory, and the property had upon it an old house. Mr. Douglass had, at the time of the first talk, and before the contract was -written, pointed out the property to Mr. Plotkin as being his, and showed him a house and a barn which he claimed were upon it. It turned out, when the city came to open up the alley, that the barn was in the alley, and not upon the lot, and it had to be torn down and removed. The barn, probably, was not of much value, but it was one of the 'landmarks which was shown there as indicating what land there was,

That is about what the proof shows, and from it we think it fairly appears that representations were made bj Mr. Douglass as to the depth of the lot, Ht also appears that Mr. Douglass, at the time he made those representations, believed them to be true; we think it appears that he had no reason to suppose that the lot was less than one hundred feet in depth. There was some evidence to show that it was represented to Mr. Douglass, verbally, when he bought the lot, that it was one hundred feet deep, and this map, which he relied upon, and which Mr. Plotkin’s attorney saw, apparently showed the lot to be of that depth. So, then, both parties — Mr. Douglass from such facts as he possessed, and Mr. Plotkin from what Mr. Douglass told him, and from the appearance of Mr. Douglass’ map — believed that the lot was one hundred feet deep. That is about the way these facts came to the jury.

One difficulty we have had in the case has arisen because of the state of the pleadings. The petition avers that all this was done fraudulently and knowingly by Mr. Douglass, and with intent to deceive and defraud; and it has been questionable, in our minds, whether the action, under that form of the petition, could be maintained. It has been urged here very strenuously, and cases have been cited to show, that in an action for deceit it must appear from the testimony that the party charged made the representations with intent to deceive, either with knowledge that they were false, or was grossly negligent in making them, not caring whether they were true or false — making them bimply for the sake of selling his property. There are a number of cases which sustain that position, but we are inclined to think that the doctrine as laid down by the Supreme Court of Ohio is, that in an action to recover the purchase price of a piece of land, the purchaser may set up as a counterclaim to it the damage that he may have sustained by reason of the fact that the land which he actually received was not equal in quantity to that which he undertook to buy, and which the grantor agreed to sell,

It is argued that this case would not fall within that rule, where the representation made is simply as to the length or the breadth of the land, a thing which might be easily ascertained by inspection, as to whether it was correct or not; that the only cases that h-ave been sustained are those where some object has been pointed out as a boundary. We think it appears here that this case possessed those elements; first, the representation that the lot was one hundred feet deep; and second, that it contained upon its rear end, and within the limits of its lawful boundaries, a barn, which was the only mark that the purchaser could observe when he bought this lot, to know where the fear end of the lot was. As I have said, the barn was not on the rear end of the lot, but was upon a public street, and had to be taken dojvn and destroyed. So that there was a monument to which his attention was directed when he bought this land which has proven to be untrue. And it is admitted over and over again in the record that Mr. Douglass said the lot was one hundred feet deed, and, as I have said, the testimony shows fairly that he believed it to be that.

Under the circumstances, can Plotkin either set up in opposition to an action brought by the vendor,as a counterclaim, his damages, or can he bring a separate action ? We think the cases in Ohio will sustain either of those positions. The first of those that is relied upon by the defendant in error here, and in which we are pointed out certain distinctions between that case and the one at bar, is that of Mulvey v, King, 39 Ohio St., 491, which is, to some extent, a modification of the doctrine requiring proof of knowledge of the falsity of the representations. It is-there said, on page 494:

- “It may be considered as well settled in this state, that an action for damages caused by misrepresentation cannot ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same- principle cannot be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false; that the other party had a right to rely upon it, and that he was induced by it to make the contract; in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enfor'ce it.”

Then, a little later, in 40 Ohio St., 168, Pierce v. Tiersch, the court held that:

‘‘In an action by mortgagee against mortgagor upon a note and mortgage given for the purchase money of the premises, the mortgagor may, as a defense, set up a counter claim for damages by reason of the fraud of the mortgagee, in concealing from him material facts as to the situation and extent of the premises, ”

The fact concealed was, that a porch upon one side of the house, which appeared to be within the line of the lot, was not within the lot, but in fact projected six feet into the street, without express representation that the house and porch were all in the limits of the lot, by the grantor; and the purchaser bought' without any knowledge that the porch projected into the street. In the course of the opinion in that case the court uses this language:

‘‘Furthermore, in an action against the mortgagor for the purchase money, his right to set up a counterclaim for any excess in price through the vendor’s misrepresentations of the extent of the property, would be the same, whether such misrepresentations were wilful or innocent,”

This is a declaration that it does not make any difference whether the vendor intended to deceive, or whether he knew the representations were false; the purchaser, in a suit brought by the vendor, might set up and recoup the damages that he had sustained by reason of the failure of the property to be the same in extent as it had appeared, or as it had been represented to be. In the case in 40 Ohio St., there was a mere appearance; there was no representation in the case. In connection’ with the clause of the opinion which I have just read, (and it is a very important clause), the court cite a case in 45 Mich., 481, Baughman v. Gould, in which the court say, after stating the proposition involved in the case:

“We are not able to assent to either of these propositions. For the purpose of recoupment it is quite immaterial whether, as a questions of morals, Gould was or was not at fault. The right to recoup was not dependent on it. There being in fact a misrepresentation, though made innocently, its deecptive influence was as effective, and the consequences to Baughman as serious in respect to actual damages as though it had proceeded from a vicious purpose. The result was a fraud on Baughman, in contemplation of law, and it entitled him to contend in Gould’s action for the purchase money that the damage should be thrown on the latter.’’

A number of cases are cited to that clause of the opinion. So that statement of the Supreme Court of Michigan has received the assent and approval of the Supreme Court of Ohio. And if that be so, then we have before us a case in which that doctrine can be applied; for, if that be the law then it is true that the purchaser, Mr. Plotkin, is entitled to a rebate of the price which he-agfeed to pay for this property, if an action were brought against him to recover that price, although Mr. Douglass did not intend to deceive him, and although he believed, at the time he spoke of the extent of this property, that it was just as large as he said it was. But can Mr. Plotkin, after he has paid for the property, and the deed has been executed and delivered, himself maintain an action? We are inclined to think he can. The courts held, as long ago as 15 Ohio St., that the right of the mortgagor and purchaser to set up a counter-claim, when he was sued upon the mortgage and notes, given for the purchase-money, was clear.

It is said that that was so because the counter-claim came within the definition prescribed in the statute relating to counter-claims. What is the definition of a counter-claim then and now in the statute? ,

“The counter-claim * * * must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action,' and arising out of the contract and transaction as set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

One of the elements of it is, it must be a claim upon which a several action can be maintained and judgment had. So, then, if the contract has been executed, we know of no reason why he may not sue. That doctrine is expressly stated in 32 Mich., 305, where the action was brought by the purchaser of the property for its loss. So we think from those decisions that it is the law of Ohio that the purchaser of the property may have such abatement in the price, or such a recovery on his. own part if he shall have paid the price, as will make him good for that which he has lost, because the property is not the same in size and extent as it was represented to be, although the representations may have been innocently made.

If that be so, then we think the plaintiff was entitled to recover in this case, although that was not the case he made in his petition. His petition is more than that: he charges actual fraud. But to maintain his right of action under these circumstances, it is not necessary that he should prove actual fraud. He may prove less, and still be able to recover.

If that is true, then the charge of the court which is excepted to, is not erroneous although, upon certain views of this case, it might have included more than was necessary for the court to say. The request excepted to is:

“If the jury shall find that the defendant, in making the sale to the plaintiff, misrepresented the extent and boundaries of the lot fronting on Canton avenue; that there was a considerable deficiency between the size and extent of such parcel of land as represented and what it actually contained, which the defendant knew, or under all the surrounding circumstances ought to have known, at the time of making such representations, and that the plaintiff was misled and deceived by such representations, the plaintiff will be entitled to recover in this case, whether -the representations were wilful or innocent.”

We think that that charge would have been proper, under the doctrine of 40 Ohio St., 45 Mich., and 32 Mich., which I have stated, if the court had omitted from it the clause: “Which the defendant knew, or under all the surrounding circumstances ought to have known,” since in those cases knowledge is not a necessary ingredient to a right of action. So that the charge containing that clause was more favorable to the plaintiff in error than he had a right to expect, if the facts of the case were as he claims they were, a case of mutual mistake.

I have untertaken to treat this substantially as if the claim of the plaintiff in error was correct as to all these facts; that these parties were simply mistaken. Yet there is evidence in the record, I am free to say, from which the jury might be justified in finding that this representation as to the length of this lot was made under such circumstances as that the plaintiff in error himself ought to have known what was the truth about it, and therefore be liable, under the doctrine stated in 37 Ohio St., as if he had actually intended to deceive.

It is complained that the verdict was excessive. We think that the plaintiff was entitled to recover in this action whatever the jury found from the evidence in the case were his actual damages; and there- is some evidence here from which I think the size of the verdict can be sustained.

The other question is as to the admission of evidence. It is A close question whether the evidence of the character excepted to should be admitted. It was the testimony of a man of the name of Marsh, who conversed with Mr. Douglass after the execution of the contract and of the deed. He heard a talk between Douglass and Plotkin at the office of Douglass, at a time when Plotkin came into the office,and said to Douglass that he had been notified by the city to move his barn; that his barn was in the alley; that he had had the lot surveyed, and it was only eighty feet deep. Mr. Douglass said, “That can’t be so; that lot is one hundred feet deep.’’ He reiterates that two or three times. Looking at that testimony from one point of view, would make it competent as an admission from which the jury might infer his previous knowledge and intent in making the statements which I have proved. We would not be willing to say that it was competent if it did not contain any evidence of an admission of the previous contract or of the representations entering into the previous contract. Still, we hardly_ think it would be prejudicial. There is no dispute in this record but that Mr. Douglass did say that this lot was one hundred feet deep. The excuse for that made and urged by him is, that he believed it. We think that was so, Then it could not, we think, have prejudiced him, or added anything to the plaintiff’s right to recover, if Mr. Douglass had said this not only before but after the contract. On the contrary, he reiterated this time and again. It might be a circumstance from which it could be argued, and from which the jury -might find, that Douglass acted in good faith.

O. D. Sumner and C. W. Everett, for Plaintiff in Error.

Geo. A. Bassett and James & Beverstoclc, for Defendant in Error.

We think this judgment should be affirmed, with a certificate of reasonable cause for prosecuting this petition in error.


author: Laubie, J.

text:
    (Seventh Circuit — Jefferon, Co., O., Circuit Court, Court,
    Nov. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    JOHN JORDAN v. THE STATE OF OHIO.

      Shooting with intent to kill — Justification Self-defense—
    1. Where the defendant, charged with shooting another with intent to kill, sets up a justification on the ground of self-defense, it is error to charge:
    (a.) “That the person making the assault came at the other (the defendant), maliciously, and with every manifestation of endeavoring to kill the person assaulted, and that he was prepared, and manifested the fact that he waé able to carry out this malicious assault. It is only under such circumstances that the person assaulted may use the force necessary, without retreating, ” to kill the assailant.
    (b.) That the jury must be “satisfied from a preponderance of the evidence,” that the defendant “used no more force than was necessary to repel the assailant, ’ ’ or than ‘ ‘ was reasonably necessary to save his life, or his person, from great bodily harm.”

      Same — Aggressor—
    2. Under the facts of this case it was error to instruct the jury to find whether there had been a conflict between the defendant and the prosecuting witness, “and if so, who was the aggressor or the first to make a malicious assault in the conflict;” and that they must be satisfied from a preponderance of the evidence that the prosecuting witness “first made a. malicious assault upon the defendant, and that the defendant did the shooting while endeavoring to defend himself against that malicious assault,” without defining to the jury what was meant by malicious assault.
    Error to the Court of Common Pleas of Jefferson county.
   Laubie, J.

Jordan was indicted for unlawfully and maliciously shooting one Thomas Ferris, with intent to kill, and was convicted.

The evidence shows that Ferris, known as “Uncle Tom,” had been living in adulterous intercourse with Mrs. Ellen Logan; but he had quarreled with and left her some time before the shooting. After this separation Jordan became acquainted with the woman,and Ferris was jealous of him; and on the day of the shooting Ferris saw Jordan hunting for the woman, who was not just then at home, in order, as Jordan said, to get some clothes from her that she had washed for his brother. There was no direct evidence of any improper conduct between Jordan and Mrs. Logan. Ferris had been drinking quite heavily during the afternoon, and in the evening started to go to the woman’s house, ostensibly for a pair of shoes, when a friend advised him not to go, as Jordan might be there, “and get the drop on him,” but Ferris persisted in going. On going into the Logan house, he found Jordan, Mrs. Logan, Sam, her son, aged thirteen; Howard Hagan, aged thirteen; and still a younger boy, a son of Ferris and Mrs. Logan, in the sitting room, and he at once raised a disturbance. He accused Jordan of coming between him and the woman, and on Jordan denying it, he swore Jordan was a liar, and advanced toward him, at the same time putting his hand back into his hip pocket, as if to draw a weapon. At this the woman and children rushed from the room and heard Jordan exclaim, “Back! Back off me, Uncle Tom, back off me,” and immediately two shots were fired in quick succession, both by Jordan.

Ferris afterwards stated that when Jordan told him to back off, he, Ferris, had hold of a knife in his pocket, and was trying to open it, and that he struck Jordan after the first shot, with that hand. On the trial Ferris swore that he did not have a weapon on his person when Jordan shot him; that he had nothing but a small pen knife,and did not have that in his hand, and'was not trying to open it in’ his pocket, and had not said so afterwards.

Under this testimony the jury found Jordan guilty. The preponderance of the evidence was strongly in favor of Jordan on the question of self-defense, and we think the jury must have been misled by the instructions of the trial judge, and which "were excepted to by defendant’s counsel. Upon that issue, a preponderance of the evidence was all that was necessary to clear the accused.

Under that issue the question was, whether the defendant was justified in shooting Ferris — whether there had been such a demonstration on the part of Ferris that justified the defendant in believing, and inducing him honestly to believe, that Ferris intended to kill him, or do him some great bodily harm.

There was no evidence of any actual conflict or combat, or of any blow struck by either party, until after the first pistol shot; and the blow and the second shot were, simultaneous.

The court instructed the jury:

“If you find from the evidence, beyond a reasonable doubt, that the defendant did shoot Thomas Ferris, then you will next inquire, was It done in self-defense; also, was there a conflict between the defendant and Thomas Ferris; and if so, who was the aggressor,or the first to make a malicious assault in the conflict, and did the defendant only use such force, while engaged in the conflict, as was reasonably necessary to save his life, or his person, from great bodily harm. If you are satisfie.d, from a preponderance of the evidence that Thomas Ferris first made a malicious assault upon the defendant,and that the defendant did the shooting while endeavoring to defend himself against that malicious assault, on the honest belief that his life was in danger, or his person in danger of great bodily harm from said Thomas Ferris, and that the defendant used no more force than was necessary to repel the assailant,then upon such finding your verdict should be for-the defendant. ”

The word “assault” has two distinct meanings in reference to private quarrels, one technical, the other common or ordinary. To assault another, in common acceptation, means to, strike or beat another. In law, according to its. technical meaning, it signifies, - not a blow, but a mere attempt to strike — a threatening motion indicating an intent to strike or shoot another; as in this case, on the part of Ferris, when he thrust his hand behind him into his hip pocket, and made a threatening movement towards, and an advancement upon, Jordan, with angry and abusive language. In law a blow is not an assault; it is a battery.

Ferris made but a technical assault on Jordan, before the first shot — no blows had been struck. The trial judge repeatedly used the words “malicious assault” in his instructions, and told the jury he wished to emphasize the fact that the assault must have been a malicious assault upon the part of Ferris, and yet these words were not explained to the jury at all. Having two meanings, one of which applied to the action of Ferris, while the other did not, it was important that the sense in which they were used should have been made known to the jury, in justice to the defendant. As it was, in the light of the evidence, it must be assumed that the jury understood and regarded the phrase in its common and ordinary meaning, more especially because of the connection in which it was used: “Who was the aggressor,or the first to make a malicious assault in the conflict.” A conflict is a fight, a battle; and this would seem to imply, in view of such ordinary meaning, that such assault must have been a part of an actual fight — a striking of Jordan; and the jury could acquit the defendant, therefore, on the ground of self-defense only by finding that Ferris had opened the conflict and began an actual fight before Jordan shot; that the shooting was done during such conflict; and they must have so understood it, judging from their finding.

The jury were also instructed to determine whether defendant did “only use such force, while engaged in the conflict, as was reasonably necessary to save his life, or his person from great bodily harm;” and that they must be satisfied, from a preponderance of the evidence, “that the defendant used no more force than was necessary to repel the assailant.5 ’

In determining questions upon a preponderance of evidence, the jury are not required to be satisfied, i. e., convinced of their truth or falsity. A preponderance of the evidence must determine such questions with the jury whether they are convinced, or not. But, passing this, there is another serious objection to this part of the charge in this, that the jury could not Ejcquit the defendant on the ground of self-defense, unless they found that he had used no more force than was necessary to repel his assailant.

■ That proposition is well enough in a proper case, and is an important question in fisticuffs, or in a conflict where the aggressor desiring to withdraw from the conflict, flees, and his opponent pursues and injures him, or where one continues to beat, or wounds the other, after he knows the other is disabled, and no longer able to continue the combat. But it was not applicable to the case at bar, at least without proper qualification, and would, and we think did, mislead the jury, to the prejudice of the accused.

There was no evidence that Ferris had a deadly weapon at the time, unless the small penknife, which he described, could be called such; and there was no evidence that Jordan was actually in danger of life or limb from the attack, as even the small knife was not used, and hence the jury would at once say that the defendant had used more force than was actually necessary, as they were required to determine it as a matter of fact,and not as matter of appearance. It was not a matter to be determined upon the real facts, as after-wards established; Jordan might justifiably have killed Ferris, although in no actual danger himself of being killed or grievously hurt by the assault made upon him, if it was of such a character as would justify a reasonable man in the belief that Ferris had a deadly weapon,and was about to draw it and use it.

We'must look at such matters in the light of current events. It is a common course of procedure, now, for men to carry a revolver in the „hip, or, so-called, pistol-pocket, and, especially by those of bad habits, or who are of, or are allied to, the criminal classes, to draw and u se it on slight provocation; and when such a person seeks a quarrel with another, and in hot blood, with abusive words, makes a sudden advance on such other, at the same time thrusting his hand into his pistol-pocket, with threatening look and jesture, any reasonable man, in the careful use of his faculties, would expect to see such assailant immediately draw and use a revolver. And if one such undertakes to threaten, bully and scare another in that way, and induce him to believe he is about to draw and use such a weapon when he has none, the consequences should rest.on his own head, aúd not on that of him he assaults.

In all such cases the question before the jury is one of apparent and not of real facts. How did it appear to the defendant ? Looked at from this stand point, how would it appear to reasonable men? Was the conduct of the assailant,under all the circumstances, sufficient to induce a reasonable man to honestly believe that such assailant intended to draw a weapon and kill or grievously injure him? If yes, and the defendant did honestly so believe, he would be justified in acting on that belief, and in shooting to kill. He would not be bound to run the risk of waiting to see if his assailant would in fact draw a weapon — -that might be too late for safety; nor can we, in such case, limit the amount of force to be used, and say the defendant should have used no more force than was necessary — he should only have knocked his assailant ’ down, or shot him in the arm instead of in the neck.

The learned trial judge might have properly submitted to the jury the question whether the defendant unnecessarily used a deadly weapon; or, if he preferred so to put it, used more force than was necessary in consideration of all the apparent circumstances, and in view of the action and conduct of Ferris, and their probable effect upon the mind of ^ reasonable man. But it was a mistake to instruct the jury, in substance, that the defendant had no right to use more force than was necessary to - repel the assault actually, instead of appafeutly made by. Ferris.

In Darling v. Williams, 35 Ohio St., 62, Judge Boynton, for the court, laid down the principle that is to govern in such cases, in quite forcible language, to-wit:

“One person can justify the taking of the life of another in self-defense only where,, in the proper exercise of his faculties he believes, in good faith, that hé is in imminent ■danger of death, or grievous bodily harm. * * * It is not, however, necessary that the danger should prove xeal, or in fact exist, for, whether, real or apparent, if the ■circumstances are such as to induce a belief, reasonable and well grounded, that life is in peril, or that grievous bodily harm is impending, the party threatened with the danger may act upon appearances and slay his assailant.”

And this necessarily excludes the idea that he must have, in fact, -used no more force than was necessary to repel the assailant; otherwise, the plea of self-defense would be of no avail unless the danger was real. The able trial judge, as we have seen, recognized the right of the defendant to act upon his honest belief of the danger, but unfortunately he limited that right to the use of no more force than was actually necessary to repel the assailant.

At the request of counsel for the defendant, the court gave the following instruction to the jury:

“That if the accused was in the lawful pursuit of his business, and without blame was violently assaulted by one who manifestly and maliciously endeavored and intended to kill him, the person so assaulted, without retreating, although in his power to do so without increasing the danger, may ■kill his assailant if necessary to save his own life, or prevent enormous harm.”

To which the court added:

“I give you this last instruction, gentlemen, and wish to ■emphasize the fact that the assault must have been a malicious assault; that is, 'the person making the^ assault name at the other maliciously, and with every manifestation of endeavoring to bill the person assaulted, and that he was prepared, and manifested the fact that he was able to carry out this malicious assault. It is only under such circumstances that the person assaulted may use the force necessary without retreating, as given in this proposition.”

The request given was an abstract proposition of law, and Jordan did not bill Ferris; yet as he was charged with, and perhaps had, an intent to bill him, it may have been proper to give it. But whether it was so or not, as the court did give it, it was bound to give the law correctly in any qualification or explanation of the request given to the jury.

The qualification of the request as given by the court, mabes the right of self-defense, in cases libe this, impracticable and impossible of proof. It leaves the assaulted at the mercy of the assailant. It requires the assaulted to mabe an accurate summary of the situation. He must see to it, and establish, that his assailant exhibited every manifestation of endeavoring to bill him (whatever that may mean), and that he was prepared, and manifested the fact that he was able to carry out his malicious assault; i. e., to bill the assaulted, before the right of slaying his assailant would accrue.

It is clear that it is not under these circumstances only that the assaulted may slay his assailantwithout retreating,nor is it necessary to prove these matters as facts in order to establish a justifiable billing in self-defense; and the manner in which the court qualified the request, would compel the jury to convict the defendant under the evidence in the case.

It is not the imminence of the danger that is the test, but the appearance of it. The assailant may not have, in fact, endeavored or intended to bill — he may not have a weapon about him that would bill, if used; yet if he mabes an advance upon, and a movement toward the accused, that would indicate such intent to a reasonable man, in such careful use of his faculties as the situation would permit, and the accused honestly believed that his assailant intended to|kill or grievously wound him, he would, as we have seen, be justified in slaying his assailant.

W. E. Meclill & Sweeny, for Plaintiff in Error.

E. E. Erslcine, for Defendant in Error,

In short, without further repetition, we think there was error in the instructions prejudicial to the accused, and that by reason thereof the jury were misled in rendering the verdict against him.

Judgment reversed and cause remanded.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Swing, Smith and Cox, JJ.
    CALLAHAN et al. v. ICE COMPANY.

      Receivei — Character of proceeding for the appointment.

    There can be no action for the appointment of a receiver. It can not be the ultimate relief sought. It is merely an ancillary proceeding. It is exercised by a court to preserve to it property upon which its subsequent judgment may operate. It is in the nature fo an attachment or execution before judgment. It can not be an issuable fact in an action, and a party may obtain all the relief sought, and yet be denied his prayer for a receiver.

      Prayer for receiver — Right to property by court before actual appointment of receiver. -
    Where an action is brought in which a receiver is asked for, the court does not obtain such a right to the possession of the property as to preclude another court in a proper case from seizing the property before a receiver is actually appointed.

      Same,

    Where the court has not actually seized the property in such proceeding, an assignee of the defendant has a perfect right to take possession of the property under the deed of assignment. ■

      Receiver before judgment in action at law for money.

    Where plaintiff’s cause of action is on a note for which he asks judgment, it is not a proper case for a receiver before judgment. The appointment of a receiver in an action at law for money, would be, m effect, granting an attachment, which can not be done. If an attachment is desired, the statute provides in terms how this may.be obtained
   Swing, J.

The controversy between the parties is here in two cases —one on error and one on appeal. They were heard together, and will be decided together. The question on appeal will be first considered.

The facts, in brief, pertinent to this question, are:

Callahan & Co. brought suit in the court of'common pleas on the notes given to them by said Ice Company, and asked for judgment. In addition to the allegations about the note the petition contains a number of other allegations. It is alleged that the company is insolvent. That it is being mismanaged in a number of ways, which are specified. That the corporation is not being managed in the interest of the stockholders. That it had mortgaged its property for the purpose of paying antecedent debts to its stockholders, and the court was asked to appoint a receiver, to take control and manage the property

The cause came on for hearing, and was submitted to the court on February 3, 1897. On the 4th day of February, the company made an assignment for the benefit of creditors to Tilden R. French, who, on said day, filed the deed of assignment and took possession of the property.

On the following day the court of common pleas appointed Edmond K. Stallo as receiver,and on the 6th day of February the court rendered a judgment directing the said French, who had theretofore been , made a party in said action, to turn the property over to said-receiver, and perpetually enjoined the said French from interfering with said receiver. From this judgment the case was brought here on appeal by said French.

The question presented is whether the assignee was rightfully in possession. It is claimed that he was not, by reason of the fact that he could get no rights as to the property while a proceeding was pending at the time of the assignment for the appointment of a receiver of the property.

There is a conflict of authorities on the question here presented, but we will content ourselves with a brief statement of what we think the law is.

There can be no action for the appointment of a receiver. It can not be the ultimate relief sought. It is merely an ancillary proceeding. It is exercised by a court to preserve to it property upon which its subsequent judgment may operate It is in the nature of an attachment or execution before judgment.

It can not be an issuable fact in an action, and a party may obtain all the relief sought, and yet be denied his prayer for a receiver. So it seems to us that these authorities which hold that when an action is brought in which a receiver is asked for, the court obtains such a right to the possession of the property as to preclude another court in a proper case from seizing the property even before a receiver is appointed, are not founded in reason.

That a court once having got jurisdiction of the controversy may proceed to final adjudication without interruption by any other tribunal, we do not controvert; but the distinction, we think, to be drawn is that he appointment of a receiver is not the subject of the controversy, in that it is not a cause of action.

There was nothing in the action by Callahan & Co. which prevented the company from making an assignment for the benefit of creditors, and the court not having actually seized the property, the assignee of the company had a perfect right to take possession of the property under the deed of assignment.

As to the other branch of the case,as to whether the court erred in appointing a receiver.

The plaintiff’s petition contains but one cause of action, in our judgment, and that is upon the note for which judgment is asked, and the answer and cross-petition do not add any additional cause of action to it. The petition and the answers and cross-petitions are quite lengthy, and contain a great many statements about the insolvency of the company, and the misconduct of its present board of directors and its officers, both as to past, present and probable future action; but in all this mass of allegation we fail to discover any cause of action. It would be all very good for the appointment of a receiver if there was a cause of action in which a receiver might be appointed. But if we áre right in our judgment, that plaintiff's cause of action is on a note for which he asks judgment, we do not think it is a case for a receiver before judgment.

B. M. Nevin and W. S. Porter, for Callahan and Receiver.

Thomas McDougall and Harmon, Colston, Goldsmith & Hoadly, and Burch & Johnson, for Ice Co

To appoint a receiver in an action at law for money, would be, in effect, granting an attachment, and we think this can not be done. If an attachment is desired, the statute provides in terms how this may be obtained. And it makes provision that covers plaintiff’s right in this action, but this was not availed of.

It seems to us, therefore, that the court was in error in appointing the receiver.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    THE CITY OF TOLEDO v. MARGARET DUFFY.

      Husband and wife — Medical treatment of wife, husband ehargable—

    A husband is liable to a physician for medical treatment of his wife, in the absence of a special contract to the contrary.

      Same.

    Where a married woman sues for damages for injury sustained by defendant’s negligence, expenses for medical attendance by a physician can not be included in the damages, unless it appears that by special contract her husband was not chargeable therewith.

      Error to the Court of Commoñ Pleas of Lucas county.
   Haynes, J.

Margaret Duffy brought suit in the court of common pleas of this county against the city of Toledo to recover damages for personal injury sustained, by her while walking along the street of the city, by reason of a defective sidewalk. Such proceedings were had that a judgment was rendered in her favor for $500. The defendant in that suit, plaintiff in error here, the city of Toledo," prosecutes error here, claiming error in two particulars: one, the admission of certain evidence as to the condition of the sidewalk; and the other, that there was error in 'the charge of the court in regard to the physician’s fees.

So far as the testimony in regard to the condition of the, sidewalk is concerned, I shall not stop to discuss that. We said, at the hearing of the case, all that we desire to say, and that, in substance, is, that these questions have been before us several times during the past few years, and we have uniformly held that such evidence was admissible, and that we have, at times, given our reason for the holding at some length. Indeed, one case of a kindred nature, decided by us, went to the Supreme Court, and was affirmed by that court. So that on the objections to that evidence, we find that there was no error committed by the- court of common pleas.

In regard to the charge of the court, we think there was error. In the course of the trial the plaintiff testified as to what physician she had who attended her during her illness, and the physician was called as a witness. It appears that the plaintiff was taken, perhaps, to the physician’s office, and afterwards she sent for the physician, and he came and attended to the case. The bill for his services was $85. The physician testified that he charged the bill against the husband upon his book account, at the time. The court said to the jury this:

“The question whether or not the plaintiff, being a married woman, can recover, as a part of her damages, if she is entitled to recover at all, medical expenses necessarily incurred in being treated for her injury, depends upon the answer to this question; whether she herself is or is not liable to pay these expenses. It is not claimed here that she has paid them. Therefore they could not be included as a part of her damages unless she is liable for them — unless the physician who rendered the services could maintain an action against her and recover for them from her. Ordinarily, if a married woman employs a. physician to treat her, and that is all there is to it, if he treats her at her request upon her employment, she is liable; but if the services were rendered under such circumstances as to show that there was no intention upon the part of the physician to charge her, and that it was his intention and her own also that he should charge her husband alone, and the husband is liable, then he could not maintain an action against her; she would not be liable for such services, and therefore she could not recover them as a part of her damages. If her husband alone is liable, she cannot recover them in this case; but if she is liable, then she can recover.”

The statute, commencing at section 3108, defines the right of the husband and wife, which is, in many respects, declaratory of the common law; at section 3110, that the husband must support himself and his wife and minor children out of his property or by his labor; if he is not able to do it, his wife must assist so far as she is able. Clearly, this plainiff, being a married woman, known at the time she employed the physician to be such, the husband was first liable for her care in sickness, and it was his duty to furnish her the necessary means for her recovery, so far as he could, as well as to support her. It was his duty to furnish all medical attendance for the wife. If the wife,being injured as was the plaintiff below in this case, sends as she might for a physician, and the physician comes, she is acting in that case as the agent of her husband, and he will be liable for the physician’s bill, in the absence of a special contract between her and the physician whereby she herself becomes liable herself to pay him. The difficulty with this charge is, that if the wife sent for the physician and employed him, and he attended her at the time she was injured, then she became personally liable. We do not so understand the law. We think it is very clear from the evidence in this case that there was no employment by her of the physician, and that the husband alone was liable; and we think it was clearly the duty of the court, under the testimony, to have directed the jury that the services of the physican could not be recovered by the plaintiff in this case against the city. -

C. F. Watts, for Plaintiff in Error.

E. O. King and P. A. MaoGahan,ioi Defendant in Error.

Under the charge of the court, a verdict having been rendered, we will do this: if the amount of $35 is remitted from the judgment, it will be affirmed as to the balance; otherwise, it will be reversed.


text:
    (First Circuit, Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    MARY D. NOLAN v. MICHAEL KANE.

      Communication to appointing power as to character of applicant, when privileged—
    A citizen not only has the right, but it is his duty as a citizen, to communicate to the appointing power, whatever he knows for good or ill concerning one who is an applicant for a position as teacher, and when such communications are made in good faith, the citizen is protected, even though the statements contained in the communication be not true.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

This is a proceeding in error to reverse the judgment of the court of common pleas. The action below was brought by the plaintiff in error against the defendant in error for libel. The charge of the plaintiff was that defendant Kane did publish and present to the Superintendent of the Public Schools and Board of Examiners for teachers in said schools, a communication for the purpose of injuring her, in which were certain false, malicious and defamatory words, viz:

“The Misses Kate and Molly Nolan (meaning thereby the p'aintiff and her sister Katherine C. Nolan), are applicants for teachers’ certificates; they (meaning the plaintiff and her sister), have been guilty of unladylike conduct. See the testimony against them.’’

The petition further states, “meaning and charging and intending to charge that this plaintiff has been guilty of unladylike conduct. ’’

The petition further alleges that the statements were false; that they were known to be false, and that they were made with express malice against the plaintiff.

The defendant answered, setting out that he was a citizen and taxpayer of the city of Cincinnati; that on the 12th day of March, A. D. 1891, he united with other citizens and taxpayers in a petition to the Board of Examiners of the Board of Education of the. city of Cincinnati, which communication is as follows, to-wit:

“In view of the fact that the Misses Kate and Mollie Nolan have made applications for certificates, to entitle them to teach again in our public schools, be believe that their usefulness as teachers has been destroyed by the very fair and impartial hearing before a committee of twelve honorable members of the school board, and conviction of the charges produced by the ten or fifteen witnesses. The charges of unladylike conduct were established beyond a question. We therefore ask your honorable body to examine the charges and testimony of said witnesses before granting certificates to the above mentioned parties. (Signed.) M. Kane, (and eighteen other citizens.)’’

Defendant said, in signing and presenting said petition to said board, he was acting solely for the good of the public schools, and without malice; that he had reason to believe, did then, and still believes the statements therein contained to be true.

Plaintiff admitted that the libel charged in her petition is contained in the communication set out - in defendant’s answer, which was as-alleged therein.

On the trial of the case plaintiff offered evidence to prove that she had been a school teacher; that she depended on that vocation for her support; that she was a lady of the highest character and that she had never been guilty of unladylike conduct; that the defendant had been unfriendly to her; i;hat he had circulated the said petition to said board and presented the same, and that she had failed to be examined for a teacher’s certificate. At the conclusion of plaintiff’s evidence, the court, on motion of the defendant, directed the jury to return a verdict for the defendant. In doing this it is claimed that the court erred.

This communication was, in its nature, a privileged one.

The citizen, if he acts in good faith, and in a reasonable way, is protected. As a citizen he is interested in the public welfare. He not only has the right, but it is his duty as a citizen to communicate to the appointing power, whatever he knows for good or ill concerning one who is an applicant for a position as teacher, and when such communications are made in good faith, the citizen is protected,even though the statements contained in the communication be not true. No authorities need be cited to sustain this well settled principle of law. In order to create a liability of the citizen for the making of a communication under such circumstances.it is not only necessary to show the falsity of such utterances, but that it was done from malice. If either of these elements is lacking, there can be no recovery.

These elements were set out in ' the petition, the charge, in substance, being that from malice the defendant charged to the board that the plaintiff had been guilty of unladylike conduct, which charge was false and known to be false by defendant.

For the purpose of determining the question presented to us by the record, it must be taken for granted that plaintiff produced evidence tending to prove that the defendant was actuated by malice, and that she had not been guilty of unladylike conduct. But was this the issue? We think not. It is true that this evidence tended to prove the^allegations of the petition, but plaintiff admits that if any libel was. published,it was contained in the matter above quoted from defendant’s answer. Does this contain a statement that the plaintiff was guilty of unladylike conduct? As we read it, it does not. The whole of the communication should be read together, and so read, we think it in substance says, that they believe that their usefulness as teachers has been destroyed by the hearing before the committee of the school board wherein ten or fifteen witnesses were heard on the charge of unladlyike conduct, and that the charge was established beyond a question, and the board is asked to examine the charge and the evidence before granting certificates.

There was no evidence introduced which tended to prove that there had befen no hearing before the board upon the charge of unladylike conduct, or that ten or fifteen citizens had not been heard, or that the evidence of the witnesses did not establish beyond question the conviction. The statement that there had been a “fair and impartial” hearing, and that the charges had been “established beyond a question,” appear necessairly from the communication to be an expression of opinion upon the part of the defendant, for he asks the board to examine the charges and the evidence to see whether his statement is not true. A statement that she had been convicted of a charge of unladylike conduct by the evidence of witnesses can not be construed in being a statement that she had not been guilty of unladylike conduct. It was the conviction beyond question that was charged,and not the truth of the charge that was made. If we are correct in our construction of this communication, there was no evidence which tended to prove its falsity, and the court of common pleas properly directed a verdict for the defendants.

John W. Herron and Price J. Jones, for Plaintiff in Error.

Thomas MoDougall, Willis M. Kemper and Alfred C. Cassatt, for Defendants in Error.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1897).
    Before Haynes, Scribner and King, JJ.
    EDWARD H. DRINKWATER v. EGLANTINE JONES.

      False imprisonment — Affiant pointing out wrong person to be arrested.

    Where one not only swears to the affidavit charging a person with the commission of a crime, but goes with the constable and points out to him the person to be arrested, who turns out to be the wrong person, who thereupon is arrested and imprisoned, the act of the constable is the act of such affiant, and he is liable for damages for false imprisonment to the person so wrongfully arrested.

      Excessive verdict.

    Facts under which a verdict forS175.00 for false imprisonment is considered excessive.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Eglantine Jones brought an action in the court of common pleas, against Edward H. Drinkwater, setting forth her cause cf action in the petition:

“Plaintiff states that on the 12th day of April, 1895, at Toledo, Ohio, the defendant imprisoned plaintiff and deprived her of her liberty for the space of, to-wit, seven days, unlawfully and with force, on a pretended charge of larceny, to the damages of plaintiff in the sum of $500. Plaintiff further says that she was put to an expense for counsel fees and other charges in the sum of,to-wit, $20, in obtaining her discharge, to her damage in all in the sum of five hundred and twenty dollars, for which she prays a judgment against the defendant.”

The answer is in the form of a general denial filed to the petition, and the cause came on for trial, resulting in a judgment in favor of plaintiff below in the sum of $175. It is claimed that that judgment should have been set aside, because the court erred in the admission of testimony, in the charge of the court to the jury, because the damages were excessive, and because also that the petition does not state a cause of action.

The latter claim is made, viz., that the petition does not state a cause of action in this case, because it describes the arrest as having been made upon a pretended charge of larceny, whereas the fact shown was that it was a charge for stealing and embezzling certain chattel mortgage property; and, again, that it does not state a cause of action because it should set forth the facts, and show in what manner the defendant had acted to secure the imprisonment; the facts shown on the trial being that Drinkwater had not arrested the defendant, but that he was the complainant and swore to the affidavit charging her with an offense, and that the constable, who had received from a justice of the peace a legal warrant for that purpose, had himself arrested her.

We have examined' the petition, and although it is exceedingly brief, we think it fullfils the requirements of the code in that respect, and is substantially in the form of a petition found in the 33 Ohio St., 186.

The charge of the court, (which I may as well consider in connection with this petition further), and which was objected to, was the statement by the court, (page 37 of the record), as follows:

‘‘If, as a matter of fact he, (that is,[the defendant below), did so procure the arrest of the plaintiff; if the plaintiff was arrested at his instigation and direction, was imprisoned, or deprived of her liberty by his directions and under his procurement, in law, the act of the constable became the act of the defendant. ”

And it is claimed that this was incorrect. But, again, referring to the case above cited, that was an action brought against , the complaining witness, the justice of the peace and the constable who made the arrest jointly, and the facts showed that all the complaining witness did was, to go before a justice and there sign and swear to an affidavit pretending to charge a person with an offense f^but the affidavit stated certain facts which showed that no offense had been committed if the facts were-true; the complaining witness did nothing further than that. Upon this sort of an affidavit the justice of the peace issued a warrant, and the constable received it and afterwards made the arrest,^and they were sued jointly, and a judgment was rendered against two of them, the justice of the peace and the complaining witness, which was upheld. The reasoning of the court is.that the complaining witness,by swearing to an affidavitof that kind, which did not charge any offense at all, would render himself liable to an action for false imprisonment if the party was arrested upon such an incomplete charge. But in this case the facts are, that the complaining witness not only swore out a warrant, (the warrant itself was in proper form, and so was the affidavit, charging a. sufficient offense against one Eva Jones), but he accompanied the constable to the place where it was said he supposed Eva Jones was, and he pointed her out to the constable and left the constable to arrest the person whom he said was Eva Jones, and the person charged as being Eva Jones professed that she was not, and it developed upon the trial that she was a sister of Eva Jones, named Eglantine Jones, so that, as the facts appear in the record, she was not the person that he was seeking for in order to have her arrested, and not the person whom he had charged with • the offense; and thus they arrested a person against whom there was no charge at all. He did more than to make this affidavit — he took the constable to the place and pointed out the person to be arrested. We think that those facts, if shown, will constitute a cause of action against him — -if he pointed out a person who was not the one, he was liable. We deem the petition sufficient, and also think the charge of the court upon that question was sufficient.

As to the improper evidence admitted: On the cross-examination of defendant below, he was asked if he had not been in the habit previously, of instituting other proceedings like this, or of having people arrested, and there was an objection and exception to that. We do not think that was proper, or that it ought to have been allowed; but we do not think it was prejudicial. His answer was that he had, sometimes. We do not think that it is of sufficient consequence to authorize us to reverse this judgment.

Upon the question whether the damages are excessive, there is a little more difficulty. We have looked the testimony over very carefully and have come to the conclusion that the damages are a little large in this action.

Eglantine Jones resided with her sister a part of the time —whose name was Mrs. Green — and then she transferred her residence to Mrs. Jackson’s. While she was at Mrs. Jackson’s, Mr. Drinkwater went to Jackson’s house and saw her, and he there charged her with being Eva Jones, which she denied and insisted that she was not Eva Jones. She says, on cross-examination, that she don’t know as she told him who she was, because she didn’t know that it was any of his business. She did not give her name, but said it was not Eva Jones. Eva Jones was charged with having bought a watch of the defendant below, who was engaged in the jewelry business, selling the goods on the installment plan, for whichjvatch she gave some kind of a chattel mortgage; and that she had conveyed it away and not paid for it, and that she had not returned the property. She was a sister of this plaintiff. After this conversation with this Eglantine Jones, in which Eglantine said she was not Eva, Drinkwater went to a justice of the peace and swore out this warrant, and then went back to the same house, with the constable, perhaps within a week, and there was more talk to about the same effect. Eglantine told them then that her sister had gone to Canada; that she did not know anything about the watch; that it couldn’t have been her (the plaintiff), because she was not in the city at that time; that she had only been here about two months. On the trial it was developed that she, plaintiff, had been living here several years. She said that her sister had a watch, but did not know who her sister bought it of; knew that her sister got a watch,but claimed she did not know it was mortgaged. She was arrested by the constable, taken before a justice of the peace and required to enter into bonds. Somebody went on her bail and she went home. A time was set for the trial-of the case, a few days thereafter, but between the time of the arrest and the day set for the trial, the watch was delivered to Mr. Drinkwater, and was said to have been delivered to him by Mrs. Green, who was a sister of Elgantine and Eva Jones. When Mr. Drinkwater got his watch back, before or at the time of the calling of the case for trial, he dismissed it, or authorized the justice of the peace to do so, and there was no trial of the case. The evidence shows, we think, pretty clearly, that Mr. "'Drinwkater, in good faith, believed lhat the plaintiff here was Eva Jones; and there are some very suspicious circumstances in this record, and it was not clear that she was not Eva Jones. The claim was made that Eva Jones was in Ganada,and had not been heard of for several months; that she had left the wátch behind her, and that it was returned to Mr. Drinkwater, either by the plaintiff herself or by her sister. Plaintiff testifies that she didn’t see the watch taken back, and didn’t have anything to do with the taking of it back, but that her. sister took it back;, but all of these facts would seem to indicate that the injury to her was not. to the extent that the jury found, and we think that they unreasonably found a verdict of $175 in this case. We think- they must have been either biased or prejudiced in this case, and unless the defendant in error will remit $75 of this judgment, we shall reverse the case and. remand it for a new trial; otherwise we will affirm it.

G. T. Johnson, for Plainiff in Error.

L. M. Murphy, for Defendant in Error.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    DERRICK F. LAKE v. THE CINCINNATI INCLINED PLANE RAILWAY CO.

      Street R. R. accident — Standing on platform, when not contributory negligence.

    Where a passenger on a street car was injured by an accident caused by the negligence of the employes of the street railroad company, the fact that the passenger was standing on the platform will not be considered contributory negligence where he stood there with the knowledge and without the objection of the conductor, and where his standing there was not the proximate cause of the injury.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

Two of the judges who heard this case are of the opinion that the verdict of the jury was manifestly against the weight of the evidence, and that for this reason a new trial should have been granted. The evidence, in our judgment, clearly showed negligence on the part of the defendant company in the managiment of the car, at and before the time of the derailment thereof, by reason of which negligence the car ran off the track, and ran across the street and against the curb stone, thereby causing the injury to the plaintiff, There was an utter disregard by those in charge of the car of several of the clear and explicit rules of the company, and the disregard of which, in all probability, produced and brought about the result complained of.

Bamsey, Maxioell & Bamsey, -for Plaintiff in Error.

Miller Outcalt, for Defendant in Error,

In the second place, 'the testimony does not show that the plaintiff, by his negligence, contributed to his own injury. It is true that at the time he was hurt, he was standing upon the rear platform of the car. But this was with the full knowledge of the conductor, who had no objection thereto. And the fact that he was occupying that position under the circumstances disclosed, even If it be conceded that he was negligent in doing so, was not the proximate cause of the injury received by him. The proximate cause of the derailment of the car and the consequent injury to the plaintiff, was the negligence of those in charge of the car before spoken of. His being where he was, was merely a condition, and in no sense a cause of the derailment or of the injury. Being there, he would, of course, assume the risk of such injury as might naturally or reasonably be 'expected to happen to him while the car was being run upon the track, as of being jolted from the step or the platform, or of injury by collision' with teams, vehicles or other obstructions upon the highway, but not of those produced in this case.

Street Railway Co. v. Bondrow, 2 Am. & Eng. R. R. Cases, 30; Railway Co. v. Schwartz, 8 C. C. Rep., 482.