author: BY THE COURT:

text:
    ATTACHMENT AND GARNISHMENT.
    [Stark (6th) Circuit,
    June 18, 1912.]
    Voorhees, Powell and Shields, JJ.
    Columbus Bolt Works Co. v. Buckeye Cereal Co.
    1. Failure of Gas Engine to Fulfill Guaranties of Power and Efficiency does not Constitute Fraud in Contract of Sale upon Which Attachment can be Sustained.
    Attachment upon an averment, that defendant had fraudulently contracted and incurred an obligation to sell a gas engine of guaranteed power and efficiency, cannot be sustained under . Sec. 11819 G. C., where the action was brought for unliquidated damages accruing from failure of the engine and its attachments to fulfill the guarantees made for it.
    2. Intention to Remove Engine to and Resale In Another County After Rejection for Failure of Engine to Conform to Guaranty not Ground for Attachment Though Defeating Jurisdiction for Determining Damages to Purchaser. ,
    The seller’s removal from the building of the purchaser at the . latter’s request, of a gas engine upon its failure to perform in. accordance with the guarantees of sale, the seller intending to return it to another county in which is located the shops of the seller, and the seller’s subsequent resale to another purchaser in the latter county, do not constitute a removal or disposition of the property with intent to defraud the original purchaser upon which to base jurisdiction in attachment in an action to recover unliquidated damages for breach of contract. It is not sufficient to show merely an intent to defeat a particular Jurisdiction.
    ERROR.

      R. W. McCaughy; Lynch, Day, Temple & Lynch, for plaintiff in error.

      C. M. Addison, Rice & Souers, for defendants in error.
   BY THE COURT:

Tbis action was commenced in tbe court of common pleas by Tbe Buckeye Cereal Company to recover damages alleged to bave been sustained by it through the action of Tbe Columbus Machine Company in not complying with the terms and conditions of a certain contract entered into between said companies by which The Columbus Machine Company was to sell to The Buckeye Cereal Company a gas engine of certain guaranteed power and efficiency. The Buckeye Cereal Company has its principal office in this county while The Columbus Machine Company has its principal office and place of doing business in the city of Columbus, Franklin county, Ohio.

An affidavit was filed for an attachment at the commencement of this action and whether or not the court of common pleas of this county acquired jurisdiction to hear and determine this action depends upon the validity of the attachment proceeding. In the affidavit three grounds are alleged. (1) That the defendant, The Columbus Machine Company is about to remove a part of its property out of the jurisdiction of the court with intent to defraud its creditors. (2) That it had assigned and disposed of its property in part with intent to defraud its creditors. (3) That it had fraudulently contracted and incurred the obligation for which the suit was brought.

A motion to dissolve the attachment was filed in the court of common pleas, setting forth three separate grounds on which such dissolution was asked.

(1) That the affidavit is insufficient in law to authorize a court to issue an order of attachment; (2) because the statement of facts set forth in the affidavit on which such attachment was issued were false and conferred no jurisdiction on the court; and (3) because there had been issued in this ease a prior order of attachment, which was still outstanding, on the same grounds as set forth in the affidavit for the pending attachment and for the same property taken under the pending order, to which a motion had been filed and which motion was still pending in that court undisposed of, and that by reason thereof the court was without jurisdiction or authority to issue such order.

The defendant entered its appearance for the purpose of this motion only and disclaimed all intention of entering its appearance to the action for any other purpose. The motion to dissolve the attachment was heard on the evidence and was overruled by the court of common pleas.

We have examined this evidence with some care and find that the third ground of attachment alleged in the affidavit is' not sustained. The action was commenced for unliquidated damages accruing to the plaintiff by reason of the failure of the defendant to carry out its contract for the sale of a gas engine and the necessary attachments for the operation of the same, and with certain guarantees as to its power and efficiency in doing the work for which it was designed, and which did not fulfill the guarantees that were made for it. The plaintiff, The Buckeye Cereal Company, claimed in its petition that by reason of the failure of said engine and attachments to comply with the warranty made in the contract of sale with the subsequent embarrassment to its business, and that by reason of delays and expenses resulting from the failure of the defendant to carry out its said contract for an engine that would fulfill its warranties that a cause of action arose to it for damages., An attachment will lie in such case if any grounds for attachment exist. We find from the evidence that no fraud in the making of the contract exists and that so far as the third ground of attachment is concerned the motion to dissolve shovld be sustained.

At the request of the plaintiff the defendant, The Columbus Machine Company, removed its engine out of the building of plaintiff with the intention to return the same to Columbus, Ohio, where its shops and offices are located. The defendant further claimed to have sold said engine after it had failed to do the work of the plaintiff to The Columbus Bolt Company, whose shops and offices are in the City of Columbus, Ohio. This sale and removal constitutes the alleged fraud charged in the first and second grounds of the affidavit. That no substantial right of the plaintiff would be affected by such sale and removal. We think the cause of action which accrued to the plaintiff became complete on the failure of the gas engine to work in accordance with the guarantees of the defendant and that when said engine was removed its right of action was completed and all this had occurred before the act complained of in the affidavit as fraudulent had been committed by the said defendant. The only right the plaintiff had that could be affected by such sale whether the same was in good faith or fraudulently sold, would be its right to acquire jurisdiction in Stark county by virtue of an attachment issued. If the said defendant had seen proper to leave its property in Stark county with no intention of removing the same, or had not removed the same, or had removed it in good faith without fraudulent intent, it might have stayed in this county, or in the place to which it had been so removed, until the cause of action that the plaintiff had would be barred by the statute of limitations and plaintiff’s rights would in no way have been affected thereby; It could not have procured an attachment in such a case or acquired jurisdiction to try the case in Starkcounty except by service of summons in one of the methods prescribed by law, because in that event no right of attachment could have existed in favor of the said plaintiff. The defendant could also have removed this engine in good faith to the city of Columbus where its offices and shops are located, with intention to resell the same and not be liable to have had the same attached for fraudulently removing the same out of the jurisdiction of the court. The right to acquire jurisdiction by an attachment only exists by virtue of a prior intent to defraud an attaching plaintiff, and such intent to defraud must be shown to exist. It is not sufficient to show merely an intent to defeat a particular jurisdiction.

We are of the opinion that neither of the three grounds of attachment alleged in the affidavit are sustained by the evidence and that the court below erred in overruling a motion to dissolve the same.

The judgment of . the said court will be reversed and the , cause will be remanded for further proceedings according to. law.


source: Caselaw Access Project

author: MIDDLETON, J.

license: Public Domain

text:
    COMPENSATION — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Court of Appeals,
    May 8, 1917.]
    Middleton, Walters and Sayre, JJ., of the fourth district sitting by > designation.
    Edmund B. Haserodt, clerk, et al. v. State, ex rel. E. R. Wilcox, City Solicitor.
    Chief of Police not Entitled to Fees for Services in State Criminal Prosecutions in Police Court.
    Sections 4581 and 3016 G. C. do not fix definitely the amount of compensation that may he allowed a chief of police for services in state criminal cases in a police court and no fees ■ may he allowed said officer for such services under favor of these sections.
    [Syllabus by the court.]
    Error.

      Gyrus Locher, Pros. Atty., and F. W. Green, Asst. Pros. Atty., for plaintiffs in error.

      Mathews, Orgill <& Masche, for defendant in error.
   MIDDLETON, J.

This case involves the disposition of certain costs taxed in tie name of Frederick Kohler, as chief of police of the city of Cleveland, in state criminal cases originating in the police court and municipal court of that city, in which convictions were had and said costs allowed by the state and paid into the county treasury of Cuyahoga county to the credit of said chief of police.

The original action was instituted by S. K. Wilcox, as city solicitor, for the city of Cleveland, who asked for a mandatory order against the clerk of court of Cuyahoga county, and the auditor and treasurer thereof, directing the payment of said costs to the city of Cleveland. The chief of police, Frederick Kohler, by cross-petition, claimed said costs because they were taxed in the various cases involved as his fees; and the trustees of the police relief fund, by cross-petition, claimed them upon the ground that the chief of police did not personally perform the services for which they were taxed and allowed, but that said services were performed by subordinate members of the police force of said city and that such members, by a written agreement, had assigned and transferred their interest therein to the police relief fund, which is administered by said trustees.

In the court of common pleas demurrers were sustained to all the pleadings filed in the original action except the petition of the relator, and judgment was rendered for the .city upon this petition and a mandatory order was allowed, directing the payment of all of said costs to the city. This judgment appears to have been based upon the provisions of Sec. 4213 G-. C., which provides:

‘! The salary of an officer, clerk or employe shall not be increased or diminished during the term for which he was elected or appointed, and, except as otherwise provided in this title, ail fees pertaining to any office shall be paid into the city treasury.”

In view of the case of Portsmouth v. Milstead, and Portsmouth v. Baucus, 28 O. C. C. 384 (8 N. S. 114), and subsequently affirmed, no op., Portsmouth v. Milstead, 76 Ohio St., 597, the action of the trial court clearly was erroneous. These cases settle conclusively the proposition that the only fees to which the provisions of said section 4213 apply are fees earned under municipal ordinances and regulations, and that the provisions of this section do not apply to the fees of municipal officers earned in state criminal cases. "We are constrained to hold, therefore, that the learned trial court erred in rendering judgment for the city of Cleveland, and that said city is without any legal right to the fees in question. We do not; however, hold that the trial court erred in sustaining demurrers to the cross-petitions of the chief of police and trustees of the police relief fund.

It is contended by the defendant county officials that there is no statutory authority for taxing fees to a chief of police for services in a police court or in a municipal court and, therefore, that none of the present claimants to these costs have any legal right thereto'.

The chief of police, Frederick Kohler, contends that he is entitled to said costs under the provisions of Sec. 3016 and 4581 G. C., and relies upon these sections as authority for fixing and allowing fees to a chief of police for services in a police court. The contention of the chief of police in this respect appears to be supported by at least some slight judicial sanction. In the case of Delaware v. Matthews, 32 O. C. C. 408 (13 N. S. 539), affirmed, no op., in Matthews v. Delaware, 82 Ohio St. 423, the court had under consideration the right of a chief of police to fees in a mayor’s court, but was not called upon to determine and did not decide the right of such officer to fees for services in a police court. However, in this case the court made the observation that,

“The chief of police, in cities having a police court, were to receive like fees as constables and sheriffs in the probate court and before justices of the peace.’’

Apparently this observation was based upon the provisions of said section 4581. That section provides:

“Other fees in the police court shall be the same in state cases as are allowed in the probate court, or before justices of the peace, in like cases, and in cases for violation' of ordinances such fees as the council, by ordinance, prescribes, not exceeding the fees for like services in state eases. ’ ’

This observation by the codrt, under the circumstances, should not be considered more than a mere obiter dictum. However, it has been seized upon by those interested as a judicial interpretation of said section and has been claimed as authority for the allowance of fees to chiefs of police for services in a police court.

Keeping in mind the principle that the compensation of public officers must be fixed by statute, the construction thus claimed for this section will not stand an analysis. Assuming that the fees named therein include fees which may be earned by a chief of police, by what rule are such fees to be determined under its provisions ? First it provides that fees in<the police court in state cases shall be the same as are allowed in the probate court or before justices of the peace. Here are two distinct and separate provisions; one is that the fees shall be the same as are allowed in the probate court, and the other is that the fees shall be the same as allowed before justices of the peace. Which provision, therefore, controls! The only officers who render services in the probate court and before justices of the peace similar to those performed by a chief of police in a police court are sheriffs and constables. Therefore, if the foregoing provisions of this section are to be given any operative force they must be held to provide that the fees of a chief of police shall be the same as those of a sheriff or a constable in the probate court or before justices of the peace. Now the fees allowed in the probate court are fixed by the provisions of Sec. 11,204 G. C., which provides that said fees shall be the same as those allowed in the court of common pleas “for like services.” The fees of a sheriff, therefore, in the probate court are fixed by the provisions of See. 2845, and we presume that this section also would control his fees for any services rendered before a justice of the peace. ' But the fees of a constable before a justice of the peace are fixed by the provisions of Sec. 3347 G. C., and the fees of this section are different from the fees of a sheriff under Sec. 2845 aforesaid. Therefore, if we are to take Sec. 4581 as the-statutory authority for fixing the fees of a chief of police for service in a police court, which of the two provisions of said section shall we consider as controlling? It seems that in the taxing of fees of a chief of police for such services it has been the practice, in some jurisdictions at least, to fix his fees under the section relating to constables if this section provided a fee for the service to be taxed. This was done because the latter section provides a lower fee than that named in the section relating to sheriffs. But if the services rendered were those for which no fee was provided in the case of constables then the fee as provided in the case of sheriff was allowed. It is apparent, without further discussion, that such procedure is without any statutory authority.

In the case of State v. Kleinhoffer, 92 Ohio St. 163 [110 N. E. 645], the Supreme Court had before it for consideration the risrht of a humane officer to fees for services rendered by bim in cases prosecuted before a justice ¡of the peace, and the court had under consideration the provisions of Sec. 10,076 G. C. In discussing the'provisions of this section, on page 166 of the opinion, the court say:

“* * * if the pronoun ‘they,’ as used in Sec. 10,076, could be held to refer to officers other than humane officers— for example, to a sheriffs or constable — it would be impossible to determine to which it does refer. And it is important and necessary that this be known, for the fees of a sheriff and those of a constable as fixed by sections 2845 and 3347, respectively, are different. ’ ’

We think this language of the court is equivalent to a holding that if the section there under consideration could be construed as providing that humane officers should receive the same fees as a sheriff or constable for like services, it would be inoperative because of its indefiniteness. Now the provisions of See. 4581 aforesaid present precisely this situation, for the most that may be claimed for this section as authority for the fixing and allowance of fees to a chief of police is that it provides that such fees shall be the same as those of a sheriff or constable in the probate court or before a justice of the peace. We regard the reasoning of the court in the ease last cited as conclusive against any claim that said section 4581 is effective in furnishing statutory authority for the fixing of fees in state criminal cases in a police court to the chief of police for services rendered therein.

.1 It is apparent that the provisions of Sec. 3016 do not furnish such authority, for its provisions are intended only to authorize the payment of such fees from the county treasury and implies that under some other statute may be found the authority for fixing said fees. While it is not contended here that any authority may be found in the provisions of See. 4534 for the allowance of. the fees in question, yet it is well to observe that this section is subject to the same infirmity and nothing may be claimed for a chief of police under its favor because of the indefiniteness and uncertainty of its provisions in respect to the amount that may be allowed said officer in state cases.

It follows, therefore, that much as we might desire to sustain the legality of such allowance we must hold that the money now in the treasury of this county to the credit of the chief of police for fees earned in the police court in the cases aforesaid is there without warrant of law and should be returned to the state treasury.

It appears from the pleadings that the fees in controversy were taxed for services rendered by said chief of police between the 2nd day of May, 1903, and the 24th day of February, 1913. It follows, therefore, that from the 1st day of January, 1912, until the 24th of February, 1913, the fees so taxed were for services rendered in the municipal court of said city, and it therefore becomes necessary to consider whether the laws pertaining to this court furnish any authority for the taxing of such fees.

The law under which said services were rendered in the municipal court is found 102, O. L. 166, in the provisions of an act passed May 10, 1911. By the provisions of Sec. 36 of that act it is provided that,

“In criminal eases all fees and costs shall be the same as now fixed in the police court of said city.5 ’

"Without considering the constitutionality of this enactment because of the fact that it incorporates by reference provisions of a law which it at the same time repeals, it is sufficient to say that if there was no provision of law for the fixing of such fees in the police court of said city the aforesaid provision of See. 36 of said act could have no force. This act was repealed by an act found in 103, O. L. 682, passed April 18, 1913, and this act also carries the same provision with an amendment, however, that the

“court # * # by rule may establish a schedule of fees and costs to be taxed in all actions and proceedings, in no case to exceed fees and costs provided for like actions and proceedings by general law.”

These provisions, however, can have no application to the fees earned prior to their'enactment.

The claim of the trustees of the police relief fund to the fees in question upon the ground that the defendant, Kohler, did not personally perform the services for which said fees were taxed but tbat said services were rendered by subordinate police officers and have been assigned by the latter to said trustees must also fail, because what has been said here in respect to the lack of authority for the allowance of said fees to a chief of police applies also to all police officers. There is no statute fixing the fees in a police court of any police officer in state criminal cases. We are inclined to the opinion that under section 13,500 a warrant should be issued to the officer who is expected to serve the same, and such officer must personally perform that service to be entitled to any fees. But this matter is not material in the case of a chief of police or police officer in state criminal cases for there is no right to fees in the first instance in a police court.

In view of the foregoing observations, we are of the opinion that none of the pleadings in the original action state a cause of action and that the learned trial court should have sustained demurrers as to all pleadings before it. And we would now render the judgmeiit-that court should have rendered were it not for the fact that we believe this, ease should be remanded to the court of common pleas for the purpose of allowing the State of Ohio to intervene by a cross-petition setting up its right to the money now in the treasury of this county to the credit of said chief of police in. the eases here in controversy.

Judgment reversed, and cause remanded for further proceedings according to law. ' ‘

Walters and Sayre, JJM concur.


author: HUGHES, J.

text:
    INFANTS — MASTER AND SERVANT.
    [Lucas (6th) Court of Appeals,
    April 5, 1917.]
    Hughes, Kinder and Crow, JJ., of the third district sitting in place of Chittenden, Richards and Kinkade, JJ.
    Walter Kutz, by next friend v. Acklin Stamping Co.
    1. Minor under Sixteen not Sui Juris Employe Controlled by Defenses of Assumed Risk and Contributory Negligence.
    A minor under sixteen years, who without producing the age and schooling certificate prescribed by Sec. 7765 G. C., is employed as an assistant to the operator of a stamping machine, working in violation'of Sec. 12996 G. C., from six o’clock in the evening until five o’clock in the morning, is injured by coming in contact with a large ventillating fan just installed and about which no guards have been placed as required by Sec. 1027 G. C., and, instead of asking compensation out of the state insurance funds, elects to bring an action for damages, is not an employe legally permitted to work for hire, within the meaning of Sec. 1465-76, the workmen’s compensation act, against whom the defenses of contributory negligence and assumed risk may be raised, in accordance with Sec. 6245-2 G. C.
    2. Burden’s on Employer of Minor to Establish Lawful Employment.
    In view of the provisions of Secs. 7765 and 7766 G. C., prescribing compulsory education and requiring an age and schooling cer- ' tificate, an employer cannot excuse himself from thinking a minor, under the prohibited age, old enough to enter his employment unless such certificate is produced; the burden of establishing lawful employment is on the employer. Hence, when it appears that a minor is not employed lawfully, he is not an employe under the workmen’s compensation act.
    3. Workmen’s Compensation Act does not Exempt Employer from Violation of Provisions Regulating Labor and Minors.
    Section 1465-61 G. C., et seq., the workmen’s compensation act, is not intended to exempt the employer from liability for violating Secs. 13975 G. C., or 12994 any other statutory provisions regarding labor and minors.

      8. S. Burtsfield, for plaintiff in error.

      Marshall & Frazer, for defendant in error.
   HUGHES, J.

The defendant owned and operated a factory or workshop in the city of Toledo, Ohio, with more tban five employees engaged. The plaintiff, a minor between the ages of fifteen and sixteen years, was employed by tbe defendant during the latter part of May, to assist a stamper working on a stamping machine, by carrying what was known as yoke ends or small pieces of steel to him and placing them on a board near the machine. He was employed by the defendant to work during the night, from about six o’clock in the evening until five o’clock in the-morning.

When the contract of employment was entered into, there-was no schooling certificate either produced by the plaintiff or procured by the defendant, nor was any reference or enquiry made regarding the same by either party.

It is contended on behalf of the defendant that the father of this boy represented to it that said boy was over sixteen years of age, but there is no claim and no evidence to support a claim that any enquiry was made of the boy or any assertion made-by him regarding his age at or before the time he was employed.

On the night of June 28th, a ventilating fan was installed by the defendant in all opening in one end of its building. This fan was four and a half feet in diameter, about four feet above the floor and with its steel blades projecting three and a half inches inside the line of the wall. The fan was installed on this day and in operation before guards were placed about it. It is the claim of the defendant that it was started on this night for the purpose of testing and that guards were to be placed about it later.

The plaintiff’s hand, he claims, as he was reaching in a barrel for some of these yoke ends, came in contact with the steel blades of this revolving fan and was so injured that it became necessary to amputate the same. Defendant asserts that plaintiff was throwing paper in the fan and thereby was injured.

The trial court directed the jury that it should disregard and give no heed whatsoever to the fact that the plaintiff was a minor, in effect charging that he came within the Workmen’s Compensation Laws of this state and having elected to sue instead of asking for compensation out of the state insurance fund, became subject to all'of the laws of this act, and that the defendant was entitled to the defenses of the common law, namely, contributory negligence and assumed risk.

There are numerous errors assigned, all of which hare been, examined into with care but will not be discussed separately for' the reason that the general discussion following, sufficiently disposes of them all.

If the plaintiff was an employee within the meaning of the-Workmen’s Compensation Act, the theory of the defendant and the trial court is correct'.

An employer who has complied with the terms of this Act is rot liable for personal injuries to an employee in a civil action, but such employee must receive his compensation out of the state' insurance fund. The exception to this is found, however, in Sec. 1465-76 G. C., which reads as follows:

“* * * And in case such injury has arisen from the-wilful act of such employer of any of such employer’s officers or agents, or from the failure of such employer or any of such, employer’s .officers or agents to compy with any lawful requirement for the protection of the lives and safety of employees,, then in such event, nothing in this act contained shall affect the civil liability of such employer, but such injured employee, '* * # may, at his option, either claim compensation under thisact or institute proceedings in the courts for his damage on account of such injury; * * * and in all actions authorized' by this section, the defendant shall be entitled to plead the defense of contributory negligence and the defense of the fellow-servant rule. * *

Another section of this act (Sec. 1465-93) reads as follows:

“A minor working at an age legally permitted under the laws of this state, shall be deemed sui juris for the purposes of this act, and no other person shall have any canse of action or right to compensation for an injury to such minor workman, but in the event of the award of a lump sum of compensation to such minoi* employee, such sum shall be paid only to the legally appointed guardian of such minor. ’ ’

The trial court no doubt assumed that the plaintiff in this case was within the terms of the act and therefore sui juris, and having elected to sue in the civil court, the defendant was entitled to plead the defense of contributory negligence and the fellow-servant rule.

The word “employe” as used in this act is defined to be, in so far as a minor is concerned, “every person in the services of any person, etc., and also including minors who are legally permitted to work for hire under the laws of the state.” Sec. 1465-61 G. C.

It is here observed that a minor who is legally permitted to work for hire under the laws of this state is an employe within the terms of this act, but not otherwise.

There was no intention of the legislature to abridge the operation of the other statutes- of our state. This act was passed for the purpose of creating a state insurance fund fo,r the benefit of injured and the dependents of killed employes and to provide for the administration of such fund. The purpose of the law is to compel the industries of the state to bear the burden of accidents occurring in their operation and the fund is created for this purpose. The right to participate in this fund is given to none other than employes or their dependents.

The act furnishes no excuse to the employer for violating any of the other statutory obligations regarding labor and minors. And under the laws of this state, if the employer does not come within the terms of the workmen’s compensation act, he is amenable to all of the other statutes of the state. He is prohibited by statute from employing minors under sixteen years of age before exacting from the minor the age and schooling certificate provided by law.

Section 12975 reads as follows:

“Whoever employs a minor under sixteen years of age before exacting from such minor the age and schooling certificate provided by law, or fails to keep such certificate on file, or who fails to return’ to the superintendent of schools or the person authorized by him such certificate within two days from such minor’s withdrawal or dismissal from his services as provided in section seventy-seven hundred and sixty or to permit a truant officer, upon request therefor, to examine such certificate, shall be fined not less than twenty-five dollars nor more than fifty dollars. ’ ’

And by virtue of Sec. 12994, an employer is not only prohibited from employing a minor in any of the occupations described in Sec. 12993, but be is also prohibited from permitting a minor under sixteen years of age to work in connection with any of these vocations unless such employer has first procured from the proper authorities, the age and schooling certificate provided by law. These two sections read as follows:

“See. 3.2993. No male child under fifteen years or female child under sixteen years of age shall be employed, permitted or suffered to work in, about or in connection with any (1) mill, (2) factory, (3) workshop, (4) mercantile or mechanical establishments, (5) tenement-house, manufactory or workshop, (6) store, (7) office, (8) office building, (9) restaurant, (10) boarding house, (11) bakery, (1). barber shop, (13) hotel, (14) apartment house, (15) bootblack stand or establishment, (16) public stable, (17) garage, (18) laundry, (19) place of amusement, (20) club, (21) or as a driver, (22) or in any brick or lumber yard, (23) or in the construction or repair of buildings, (24) or in the distribution, transmission or sale of merchandise, (25) nor any boy under fifteen or female under twenty-one years in the transmission of messages.
‘1 It shall be unlawful for any person, firm or corporation to employ, permit or suffer to work any child under fifteen years of age in any business whatever during any of the hours when the public schools of the district in which the child resides are in session. ’ ’
“See. 12994. No boy under sixteen years of age and no girl under eighteen years of age shall be employed or permitted to work on or in connection with the establishments mentioned in section 12993 of the General Code, or in the distribution or transmission of merchandise or messages unless such employer first procures from the proper authority the age and schooling certificate provided by law.”

This certificate the employer is required to file in his office to be kept there subject to inspection upon request.

Section 12995 reads:

' “Sec. 32995. The certificate mentioned in the section 3.2994 shall be filed in the office of such establishment and shall be produced for inspection upon request therefor by the chief of district inspector of workshops and factories or a truant officer and shall be returned forthwith to the superintendent of schools or other persons legally issuing it, by the person in charge or manager of such establishment upon the termination of the employment of such minor. Upon failure on the part of the employer so to return said certifícate within two days, the child terminating his employment shall be entitled to recover from such employer in a civil action as damages an amount equal to the wages which he would have earned had he continued in said employment for the period between such termination thereof and the time when such certificate is so returned. If such child at any time fails to appear for work without explanation, the employment shall be deemed within the purpose of this section to have terminated upon the expiration of two days after his so failing to appear.”

An employer of a minor is further prohibited not only from employing a boy under sixteen years of age, but he shall not permit or suffer him to'work in or about or in connection with any establishment or occupation named in the above quoted section, among other things, before the hour of seven o ’clock in the morning or after the hour of six o ’clock in the evening. This section reads as follows:

"Section 12996. No boy under the age of sixteen and no 'girl under the age of eighteen years shall be employed, permitted, or suff ered to work in, about or in connection with any establishment or occupation named in section 12993 (1) for more than six days in any one week, (2) nor more than forty-eight hours in any week, (3) nor more than eight hours in any one day, (4) or before the hour of seven o’clock in the morning or after the hour of six o’clock in the evening. The presence of such child in any establishment during working hours shall be prima facie evidence of its employment therein. No boy under the age of eighteen years or girl under the age of twenty-one years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in section 12993 (1) for more than six days in any one week, (2) nor more than fifty-four hours in any week, (3) nor more than ten hours in any one day, (4) or before the hour of six o’clock in the morning or after the hour of ten o’clock in the evening. In estimating such periods, the time spent at different employments or under different employers shall be considered as a whole and not separately.”

These last five sections above quoted are found under the chapter of “Offenses against Minors.” and it will be observed by consulting 99 O. L. 30, that it was the intention of the legislature to pass this act as an act to provide a complete system of certificates by which employers can determine the age of minor laborers. And also to make the minor labor law conform with our compulsory education law.

It cannot be argued with much force, that in the face of this expressed intention, an employer can ever excuse himself for thinking a minor, under the prohibited age, old enough to enter his employment unless this certificate is produced at the time of employment.

The compulsory education laws provide that no child under sixteen years of age shall be employed or be in the employment of any person during the school time unless the certificate is furnished.

Section 7765 G. C. as amended in 103 O. L. page 899, reads as follows:

“Sec. 7765. No boy under sixteen years of age and no girl under eighteen years of age shall be employed or be in the employment of any person, company or corporation unless such child presents to such person, company or corporation an age and school certificate herein provided for, as a condition of employment. Such employer shall keep the same on file in the establishment where such minor is employed for inspection by the truant officer or officers of the department of workshops and factories. ’ ’

Section 7766 G. C., as amended in 104 O. L. 129, reads as follows:

“See. 7766. An age and schooling certificate shall be approved only by the superintendent of schools, or by a person authorized by him, or, in case of vacancy in the office of superintendent, by the clerk of the board of education, upon satisfactory proof that such- child, if a male, is over fifteen years of age or, if a female, is over sixteen years of age and that such child has been examined and passed a satisfactory sixth-grade test, if a male, a seventh grade test, if a female, in the studies enumerated in section seventy-seven hundred and sixty-two, provided that residents of other states who work in Ohio must qualify as aforesaid with the proper school authority in the school district in which the establishment is located, as a condition of employment or service, and that the employment contemplated by the child is not prohibited by any law regulating the employment of such children. Every such age and schooling certificate shall be signed in the presence of the officer issuing the same by the child' in whose name it is issued.
■X * # * . # * *

The age and schooling certificate must be formulated by the superintendent of public instruction, and furnished in blank by the clerk of the board of education. It shall show the date of its issue. A record giving all the facts contained on every certificate issued shall be kept on file in the office issuing the same, and also a record of the names and addresses of the children to whom certificates have been refused, together with the names of the schools which such children should attend and the reasons for refusal.

The superintendent of schools or other persons authorized to issue employment certificates shall transmit between the first and tenth days of each month, to the office of the industrial commission, upon blanks to be furnished by it, a list of the names of the children to whom certificates have been issued, returned or refused. Such lists shall give the name and address of the prospective employer and the nature of the occupation the child intends to engage in.

Any child between fifteen and sixteen years of age, who shall cease to work for any cause whatever, shall report the fact and cause at once to the superintendent of schools; or to a person authorized by him or, in case there is a vacancy in the office of superintendent, to the clerk of the board of education; said child shall be required to return to school within two weeks, provided other employment is not secured within such time-, provided that, should a child 'in the opinion of the superintendent or person acting in his stead, lose his employment by reason of persistent, wilful misconduct or continuous inconstancy, he maybe placed in school until the close of the current school year.

The superintendent of schools or the person authorized by him to issue age and schooling certificates, shall not issue such certificates until he has received, examined, approved and filed the following papers duly executed:

(1) The written pledge or promise of the person, partnership, or corporation to legally employ the child, also the written agreement to return to the superintendent of schools or to the person authorized by him to issue such certificates, the age and schooling certificate of the child within two days from the date of the child’s withdrawal or dismissal from the service of the person, partnership, or corporation, giving the reason for such withdrawal or dismissal.

(2) The school record of such child, properly filled out and signed by the principal or other person in charge of the school which such child last attended, giving the name, age, address, standing in studies enumerated in section seven thousand seven hundred and sixty-two, and 'the number of weeks’ attendance in school during the school year previous to applying for such school record, and general conduct.

(3) As evidence of age (a) a passport or duly attested transcript of a passport, filed with a register of passports or other officer charged with the duty of registering passports at the several ports of entry to the United States; or duly attested transcript of the certificate of birth or baptism or other religious record, showing the date and place of birth of such child; or (b) a duly attested transcript of the birth certificate filed according to law with a registrar of vital statistics, or other officer charged with the duty of recording births, shall be conclusive evidence of the age of the child, (c) In case none of the above proofs of age can be produced, other documentary evidence of age which shall appear to be satisfactory to the officer issuing the certificate, (aside from the school record of such child or the affidavit of parent, guardian or custodian), may be accepted in lieu thereof. In such case a school census or enumeration record, duly attested, may be used as proof of age in the discretion of the officer issuing the certificate, (d) In case no documentary proof of age of any kind can be procured, the officer issuing the certificate may receive and file an application signed by the parent, guardian or custodian of the child for a physician’s certificate. Such application shall contain the name, alleged age, place and date of birth, and present residence of the child, together with such further facts as may be of assistance in determining the age of such child, and shall contain a statement certifying that the parent, guardian or custodian signing such application is unable to produce any of the documentary proofs of age specified in the preceding subdivisions of this section. If the superintendent or officer authorized by him to issue such certificate, is satisfied that a reasonable effort to procure such documentary proof has been made, the certificate of the school physician, or, if there be none, of a physician employed for the purpose by the board of education that such physician has made a physieial examination of such child and is satisfied that he is more than fifteen years of age if a male, or that she is more than sixteen years of age if a female, shall be accepted as sufficient proof of the age of such child for the purpose of this act: .

(4) A certificate from the school physician or if there should be none, of the board of health, and if there be no board of health, within the school district in question, from a licensed physician appointed by the board of education showing that the child is physically fit to be employed in any of the occupations permitted by law for a child between fifteen and sixteen years of age. Provided that if the records of the school physician show such child to have been previously sound in health, no further physician’s certificate need be required, but the officer authorized to issue such certificate may at his discretion require such physician’s certificate in any case, as a condition to the issirng of an age and schooling certificate.

The superintendent or person authorized by him may issue special vacation certificates to boys under sixteen years of age and girls under eighteen years of age, which shall entitle the holders thereof to be employed during vacation in occupations not forbidden by law to such children even though such child may not have completed the sixth grade, but provided he has complied with all the other requirements for obtaining the certificate hereinbefore described.”

It is clear from a reading of these statutes providing for compulsory education and also defining offenses against minors, that it was the intention of the legislature to consider a minor under the age of sixteen years who was unlawfully employed, to be a person not within the contemplation of the workmen’s compensation act.

These statutes that have been quoted above compelling education and defining offenses against minors were intended to prevent persons of immature judgment from engaging in hazardous occupations, to prevent employment and overwork of children during the period of their mental and physical development, and to prevent competition between weak and underpaid labor and mature men owing to society the duties of citizenship, and the compensation act in no way limits their operation.

An employer who employs a child under the prohibited age must be prepared to show at all times that he is employed lawfully. And when it appears that the minor is unlawfully employed, he is not an employee within the terms of the compensation act and such minor, if injured, has the benefit and protection of the other statutory provisions passed for the benefit of labor. Hillstead v. Industrial Commission, 80 Wash. 426 [141 Pac. 913].

Section 6245-2, referring to actions to recover from an employer for personal injuries caused by negligence, provides:

“Sec. 6245-2. That in all such actions where a minor employee has been employed or retained in employment contrary to any statute or law of the state or United States, such employee shall not be deemed or held to have been guilty of contributory negligence, nor to have assumed any of the risks of such employment; but the employer may show by way of defense any fraud or misrepresentation made by such employee. ’ ’

This being true, the trial court erred in taking away from the jury for its consideration, the fact that plaintiff was a minor under the age of sixteen years. Plaintiff .not coming withm the terms of the workmen’s compensation aot was also entitled to the benefit of Subd. 7 of Sec. 1027 G. C. See Variety Iron & Steel Works Co. v. Poak, 89 Ohio St. 297 [106 N. E. 24]; Jones v. Caramel Co. 225 Pa. 644 [74 Atl. 613].

The judgment of the court of common pleas is reversed.

Kinder and Crow, JJ., concur.


author: WINCH, J.

text:
    OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Winch, Henry and Marvin, JJ.
    State ex rel, Finding v. Fred Kohler et al.
    Procedure When Subordinate Is Suspended by Chief of Police.
    When suspension is any part of the punishment inflicted upon one of his subordinates by the chief of police, he must forthwith certify that fact in writing to the director of public safety, for trial and judgment.
    [Syllabus by the court.]

      F. F. Gentsch, for plaintiff.

      Newton D. Baker, for defendant.
   WINCH, J.

While the chief of police of the city of Cleveland is invested by the statutes and police regulations with ample discretionary powers for disciplining his subordinates, the plain provisions of See. 4380 G. C. require that when suspension is any part of the punishment denounced by him, he shall forthwith in writing certify such fact together with the cause therefor to the director of public safety, who, within five days from the receipt thereof, shall proceed to inquire into the cause of such suspension and render judgment thereon. A peremptory writ to that end will issue in this ease. The injunction prayed for is denied.

Henry and Marvin, JJ., concur.


author: JONES (O. B.), J.

text:
    CARRIERS — STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    June 14, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Traction Co. v. Josephine Keil.
    1. Passenger on Summer Car Injured by Unnecessarily Stepping on Wheelguard Presents No Case of Negligence by Railway.
    A woman’s turning her ankle, and in falling being otherwise ' injured, by unnecessarily stepping on the wheelguard of a summer car, knowing of its existence and location, does not present a case of negligence on the part of the traction company or of lack of contributory negligence on her own part.
    2. Appliance May be Continued in Use Without Imputation of Negli gence, When.
    An appliance not obviously dangerous, wihich has been in daily use and has uniformly proved safe, may be continued in use without an imputation of negligence.
    ERROR.

      Kinkead & Rogers, for plaintiff in error.

      Morstman & Horstman, for defendant in error.
   JONES (O. B.), J.

The action below was brought in the superior court of Cincinnati by the plaintiff, defendant in error here, against the Cincinnati Traction Co., plaintiff in error here. The plaintiff sought to recover damages for personal injuries claimed to have been sustained by her when she was about to alight from a street car operated by the defendant company and upon which she was a passenger.

The accident happened about seven o’clock on Sunday morning after the car had been brought to a stop a,t the intersection of Fourth and Sycamore streets; and the car was one of the ordinary type single-truck summer cars, with seats running across the ear the entire width of the oar with passageways or aisles between them, and a step or running-board along the outer side of the car from which the seats were entered.

The negligence on the part of the traction company complained of by the plaintiff was in the use of a wheelguard upon the floor of the car partly projecting from beneath the seat into the passageway in front of the seat, in such a way as to interfere with her exit from the car, and to subject her to slipping or stumbling over it. Plaintiff further charged negligence in the use and maintenance of such wheelguard in regard to its form, size and condition, claiming that its surface should have been corrugated or at least roughened, or by keeping it painted to have prevented it from becoming smooth or shiny.

The testimony of plaintiff reveals that she knew of the existence and location of this wheelguard, and that when about .to leave the car while it was stopped at the place of her destination she placed her right foot on the floor between this wheel-guard and the outside sill or edge of the car floor and her left foot upon the top of the wheelguard, and that her left ankle turned under her in such a manner that she sat down on the top of that foot, resulting in a severe injury to her ankle and limb, and her thumb was injured at the same time in grasping the upright stanchion of the car to save herself from falling.

The defendant denied negligence on its part, and pleaded contributory negligence on the part of the plaintiff in failing to see the wheelguard and to avoid injury from it.

A careful consideration of the evidence shows that plaintiff was familiar with this type of ear and knew of the existence and character of the wheelguard; having frequently used such cars; it also shows that her injury did not arise from stumbling over the wheelguard or falling from the ear, but indicates that her foot slipped or her ankle turned from stepping upon the wheelguard, just as a similar accident might have happened to her ankle by a false step upon the running-board, or any other portion of the car, or upon the street or sidewalk. The evidence further shows that the wheelguard was of the kind in general use upon summer ears of the type in question, and that the defendant company had -for a number of years used many ears of ■that type. It further showed that it was necessary in single-1ruck open cars either to have a wheelguard similar to that in question or to raise the floor of the car about three and a half inches, and that such increase in the height of the floor of the car would so increase the height of the running-board or step, or tbe distance from it to tbe floor of the car, as to be more fruitful of accident tban tbe danger from stumbling over tbe so-called obstruction of tbis character of wheelguard. It was in evidence that tbe defendant company had summer cars with higher floors in which there were no wheelguards, but that these cars had been purchased to accommodate a safety brake known as the “slipper brake” for use on heavy grades in the city, the elevation of their floors being made with a view to affording the necessary space for such brake rather than for the purpose of eliminating such a wheelguard.

The evidence shows the exact size and location of this wheel-guard with reference to the space between the seats, and it is clearly shown that a passenger could step into or out of the car without being compelled to step upon the wheelguard.

The court is of the opinion that the verdict of the jury, which involves a finding of negligence on the part of the company as well as lack of contributory negligence on the part of the plaintiff, is not sustained by sufficient evidence.

The fourth,special charge asked by the defendant before argument to the jury is as follows:

“From the mere fact that the plaintiff was injured, you may not infer that the company was negligent. If you finid that the wheelguard, as respects its type and location, wras of an approved kind in general use by street railroad companies throughout the country on single-truck summer cars, then I charge you that the traction company was not negligent in adopting and using that type of wheelguard upon the car in question. ”

The charge was improperly refused by the court. The following authorities support the proposition that an appliance not obviously dangerous, that has been in daily use and uniformly proved safe, may be continued to be used without the imputation of negligence. Graef v. Railway, 161 Pa. St. 230 [28 Atl. 1107; 23 L. R. A. 606; 41 Am. St. Rep. 885]; Adduci v. Elevated Ry. 215 Mass. 336 [102 N. E. 316]; Werbowlsky v. Ry. Co. 86 Mich. 236 [48 N. W. 1097; 24 Am. St. Rep. 120].

The case of Farley v. Traction Co. 132 Pa. St. 58 [18 Atl. 1090], involved an accident arising from a wheelguard similar to the one in the case at bar. In that case the court held that the use of such a wbeelg'uard was not negligence on the part of the street railway company, and that it was not error to enter a judgment of nonsuit.

The court also improperly refused to give the fifth special charge, which is as follows:

“A common, carrier of passengers does not owe to a passenger the highest degree of care absolutely, but only the highest degree of care consistent with the practical operation of the road in view of danger to be reasonably apprehended and the purpose to be served. If, therefore, you find that in the present case the company exercised that degree of care which ordinarily prudent street car companies under like circumstances use, I charge you that the company was not guilty of any negligence and your verdict should be for the defendant company. ’ ’

The evidence shows that the use and maintenance of the wheelguard upon defendant’s can in the manner in which it was placed and in use on the ear was not negligence, and no other negligence was claimed or shown on the part of defendant.

The motion of defendant for an instructed verdict in favor of defendant, made at the close of plaintiff’s evidence and renewed at the close of all the evidence, should have been granted.

The judgment below is therefore reversed, and judgment will be entered here for plaintiff in error.

Jones, E. H. and Gorman, JJ., concur.


author:
CHITTENDEN, 3.
     RICHARDS, J,, 3QNKADE, J.,

text:
    DIVORCE AND ALIMONY.
    [Wood (6th.) Court of Appeals,
    May 6, 1916.]
    Lila Marie Moser v. Ananias Long.
    Marriage of Girl of Seventeen without Consent of Parents on License Secured by Husband’s Perjury, no Cohabitation, Annulled.
    Where a young girl seventeen years of age, without the knowledge or consent of her parents or either of them, has her mental poise disturbed aind her will overcome by the persistent solicitation and urging of a strong and forceful man. with whom she had previously had only ordinary friendly relations, and consents to a marriage authorized by .a license obtained by the perjured evidence of the man; where no cohabitation follows the marriage and there is an' immediate and continued separation thereafter, and there is no other act that would operate as a recognition of the marriage relation, an action lies by her for a decree annulling the marriage contract.
    [Syllabus by the court.]

      Harrington & Dunn, for plaintiff.
   CHITTENDEN, 3.

This is an action in equity to have declared null and void a marriage contract between the plaintiff and the defendant. The evidence shows that the plaintiff at the time of- the solemnizing of the marriage was of the age of seventeen years. She resided with her parents on a farm near the village of Perrysburg. In February, 1915, the defendant, a young man about twenty-one years of age, came to the home of the plaintiff, seeking employment as a farm hand. He was a stranger in the vicinity and stated1 that he had come from Virginia, where his home was. He entered into the employment of the plaintiff’s father, John Moser, and continued in such employment until the following May, when he left the home of Moser and took employment with some neighbor. During all the time that he lived with John Moser and afterward no evidence of any intimacy or unusual friendship or attachment between the plaintiff and the defendant was observed by either the father or the mother, or any one else, so far as the testimony discloses. The evidence of the plaintiff does not disclose anything other than a relation of friendship existing between the plaintiff and the defendant.

On June 8, 1915, the plaintiff desired to go to the city of Toledo to do some shopping, and in pursuance of a conversation between the plaintiff and the defendant over the telephone, and at his suggestion, they met on that date at the interurban station in Toledo. The plaintiff’s purpose in meeting him at that place was to accompany him to a moving picture show in Toledo. They did go to a show, and while together he began begging her to go to Monroe, Michigan, with him and be married. In this connection it is proper to state that the evidence shows that the plaintiff is a slight delicate girl, and that the defendant is a large vigorous man. As. a result of Ms persistent urging, the plaintiff did at last consent and directly thereafter did go to. Monroe with the defendant on an electric interurban car. The-city of Monroe is about an hour’s ride by trolley car from Toledo. At Monroe, the defendant procured from the clerk of the court a marriage license. In order to obtain the license the defendant made affidavit that the plaintiff was eighteen years of age. They at once proceeded to a parsonage and were married by a minister-of the gospel. Immediately after the marriage they boarded a trolley car and returned to the city of Toledo and upon arriving in the city they at once separated, the plaintiff taking a Bowling Green car to her home, and the defendant taking a Perrysburg Belt car to the village of Perrysburg. The fact of the solemnizing of this marriage having been published in the newspapers, the parents of the plaintiff obtained knowledge of the marriage for the first time on the following day.

The evidence shows that the plaintiff, immediately after the marriage ceremony, repented her folly, and upon the fact of the marriage being made known to her parents, expressed to them her regret and her desire and intention to repudiate the same. In explanation of her act she says that ‘ ‘ He kept teasing me and pressing me and I simply lost my head, and as soon as I began to think it over I repented what I had done. ’ ’

Shortly thereafter she wrote a note to the defendant advising him that she did not want anything more to do with him, and she has at all times since declined to have anytMng to do with the defendant or to recognize him in any way as her husband. The evidence clearly discloses that the plaintiff and the defendant have never cohabited or in any way sustained towards each other the relation of husband and wife.

From what has been said it will, of course, appear that the parents of the plaintiff at no time gave their consent to this marriage. Shortly after this marriage the defendant returned to Virginia and has remained there ever since. He has entered his appearance in the ease, but interposes no defense to this action.

The statute of Ohio, wMch differs in no essential respect from the statute of MicMgan upon the subject of marriage, provides, Sec. 11181 G. C. that:

“Male persons of tbe age of eighteen years and female persons of the age of sixteen years * * * may be joined in. marriage. Male persons under the age of twenty-one years, and. female persons under the age of eighteen years, must first obtain the consent of their fathers, respectively, or in case of the. death or incapacity of their fathers, then of their mothers or guardians.”

It will thus be seen that the Legislature of the state of Ohio lias to a very great extent modified the common law rules upon this subject. The steady trend of legislation has been to prevent the marriage of young and immature persons. The age at which marriage may take place has been raised from the common law mile of twelve years for a female and fourteen for a male. But a further protection has been afforded them by requiring that if marriage be desired under the age of majority, eighteen years-for the female, and twenty-one for the male, the consent of' the-father or other proper guardian shall first be obtained.

We are not called upon in this case to determine the exact limitations that are placed upon the entering into a marriage-contract by the requiring of this consent between the ages named.. In the case under consideration we have these essential and material facts. A young girl of the age of seventeen years, without the knowledge or consent of her parents or either of them, having her mental poise disturbed and her will overcome by the-persistent solicitation and urging of a vigorous young man with whom she had previously had only ordinary friendly relations,, consenting to a marriage authorized by a license obtained by the defendant upon perjured evidence given by him; no cohabitation following the marriage, or any other act that would operate asi a recognition of the marriage relation; a prompt repudiation of the marriage by the plaintiff as soon as she was away from the domination and control of the defendant, and a continued separation of the plaintiff and the defendant ever since, followed by an application to the court to have the contract annulled.

There have been various adjudications in which courts have held that, under the facts disclosed in the cases under consideration, marriage between parties over the age of consent were valid, but only one ease that has been called to our attention presents facts essentially like those found in the ease at bar. That is a ease decided by the Supreme Court of Nevada, Fitzpatrick v. Fitzpatrick, 6 Nevada 63. The Supreme Court of Nevada in that ease held that the marriage was binding, and refused to grant a decree annulling the same. We think it unnecessary to undertake a review of other cases upon this subject, but content ourselves with a statement that the facts in those cases were so different from those in the ease at bar that -we do not consider them as controlling authority in this ease.

A majority of the court are of the opinion that a decree should be entered in this case annulling the marriage contract. We are unable to find any grounds of public policy or public morals which require any different decree. The plaintiff would have the undoubted right to repudiate, upon, the ground of her minority, any other contract that she might have undertaken to enter into, except for necessaries, and vre see no reason why she should be precluded, under the facts as shown in this record, from repudiating the most important contract that she could possibly have undertaken to enter into. To permit a young and inexperienced girl to be permanently bound by a contract entered into in a moment of weakness and folly, under the circumstances attending this case, it seems to us, would be to deprive her of that parental protection that was intended to be vouchsafed her by the statute, and that she has and should have, by every natural law. We think that to insist upon her being bound by this contract would not be to promote public morals, but, on the contrary, it would be a most potent influence in the opposite direction. In reaching this conclusion we are in no way indicating what our 'decision might be under a different state of facts. ' .

A decree may be drawn declaring the marriage to be null and void.

RICHARDS, J,,

dissenting.

I regret my inability to concur with the majority of the court, and were it not for the importance of the question involved, I would be content with a simple statement of dissent; but I think the decision of the majority of the court is so contrary to all tbe authorities on the question involved that some further statement is required.

Section 11181 G. C. cited mates females of the age of sixteen years competent to enter into a valid marriage. So far as my investigation .has gone, no authority holds that the absence of parental consent invalidates tbe marriage, and m> authority so holding has been called to our attention by counsel for plaintiff. On the contrary, the universal holding on that subject is that the provision mentioned has to do simply with the punishment of officials who proceed without such consent. Such is the statement in 26 Cye. 835, and authorities from many states are cited on the proposition. The authorities on the question are also collected in a note in Hunt v. Hunt, 22 L. R. A. (N. S.), 1206 [23 Okla. 490; 100 Pac. 541].

In Parton v. Hervey, 67 Mass. (1 Gray) 119, where the age of consent to enter into a valid marriage is twelve in females and fourteen in males, it is held that a marriage between two infants above those ages is valid without the consent of their parents or guardians, notwithstanding the statute which prohibits magistrates or ministers, under a penalty, from solemnizing the marriage without the consent of parent or guardian.

The case just cited has been followed and approved not only in Massachusetts, but in various other states; the only difference between the Massachusetts statute and the Ohio statute being in the ages named in the statute.

The ease from Nevada cited in the majority opinion discusses the question extensively and cites numerous authorities. In the course of the opinion of the court this is said:

£iIt is admitted by counsel for appellant that it is commonly held under similar statutes that the lack of the consent of parent or guardian does not invalidate the marriage.”

The question is discussed also in The People v. Slack, 15 Mich. 193, and the same conclusion reached. See also, Hunter v. Milam, 5 Cal. Unrep. 107 [41 Pacific 332] syllabus 3, and Lacoste v. Guidroz, 47 La. Ann. 295 [16 So. 836] syllabus 4. In the latter ease the parties separated at the altar without speaking to each other thereafter. In our own state something has been said on this question. The case of Shafher v. State, 20 Ohio 1, was a criminal ease and tbe question involved not precisely the same; yet in the opinion of Ranney, J., he gives the reasons for the validity of marriage consummated below the age of majority but ■above the age of consent to enter into the marriage relation, and discusses the doctrine of public policy, commending the wisdom of the statute.

In the ease of Holtz v. Dick, 42 Ohio St. 23 [51 Am. Rep. 791], it was held that the absence of parental consent is unimportant so far as the validity of marriage "was concerned.

The common pleas court in this case entered a decree for the •defendant, based on the ground that the service was defective, .and also on the ground that the facts stated in the petition did not entitle the plaintiff to the relief sought, and I think this decree was right, under the authorities.

It is a case where the sympathy of the court would naturally >be, and is, with the plaintiff, and if it were possible for me to ;agree with the majority opinion T should be glad to do so; but In view of the holdings of the courts I am not able to bring my mind to the conclusion reached by the majority.

3QNKADE, J.,

concurring.

In view of the statements in the dissenting opinion, and the authorities there cited, I desire to say, with respect to one .ground that is mentioned as the ground of the decision of the ■court of common pleas, to-wit, a lack of sufficient service in the case, that so far as this court- is informed on that subject, it is to the effect that the court of common pleas considered this, in effect at least, an action for divorce, and that consequently the provisions of the statute with respect to service must be distinctly followed and that an entry of appearance was not a sufficient substitute therefor. It certainly needs no authority or discussion to establish the fact that in an action of this character, to annul a contract, the defendant may enter his appearance in court in the way provided by statute regardless of the nature of the contract.

It is said by some courts that the marriage of a female over •sixteen and under eighteen is quite as valid without the consent of the parents as with it, and it is remarked in opinions following that line that the sole and only purpose of consent is to lay tbe foundation for the criminal prosecution of the person who issues the license or solemnizes the marriage of a female under eighteen without the parental consent provided for in-the statute.

If that is true, it seems singular indeed that the legislature did not provide in the same section requiring this consent, for the punishment of the officer. In fact, if the procuring of the consent had no purpose at all except to furnish the ground for a criminal prosecution, the provision might better have been in a section of the criminal code by itself, providing that one who issues a license for, or officiates in the solemnizing of, the marriage of a female under age, as stated, should be guilty and punished as therein stated.

It seems to me that this provision of the statute was -intended for a very much more wholesome purpose than the one mentioned, although very useful along that line as well. I think the legislature distinctly intended by this provision to throw this additional safeguard around the young, and that in a ease like the present, where the parties have never lived together as husband and wife, where there has been no cohabitation between them at any time shown, where they separated immediately after the ceremony was performed, and the contract, if it was a contract, was forthwith repudiated and renounced by the female who desired not to go with the other party to the contract, as his' wife, but to remain with her parents and act in accord with their desires, this express provision of the statute with respect to the necessity of having the consent of the parents, is a provision of substance and importance to be kept in mind in passing upon the question of tbe right of the female to renounce the contract, under the circumstances stated.

It is said that cohabitation on the part of a female past sixteen years of age is not necessary to complete the' contract of marriage. Even if this be conceded, the fact of cohabitation will be found in all eases, with a single exception, in which the subject is discussed, as having an important bearing upon the question of public policy in determining the rights of the parties. It would be very difficult indeed to state or to even imagine a case calling louder for relief than the case at bar.

Shafher v. State, supra, and Holtz v. Dick, supra, cited, are not decisive of the question here. It seems very easy to me to account for many of the decisions cited by facts presented therein quite clearly distinguishable from the facts in the case at bar. As has been stated by my associates, the principle involved is one of great importance. No one will dispute for a moment that the plaintiff in this case, while under eighteen years of age, had she been possessed of a very large fortune might have made a contract with the defendant, who was of full age, to transfer her entire property to him upon any stated sufficient consideration, and that that would have been a contract which the defendant could not repudiate, without the consent of the plaintiff, and that the plaintiff could promptly have repudiated the contract upon arriving at her majority. In fact any contract, aside from necessaries and a marriage contract that the plaintiff might have entered into at the age at which it is said she entered into this marriage contract, might have been repudiated by her when she arrived at the age of eighteen.

But it is said that there is something peculiar about the contract of marriage of an infant that makes the repudiation of it, upon arriving at majority, an act contrary to public policy, notwithstanding the fact that the parties to the contract have never cohabitated and never recognized each other as husband and wife from the time the ceremony was performed; and, therefore, although the contract be the most important contract known to human-kind, and the most far-reaching in its consequences, and particularly so with respect to the female, that contract may, not be repudiated on arriving at majority, although it has never been recognized or acted upon by the parties since the time it was entered into.

Confining what I have stated to the case at bar, and not intending what I have stated to apply to other eases presenting different facts, it seems entirely clear to me that if the decree were other than as directed in the opinion of Judge Chittenden it would not be in furtherance of public policy, but would be squarely in the face of, and against, public policy.

For the reasons stated, I concur in the decree annuling the marriage contract entered into between the parties.


author: KUÍTKLE, J.

text:
    BAILROADS — TAXATION.
    [Franklin (2nd) Court of Appeals,
    April 11, 1917.]

      State of Ohio v. Little Miami Railway.
    Railway Leasing to Operating Railway Paying Franchise Tax not Required to Pay Tax Also.
    The Langdon act, 101 O. L. 399-425 (Sec. 5445 G. C. et seq.), must he construed, in so far as it defines the corporations which are subject to the franchise tax, as a revision of the Willis act, 95 O. L. 124-128, and its scope as so amended is not changed by the subsequent Hollinger act, 102 O. L. 224 (Sec. 1465-1 G. C. et seq.), with respect to corporations which are subject to the franchise tax; from which it follows that a railway company which has leased its line to an operating company is exempt from payment of the franchise tax, where the operating company is required to and does report and pay the excise tax.
    ERROR.

      Joseph McGhee, Atty.-Gen., and Clarence Laylin, for plaintiff in error.
    W. 0. Henderson and Lawrence Maxwell, for defendant in error.

       Affirming, State v. Railway, 26 Dec. 603.

   KUÍTKLE, J.

This case was submitted to the lower court upon a general demurrer to the answer of defendant in error. The lower court held that the answer stated a good defense and overruled the demurrer to the answer of defendant in error. . The lower court final judgment was rendered in favor of defendant in error. Error is prosecuted to this court from such 'judgment.

It appears from the answer that defendant in error is an Ohio railroad corporation owning a certain railroad, and in 1869 leased its said line of railroad for ninety-nine years, renewable- forever, to the Pittsburgh, C., C. & St. L. Ry. Since said date the last named company has maintained and operated the defendant’s line of railroad under said lease. It further appears from the answer that during the period for which plaintiff in error seeks to hold the defendant in error for the payment of a franchise tax, that the said lessee of said line of railroad has paid the excise tax as a railroad corporation under the Hollinger act.

This action seeks to charge the lessor company, namely, the defendant in error, with the payment of a franchise tax under the Willis act as amended.

We have carefully considered the very helpful briefs which have been hied by counsel. We have also examined with care the written decision of Judge Bigger of the court of common pleas, which has been filed and presented to this court.

We shall not undertake to discuss in detail the authorities cited by counsel; but will merely announce the conclusion at which we have arrived after a careful examination of such authorities.

We are in accord with the conclusion reached by Judge Bigger and in the main with the reasoning contained in his written decision.

We think the Landon act, in so far as it defines the corporations which are subject to the franchise tax, should be construed as a revision of the Willis act. We are also of opinion that the Hollinger act does not change the scope of the Willis act as amended by the Langdon act, in respect to the corporations which are subject to a franchise tax.

In view of our conclusion as to the scope of the Langdon and Hollinger acts, we think the decision of the court of appeals of Cuyahoga County in the case of Cleveland & P. Ry. v. State, 36 O. C. C. 403 (20 N. S. 61), approved by the Supreme Court March 24, 1914, State v. Railway, 59 Bull. 112 is decisive of the case at,bar. -

The judgment of the lower court will be affirmed.

Allread and Ferneding, JJ., concur.


author: IRICHARDS, J. KINKADE, J.

text:
    BILLS OF EXCEPTION — NEW TRIAL.
    [Lucas (6th) Court of Appeals,
    February 28, 1916.]
    Richards, Kinkade and Chittenden, JJ.

      William M. Duncan, Recvr. v. Thomas N. Kiger.
    1. Reproduction of Moving Picture Film Attached to Bill of Exceptions Ordered by Reviewing Court.
    When a bill of exceptions contains the-film of a moving picture which was reproduced in the trial court, a reviewing court has power to order a reproduction of the same before it, by a competent expert, this course being a method of unfolding the exhibit so as to make it visible to the reviewing court.

      ■2. Refusal to Grant New Trial after Term in Absence of Evidence to Show X-Ray Plate Concealed Would Disclose Conditions of Injury.
    It is not error to refuse to grant a petition for a new trial filed after the term at which the verdict was rendered based on the claim that the plaintiff in a personal injury case concealed an X-Ray plate giving a view of his injured ankle, where such plaintiff denies ever having had possession of the plate which was made under the direction of a surgeon employed by the defendant, and there is no evidence to show what the missing plate, if produced, would disclose as to the conditions of plaintiff’s ankle.
    [Syllabus by the court.]
    Error.

      C. A. Seiders, for plaintiff in error.

      C. A. Thatcher and G. B. Keppel, for defendant in error.

      July 1, 1916, motion to dismiss case in Supreme Court allowed.

   IRICHARDS, J.

This is a proceeding in error to reverse a judgment of the court of common pleas, refusing to grant'a petition for a new trial filed in that court after the term at which the original judgment was rendered. In the original case a verdict and judgment were rendered in favor of the plaintiff in the sum of $17,000 by reason of personal injuries received by him, and that judgment was affirmed in this court, upon the plaintiff consenting to a remittitur of such a sum as reduced the judgment to $9,000.

The petition for a new trial was filed under authority of See. 11580 G;. C. on the claim that the defendant could not, with reasonable diligence, have discovered until after the trial term the evidence which has since come to its knowledge. The grounds for new trial are succinctly stated in the brief of counsel lor plaintiff in error, and are, as there set forth, three prime matters, namely: the conduct and posturing of Kiger in the presence of the jury, whereby he sought to give a certain impression as to the condition of his injured foot, and upon which posturing certain witnesses based their evidence; his suppression of knowledge as to where a certain X-ray plate was, and why it was not produced by the receiver; and his evidence relating to a certain pair of shoes worn by him as switchman. The receiver also claims to have discovered, by the aid of certain detectives, evidence since the trial that Kiger used his foot in such a way as to show a practically normal condition, and that he himself had possession of the missing X-ray plate before the original trial. A large mass of evidence was taken in the common pleas court on the hearing of this petition for a new trial, all of which evidence, together with much of the evidence used on the first trial, has been embodied in a bill of exceptions filed in this court.

One of the items of evidence introduced in the trial court by the receiver was the film of a moving picture, and in that court these pictures were reproduced before the triá’l judge. Against the objection of counsel for Kiger, this court ordered the reproduction, by a competent expert, of these moving pictures in the presence of this court on the hearing of the case, the record showing the speed at which they were reproduced in the trial court, and the same speed being used in this court. We have no doubt of the power of a court in reviewing a case on error, involving this class of evidence, to order such reproduction, as it is no more than a method of unfolding an exhibit so as to make it visible to the court and to place the reviewing court in possession of all the evidence which was used in the trial court. These moving pictures show Kiger walking along the street, with the aid of a crutch and cane, and it is contended that they show that he was able to, and did, place his left foot flat upon the sidewalk, which," if true, contradicts his testimony at the trial that he was unable to do so. In the judgment of this court, the moving pictures do not distinctly show how he used his foot in walking, and it is not distinctly apparent from these pictures that he did place his left foot flat upon the surface of the pavement.

Much evidence was introduced relating to the existence of an X-ray plate showing a view of the left foot or ankle of Kiger. The evidence discloses that the receiver was not guilty of any want of due diligence in failing to discover the facts with reference to this X-ray plate, before the first trial, but the serious fact remains that it does not appear that the.condition of the foot or ankle disclosed by this plate would be material on a retrial of the case. In fact, there is no evidence to disclose what the missing plate would sh'ow as to the condition. Neither does the evidence disclose that any unfair advantage of the (defendant was taken in the trial court on the first trial, by reason of the failure to produce this missing plate. It is insisted by counsel for the receiver, however, that such improper argument was used on the hearing of the original case in the court of appeals, and it is contended that this fact is made to appear by introducing in evidence on the hearing of the petition for new trial, a portion of the brief which was filed by counsel for Kiger and used by the court of appeals in the original case. Kiger, however, denies that he ever had possession of the missing plate, and his counsel may well have believed the position thus taken by Kiger, and, so believing it, was not over-stepping the bounds of proper argument in commenting on the failure of the receiver to produce the missing plate, that plate having been made under the direction of a surgeon acting for the receiver of the company. Even if we should assume that unfair argument had been used in the court of appeals with reference to the missing plate, that would not justify the common pleas court in granting the petition for a new trial.

Much of the evidence relates to two pairs of shoes, one of which was found by detectives, after the trial, in the cellar or basement of the premises occupied by Kiger, and which pair, it is claimed, were his shoes and had been worn by him. Both Kiger and his wife deny that they were his shoes. Many circumstances appear to indicate that they were his. It is claimed, on behalf of the receiver, that the method of wear on these-shoes, and the repairs made to them, indicate that Niger’s manner of walking was the same before the injury for which this action is brought, as afterwards. The significance to be given lo the evidence disclosed by these shoes, and the manner in which Niger walked, was a matter depending very largely upon the credit given by the trial court to the various witnesses who-testified on the subject, and that testimony was in serious conflict. A number of witnesses testify that, before the last injury, Niger walked normally, and it also appears from the evidence-that, before his last injury, being the one on which this action is based, he was performing regularly the work of a railroad switchman. So far as this branch of the case is concerned, we can not therefore, interfere with the action of the trial court.

Two detectives employed by the receiver after the first trial testify that when he walked, and believed he was not under observation, he- placed the bottom of his left foot -flat upon the ground or walk; while numerous neighbors and several medical witnesses called by Niger testify that he walked with the inside of his left foot raised, and the foot turned outward; and the medical witnesses further say that it was impossible to straighten his foot or ankle so that it could be placed in a natural position flat upon the ground. If the claim made by the receiver in this respect were substantiated by the evidence, it would follow that Niger was guilty of malingering and attempting thereby, both before and at the trial, to deceive the court as to the nature and extent of his injuries.

The rule announced by the Courts in eases where it is attempted to secure a new trial by reason of newly discovered evidence, is that such new trial ought not to be granted unless the legitimate effect of such evidence, when considered in connection with that produced on the trial, ought to have resulted in a different verdict. See Cleveland, C. C. & I. Ry. v. Long, 24 Ohio St. 133.

Many of the authorities so state the rule as to prohibit the granting of a new trial for newly discovered evidence, unless the evidence is of such a character as to require a different verdict or finding, and this language is used in the opinion of Judge Mcllvaine in giving the reasons on which the Supreme Court based the judgment in the case just cited.

This court laid down the rule that the new evidence must be of such a character as to require a different verdict, before it would justify a new trial, in the case of Bridge v. State, 36 O. C. C. 621 (20 N. S. 231). See also Searles v. State, 3 Circ. Dec. 478, 480 (6 R. 331, 344), and Cincinnati Trac. Co. v. Fesler, 31 O. C. C. 631 (12 N. S. 565). The authorities are collected in 29 Cyc. 901.

Furthermore, it is said in Kroger v. Ryan, 83 Ohio St. 299, 306 [93 N. E. 428], that new trials on the ground of surprise are, and should be, granted with great caution, and the granting or refusing of motions on this ground rests largely in the sound discretion of the trial court. The same subject is fully considered by the Supreme Court in Hurley v. State, 6 Ohio, 399, 404, and in Smith v. Bailey, 26 Ohio St. 1. See also Stuckey v. Bloomer, 1 Circ. Dec. 631 (2 R. 541, 542), and Weber v. Wiggins, 5 Circ. Dec. 84 (11 R. 18).

After a careful review of the evidence, we are unanimously of the opinion that the judgment is not so manifestly against the weight of the evidence as to require or justify a reversal, and the same will, therefore, be affirmed.

Chittenden, J., concurs.

KINKADE, J.

I concur in the judgment of affirmance of the judgment below, denying the prayer of the petition for a new trial, but 1 desire to add that the evidence offered upon the hearing of this petition strongly confirms my former opinion in the main case that the verdict returned was the result of passion and prejudice-on the part of the jury.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    January 22, 1917.]
    Jones, Jones and Gorman, JJ.
    Cincinnati (City) v. Edward W. Boston.
    1. Judgment against City for Unguarded Excavation Binds Contractor Having Notice.
    A judgment recovered, without fraud or collusion, against a city for injuries caused by an excavation made by a third person in a public street which he has not properly lighted or guarded, where he has had notice of such suit with opportunity to defend, is conclusive evidence of its necessary facts and conditions, in a subsequent action brought by the city against him as being liable over to reimburse it, as though he were a party to the record.
    2. Judgment against City for Unguarded Street Excavation not Determinative of Liability of Contracts.
    A judgment against a city for unguarded excavation in street however does not determine the question whether or not the person who made the excavation is in fact responsible to the city; nor is he prevented by it from setting up any defenses which from the nature of the action or pleadings he could not 'have interposed in the first action had he been a formal party therein.

      Chas. A. Groom, City Sol., Constant Southworth, Asst. Sol. and Chas. Tatgenhorst, Asst. Sol., for plaintiff in error

      Sunt, Bennett & TJtter, for defendant in error.
   JONES (O. B.), J.

The city of Cincinnati sought in the action below to recover from the defendant Boston, who was a plumber, the amount of a judgment and costs, which it had been compelled to pay to one William Alexander for injuries to his horse, harness and wagon by reason of an excavation made in .Colerain avenue for the purpose of tapping a sewer. Alexander had sued the city and secured a judgment before a justice of the peace, from which the city appealed to the court of common pleas where upon trial to a jury a judgment was rendered against the city. Boston, while not made a party to the record of that case, was notified of its pendency, and he and his attorney were present at the trial of the case in each of said courts. After the payment of Alexander’s judgment, the city demanded that Boston reimburse it, and on his refusal so to do the city brought this action below, claiming that tbe excavation which was the cause of the injury was made by Boston and was negligently maintained by him without proper railings, barriers or warning lights, whereby Alexander’s horse and property was injured.

The defendant in his answer admitted that he had dug the excavation complained of, or caused it to be dug, for the purpose of tapping a sewer. He admitted the bringing of the action by "William Alexander and the allegations of his petition as stated by the city and the recovering of a verdict by him ■against the city; and denied every allegation not admitted and denied that the facts set up by Alexander in his petition in said case are true; and denied that the defendant (Boston) was guilty of negligence or improper conduct as alleged in plaintiff’s petition; and says that Alexander’s injury was caused by his own fault and negligence, and the careless and improper management of his horse through his agent.

The existence of the excavation or ditch in the public street or thoroughfare being admitted the following questions were necessarily determined in the action to sustain Alexander’s recovery: (1) that this excavation was not properly protected by barricades and lights to warn and protect persons driving in the street; (2) that Alexander was not guilty of contributory negligence in driving into the excavation; and (3) the fact of Alexander’s injury and the extent of his damages.

The evidence is undisputed that Boston was notified by the city of the pendency of Alexander’s suit and was present at both trials of that case, in person, with counsel. Such being the fact, the judgment secured in' Alexander’s case against the city was conclusive upon Boston as to all the issues of fact above enumerated.

The only defenses, then, available to Boston would be (1) as to the identity of the nuisance, — for instance, that the excavation into which Alexander’s horse fell was not the one dug by Boston; but he admits and the proof-shows that it was the same; or (2) he might show that the city assumed responsibility, or agreed with him to- care for or guard the excavation; but there is no claim nor any proof that the city assumed such burden in any way to relieve Boston, and on the contrary it was shown that Boston undertook and assumed the burden of maintaining and protecting the excavation or ditch which he had dug; or (3) he might show that after having put up proper protecting barricades and lights at the excavation they were removed or interfered with by some agent of the city; but there is no claim of such defense.

There might possibly be other defenses, among which might be the so-called “act of God” or the public enemy, but no such defenses were made by Boston. Instead, in the trial of this case Boston was allowed practically, to relitigate both the question of his negligence and the contributory negligence of Alexander. He was permitted, over the objection of the city, to offer evidence to show that he had properly barricaded the excavation with earth, stone and lumber, and that he had placed a red lantern properly, lighted, upon a cask, over the ditch or excavation, and that the driver of Alexander’s horse had been negligent in driving into the ditch in spite of these barricades and warning light, or that the vision of the horse was defective, although the same issues had been made or were available in the former action brought by xilexander against the city, and substantially the same evidence had been given in that trial.

A motion for an instructed verdict in its favor was made by the city at the close of all thé evidence, which motion was overruled. The court in its charge to the jury stated that the issue for them to determine was whethef or not Mr. Boston in what he did on Colerain avenue was negligent, defining in his charge what would constitute such negligence and placing the burden upon the city to prove such negligence by a preponderance of the evidence and also that such negligence was the proximate cause of the injuries for which Alexander recovered. The only effect given by the court to the judgment secured by Alexander against the city was merely for the determination of the amount of recovery in the event the jury found that Boston had been negligent.

The recovery by Alexander against the city was because of the duty of the city under the law Sec. 3417 (G. C.), to keep its public streets open, in repair and free from nuisance. And while it was decided that the city was liable to Alexander because of tbe existence of this excavation and tbe manner in wbich it was maintained and protected, when it is shown that Boston actually created the nuisance' for which the city had been held, the primary liability is placed upon him and the city is entitled in turn to recover against him. Morris v. Woodburn 57 Ohio St. 330, 335 [48 N. E. 1097].

Notice having been given to Boston of the pendency of Alexander’s suit, and opportunity to take part in its trial and participate in its defense, he is bound by the result of that trial. There having been no charge of fraud or collusion Boston can not here criticize the manner of the trial or insist upon the right to retry or again litigate any of the issues necessarily determined in that case. The judgment there recovered against the city is conclusive evidence against him here, of the necessary facts and conditions, as fully as if he had been made a party to the record of that ease.

This rule is recognized in this state in First Nat. Bank of Mt. Vernon v. Bank, 68 Ohio St. 43 [67 N. E. 91], in the opinion of the court at pages 49 and 50.

The rule is laid down in 2 Black, Judgments, Secs. 574 and 575; 1 Bigelow, Estoppel, 125; and 23 Cyc. 1271, and is supported by numerous authorities, among which are. Chicago v. Robbins, 67 U. S. (2 Black), 418 [17 L. Ed. 298]; Robbins v. Chicago, 71 U. S. (4 Wall.), 657 [18 L. Ed. 427]; Portland v. Richardson, 54 Maine, 46 [89 Am. Dec. 720]; Waterbury v. Traction Co. 74 Conn. 152 [50 Atl. 3]; Byne v. Americus, 6 Ga. App. 48 [64 S. E. 285]; McNaughton v. Elkhart, 85 Ind. 384; Bloomington v. Roush, 13 Ill. App. 339 Littleton v. Richardson, 34 N. H., 179 [66 Am. Dec. 759]; Astoria v. Railway, 67 Ore. 538, 549 [136 Pac. 645].

The court therefore erred in its charge to the jury and in the admission of evidence in regard to the question of negligence in the guarding and lighting of the excavation, and as to the contributory negligence of Alexander, as well as in refusing to grant the motion of the plaintiff for an instructed verdict in its favor at tbe close of the evidence.

Judgment reversed, and judgment will be entered here for plaintiff in error.

Jones, E. H., and Gorman, JJ., concur.