author: YOORHEES, J.

text:
    ELECTRICITY — NEGLIGENCE—EVIDENCE.
    [Richland (5th) Circuit Court,
    January Term, 1903.]
    Douglass, Voorhees and Donahue, JJ.

      Citizens’ Electric Ry. L. & P. Co. v. Emmett Bell, etc.
    1. Negligence — Electric Wiees in Stbeet — Duty to Peesons Using Street.
    A corporation, permitted to construct and maintain an electric street railway, with all the electric appliances incident thereto, in the public streets of a city, for the purpose of private gain, owes the duty to persons upon such streets of so conducting its business as not to injure them. It must, therefore, keep its wires out of the way of persons using the streets, so that they will not, by coming in contact with such wires, receive personal injuries, and the fact that it has not done so raises a presumption of negligence against it.
    2. Same — Electric Wires — Degree oe Care Required.
    An electric company, permitted to use the public streets for its own purposes, is required to exercise a high, if not the highest, degree of care in the operation, construction, inspection and repair of its wres and poles, to the end that travelers along the highway may not he injured by its appliances; and, if a wire, charged with a deadly current of electricity, falls from its proper place of elevation above the street to the surface of the street, and there, by contact with a boy lawfully passing along the highway injures him with its current, the law raises a •prima facie case of negligence. The burden of proving that there was no negligence, in such case, is on the company. The maxim, res, ipsa loquitur, applies.
    3. Contributory Negligence — Degree of Care Expected Prom Children, Question for Jury.
    A child is held to such care and prudence only as are usual among children of his age and capacity. A child of seven years of age is not guilty of negligence if he exercise that degree of care which under like circumstances would reasonably be expected from one of his years and intelligence. Whether he used such care in a particular case is a question for the jury.
    4. Expert Evidence — Opinion of Physician.
    A practicing physician, familiar with the nature, extent and condition of the injury in question, in its early stage or history, being asked as to the extent of the injury, or if he could, at the time of trial, determine as to whether or not the injury would be permanent, answers that he could form an opinion, may give it as his opinion that such injury is, or is not, permanent.
    Error to Richland common pleas court.
    The plaintiff below, Emmett Bell, an infant of the age of seven years, by his next friend, Andrew W. Bell, commenced this action in the court of common pleas of Richland county against The Citizens Electric Railway Light and Power Company, to recover damages for a personal injury which he alleged to have suffered by reason of the negligence of the defendant company.
    The plaintiff, after stating that defendant is a corporation organized under the laws of the state of Ohio,, alleges that as such corporation, it conducts what is known- as an electric street railway, the motive power of which is electricity, said electricity being conducted along and through wires that are suspended upon poles throughout certain streets in the city of Mansfield, Ohio; that as an incident to said wires at certain intervals along what is known as the main wires through and over which said current is carried, there is what is known as feed wires, which, when properly handled, are placed in such positions as to be harmless to anyone coming in contract with the same.
    Plaintiff further says' that on or about August, 19, 1901, at or. neat what is known as the northwest corner of the East Fourth street schoolhouse, in said city, one of said feed wires extended from the main wire ever which said electric current passed to a certain pole and then to the ground below. That said feed wire was what is known as a live wire, that is to say charged or filled with electric current, and that said wire was carelessly, recklessly and negligently left lying upon the ground exposed and in such condition as to be of great danger to any person not acquainted with its dangerous character. That said wire was so left by defendant company, and on said August 19, 1901, the said Emmett Bell, a youth of tender years, to-wit, of the age of seven years, being unacquainted with the use or nature of the dangerous character of said wire, came in contact with the same, and by reason of the electric current contained therein, was dangerously burned and mutilated in and upon the index finger of his left hand; that his nervous system, was greatly shocked, and he was thereby rendered sick, nervous and prostrated on account thereof; that his said finger to the present time is stiffened and in bad condition, and in all probability will never be of proper use to him. That on account of the wound made by the burning wire the said Emmett Bell was subject to great and excessive loss of blood, and otherwise shocked and rendered weak on account thereof. That said injuries were occasioned wholly on account of the negligence of the defendant company without any fault of the said Emmett Bell. Plaintiff says that on account of said injuries he has suffered great pain and distress of body and has been damaged in the sum of $3,000, for which he asks judgment.
    The answer, for a first defense, admits that defendant is a corporation organized under the laws of the state of Ohio; that as such corporation it conducts what is known as the Electric Street railway, the mo-five power of wbicb is electricity. It admits that said electricity is •conducted along and through wires that are suspended upon poles throughout certain streets of the city of Mansfield, and denies the other allegations of the petition. For a second defense the defendant avers-that whatever injury the said Emmett Bell sustained, if any, was caused* by his own negligence and fault, and not by reason of any fault of defendant.
    Plaintiff’s reply to this second defense was a general denial.
    The cause was tried to a jury, resulting in a verdict for plaintiff, and the jury assessed his damages at $755. Motion for new trial, filed by defendant, was overruled. Judgment was entered for the amount of the verdict and costs. Bill of exceptions containing all the evidence was taken and made a part of the record. Error is prosecuted to this court to reverse the judgment of the court below.
    Cummings, McBride & Wolfe, for plaintiff in error:
    Failure of the trial court to state, in its charge to the jury, the issues was prejudicial to the plaintiff in error because it failed to direct their minds upon whom the burden of proof fell. 11 Am. & Eng. Enc. Law (1 ed.) 240; Dassler v. Wisley, 32 Mo. 498; Missouri Coal & Oil Co. v. Railway, 35 Mo. 84; 11 Enc. PL & Pr. 154; People v. Jackson Co. 92 Ill. 441; Wilbur v. Stoeple, 82 Mich. 344 [46 N. W. Rep. 724; 21 Am. St. Rep. 568]; Keatley v. Railway, 94 Iowa 685 [63 N. W. Rep. 560]; West v. Moody, 33 Iowa 137; Reid v. Mason, 14 Iowa 541; Pharo v. Johnson, 15 Iowa 560; Beebe v. Stuttsman, 5 Iowa 271; Fitzgerald v. McCarty, 55 Iowa 702 [8 N. W. Rep. 646]; Porter v. Knight, 63 Iowa 365 [19 N. W. Rep. 282]; McKinney v. Hartman, 4 Iowa 154; Bryan v. Railway, 63 Iowa 464 [19 N. W. Rep. 295]; Little v. McGuire, 43 Iowa 447.
    Failure of court to charge as to burden of proof was error. Bergman v. Hendrickson, 106 Wis. 434 [82 N. W. Rep. 304; 80 Am. St. Rep. 47] ; White v. Thomas, 12 Ohio St. 312 [80 Am. Dec. 347]; Lewis v. State, 4 Ohio 389.
    The court had no right to tell the jury in the face of the allegation in the petition and the denial in the answer, that the appliances that the plaintiff in error had upon its streets are “considered to be deadly” if one comes in contact with them. Cline v. State, 43 Ohio St 332; General Convention v. Crocker, 4 Circ. Dec. 619 (7 R. 327) ; Cin. H. & D. Ry. v. Hedges, 8 Circ. Dec. 265 (15 R. 254) ; 11 Am. & Eng. Enc. Law (1 ed.) 254; Straus v. Minzesheimer, 78 Ill. 492; Burrows v. Transportation Co. 106 Mich. 582 [64 N. W. Rep. 501; 29 L. R. A. 468]; Cin. H. & D. Ry. v. Hedges, 8 Circ. Dec. 265 (15 R. 254).

      Degree of care required from infants. Clev. Term. & V. Ry. v. Heiman, 9 Circ. Dec. 222 (16 R. 487) ; Springfield Consol. Ry. v. Welsch, 155 Ill. 511 [40 N. E. Rep. 1034]; Galveston, H. & H. Ry. v. Moore, 59 Tex. 64 [46 Am.. Rep. 265]; Chicago City Ry. v. Wilcox, 138 Ill. 370 [27 N. E. Rep. 899; 21 R. R. A. 76]; Reed v. Madison (City), 83 Wis. 171 [53 N. W. Rep. 547; 17 R. R. A. 733].
    Degree" of care required from defendant. McCafferty v. Dock Co. 5 C. D. 262 (11 R. 457); Pitts. C. & St R. Ry. v. Krouse, 30 Ohio St. 222; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50; Rowe v. Rehman, 15 Ohio St. 179.
    Douglass & Mengert, for defendant in error:
    We maintain that a corporation or an individual who uses the public thoroughfare of a city by stringing wires charged with deadly currents •of electricity for private gain or remuneration is chargeable with a higher degree of care than under other circumstances; that they must at their peril keep the street clean from these deadly wires so that a pedestrian upon the street may not come in contact therewith while lawfully using the streets; that where such corporation or individual permits a wire highly charged with a deadly electric current to remain upon the surface of the street or sidewalk or in such proximity thereto that a pedestrian comes in contact therewith while lawfully using such street or sidewalk, that the proof of the fact of the presence of such highly charged wire and the injury'sustained therefrom, places the burden of proof upon such corporation or individual to remove the presumption of negligence upon its or his part. Newark Elec. R. & P. Co. v. Ruddy, 62 N. J. Raw 505 [41 Atl. Rep. 712]; Snyder v. Electrical Co. 43 W. Va. 661 [28 S. E. Rep. 733 ; 39 R. R. A. 499; 64 Am. St. Rep. 922] ; Haynes v. Gas Co. 114 N. C. 203 [19 S. E. Rep. 344; 26 R. R. A. 810; 41 Am. St. Rep. 786]; 21 Am. & Eng. Enc. Raw (2 ed.) 512; Joyce, Electric Raw Sec. 606.
    Degree of care required from children. Rolling Mill Co. v. Cor-rigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 15 Am. St. Rep. 596]; Rake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 R. R. A. 757; 53 Am. St. Rep. 640]; Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 R. R. A.'340] ; Haynes v. Gas Co. 114 N. C. 203 [19 S. E. Rep. 344; 26 R. R. A. 810; 41 Am. St. Rep. 786]; Mangam v. Railway, 38 N. Y. 455 [98 Am. Dec. 66n.]; Illinios C. Ry. v. Slater, 129 Ill. 91 [21 N. E. Rep. 575; 6 R. R. A. 418; 16 Am. St. Rep. 242]; Gunn v. Railway, 42 W. Va. 676 [26 S. E. Rep. 546; 36 R. R. A. 575]; Pekin v. McMahon, 154 Ill. 141 [39 N. E. Rep. '484; 27 R: R. A. 206; 45 Am. St. .Rep.' 114].

      Reasonable care. Toledo & W. Ry. v. Goddard, 25 Ind. 185; 16 Am. & Eng. Enc. Law (1 ed.) 402, 403.

      Affirmed by Supreme Court, without report, May 3, 1904, 70 Ohio St. 482.

   YOORHEES, J.

Tbe only questions presented and nrged as reasons for a revresal ■of tbe judgment of tbe court below are: 1. In tbe admission of evi-dence offered by plaintiff below against tbe objections of defendant. 2. In tbe charge of tbe court. 3. In tbe court refusing to charge as requested by defendant below.

1. It is claimed that tbe court erred in permitting Doctor R. F. Boles to answer tbe following questions in bis direct examination, to all of which questions and answers defendant objected; tbe court overruled tbe objection and defendant excepted.

“Q. From tbe extent of that injury could you determine whether or not it would be permanent?

“A. Well, that would be an absolute impossibility for me to tell. Perhaps I could form an opinion.

“Q. What do you say now as to whether or not, in your opinion, that injury will be permanent ?

“A. My opinion was that the injury would be permanent.

“Q. What is your opinion now?

“A. I haven’t seen it lately.

“Q. What is your opinion now, from what you saw at tbe time, as to whether or not the injury will be permanent?

“Court. He has answered that question.

“Q. What is your opinion now, based on what you then saw, as to whether it is a permanent injury or not?

“A. That is a difficult question for me to answer. I cannot tell now what the condition is.

“Q. Judging from his condition at that time, what is your opinion as to whether that will be a permanent injury, from what you saw at that time, are you still of the same opinion?

“A. My opinion is the same.

“Q. Suppose that this finger at this time is shrunken, and suppose that the boy, in the use of his hand, holds his finger out like that (illustrating), and suppose that when his mother would wash his hand he would cry, when she would wash that finger he would cry, and suppose that finger is now smaller than the other index finger, sweenied away somewhat, and when he touches anything there is evidence of his having pain in that finger, what would you say that would indicate as to whether the injury would be permanent?

“A. It would indicate permanent impairment.”

It is contended tbat the evidence is incompetent on two grounds:: First, that the petition does not allege.permanent injury; second, the witness Dr. Boles does not qualify to give an opinion.

There was no motion filed to the petition to correct it in form. The-allegations as to the injury are: That “his (plaintiff's) index finger of' his left hand was dangerously burned and mutilated; that his nervous-system was greatly shocked, he was rendered sick, nervous and became-prostrated on account of said accident; that his said finger, even to the present time, is stiffened and in bad condition, and in all probability will never be of proper use to him.”

If the petition will admit of proof as to the extent or permanency-of the injury, it is by reason of this clause, “that,his said finger, even to-the present time, is stiffened and in bad condition, and in all probability will never be of proper use to him.”

The allegations are indefinite and.loosely drawn, but this is a defect in form and should have been corrected by motion. No objection-. having been taken to the pleading on this -ground, a liberal construction is to be given to it, in the introduction of evidence, and it was not error to admit competent evidence as to the extent and permanency of the-injury.

Did the court err in admitting the testimony of Dr. Boles as to the extent or permanency of the injury?

This depends upon whether the witness qualified himself to give-an opinion. From the examination of the,witness it appears he.was-somewhat familiar with the nature, extent and condition of the injury in its early stage or history. Knowing its early -condition, and being-a practicing physician, he is asked as to the extent of the injury, or if he could then, at the time of the trial, determine as to whether or not the injury would be permanent. He answers he could form an opinion, and he gives his opinion that it would be permanent.

The rule in such case is, that before such opinion is called for, it-must appear that the witness has an opinion, or is then able to form one upon the matter in question. Such qualification of the witness, Dr. Boles, is shown in the record, and, therefore, it was not error to permit this evidence to go to the jury. Bellefontaine & I. Ry. v. Bailey, 11 Ohio St. 333, 337, and Koons v. State, 36 Ohio St. 195, 200, are authority in support of our conclusion.

2. The principal questions in this case arise upon the charge of the court and in refusing to charge as requested by defendant below.

The court, after stating the nature of the action, proceeded to-charge the jury as follows:

“The principal question that really arises in the case is the degree of care that a person introducing modern electric machinery is required to exercise in order that the parties having a right to occupy the street the same as they have, in order that by the appliances they have, which are conceded to be deadly if one comes in contact with them; the question is, what degree of care must the party so occupying a public street in the city exercise in order to be regarded as free from negligence where a party is injured by a live wire.
“That degree of care depends upon the nature of the appliances that the party is using on the public highway. All I can say to you is, that it is only ordinary care under the circumstances, but that ordinary care may reach a very high degree. Ordinary care on some occasions may be extremely high degree of care, because of the deadly nature of the machinery that it sets to work.
“It probably will not be necessary for me to say anything to you in substance on the subject of the negligence of the child. He was only required to exercise that care and judgment and skill that you would expect a child of that age to exercise. Contributory negligence is not to be attributed to an infant, who, by reason of his infancy, has not acquired the capacity and ability to take care of himself under situations of danger.
“It was the duty of the defendant to exercise a high degree of care and a high degree of care would be only ordinary care to protect the public against live wires falling upon the streets of the city. It was the duty of the defendant to exercise a high degree of care, and a high degree of care under those circumstances would be only ordinary care to protect the public against the consequences that might reasonably be foreseen by it, that a live wire of that kind might inflict upon the citizen. It must use proper material, it must use a high degree of care in making its system safe, and if it does not do that, and by reason of any want of care of that kind, a child, not having reached the age of discretion, is injured on the public streets of the city by its defective system, it is liable. That is all I need to say to you on the subject of the liability of the defendant and the conduct of the plaintiff.”

Exceptions to the charge as given and to the refusal of the court to charge as requested raise the questions of law of the case, and it must be conceded at the very threshold, that the questions are new and important in the law of negligence, especially so far as decisions in our own state are concerned.

It is either admitted in the pleadings or disclosed in the record in this case, that the electric railway company, defendant below, at the time of the injuries complained of, operated an electric street railway in the city of Mansfield, Ohio, the motive power of which was electricity, •conducted along and through wires suspended upon poles throughout certain streets in said city; that the wire in question was owned by said company and was attached to its main wire on East Fourth street in said city and used for the purpose of furnishing power to drive a motor in a small manufacturing plant, and that the electric current was communicated to this wire from said main wire. That at the time of the accident and the injury to the plaintiff complained of this wire in question was broken, and the'end which was attached to the main wire was charged and was hanging down one of the poles upon which it had been suspended, and the broken end was lying on a grass plot between the side walk and the street proper on said East Fourth street, at the corner of an alley running at right angles with said street. That the insulation on this broken wire was defective and the wire itself exposed. And further, that it had been so broken and lying on the ground for at least twenty-four hours before the accident complained of occurred. It also appears from the record that the plaintiff below was a boy seven or eight ypars of age and was living with his parents on said East Fourth street almost directly opposite the pl'ace where this broken wire was lying on the ground. That while playing on the sidewalk this boy came in contract with this charged wire so lying upon the grassplot and received the injuries complained of.

At the conclusion of the testimony offered by the plaintiff the defendant company submitted a motion asking the court to take the case from the jury and direct a verdict in favor of defendant. The court overruled said motion and the defendant at the time excepted. Thereupon the defendant rested its ease.

Is it to be presumed from these facts alone that there was such negligence on the part of the electric company as to require it to show that the dangerous condition of its property was not attributable to its negligence, but from some defect which in the exercise of that reasonable care and prudence proper in the case of electric wires, it was unable to discover, or some accident beyond its control? In other words, was it from unavoidable accident ?

In the case of an electric wire, in the position and condition that this one is assumed to be, the law raises a prima facie case of negligence against the owner. As a rule negligence is not presumed, but there are cases where the maxim, res ipsa loquitur, is directly applicable, and from the thing done or omitted negligence or care is presumed. In our judgment this is a case wherein that maxim applies. The rule cannot be more •concisely stated, in its generality, than as given in Scott v. Railway Docks Co. 3 Hurl. & Colt. 596, where the court held:

“There must be some reasonable evidence of negligence. But where "the thing is shown to be under the managemnt of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.”

This doctrine has been applied to those using electricity in streets. Public policy, from sheer necessity, must require of a person or corporation .using the current of electricity in high tension along highways a very high if not the highest degree of care, and this high degree would seem all the more reasonable to justify this rule of presumptive negligence in such case. The degree of care in the nature of the case being high, and there being little danger if such care be exercised, if an accident happens there is offered a probability of the absence of that care.

In the case of Newark Elec. L. & P. Co. v. Ruddy, 62 N. J. Law 505 [41 Atl. Rep. 712, 713; 57 L. R. A. 624], the court held:

“Proof that an electric light wire, controlled by a private corporation, and normally suspended upon poles along a public street, was trailing broken on the sidewalk, affords a presumption of negligence in a suit against such corporation by a person injured through electric shock by contact with such wire. ‘Bes ipsa loquitur.’ ”

In that case the plaintiff, a child of eight years, picked up from the sidewalk of a public street the end of a broken wire that trailed from one of the poles on which it should have hung suspended, and sustained severe injury through electric shock. The wire was an' electric light wire, under the control of the defendant. No explanation or exculpatory evidence was offered in defense.

Collins, J., on page 506, says:

“The defendant was, hy law, permitted to suspend along a public street a wire so charged with electricity as to be dangerous to the public if it should break and fall upon the street. This, privilege entailed upon it a very high degree of care to maintain the wire intact. It was permissible to presume a lack of exercise of such care when the proof showed the wire broken and trailing on the sidewalk under conditions that rendered possible serious injury to persons lawfully there. Unexplained, the presence on the highway of the charged and broken wire, and the fact of injury received therefrom, justified an inference of negligence in the defendant in whose control and management it was. Such an inference has been judicially permitted even when the wire that broke received the electricity from a wire on which it fell. Haynes v. Gas Co. 114 N. Car. 203.”

In the case of Haynes v. Gas Co. 114 N. C. 203 [19 S. E. Rep. 344; 41 Am. St. Rep. 786; 26 L. R. A. 810], the court held:

“If a corporation is permitted to maintain electric wires in the public streets, and one of such wires is detached from a tree to which it has been fastened, and is hanging to the ground charged with a deadly 'current of electricity, which it received in coming in contact with the feed wire of another corporation, and a boy taking hold of the wire is killed, the corporation to which the detached wire belongs is presumed to have been negligent, and must assume, in an action for damages resulting from such killing, the burden of proving that there was nc negligence on its part.
“Proof that there was a “live” wire (carrying a deadly current) down in the highway surely raised a presumption that some one had failed in his duty to the public.
“Electric corporations permitted to use the public streets for their own purposes must be required to exercise the utmost degree of care in the construction, inspection, and repair of their wires and poles, to the end that travellers along the highway may not be injured by their appliances. ’ ’

In the case of Snyder v. Electrical Co. 43 W. Va. 661 [28 S. E. Rep. 733, 735; 39 L. R. A. 499; 64 Am. St. Rep. 922]; the court in the syllabus uses this language:

“There must be reasonable evidence of negligence But where the thing is shown under the management of the defendant or his servants,, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
“A high, if not the highest, degree of tare is exacted of operators of electricity, and, if a wire, charged with a deadly current of electricity, falls from its proper place of elevation above the street to the surface of the street, and there, by contact with a man lawfully passing along the highway, kills him with its current, the law raises a prima facie case of negligence. This presumption, however, is by no means final or conclusive, but may, in the absence of specific neglect connected with the incident, be repelled by evidence of a uniformly careful, prudent management, commensurate with the .dangerous character of the wire, and adequate to the safety of the public.”

Brannon, J., on page 664 says:

“Suppose there is no evidence of negligence on the part of the ■defendant, does the mere fact that the wire1 fell create a prima facie presumption of negligence, sufficient, in the absence of something appearing in the ease to repel that presumption, to support the action? This involves the rule or principle of res ipsa loquitur,— the thing itself speaks. A wire charged with a deadly current of electricity falls from its proper place of elevation above the street to the surface of the street, and there, by contact with a man lawfully passing along the highway, kills him with its current. Are we to presume that its fall came from some negligence of the owner, unless the circumstances of the ease or facts shown by him shall show that its fall is not attributable to his negligence, but from some defect which that reasonable care and prudence proper in the case of such deadly wire was unable to discover, or some accident beyond his control; in' other words, from inevitable accident? I answer that the law raises a prima facie case of negligence. ’ ’

In 2 Jaggard, Torts, page 864, the author says:

“A live wire, however, is exceedingly dangerous, so that proof of contact therewith, and consequent damages, makes it a complete' case of prima facie negligence, and throws the burden on the defendant to show that such wire was in the street without fault on his part. Generally, companies using electricity on lines along a street are charged with -the highest degree of care, having due reference to existing knowledge in the construction, inspection, and repair of their wires and poles, and in "the use of devices to guard against harm.”

Other authorities in harmony with the above are: Columbus & X. Ry. v. Webb, 12 Ohio St. 475, 496; Railway v. Shields, 47 Ohio St. 387 [24 N. E. Rep. 658; 8 L. R. A. 464; 21 Am. St. Rep. 840]; Western Union Tel. Co. v. State, 82 Md. 293 [33 Atl. Rep. 763; 31 L. R. A. 572; 51 Am. St. Rep. 464] ; Denver Consolidated Elec. Co. v. Simpson, 21 Colo. 371 [41 Pac. Rep. 499; 31 L. R. A. 566]; Western Union Tel Co. v. Thorn, 64 Fed. Rep. 287 [12 C. C. A. 104; 28 U. S. App. 123]; Leavenworth Coal Co. v. Ratchford, 5 Kan. App. 150 [48 Pac. Rep. 927].

Such being the law applicable to the case at bar, we think the court «charged it correctly, and it follows as a necessary sequence, that the ■court did not err in refusing defendant’s request, wherein the court was requested to charge. First, “You are instructed to bring a verdict for defendant,” and second, “If the court refuse to charge the foregoing, then the defendant requests the court to instruct the jury that the burden is on the plaintiff to prove that said wire was broken through which the current of electricity was carried from defendant’s wire through and to the hand of said child, but moreover it must appear from .the evidence that defendant company had knowledge of said broken wire and defective condition, and reasonable time had elapsed within which to repair the same.”

3. It is contended that this child was guilty of contributory negligence. It will not be necessary to spend time on this question. It is-conceded that the age of the child was seven years, which brings the case clearly within the rule laid down by our Supreme Court in the case of Lake E. & W. Ry. v. Mackey, 53 Ohio. St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640], wherein the court held that “A child of nine years of age is not guilty of negligence if he exercises that, degree of care which under like circumstances would reasonably be expected from one of his years and intelligence,” and that “Whether he used such care in a particular case is a question for the jury.”

We find no error in the record and the judgment is affirmed.

Douglass and Donahue, JJ., concur.


source: Caselaw Access Project

author: DUSTIN, J.

license: Public Domain

text:
    INHERITANCE TAX — CONSTITUTIONAL LAW — WILLS.
    [Darke (2nd) Circuit Court,
    December, 1904.]
    Sullivan, Dustin and Wilson, JJ.
    S. A. Hostetter et al., Exrs. v. State of Ohio.
    1. Applicability op Inheritance Tax Law. (Lan. R. L. 4053 et seq.; 97 O. L. 398) Depends on When Estate Vested, etc.
    Whether the inheritance tax law (Lan. R. L. 4053 et seq.; 97 O. L. 398) applies to the undistributed estate of a person who died testate prior to its enactment, depends upon when said estate vested under the provision of the will. Hence, where a will provides that “on final settlement of my estate (which was to-be deferred until after the death of the testator’s widow) all the rest and residue thereof to be divided and distributed and paid to my heirs at law in the same proportion that the same would have been paid to them if I had died without a will,” the words “heirs at law” mean the heirs at law at the time of the distribution; and where the distribution is thereby delayed for many years, and an inheritance tax law is enacted in the meantime, the shares of the heirs at law are subject to said tax.
    2. Inheritance Tax Law (Lan. R. L. 4053 et. seq.; 97 O. L. 398) not a Takinq-of Property Without Due Process of Law.
    The power vested in the probate court by Sec. 9 (Lan. R. L. 4061) of the inheritance tax law to order an appraisement of a decedent’s estate for the purpose of fixing the tax, without giving notice to the executor or- next of kin, does not render said act unconstitutional in that it takes property without due process of law, because Secs. 8 and 10-(Lan. R. L. 4060 and 4062) of said act provides for a review of all matters before tbe probate court, and also for an appeal, and, together with Lan. R. L. 9387 (R. S. 5848), provides “a day in court” for all who may consider themselves aggrieved.
    ERROR to Darke common pleas court.
    Anderson, Bowman & Anderson, for plaintiff in error:
    The court in construing this act, should give it a strict construction in favor of the estate. 27 Am. & Eng. Enc. Law (2 ed.) 340, and cases cited under note 3.
    This law was not in force at the time of testator’s death. The law in force at the time of his death should control and govern the disposition of his estate. This is well settled. 27 Am. & Eng. Enc. Law (2 ed.) 341; Howe v. Howe, 179 Mass. 546 [61 N. E. Rep. 225; 55 L. R. A. 626]; Provident Hospital & Training Sch. Assn. v. People, 198 Ill. 495 [64 N. E. Rep. 1031].
    The act in specific terms was intended to act prospectively. There is nothing in its terms that would indicate that it was to have a retrospective operation. In order to operate upon this estate, the act would have to have a retrospective operation. To so operate, the act should so declare in specific terms. Howe v. Howe, 179 Mass. 546 [61 N. E. Rep. 225; 55 L. R. A. 626]; Provident Hospital &' Training Sch. Assn, v. People, 198 Ill. 495 [64 N. E. Rep. 1031]; Lambard, Appeal of, 88 Me. 587 [34 Atl. Rep. 530].
    If said act was intended to have a retrospective operation, it is violative of Sec. 28, Art. 2 of the constitution. The estate and interest of the beneficiaries vested at the time of the death of the testator. They had such an estate and interest therein, that they could have assigned the same, or the same could have been reached by their creditors. The law favors the immediate vesting of estates in remainder, although the possession may be postponed until some future contingency. Linton v. Laycock, 33 Ohio St. 128; Loring v. Carnes, 148 Mass. 223 [19 N. E. Rep. 343]; Doe v. Considine, 4 O. F. D. 94; [73 U. S. (6 Wall.) 485; 18 L. Ed. 869]; Field v. Peoples, 180 Ill. 376, 381 [54 N. E. Rep. 304]; Scott v. West, 63 Wis. 566 [24 N. W. Rep. 161; 25 N. W. Rep. 18]; Hawkins, Wills 71, 72; 2 Jarman, Wills 707, 710; Barkman v. Hain, 5 Dec. 474 (5 N. P. 508); Moore v. Heraneourt, 8 Cire. Dec. 826 (10 R. 420); Union Savings & Tr. Co. v. Darr, 10 Cire. Dee. 554 (19 R. 497) ; Bolton v. Bank, 50 Ohio St. 290 [33 N. E. Rep. 1115]; Richey v. Johnson, 30 Ohio St. 288.
    The will fixes the testator’s death as the landmark, and as the date or time to ascertain the beneficiaries. In other words, the beneficiaries under his will are to be determined as of that date.

      The beneficiaries named in the will of said deceased testator having a vested interest in said estate at the time of the passage of said act, the same cannot be affected thereby. Rairden v. Holden, 15 Ohio St. 207; Hamilton Co. (Comrs.) v. Rosche, 50 Ohio St. 108 [33 N. E. Rep. 408; 40 Am. St. Rep. 653]; Jenney v. Gray, 5 Ohio St. 45, 48; Qnigley v. Graham, 18 Ohio St. 42, 45; Gilpin v. Williams, 25 Ohio St. 283, 296, 297; Kent v. Bentley, 6 Circ. Dec. 457 (10 R. 132, 137) ; Caruthers v. Tarvin, 8 Dec. Re. 344 (7 Bull. 127).
    Section 9 of the act giving the probate court authority to cause an appraisement of the property at its actual value, for the purpose of ascertaining the amount of the succession tax without making provision for notice to the executors, or to the next of kin of the estate, confers an arbitrary power upon the probate court, and the appraisers appointed by, him. This would render the act unconstitutional. Ferry v. Campbell, 110 Iowa 290 [81 N. W. Rep. 604; 50 L. R. A. 92].
    The increase in the estate is not covered by the provision of this act. Yassar, In re, 127 N. Y, 1 [27 N. E. Rep. 394].
    Robeson & Yount, for defendant in error:
    The property now in the hands of the executors, to be by them distributed either by deed or otherwise, is subject to the direct inheritance tax under the act of April 25, 1904 (97 O. L. 398); Carpenter v. Commonwealth, 58 U. S. (17 How.) 456 [15 L. Ed. 127; Orr v. Gilman, 183 U. S. 278 [22 Sup. Ct. Rep. 213; 46 L. Ed. 196]; Ferry v. Campbell, 110 Iowa 290 [81 N. W. Rep. 604; 50 L. R. A. 92]; Zickler v. Bank & Tr. Co. 104 Tenn. 277 [57 S. W. Rep. 341]; State v. Funnell, 20 Mont. 299 [51 Pac. Rep. 267; 39 L. R. A. 170]; Wallace v. Myers, 3,8 Fed. Rep. 184; State v. Ferris, 53 Ohio St. 314 [41 N. E. Rep. 579; 30 L. R. A. 218].
   DUSTIN, J.

This case was submitted to the common pleas court upon an agreed statement of facts, to determine whether or not plaintiffs in error were liable to pay an inheritance tax on certain property devised and bequeathed by the will of David Eury, who died some twenty years ago, but whose estate was for the most part, undistributed and in the hands of his executors at the time of the passage of the inheritance tax law, April 25, 1904. (Lan. R. L. 4053 et seq.; 97 O. L. 398.)

AgReed . Statement op Facts.

Under the above and foregoing agreement of submission, the following facts are agreed to:

1. That on April —, 1884, one, David Enry, resident of Darke •cpunty, Ohio, died, leaving a will whereby he appointed S.. A. Hostetter and David W. Smith his executors thereof; which will was, on May 12, 1884, dnly admitted to probate and record in the probate conrt of ■said Darke county, Ohio, and letters testamentary were, on May 14, 1884, by said court duly issued to said S. A. Hostetter and David W. Smith, who thereupon duly qualified and are now, and have been ever «ince their said appointment and qualification, engaged in the discharge of their duties as such executors under said last will and testament of said deceased.

2. That said last will and testament of said David Eury, deceased, so admitted to probate and record, is in the words and figures following, to wit:

“I, David. Eury, of the township of York, in the county of Darke, and state of Ohio, do hereby make, ordain and publish this my last will and testament in manner and form following, that is to say:
“First. I give and devise to my executors hereinafter named, in trust, all and singular the lands and real estate of which I may be the owner at the time of my decease, and is not herein specifically otherwise ■devised; and also in their care all my personal estate not herein otherwise disposed of, to be by them, and the survivors of them, held to and for the uses, purposes and trusts hereinafter set forth, viz: Out of my personal estate which may come to their hands, to pay my just, debts, funeral expenses and the costs and expenses of the settlement of my «aid estate. I authorize them to allow my wife, Sarah Eury, during her natural life, to have, hold, possess and enjoy the following described real estate, viz: The southwest quarter of section eight (8), the northwest ■quarter of section seventeen (17), of township eleven (11), range three (3) east; also the east half of the southeast quarter of section seventeen (17), as aforesaid, township eleven (11), range three (3) east, — she to enjoy during her life the issues, rents and profits of said lands, to be chargeable with all state, county, township and other taxes and assessments thereon, except extraordinary assessments for ditch and road improvements; — she is not to waste or destroy timber or anything off of the lands, but to keep it in ordinary repair.
“At decease of my said wife, my executors to convey to the then ■surviving children of Andrew Kershner, deceased, and to the issue of such of his children as may then be dead, as the parent would have if living, the undivided one-half of the southwest quarter of section eight (8), township eleven (11), range three (3) east in York township, Darke county, Ohio, in fee simple in equal rights and in like manner and time to convey to Sarah Elizabeth Bichards for life, and after her death to her children in fee simple, the undivided half of the southwest, quarter of section eight (8), township eleven (11), range three (3) east in York township, Darke county, Ohio; if any of her children then, be dead and left issue, then living they have the share their parent would-be entitled if living.
“All other lands which I may own at the time of my death, and. not herein specified otherwise, I authorize my executors to Sell and make-deeds of conveyance to purchasers, and after the death of my wife to sell all lands which then belong to my estate, except the southwest quarter of section eight (8), township eleven (11), range three (3) east, which, is otherwise specified.
“My executors shall put all moneys that come to their hands in safe-loans, secured by real estate, my wife to have all such interest she needs, after the taxes be paid.
“My wife to have all household and kitchen furniture, stock and utensils without appraisement.
“After the death of my wife, out of the moneys in my executors’ hands arising from my estate, I direct my said executors to pay the-following specific legacies, viz: To each of the children of Delila Johnson, or afterwards Delila Lime, the sum of six hundred dollars ($600).. If any of her five children should have died before this, and left children,, they to have the share their parent would have been entitled to if living. To Lidia Margaret Miller, daughter of Sarah E. Bertram, three hundred: dollars ($300); and to Sarah E. Bertram twelve hundred dollars ($1,200); and to David W. Smith, fifteen hundred dollars ($1,500) ; and. to each of the living children and to the issue of any that may be dead, of my brothers, Jesse Eury and Noah Eury, fifteen hundred dollars-($1,500). And on final settlement of my estate all the rest and residue-thereof to be divided and distributed and paid to my heirs-at-law in the-Bame proportion that the same would have been paid to them if I had. died without a will. All of the former legacies and specific and-residuary devises to be paid after the death of my wife.
“I hereby nominate and appoint David W. Smith and S. A.. Hostetter, executors of this will, and hereby fully empower them and' the survivors of them, to, adjust and settle all and any of my business, controversies that may arise effecting my estate; all claims due to or from the same as fully as I might do if I was living, and also to execute-any and all deeds and conveyances requisite and proper and all other-instruments whatever which may be required to fully execute and carry into effect the foregoing will, and I hereby revoke and annul all former wills by me made.
“In faith whereof, I have hereunto set my hand and seal on this-,, the fifteenth day of June, 1883.
“David Euby, (Seal) ”
“Executed by the testator as for his last will and testament in our-presence and by us subscribed as attesting witnesses in his presence.
“S. S. COLLINS,
“JOHN COPPESS.”'

Beeord of Wills, “D,” page 471.

3. That said Sarah Eury, widow of said David Eury, deceased",died on July 16, a. d. 1904.

4. That after the payment of all debts of said deceased, funeral expenses, those of last sickness, expenses of administration and the cost of a family monument, the net personal estate left by said deceased amounted at the time of his death, to about thirty-three thousand dollars ($33,000).

5. That pursuant to said last will and testament of said deceased, said executors thereof have held, invested, managed and controlled said personal estate so left by said deceased, and the same has increased under their management, and amounted on July 16, a. d. 1904, the date of the death of said widow of said deceased, to about eighty thousand dollars ($80,000); and which sum is now held by said executors for distribution under said last will and testament of said deceased.

6. That the real estate of said deceased, which said executors are required to sell, and to distribute, the proceeds thereof under said last will and testament, is of the value of about eighteen thousand dollars ($18,000).

7. That one of the legatees and devisees under said last .will and testament, is entitled to receive about fifteen thousand dollars ($15,000) of said moneys of said estate so to be distributed by said executors, and that several more of said legatees and devisees’ under said last will and testament will each receive considerable more than three thousand dollars ($3,000) on such distribution.

8. That said southwest - quarter of section eight (8), township eleven (11), of range three' (3) east in York township, Darke county, Ohio, specifically devised in said last will and testament is of the value of about seventy-five hundred dollars ($7,500).

9. That said David Eury died leaving no children or their descendants him surviving; that said legatees and beneficiaries under said will are collateral kindred of said decedent.

Upon said foregoing facts, the parties above named, pray the judgment of the court whether said estate for distribution in the hands of said executors, so derived as aforesaid, is subject to the direct inheritance tax under the act of the general assembly of the state of Ohio, passed and approved April 25, 1904, and entitled “An act to impose a tax upon the right to succeed to, or inherit, property.” Laning R. L. 4053 et. seq. (97 O. L. 398-400).

The common pleas court found that the act applies to the personal estate in the hands of the executors for distribution, and to the proceeds of real estate to be sold by them under the. provisions of the will, but that it does not apply to the real estate specifically devised by said will.

The executors excepted and prosecute error to so much of the decree as applies to the undistributed personalty and unsold realty; and the state files a cross petition in error as to so much of the decree as applies to the specifically devised realty.

It is claimed on behalf of the executors:

First. That the law in force at the time of the death of Eury applies.

Second. That the act in question contains nothing to indicate that a retrospective operation was intended.

Third. That if so intended, it would violate Sec. 28, Art. 2 of the constitution of Ohio, which provides that:

‘ ‘ The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.”

Fourth. That the beneficiaries named in the will had a vested interest in the estate at the time of the passage of the act in question, and cannot be affected thereby.

Finally, it is claimed that the act is unconstitutional because it gives the probate court authority to cause an appraisement of the property at its actual value without providing for notice to the executors or next of kin.

It is first necessary to construe the will to determine when the estate vested in the beneficiaries.

The intention of the testator was, we think, manifestly, to keep the estate intact until his widow’s death; and he therefore devised and bequeathed everything to his executors excepting household goods and furniture, etc., thereby creating in them a trust to continue during the life of his widow and until final distribution.

The executors proceeded upon that view and have rendered a good account of their stewardship, the personal estate increasing from' $33,000 to $80,000.

This large sum is to be distributed among certain beneficiaries who could not with definiteness be ascertained or named, prior to the death of the testator’s widow.

Under such circumstances could the several interests of the legatees be said to have vested prior to that time? A person is said to be vested with an estate when he has an immediate fixed right therein, of present or future enjoyment.

Now, the language of the will is:

“After the death of my wife, out of the moneys ih my executors’ hands arising from my estate I direct my said executors to pay the following specific legacies.” (Then follow certain legacies too small to be considered in applying the inheritance tax.)
“And on final settlement of my estate all the rest and residue thereof to be divided and distributed and paid to my heirs-at-law in the same proportion that the same would have been paid to them if I had died without a will. All of the former legacies both specific and residuary' to be paid after the death of my wife.”

We think the heirs-at-law meant by the above are the then heirs-at-law, viz., at the time of the authorized distribution.

This view is not in conflict with Linton v. Laycock, 33 Ohio St. 128, where in the fifth syllabus the court recognizes the “rule vesting legacies —bequeathed only by a direction to pay or divide — at the time fixed for the payment or division.”

The case of Richey v. Johnson, 30 Ohio St. 288, seems to be in point. It was there held that: “The gift implied in the direction to divide the proceeds between the designated parties, is a gift of personalty; but as the fund could not be raised till the death of the widow, and was to be divided between persons then living, the interest of the legatees therein remained contingent till that time.”

See also Williams, Executors 1232 and eases there noted.

The authorities cited in behalf of the executors are either cases where the interest to vest at the death of the testator is clear, or where the property devised was real estate, in which it is conceded in Linton v. Laycock, supra, that the rule above announced does not apply.

For the last mentioned reason, we affirm the holding of the common pleas court as to the specifically devised real estate.

As to the point that the law is unconstitutional because Sec. 9 thereof gives the probate court power to order an appraisement (for the purpose of fixing the tax) without giving notice to executors or next of kin, we think this is not taking property without due' process of law, because Secs. 8 and 10 provide for a review of all matters before the probate court and for appeal. These, together with Lan. R. L. 9387 (R. S. 5848), give ample remedy, and provide “a day in court” for all who may consider themselves aggrieved.

With these views as to the time of the vesting of the legacies, and the provision of the act in question as to appraisement, it' is not necessary to consider the other questions raised in the ease.

The decree of the common pleas court will therefore be affirmed.

Sullivan and Wilson, JJ., concur.


author: COOK, J.

text:
    ERROR — TIME—TRIAL.
    [Mahoning (7th) Circuit Court,
    October Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Maggie McCallen v. Lake Shore & M. S. Ry.
    ¡Withdrawing Evidence From Jury — When Petition in Error Must be Filed.
    Where the court withdraws the evidence from the jury and dismisses the petition of plaintiff for the reason that there is no evidence to support the claim of plaintiff and upon the same day a motion for a new trial is made which is overruled at a subsequent term of the court; a petition in error which is filed more than four months from the rendition of the judgment dismissing the petition of plaintiff but within four months from the overruling of the motion for a new trial is too late and the proceeding in error should be dismissed.
    Error.
    J. H. Kennedy and W. S. Anderson & Son, for plaintiff in error.
    Arrel, McVey & Taylor, for defendant in error.
   COOK, J.

The question for consideration in this case is the motion of the defendant in error to dismiss the proceeding in error for the reason that the petition in error was not filed in time.

The action below was for damages for negligently causing the death of plaintiff’s husband in the state of Pennsylvania and is brought under favor of the statute of that state.

At the conclusion of plaintiff’s evidence, upon motion of defendant, the court withdrew the evidence from the jury, for the reason that there was no evidence to support the claim of plaintiff, and rendered a ’judgment dismissing the petition of plaintiff at her costs, awarding execution therefor. Upon the same day the judgment ]vas rendered, a motion for a new trial was duly filed; the hearing of the same was continued until the next term of the court and at the next term of the court the motion for a new trial was overruled but no further order or judgment was rendered.

The petition in error was filed within four months from the overruling of the motion for a new trial, but more than four months after the rendition and entering of the judgment dismissing the petition of plaintiff and for costs against her.

Laning R. L. 10315 (R. S. 6723) provides:

“No proceedings to reverse, vacate or modify a judgment or final •order shall be commenced, unless within four months after the rendition of the judgment or the making of the final order complained of: * * *.”

In the case of Dowty v. Pepple, 58 Ohio St. 395 [50 N. E. Rep. 923], which was decided when the period of limitation was sis months, it was held:

“The sis months within which error proceedings may be commenced under Lan. R. L. 10315 (R. S. 6723), begins to run from the date of the judgment sought to be reversed, and not from the overruling of the motion for new trial. Nor is the case different although the reason for delay in passing upon the motion for a new trial was, that the trial judge, was a nonresident of the county and absent therefrom until after the expiration of the six months.”

The case of Dowty v. Pepple, supra, was cried by the judge without the intervention of a jury; a motion for a new trial was heard and submitted to the court within a few days after the rendition of the judgment, but by reason of the continuous absence of the judge from the ■court the motion was not passed upon until after the expiration of six months from the rendition of the judgment.

The opinion is by the court and the case of Young v. Shallenberger, 53 Ohio St. 291 [41 N. E. Rep. 518], in y'hich it was held, page 302, that ■“The statute has declared, in explicit terms, that ‘no proceeding to reverse a judgment shall be commenced unless within six months after -the rendition of the judgment; ’ and the court is powerless to enlarge its terms, if it desired to do so,” was approved.

In the case under consideration there was no verdict of a jury, but the finding was by thé court, that there was no evidence to support plaintiff’s petition. Therefore the petition of plaintiff was dismissed at her costs. Had there been a direction of the court to the jury to return a verdict for defendant, then, under Lan. R. L. 8842 (R. S. 5326), where the motion for a new trial was filed within three days, as was done in this ease, no judgment could be rendered or entered until the motion was passed upon which would make a different case.

It therefore follows that the petition in error must be dismissed at ■costs of plaintiff in error.

Laubie and Burrows, JJ., concur.


author: HULL, J.

text:
    HOMICIDE — EVIDENCE—CHARGE TO JURY.
    [Lucas (6th) Circuit Court,
    December 2, 1904.]
    Parker, Hull and Haynes, JJ.
    John Munday v. State of Ohio.
    '1. In Homicide Trial, Proof That Defendant Purposely Inflicted the Wound Which Caused the Death Wm not Justify Conviction of Murder in Second Deoeee. Thebe Must Be an Intent to Kill.
    In a trial for murder, it must be affirmatively proved that the accused “purposely” killed the deceased; it is not sufficient to show that he purposely inflicted the wound which caused the death, or purposely struck the deceased, from which stroke the deceased died. Hence, it is error to charge the jury to the effect that if the proof shows that defendant “purposely” committed an act, the natural and probable consequence of which was to, and did cause the death of the deceased, evidence on behalf of defendant tending to show that he did not in fact intend to kill the deceased, is immaterial.
    2. No Conclusive Presumption That One Intended to Kill, Because He Purposely Struck a Blow Causing Death.
    The presumption that one intended the natural and probable consequences of his own act,; cannot be extended in its application to justify a charge to the jury, under an indictment for murder in the second degree, that defendant is presumed to have intended to kill the deceased because he purposely inflicted the act which caused the death.
    3. Charge Excluding Defendant Prom Reducing Grade of Crime From Murder to Manslaughter Is Error.
    In such prosecution where it is claimed that defendant acted in self-defense, but does not admit any intent to 'kill, a charge that “no other ground of justification or excuse than self-defense is claimed by the defendant, and no other will be considered by you,” tends to exclude the right of the defendant to reduce the grade of the offense charged from murder in the second degree to manslaughter, and is prejudicial error.
    ERROR to Lucas common pleas court.
    J. R. W. Cooper and Frank Mulholland, for plaintiff in error.
    W. G. Ullery, prosecuting attorney, and J. S. Martin, assistant • prosecuting attorney, for defendant in error.
   HULL, J.

The plaintiff in error was indicted for the crime of murder in the second degree, and was convicted of that offense by the jury. A motion for a new trial being overruled, he was sentenced to imprisonment in the penitentiary for life. A petition in error was filed in this court, to reverse that judgment.

John Munday, in the fall of 1889, was married to Lillie Munday, the person he was charged with killing! They were married at the city of Detroit. The killing is alleged to have occurred on January 13, 1893, in the city of Toledo.

It is claimed that the court erred in its charge to the jury; that the verdict was against the weight of the evidence; and that, therefore the court erred in overruling the motion for a new trial.

As I have said, Munday was married to Lillie Munday in Detroit in 1889. After their marriage, they moved to Toledo and lived on Wisconsin street, he having two or three children by a former wife and one by Lillie Munday. A day or so after January 15, 1893, now over eleven years ago, it was noticed by the neighbors and the relatives of Mrs. Munday that she had disappeared from their home on Wisconsin street. Her mother and some of the neighbors came to the house and inquired where she was, and Munday told them she had gone away— they had been separated for a short time, prior to this — he told them she had gone away, and he did not know where she was. Soon after that he, with his children left the house and moved to Detroit, and went to other places and finally to St. Louis.

In June, 1895, nearly two years and a half after Mrs. Munday had disappeared, her body was found under the house where they had lived on Wisconsin street, in Toledo. It had decomposed so that only a portion of the skin on the face and neck remained; it was identified fully by those who knew her and was examined by physicians. The only mark of violence that could be discovered by the physicians at that time, if this was a mark of violence, was a small hole on one side of her neck through the skin which still remained, about the size of an ordinary lead pencil, or a man’s little finger, or a thirty-eight caliber bullet, as one physician testified; but no one could tell how the hole had been made or whether the skin had simply decomposed; the flesh inside was all gone. The body had been put under the house through the floor, the boards being lifted in a closet.

A warrant was issued for Munday and soon after that he was arrested in St. Louis and brought back to Toledo, in the same month, June, 1895. In the following August, he escaped from the jail of Lucas county and fled, and, lived at various places, and married another woman; and, finally in the year 1903, he was found in the city of St. Louis, working on the exposition buildings, was arrested and brought back to Toledo. He had been indicted for murder in the second degree. The ease was tried in the court of common pleas at the April term 1903 — ten years after Mrs. Munday disappeared. At the trial of the case the evidence offered by the state showed the finding of the body under the house, the marks upon it — it had the mark upon it which I have referred to — and there was some testimony as to the statements of Munday, that is, his statement that she had gone away and that he did not know where she was, and the evidence of an officer, by the name of Durian, that Munday had said to him that he had had a quarrel with his wife and a struggle and that in the struggle he had struck her with the handle of a carving knife; and that she had died; that he had tried to resuscitate her, but could not; that he had come near to the police station two or three times with the intention of giving himself up, but his courage failed and he ran away. That statement, it was claimed, was made at the time he was first arrested ten years before. This is a brief statement of the state’s case; some elements I have probably left out.

The only witness who claims to have been present at the time of Mrs. Munday’s death was the defendant himself. He went on the witness' stand and his claim was that whatever he did was done for the purpose of defending himself. He claimed that they had various quarrels ; that she was a woman of violent temper; and he was corroborated in this to some extent. On this occasion Munday claimed she was about to leave and take with her their little girl, who was then a small child; that he undertook to prevent her taking the girl; that he began taking a coat off the child; that thereupon she attacked him first with the broom; that he took it away from her and threw it out of the room; and at the same time put out the two small children who were in the room with them — they were in the dining room — and closed the door; that thereupon she picked, up a carving knife which was on the dining room table and threatened to kill him, “to fix him,” “to run the knife through him,” and used other language of that kind. Munday claimed that he ran around the dining room table, she pursuing him; that she finally gained on him, with the carving knife in her hand, which he says was a long knife, a knife with a long blade and a long pointed handle. When she came near him he claims that he whirled, and, for the purpose of protecting himself, struck her on the breast with his hand or fist and knocked her down. He says she was still raving, as he put it, in a raging, angry, threatening manner, with the knife still in her hand. In order to get the knife away from her, to make her let go of the knife, he said he took hold of her hand; that the knife which she held in her right hand was transferred to the other hand; she was still threatening to kill him; that in the struggle with her he got the knife away from her by rubbing his knuckles against her fingers, — the fingers of the hand which held the knife. He said also that in the struggle he took hold of her throat and choked her some.

He says that he finally succeeded in getting the knife away from her. Soon after that, he says, she became unconscious. Why she be^ ■came 111100118010x18 be claims be does not know. He laid ber upon tbe ■couch in tbe room; tbe only blood that he says be saw was at tbe back ■of her bead. He says be tried to resuscitate ber with camphor, and put bis bands on tbe back of ber bead to staunch tbe blood; but be was unable to resuscitate ber. In tbe course of an hour be found she was ■dead, and be says, that be took tbe body and laid it on tbe bed in tbe front room of tbe bouse; that be went down town intending to report it to tbe police, but, be said bis courage failed and be did not.

Tbe door of tbe front room where the body lay, was locked. He told tbe small children that Mrs. Munday bad gone away. Tbe body remained there, according to bis statement, until tbe next night at midnight, when be concluded to flee; and be took up the boards in tbe floor of a closet and put the body under the bouse — tbe bouse stood on stone piers and was surrounded with boards; there was no cellar under tbe bouse. Soon after that, a day or two after, Munday went to Detroit, ■and after that came bis experiences and wanderings, as I have already ¡stated, until be was finally arrested and put on trial.

As stated, bis claim is, that whatever be did, was done in self-defense. He does not admit that he intended to kill his wife,- and if what be says is true, be probably did not, at least, be does not admit "that be did. He denies having used any weapon upon ber or any kind ■of violence, except as before stated. He claims that in tbe struggle she cut him on one of his arms near tbe wrist.

It is urged that tbe court erred in its charge to tbe jury; and especially in tbe instructions as to what would be sufficient to establish the crime of murder in tbe second degree. This crime is defined in Lan. R. L. 10406 (R. S. 6810) as follows:

“Whoever purposely and maliciously, except as provided in the last two sections, bills another, is guilty of murder in tbe second degree, and shall be imprisoned in tbe penitentiary during life. ’ ’

It will be observed by reading tbe statute that to constitute this ■offense, the killing must have been done purposely and' maliciously, and,under tbe law of this state, tbe element of purpose and intent must be proven and established by tbe state beyond a reasonable doubt. It is as much an element of tbe crime, as tbe killing itself. It is not all unlawful homicides that are murder, either in the first or second ■degree. Manslaughter is defined in Lan. R. L. 10407 (R. S. 6811) as follows:

“Whoever unlawfully kills another, except as provided in tbe last three sections, is guilty of manslaughter, and shall be imprisoned in ftbe penitentiary not more than twenty years nor less than one year.”

The burden is upon tbe state to establish every material element of the crime charged. As appears on page 50 of the record, the court charged the jury:

‘ ‘ The burden is also upon the state to. satisfy you beyond a reasonable doubt that the said Lillie Munday died as the direct and probable result of an act purposely inflicted upon her by the said defendant. The word ‘purposely/ as used in the statute to characterize the act, has. no relation to the motive with which the act is committed. Motive is. no element of homicide, and need not be proved. ‘Purposely’ means, on purpose, intentionally, and as used in this connection relates to the intent with which the act is done. That is to say, the act which results in the death of another must have been done with the intent to kill. The intent with which an act is done is to be determined from the nature of the act, the circumstances surrounding and attending it, and all the facts of each particular case. ’ ’

So far no special complaint is made of the instruction, and it seems to state the law correctly. The court then continues:

“It constitutes no excuse or defense for one charged with the commission of homicide, to say that he did not intend to kill his victim, for every person is presumed to intend the natural and probable consequences of every act voluntarily and wilfully done by him.”
“Therefore, if you are satisfied beyond a reasonable doubt that the said defendant purposely inflicted upon said Lillie Munday an act, the natural and probable consequences of which was to, and which actually did cause her death, it is no justification, excuse or defense for him to say that, in doing such act, he did not intend to kill the one against whom it was exerted.”

So that the court charged in substance, in the last paragraph which I have read, that if the defendant purposely inflicted upon Lillie Mun-day an act, the probable consequence of which was to cause her death and which actually did cause her death, it was no justification or excuse or defense for him to say that in the doing of it he did not intend to kill the one against whom it was exerted.

As appears from the statute, and as has been held by the Supreme Court of this state, one of the necessary elements of the crime of murder in the second degree is an intent to kill at the time the fatal blow is struck. There must be an intent and purpose on the part of the defendant to take the life of the person assailed. This is to be shown by the evidence and from all the facts and circumstances of the case. If he uses a deadly weapon, that may be strong evidence of the intent; if he shoots or stabs, that may be strong evidence of an intent and purpose to kill; but one defense which the defendant may make to the charge of murder, either in the first or second degree is that he did not in fact intend or purpose to kill the person whose death has been caused.

It is the murderous intent that gives to the offense the grade of murder rather than manslaughter; and the defendant may show all the facts and circumstances and leave it to the jury to say whether he intended to kill or not. He may be asked — I do not think that was done in this case — whether he' intended to kill or not, and he may say, if it be true, that he did not. And the trend of Munday’s testimony in this case was that he did not intend to kill his wife. He had, he claims, in his hand, after he had taken it from his wife, a deadly weapon which he says he did not use. He denies the use of any weapon upon her, or doing anything except to strike her with his fist, and what he did in the struggle to get the knife away from her; so the question of intent was fairly in the case, whether he struck or did what he did with intent to kill her. As is said by some authorities, where the killing is wholly unexplained, where there is no evidence except the fact that one has killed another, the presumption is, that it was done intentionally and is murder in the second degree. But that rule does not prevail where the facts and circumstances are.laid before -the jury by one witness or more who claims to have been present at the time of the killing. In Jones v. State, 51 Ohio St. 331 [38 N. E. Rep. 79], in the fourth paragraph of the syllabus, this is said:

“An intention to kill is an essential element of the crime of murder in this state, and must be established beyond a reasonable doubt, to authorize a verdict of murder in the first or séeond degree. This rule is not changed by reason of the accused contending, and introducing evidence tending to prove, that the homicide was accidental. The legal effect of such evidence being, simply, to controvert an inference of an intent to kill, which may arise from the evidence introduced by the state. ’ ’

On page 341 of the opinion delivered by Judge Bradbury, this is said:

“The statutes of Ohio make an intent to kill an essential ingredient of .the crime of murder, in either degree, except in the case of death following from maliciously placing obstructions on a railroad track, etc. Sections 6808, 6809, 6810 Rev. Stat. The intent or purpose, to kill, being an essential constituent of the offense, should be averred and proven. Fouts v. State, 8 Ohio St. 98; Kain v. State, 8 Ohio St. 306; Hagan v. State, 10 Ohio St. 459. This purpose, like every other material averment oí the indictment, is put in issue by the plea of not guilty and to authorize a conviction must be proven beyond a reasonable doubt.”

And on page 343:

“We are not called upon at this time to declare what presumptions might arise, and their effect, from the mere fact that one person had killed another, wholly unexplained by any evidence of attending circumstances; for, in the case before us, the homicide was committed in the presence of a number of persons, each of whom gave to the jury his version of the affair.”

In this case a father was indicted for murder in the first degree for killing his son, was twice convicted in the common pleas court and the judgment reversed in the circuit court, and this was the third judgment that was then before the Supreme Court. Jones had a gun, which he had taken with him when he left his house to go, as he claimed, to rescue his son from a bawdy house and the society of bad women, and he shot and killed his son with this deadly weapon. He claimed that he did it accidentally; that he did not intend to shoot his son; and the Supreme Court held that putting in that defense or plea that he did it accidentally was only controverting -or meeting the case of the state, upon which was the burden of establishing beyond a reasonable doubt that he intended and purposed to kill his son.

The instruction to the jury in the ease at bar that “if they found that the defendant purposely inflicted upon the said Lillie Munday an act, the natural and probable consequence of which was to, and which actually did cause her death, it is no justification, excuse or defense for him to say that, in doing such act, he did not intend to kill the one against whom it was exerted” etc., was erroneous. It is not the act that must be purposely done, but there must be the purpose to kill. This question has been passed upon we think by the Supreme Court in Hagan v. State, 10 Ohio St. 459. The court say:

“An averment that the accused ‘purposely and of deliberate and premeditated malice’ ‘did strike’ the deceased, thereby inflicting a mortal wound of which the deceased afterward died, does not satisfy the requirements of the law; for though the accused may have purposely and maliciously struck the deceased, it does not follow, that the stroke was given with a design to produce death.”

Two cases in point upon this question are: Fouts v. State, 8 Ohio St. 98, where it is said :

“Intent or purpose to kill, although not essential to constitute murder at common law, is made one of tbe ingredients of tbe crime of murder by tbe statute of Obio. ’ ’

And Kain v. State, 8 Ohio St. 306, 307, where tbe court say:

“In an indictment for murder, under tbe statute of tbis state, it is necessary to aver tbe purpose to kill; sucb purpose being an essential element of tbe crime, as defined by tbe statute. ’ ’
“An averment, merely, that tbe accused ‘purposely and of deliberate and premeditated malice, did strike, penetrate and wound’ the deceased, ‘giving to him * * * one mortal wound,’ and that the .'deceased, ‘of tbe mortal wound aforesaid ■ died,’ is not sufficient; the ‘purpose’ being predicated of tbe assault and wounding, but not of the killing.”

As tbe court say in tbis case our statute changes the rule of common law. Tbis instruction of tbe trial court was incorrect.

In Bailus v. State, 8 Circ. Dec. 526 (16 R. 226), which was decided by tbis court in 1898, tbis question is discussed. Bailus killed a man in a bouse of prostitution in tbis city, with a knife. In tbe struggle be stabbed him, inflicting wounds from which be died. The court charged tbe jury as follows:

“ ‘When one person assaults another violently with a dangerous weapon, likely to kill, and not in self-defense, or in defense of habitation, property or person, and not in a sudden beat of passion caused by provocation apparently sufficient to make tbe passion irresistible or involuntary, and the life of tbe party thus assaulted is destroyed in consequence of sucb assault, then tbe legal and natural presumption is that death or great bodily harm was intended, and in sucb case tbe law implied malice, and sucb killing would be murder.’ ”

Tbe court say, Judge Parker delivering tbe opinion, page 535:

“We think that this language is subject to tbe construction that, where tbe circumstances of death, produced by tbe use of a deadly weapon, are sucb as to raise a presumption that either death or great bodily harm was intended, the killing would be murder; and tbis because a deadly weapon was used; indeed we do not think tbis is fairly open to any other construction. We are of tbe opinion that tbis is erroneous. A jury might find from tbe circumstances in a given case, where death resulted from tbe use of a deadly weapon, that the intent of a person using sucb weapon was to wound and not to kill. Manifestly it is error to charge that in sucb a case tbe killing would be murder.”

This case was a stronger one than the case at bar, for in Bailus v. State, supra, a knife was used by the defendant, with which he stabbed the deceased to the heart.

Another case decided by this court is the case of Bennett v. State, 4 Circ. Dec. 129 (10 R. 84). The plaintiff; in error killed a man in a saloon in Sandusky, also, by stabbing him, as in Bailus v. State, supra. He claimed he did it in self-defense. He was found guilty of murder in the second degreé. The court say in the syllabus in that case:

“To authorize a verdict of murder in the second degree, it must be affirmatively shown by the state, that there was at the time the blow was given, an intent existing in the mind of the accused to kill the person whose life was taken; and that he not only delivered the blow with intent to kill, but did it maliciously.”

The opinion of the court was delivered by Judge Haynes, and on page 139, he says:

“.The burden of proof is upon the state to show from all the circumstances, clearly and beyond a reasonable doubt that there was a purpose in the mind of this young man to kill — a formed purpose as much as though he said to himself: ‘I strike you now, and I do it with the intention of killing you.’ ”

Another portion of the charge complained of is found on page 51 of the record, where the court said:

“We now come to the consideration of the words, ‘legal justification or excuse, ’ as applied to the claim made on behalf of the defendant that, if that which he did resulted in the death of the said Lillie Mun-day, he was justified therein, and is excused from the consequences thereof, because that which he did do was done in self-defense. No other ground of justification or excuse is claimed by the defendant, and no other will be considered by you. ’ ’

It may be true and probably was true that the only complete defense offered by the defendant, or what would be regarded as a full defense was that he did this in self-defense; but yet there was in the case all the time the question what grade of crime he was guilty of, if any; whether guilty of murder in the second degree, or guilty' of manslaughter, if guilty of homicide of any degree, and we are of the opinion that this instruction standing unexplained by itself was misleading and ought not to have been given to the jury. It would impress them with the idea that the only question in the case that might be considered to reduce the grade ■ of the offense' was, whether he did what he did in self-defense. The court said to the jury “No other ground of justification or excuse is claimed by the defendant, and no ■other will be considered by you.” While, as I say the only complete ■and full defense or excuse that the defendant made was that of self-defense, this instruction seems to exclude the right of the defendant, if he could, to reduce the grade of the offense charged against him from murder in the second degree to manslaughter by showing that he did not intend to kill. We are of the opinion that this charge should not have been given to the jury in this form.

The court said to the jury as found on page 52 of the record:

“The defendant is guilty of murder in the second degree, if you are satisfied beyond a reasonable doubt:
“First. That on or about January 5,T893, in the county of Lucas and state of Ohio, the defendant inflicted an act upon the said Lillie Munday which resulted as a direct and proximate cause in producing or accelerating her death.”
“Second. That.said act was intentionally inflicted by the said defendant, and was such that the natural and probable consequence thereof was to and actually did produce or accelerate her death.”

This instruction in our'judgment was erroneous. It again omits the essential element of the crime of murder in the second degree, that Munday must have intended or purposed to kill his wife.

The effect of this charge was, that if the jury found that Munday purposely inflicted an act that caused his wife’s death, and the natural and probable consequences of the act would cause death, that this is conclusive that he is guilty of murder in the second degree, regardless of what his intent actually was when he committed such act. We do not think any presumption of law of this kind arises. It is true that a man is presumed to intend as a general rule, the natural and probable consequences of his acts. But the defendant is not conclusively presumed, upon a charge of murder in the second degree, to have intended to kill the deceased, because he purposely inflicted an act which did in fact cause death, and which the jury might say would probably cause death. The jury may have concluded from the evidence that the blow of the fist upon Lillie Munday’s breast was sufficient to cause her death. It was claimed that she was suffering from heart disease and had been for some time; and that that had something to do with her death, and might have caused it.

The jury may have concluded that the blow upon her breast in the condition, of her health was sufficient to kill her, and did kill her. Monday did purposely strike her on the breast, but it was for the jury to say whether, when he struck her on the breast with his fist he did that with an intent to kill her; and no presumption of law would arise from those facts, that he had such intent or purpose at the time he struck her.

Some other parts of the charge do not meet with our entire approval but we find no other reversible error in it; we have considered the question of the weight of the evidence but, as the case goes back for a retrial, we will not discuss that question further than to say that we find no other error in the record.

For the errors in the charge which have been pointed out, the judgment is reversed, the verdict set aside and the case remanded for a new trial.

Parker and Hull, fJJ,,. concur.