text:
    REMITTING PART OF A VERDICT AN INVASION OF THE RIGHT OF TRIAL BY JURY.
    Court of Appeals for Cuyahoga County.
    The Cleveland Worsted Mills Company v. Daniel C. Coates, Guardian of Joseph Scheverell.
    Decided, November 22, 1916.

      Employment of Children Under Statutory Age — Burden on Employer to Shoio Deception in Matter of Age — Verdict Induced by Passion or Prejudice — Should be Set Aside — Not Reduced in Amount— Reasonableness of Damages Awarded to Injured Boy — Tested by Probable'Future Earning Power.

    1. Whether or not the employment of children of non-age has been innocent or with knowledge is a question for the jury, with the burden on the employer of showing affirmatively that he has been misled and deceived in the matter of age.
    2. Where an excessive verdict has been returned through passion or prejudice, it is the right of the defendant to have it set aside, and the reduction of such a verdict, except where done by consent, to an amount determined by the independent judgment of the court, rather than that of a jury, is an invasion of the right of trial by jury.
    3. A verdict of $25,900 for the loss of his right hand by a factory boy is so large as to justify the conclusion it was reached through passion or prejudice, and the action of the trial court in reducing the amount $10,000, instead of granting a new trial, constitutes error which requires a reversal of the judgment; and this result may be reached without weighing the evidence in detail, but from the verdict itself in its relation to the evidence as a totality, under the circumstances of the whole case.

      H. PL.. McEeehan and Price, Alburn, Crum & Alburn, for plaintiff in error.

      Anderson & Lamb, contra.
   Grant, J.

Error to the court of common pleas.

In the view we have taken of this case and of the question upon which our conclusion is made to turn, we have felt justified in giving it an unusual consideration, at least in point of time, since it was argued at the bar, a' result that has been aided by the wish of counsel to prepare an additional brief, which was late in coming in.

That conclusion has been at last reached not without a becoming diffidence on our own part, but such as it is it will have to stand as the judgment of the court.

The questions said to arise upon the record before us and entitled to consideration at our hands, as is claimed, have taken in the briefs submitted and in the arguments of counsel — a wide range. Our discussion of them will cover a much narrower one, and will follow no particular order, but we shall endeavor, nevertheless, to declare the law of the case as we are given to see it.

In this proceeding the parties stand in the opposite order of position to their standing in the court below, but to avoid confusion and for the sake of convenience they will be designated here as they were there.

The plaintiff’s ward. — being the real and beneficial plaintiff— was a boy when he sought and obtained employment in the factory of the defendant company. Just how old he then was is in dispute, or at least is uncertain. He was somewhere from fourteen to sixteen years of age; such are the utmost landmarks in point of certainty named in the brief of the defendant company.

"When he solicited the employment he produced a certificate of the superintendent of schools of Ravenna, Ohio, the town where he worked, which purported to show that he was of such age that when he came to his injuries on the 11th day of April, 1915, he was sixteen years and three months old. As he was employed substantially a year and three months earlier than that, it would follow that his represented age when he took employment was fifteen or thereabout — about four days, less, to be exact in regard to it.

A proper consideration of the case has to do with certain statutes of Ohio, and the instruction of the trial court, given in charge to the jury, required the jurors to apply these to the facts as they should find them, and be guided to their verdict accordingly. These statutes are the following:

“Section 12993. No male child under fifteen years of age shall be employed, permitted or suffered to work in, about or in connection with any mill, factory, workshop,” etc. 1913 Session Laws, p. 907.
“Section 12999. No child under the age of sixteen years shall be employed, permitted or suffered to work * * * in proximity to any hazardous or unguarded belts, machinery or gearing.” 1913 Session Laws, p. 909.
‘ ‘ Section 13002. No child underffhe age of sixteen years shall be employed, permitted or suffered to work in any capacity * * * in any other occupation dangerous to the life and limb * * * of such child.” 1913 Session Laws, p. 910.
“Section 1027. The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein, or any part thereof, as follows:
“2. They shall enclose in substantial railings or casing all exposed cog-wheels. * * *
“7. They shall guard all saws, wood cutting, wood shaping and all other dangerous maehinéry.”
* ‘ Section 6245-2. 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 the United States, such employee shall not be deemed or held to have been guilty of contributory negligence nor to have assumed any of the risk of such employment, but the employer may show by way of defense any fraud or misrepresentation made by such employee.”

It will be observed that by the first of these enactments the inhibition of the employment of a male child in the interdicted occupations, if under the age of fifteen years, is absolute and complete and is not saved or affected by a school certificate; the two tests are age and the character of the employment.

By the second of them the employment of any child under the age of sixteen years in work which requires the operation of, or proximity to, the hazards of unprotected machinery, is denounced as unlawful; having a school certificate in no way exonerates from the operation of the positive prohibition.

By the next the maintenance of certain machinery regarded as dangerous is forbidden, unless it is provided with the named safeguards. The age of the persons sought to be protected by this provisions is not material, Section 1027, by its quoted parts, supplements and re-enforces the inhibitions and muniments of those which precede it, by enjoining on the employer the observance of certain duties to that end.

Section 6245-2 is most important in the protection it undertakes to provide for child labor. It guards against evasions of the law in this respect by withholding from the transgressing employer certain defenses which the common law gave him —defenses easily made, often abused and commonly resorted to to avoid a just responsibility, and hence of peculiar value to him.

But the employer’s rights are cared for by allowing to him the compensating advantage of protecting himself against being overreached in. the matter of taking into his service, unwittingly, children under the prohibited age.

All this is a consistent and wisely provident scheme of legislation, bottomed on the soundest and most wholesome public policy. It is not to the honor or advantage of the state to have a citizenship made up of cripples, and it is a huge economic loss to have cast upon the public a growing inefficiency in the shape of maimed inhabitants, more or less incapable of gainful effort and likely to become at some age or time a public charge for maintenance or repression: It is cheaper and better for the state to have labor that is reasonably safeguarded against peril to life and limb, than to make up the difference in the price of it by paying pensions to laborers disabled in service, or to support them in almshouses, or subject them to the indignity of being, compelled to eat the bitter bread of charity. A non-observance,, or an unfaithful obedience, of the duties placed as a fence by law against the inroads of a conscienceless and unfeeling greed, must result in a distinct loss of public manhood and an enormous subtraction from the resources and earning power of our people, and hence in a damaging blow to the commonwealth and welfare.

The legal effect of these obviously and admittedly paternal safeguards and repressions, is to introduce into the contracts for labor to which they are a fortification, the state as a party, to see that they are not disobeyed or evaded, and that they are at all times kept up and enforced in all integrity. It is the duty, as well as the right, of the state, even from a selfish and economic view, to thus care for its largest asset — human labor. “But if any provide not for his own, and especially for those of his own house, he hath denied the faith and is worse than an infidel,” says the Scripture.

It follows that they can not be' waived by the child, or his parent, or his guardian, and that the conduct of either in seeking or taking employment, can not estop the real and controlling party to the transaction, which, as we have already observed, is the public, acting and speaking through statute law.

This consideration is never to be lost sight of in dealing with the just administration of these enactments, operating beneficially to the public as well as the individual immediately concerned, by reasonable repression.

Nor is this view unjust to the employer. Putting behind him the later results, highly injurious to him, of being taxed to support an army of cripples or otherwise enforced idlers and incompetents, he seems to get by hiring children the advantage of labor that is, relative to what he-must pay full hands, cheap. It is, moreover, a class of labor that is teachable, amenable to discipline, ineligible to unions and that can be brought to a considerable degree of efficiency before passing into a higher paid class.

Against a possible abuse of the opportunity for gain thus furnished, and the dangers lurking in the situation, the law has, wisely, as we think, put into it the sting of a disability, in the shape of denying to the employer his two most handy weapons of defense — that of assumed risk, and also of contributory negligence. It is not an unreasonable or improvident yielding that is thus required of him. And to the employed child it is probably a more dependable and less easily avoided measure of protection than are the positive prohibitions of the other sections of the statutes quoted.

But even here the Legislature has not left the employer wholly exposed to the fury of the proletariat. Remembering, doubtless that “God tempers the wind to the shorn lamb,” it has provided an anchor for him to east to windward, on occasion of storm and stress in this regard, in the-shape of allowing him to'prove that in employing children of non-age he was himself the victim and not the delinquent — that he was deceived into the hiring. It is, we think, a full and fair compensation for the surrender he is required to make in respect of the denied defenses. "Whether in the absence of this allowance he could make the defense, is something that need not be discussed; the defense is in our law distinctly permitted. The furnished weapon, however, is a shield and not a sword; it is a defense and not the letter of marque of an aggressor. So much has been said, rather discursively, perhaps, for the twofold purpose of developing the foundation view covering many, or most, of the vital questions in this ease, and to obviate a more particular discussion of the authorities from other states which have been so luxuriantly and industriously brought to our attention in the briefs of counsel and the argument at the bar. In those states there seems to be an absence of the countervailing defense which our law gives to the employer. The allowance of it by statute appears not only to differentiate the cases cited from other jurisdictions, from the law applicable to this case, but to furnish the key to the solution we are called upon to make in the matter. To our apprehension all the other questions argued become, in this view of the case, relatively immaterial. The forbidden thing to the employer is the hiring of children of non-age. The law says “Thou shalt not” — guard or no guard, railing or no railing. If, nevertheless, he does hire, he exposes himself to all legal rigors.

But if he hires innocently, is defrauded into the hiring, he may by statute show the fact and go acquit of the consequences otherwise flowing from the forbidden thing.

But, as we have said, he may use the right defensibly only; he must “show” it. This means, we take it, that the burden is cast upon him of affirmatively satisfying a jury that he was. really and in fact overreached and defrauded in employing the boy. In the case at bar this issue was submitted to the jury and the verdict finds that the defendant has not sustained the burden. If the question was properly submitted, the finding is conclusive on us in this respect, there being evidence enough in the record, in our estimation, the tendency of which is to support the verdict returned — the end towards which the tendency points being for the jury and not for a court of review.

The evidence in the ease was voluminous. It covered all controverted points and searched every question to which it could be addressed. It related to matters of fact — pre-eminently so. It was in fierce dispute throughout. It was1 peculiarly the function and duty of a jury to sift it, weigh it, accept it, reject it. We can not interfere to mould the evidence to a different conclusion than the jury reached, except upon considerations as to weight, which in this case we do not feel justified in taking upon ourselves.

The defense which the statute gives to the employer was not made out — so the verdict says, and we are not disposed to dispute it.

The evidence in other respects, if properly received, has a tendency — within the right of the jury to find — to fasten upon the defendant a liability to the plaintiff on account of his injuries brought about by what the verdict says was the culpable negligence of an employer of child-labor. The result, thus arrived at, must stand, unless for other errors to be found in the record it ought not to stand.

The other assigned errors must be dealt with more summarily, in view of the rather extensive development we have felt warranted in making to lay out the groundwork of our conclusion.

We fail to discover, upon the whole, any material or injurious mistake in the admission or exclusion of testimony upon the trial. That isolated and unrelated errors in this respect could be microscopically discoverable in a trial of this kind and length, is inevitable, of course; the wonder here is that they are so few. We find — all things considered — a clean bill of health in this regard.

We now come upon the question of the charged misconduct of counsel. It is an old and familiar acquaintance. It is a subject more fruitful of homilies as to doctrine and reproof, and more infertile in results, than any other that we know of.

That the conduct complained of was highly improper, is very likely; indeed, we have no difficulty at all in finding it so from this record.

That it was so exceptionally and • enormously flagitious, in quality or in output, as in its totality to have acted on the jury injuriously to the defeated party, or that the court refused to act, or failed to act, at any point where it was called upon to act, or where it became its duty to act without call, in assertion of its own dignity or observance of the rules of common decency, we are not prepared to say.

The record presents the ordinary dismal scene of unseemly strife over the table, between — or perhaps by — members of a highly ethical calling — so ethical that, as they admit the fact, it need not be proved. They are the descendants of those who in ancient Rome were the “ clarissimi” of the state, and whose opinions upon questions of law and public moment were the “Responso Prudentum” — the answers of the wise. Here, they were not indeed the “senior wranglers” of the English universities, but just plain, ordinary wranglers. As usual, crimination no doubt begat recrimination, for the whole record in this respect is not before us, and the jury looked on, very likely, amused but not especially swayed in outcome by the performance. It is related that an Irish barrister, on the trial of a cause, picked up a chair and started for his adversary on the other side of the table, crying out furiously, “I’ll teach you to be a gentleman, sir!” To which the other roared in equal fury, “I defy you to do it, sir! ”

Besides, the infirmity — if it was such — may have been cured, or excused, perhaps, by what counsel may have regarded as a sort of “healing act,” when he said (Record, p. 399), “By the way, this is my birthday. I am fifty-one years of age today.” The imputed misconduct may have been only the usufruct of a proper celebration of the highly desirable, or at least notable, event thus called to the jury’s mind.

. Moreover, since action and reaction balance each other to a stable equilibrium, a dead standstill, it frequently, or, generally, it may safely be said, comes to pass that the misconduct engendered by zeal at a trial over-does itself, and so corrects itself, in the eyes of a jury. Like the recoil of an overloaded musket, it kicks the firer over. A jury, commonly, observation and some bitter experience has taught us, regards the Punch and Judy, or Pickwickian fights of lawyers much as they should look upon the gambols of a hippopotamus or the pleasantries of a Scotchman — as interesting but not especially convincing. However reprehensible the conduct or motive of counsel may have been in applying himself to the jury — and weare not saying that it was so — we give charitable ear to his own prayer not to treasure the fault up against “poor Joe,” but to take it out on himself. ‘Which is done, accordingly. We find no error injurious to the defendant at this point.

We dismiss the like charge of misconduct of a juror with the same conclusion, without particular discussion or observation — ■ chiefly for want of time. The imputed remark of the juror — if he made it — was highly improper and not at all creditable to him as a man and a brother under oath to be impartial and of open mind. But he was only one-twelfth of the panel, and we will not think that his indiscreet and lawless talk — still, if he did indulge in it — -infected the other eleven good men and true; a vulgar fraction is not to be esteemed the equal of eleven integers.

Dealing with the alleged errors in the instructions given by the trial court in charge to the jury, we can not say — the whole charge and the whole ease considered — that there was anything said or omitted that can fairly be found prejudicial to the substantial rights of the defendant. So we find no error intervening-in this respect.

We come nQw upon the last assignment of error with which we shall deal specifically, in this already too long discussion.

We have reached a conclusion in regard to it only after long and more than usual consideration and with all the reluctance that is proper when a compelling but difficult duty is to be performed. But we are none the less clear in our sense of that duty and the entire propriety of our discharge of its obligatory command, by law laid upon us.

The charged error is in the overruling by the court below of the motion for a new trial, because the verdict of the jury was excessive in amount. That amount was $25,950. We are quite aware that the judgment we are reviewing is for a much less amount. But at present we are called upon to deal alone with the verdict upon which the judgment rests. The sealed judgment of a court is of no value in determining the motives which influenced the jury in reaching the verdict as it was before the court reformed it. If the verdict, not as pruned by the court, but as returned by the jury, is in amount so large as by its appearance to justify the conclusion of being reached through passion or prejudice, the imperative duty of the trial court is to set it aside. No substitute for this command can be found by dicker or bargain — no matter between whom— but strict obedience is by statute enjoined. The law of Ohio upon this point is clear, as we think. It is lucidly stated in Pendleton Street Railway v. Rahmann, 22 O. S., 445. After allowing an exception in cases where the mistake in amount is apparent and the correction is a matter of arithmetic or computation only, which excludes the ingredient of perverseness — and which of course is not this case — the court goes on to say, p. 448:

“2. But in the class of actions in which the opinion of the jury, unaided by any known standard of valuation, determines the magnitude of the recovery, the power of the court over an excessive finding is, in some instances, controlled by statutory conditions. Although the verdict, if purged of any supposed excess, might, in the opinion of the court, be well sustained as to the residue by the facts disclosed, yet the presence and influence of passion or prejudice, in producing the excess, vitiates the verdict in toto, and excludes the power of the court to validate, or save, any part of it against the concurrence of either party. Without a consent of both, to a remittitur and judgment, the verdict, in such case, must be vacated.
“The terms of the statute are unambiguous and peremptory. For damages materially excessive, appearing to have been given under the influence of passion or prejudice, the verdict ‘shall be vacated and a new trial granted. ’
“This statute merely enacts the pre-existing rule-of the common law. Its theory undoubtedly is that individual opinions, which depend on, and vary with, mental and moral constitution, are extremely eccentric and uncertain; that the money value of personal wrongs, which can have no certain standard of measurement, and hence must of necessity be determined by this, shall not, however, be committed to the arbitrament of a single mind, but shall be measured by the average of impartial opinion, of which the concurrence of twelve minds, uninfluenced by passion, resentment, or corruption, is supposed to be a fair expression. When, therefore, a verdict is attained by' the presence of these statutory infirmities, the law will not, against the consent of either party, substitute the opinion of the court for that of the twelve triers provided by the Constitution. For if recklessness has controlled in measuring the extent, it is not improbable that it may have controlled in determining the right of recovery; which another panel, unbiased by improper influences, may greatly modify, or wholly reverse. Lambert v. Craig, 12 Pick., 199; Long v. Hopkins, 10 Geo., 37; Howlet v. Cruchley, 5 Taunt., 277. But the rule of common law was not inflexible, as many eases are reported in which the doctrine of remittitur was applied in actions of this class.”

‘But before the trial court should have proceeded to grant a new trial on this ground, the verdict must have appeared, the connection with the circumstances of the case and all of them, so large that its rendition by the jury could be accounted for upon no rational footing except that it was induced by passion and prejudice; it must have been apparent, from its amount — still in its relation to the whole ease— that it was so induced and brought about. Finding that, the correlative duty of the court to order a new trial would be clear and unquestionable; because in that case the verdict would not be the verdict to which the litigants were entitled — -the verdict of an impartial jury — but the verdict of a perverse jury, and hence in law no verdict. In that view it could not be the basis of a lawful judgment.

So much premised as. the law controlling, we come to a short consideration of the facts essential to a proper resolution of the question.

The mutilation of the plaintiff, through the found and adjudged fault of the defendant, consisted in the loss of his right hand — a serious loss in any view, and one for which no man would, if it were left to him by choice, take as a substitute any number of dollars — perhaps not even $25,950. But that is not the question. The loss being a fact accomplished, the law commands a commutation of the loss to a money compensation, so far as money can be made to satisfy what the word compensation stands for. What may be sentiment but certainly is a momentous loss, is commuted to terms of money, as the best, or only substitute which in the nature of things the law can furnish, and which must be accepted as a forced quid pro quo — at all events and whether or no; the question has become pecuniary and the standard is single. The loss in this case, while great, left to the plaintiff all the advantages of the bodily members still remaining. The capabilities thus left are by no means inconsiderable in the case of a supple-limbed and nimble-witted boy of European extraction, as this boy certainly was, judging from the record. Some of these left-over advantages are physical, which we need not particularize; others are intellectual, and in this day and country of opportunity are open alike to all who will grasp and improve them. For example, a man has his right hand disabled while a brakeman; without that disability he may have been a brakeman still; with it and its compulsion to another line of endeavor, he obtains an education, as he may, here and now; he masters a profession, becomes a lawyer, for instance, and achieves a reputation and acquires a competence, all without the lost member, by pressing the other members into such bodily service as he may in his changed circumstances still need. We are by no means to be understood as saying that such possibilities are to be used as set-offs against the injurious results of an employer’s blameworthy negligence, or that a damage verdict can be paid or reduced by any such considerations as these. Still, they are a part of the whole case upon which this question is to be decided, and in that view we must have a proper regard to them.

Consider for a moment the pecuniary possibilities wrapped up in this $25,950 verdict. At six per cent., the yearly interest upon it is $1,557, or in the close neighborhood of $130 a month. At five per cent., it amounts to more than $100 a month. This is 'in effect a pension at that rate, for the lifetime of the pensioner, with the advantage over the strict pension that at death the prin- ■ cipal sum is passed on, intact, in the line of succession to the; pensioner’s heirs. Now let us make a single comparison. “Any, person who was wounded in battle or in the line of duty in the Civil War, and is now unfit for manual labor by reason thereof, or who from disease or other causes incurred in line of duty resulting in his disability, is now unable to perform manual labor, is entitled to $80 per month,” from the United States. No ma^ who served in the Civil War can be less than about seventy years of age, so that none of the advantages inhering in youth -are open to him; he is wholly dependent on the bounty of his generous government, which at the utmost is less than a third of what this verdict will bring at five per cent. And it is the highest pension allowed for disability by United States general laws, whatever the rank of the pensioner was in the military service of his country. As to pensions for disability incurred later than the Civil War, the rating is $8 a month for a private, soldier; $20 for a captain; $25 for a major, and $30 for all grades from a lieutenant-colonel up to and including a major-general.

We make no present comment on this comparison. We state the facts.

We have not overlooked the testimony of one Dr. Burke, which is to the effect that the pain incident to an amputation may linger. But in the case of a growing boy who has a clean cutoff of the right hand, those of us whose recollection reaches back to the Civil War may be allowed to replace this opinion evidence with common knowledge. We attach little importance to it.

Upon as careful a consideration of this matter as we can giv.e it, and with unfeigned reluctance, we have reached the conclusion in this ease, in all its relations and under the sum total of its circumstances, that the verdict of the jury on its face and from its amount shows that it can be attributed only to a perverseness springing from passion or prejudice. To state it, without more, and in its relation to the facts proved, is to give it the appearance of having been returned under that influence. Placed alongside the boy himself, his age, his reasonable prospects in life, his earning capacity both before and after his injury, and by itself it shocks all sense of proportion and stands out a clear anomaly, and this appears not from a dissection of the record, but from a birdseye glance at the whole. In our estimation it would not be difficult for one to go over the whole record before us and pick out the particular things, as well as the general policy of the trial, from which this motive was, step by step and by almost imperceptible degrees, evolved, built up, and moulded into a workable result, taking its final shape in the verdict justly obnoxious, as we think, to the objection now lodged against it. But we are not doing this and we are very far from weighing the evidence, ounce by ounce, or scruple by scruple, to warrant our opinion.

The inquiry next to be made is what was the duty of the trial court, if to his apprehension the verdict was returned under the improper influence denounced by our statute as an integral ground for a new trial? Our Supreme Court have answered^ it, not only in Pendleton Street Ry. Co. v. Rahmann, supra, but in the much later case of Toledo Railways & Light Co. v. Paulin, 93 O. S., 396. The court there say:

. “If the verdict is excessive, appearing to have been induced by passion or prejudice, it is the duty of the reviewing court to reverse and remand for a new trial.”

Of course it would not be' the duty of the reviewing court to do that, unless the lower court had come short of doing its duty.

But the .judgment entered on the verdict differs from the verdict in amount — materially differs. It is less by just $10,000. Why it should be less by exactly that round figure, does not appear. That the plaintiff, “Poor Joe,” with a twenty-five thousand and odd dollars verdict safely in his pocket, or that of his attorney, should donate to a soulless corporation a lump ten thousand of his ascertained right, unless under stress or compulsion, is a most unlikely thing, quite out of his class, as appears to us.

Still, the record is discreetly silent as to this sacrifice to one who just then was very far from a god to be propitiated by the gifts of the poor. It says:

“Whereupon this cause came on to be heard upon the motion by the defendant for a new trial of this case; and the plaintiff having remitted the sum of $10,000 from the verdict of the jury, the said motion for a new trial is overruled."

The only inferable reason vouchsafed for the overruling of the motion, or that we can discover from the recitation of the entry, is the remission of $10,000. But for that, it is to be con-r eluded, the new trial would have been allowed. As the plaintiff, for aught that appears, voluntarily gave up a part of his good luck to help on its shining way the corporation of which his. counsel had spoken at the trial in highly disrespectful terms and as not being a proper object of charity at Polish "hands — . this being so, we say, of course he is íd no shape to complain, or to treat his liberal donation to the flood, or war-sufferer as an Indian’s gift, and he should be held to whatever arrangement, was made, if indeed the gift was an arranged matter and not the offspring of mere intuition of altruism on the part of the victor, to whom it seems did not belong the spoils, or not all of them, in his own estimation.

But the record shows that this obdurate and unfeeling donee was unreasonable enough to except to the judgment, although $10,000 to the good by reason of it. Judge West, who spoke for the Supreme Court in Pendleton Street Ry. Co. v. Bahmann, supra, said that if passion or prejudice intervenes and dictates the excess found by the jury, that fact alone “vitiates the verdict in toto, and excludes the power of the court to validate, or save, any part of it against the concurrence of either party. Without the consent of both, to a remittitur and judgment, the verdict, in such case, must be vacated.”

As we have observed, the denial of the motion for a new trial could have proceeded upon no other perceivable ground than that the verdict was larger than it ought to have been, and plainly the mistake was not one to be corrected by a mathematical calculation upon facts undisputed.

It looks, therefore, as if here there was a violation of the cardinal canon of construction of the statute adopted by the Supreme Court.

But it may be said that the defendant is in no situation to reject this bonus of the "gift-bearing Greeks,” or Polacks, or whatever, and that it should not be heard to object to being done good to. The argument is not good in point of Ohio law, as has just been shown. And we think it equally unsound when measured by the yardstick of reason and principle. A renunciation of ten thousand dollars, from twenty-five thousand and up, of course is no substitute for an absolute right to a new trial, to which our Supreme Court, in the case cited, seems to say the defendant was entitled. And, if it were not so entitled, even so the remission might still be no adequate substitute. Non constat a new trial might have exonerated the defendant from liability altogether; any liability was denied and vigorously contested throughout the trial.

But we may be admonished that if upon the whole case we think substantial justice has been done by the judgment under review, it must not be disturbed. The law is so, but when a litigant is denied a substantial right, substantial justice has not been done — not to him. Substantial justice gives to k litigant a trial by an impartial jury. This the defendant has not had.

The right of the defendant — a right arising before the verdict had been taken liberties with, and existing quite apart from the judgment finally entered by remission of a part of the verdict’s sins — its right at that point, we say and have found, was the right to a new trial, a right not to be impaired by a composition not consented to by the defendant and made over its saved and recorded exception.

The Supreme Court of Wisconsin, in Heimlich v. Tabor, 123 Wis., 565, vigorously combats the huckstering idea at the bottom of'so many unauthorized and essentially lawless remittitur judgments. It says, p. 569:

"Now, it would seem to be quite clear that if a trial or appellate court compels a defendant to submit, at the plaintiff’s option, to a judgment for less than that named in a verdict, held to be fatally excessive, thus enabling the plaintiff to succeed without a new trial, and fails to guard against all reasonable danger of impairment of the former’s right, as, for example, if it does so on the basis of allowing a liberal, or full,.or, from the judge’s standpoint, merely a fair compensation to the plaintiff, it invades the rights of the defendant. It does just what all courts have declared can not be legitimately done..
“Further, to allow a verdict which is fatally excessive to stand upon condition of plaintiff remitting the excess, or as it is sometimes said as indicated, consents to a reduction thereof to the proper amount, is likewise an invasion of such right, unless the amount of the excess, or the proper amount of the verdict is determined upon some basis which fairly takes the judgment of a jury for the guide instead of the independent judgment of the court. It is not logical to so vigorously defend the right of jury trial in civil actions by mere words and accompany it by substituting therefor, in fact, the judgment of the court. The right of jury trial is as sacred to the defendant as to the plaintiff.”

We commend the last sentence .of this qtiotation to the respectful and thoughtful consideration of both bench and bar and all concerned in the orderly administration of justice.

The Wisconsin court allows the remittitur process operation in those jurisdictions where a discretionary power is lodged in the judiciary. Even this conclusion was limited to cases where the plaintiff’s right to recover is unquestioned.

But we conceive the law in Ohio to be settled differently and to confer on a defendant a clear right to a new trial when the verdict is found to be excessive from the perverse motives of passion or prejudice. Pendleton Street Ry. Co. v. Bahmann, supra.

In reaching this conclusion — rather laboriously, it is true— we have been at pains already to preserve our lines of communication, but not of retreat. We are not to permit any misunderstanding as to the path we have trod on the way to it. The way is clear enough, but it does not lie along the route of weighing the evidence in the case. We are expressly forbidden to do that. In Toledo Railways & Light Company v. Paulin, supra, the Supreme Court says:

“If the court of appeals from an examination of the printed record may weigh the evidence, which involves also the determination of the credibility of the various witnesses, and therefrom may reach a conclusion as to the nature and extent of the injuries suffered by plaintiff and fix the amount of money which, in its opinion, will reasonably compensate him for his loss, the court will have usurped the function of the jury. Time and money will have been uselessly expended in trying the case to a jury if these controlling questions of fact are not to be settled there but are to be considered and determined by the reviewing court.”

Nevertheless, the court says, the finding being reached, as we have once quoted but for emphasis now repeat:

“If the verdict is found to be excessive, appearing to have been induced by passion or prejudice, it is the duty of the reviewing court to reverse and remand for a new trial.”

From that duty, disagreeable or responsible as it may sometimes be, we must not, and do not, shrink. It should be clearly understood that while we are here, in a proper case there will be no hesitation in discharging it, even to overturning an unwarranted work of a jury, much as we respect in its place and to the measure of its true function, that valuable institution.

And we have no inclination to weigh evidence to reach such a conclusion. Speaking for myself alone, I say that if the time ever comes when I am compelled to sift a few grains from a slippery mass of chaff and sort out minute facts from an irrelevant volume, and balance down to the last poor scruple disputed particles of testimony, to no other or higher end than to enable me to fix a tariff on maimed human frames, or a price current for mutilated hands and feet — when, I say, that becomes any duty of mine — which Heaven forbid! — I will doff my badge of servitude and honor and respect the bench by leaving it; the process would imbrute a judge and dehumanize a man.

We say this, let it once more be remembered, lest hereafter, litigants, mistaking altogether our process in coming to the conclusion we have reached, shall ask us to weigh the evidence in a record to find in it a verdict inspired by the unworthy motives of passion and prejudice, culminating in perverseness which in a proper case it is the duty of courts to correct. We disclaim the right or duty to do this. What we mean to say, and all that we mean to say, is that in this ease, considered in its totality and under all its circumstances, bulked and in mass, the verdict can be accounted for rationally only as having been returned under the obnoxious motives mentioned, however mistakenly these may have been entertained by the jury, or however or by what persuasion they may have been induced in the jury’s minds. It is not the mere amount of the verdict that makes us overturn it; we have upheld larger ones in proper cases. In Moore v. Wallis [18 N.P.(N.S.), 473], the judgment sustained was for $40,000; but the earning capacity of Wallis was shown to have been $15,-000 yearly, and he was left a helpless and stranded wreck, physically and mentally, to drag out a miserable existence of constant pain. Viewing this case with the forward look and assuming for the advantage of the plaintiff all that the future is likely to hold in its hands for him, we can justify the verdict upon no rational theory of compensation.

For this error, and finding no other, the judgment complained of is reversed and the case is remanded to the court of common pleas for such further proceedings there as may be in accordance with law.

Meals, J., and Carpenter, J., concur.


source: Caselaw Access Project

author: ITouck, J.

license: Public Domain

text:
    APPLICATION OF THE RULE AS TO COMPARATIVE NEGLIGENCE.
    Court of Appeals for Stark County.
    The Reeves Brothers Company v. John G. Cochli.
    Decided, February Term, 1916.

      Master and Servant — Model of Machine in Which Employee Was Injured May he Received in Evidence — Charge of Court as to Comparative Negligence and Apportionment of Damages — Pleading.
    1. In an action by an employee on account of injuries received, it is competent to offer in evidence for illustrative purposes a model substantially representing the main parts of the machine in which he was injured.
    2. The law is correctly given in an instruction to the jury as to comparative negligence which states that if they find from a preponderance of the evidence that the negligence of the plaintiff was slight and by a like preponderance of the evidence that the negligence of the defendant was gross and all the disputed matters are found in favor of the plaintiff, the damages suffered by plaintiff, if any, will then be compared and apportioned between the plaint-, iff and defendant in the ratio or their respective contributions of negligence to the combined negligence, and diminish plaintiff’s recovery, if any, in accordance with the ratio thus fixed and determined.
    3. An instruction to the jury which declares as a matter of law that plaintiff assumed the risk of stumbling over or otherwise coming in contact with a necessary part of the machine which he was operating renders nugatory the present statutory provision as to the negligence of the employer.

      Welty & Burt, lor plaintiff in error.

      Kart & Koehler, contra.
   ITouck, J.

This proceeding in error is brought to reverse a judgment for $2,000 recovered by the defendant in error for damages for personal injuries sustained by him on September 10th, 1910, while in the employ of the plaintiff in error as a machinist in the machine shop of plaintiff in error.

For some time prior to September 10th, 1910, the defendant in error had been employed as a machinist by the Reeves Brothers Company, of Alliance, Ohio. He had been directed by his foreman to work upon a large boring mill, and on said day was boring holes through a large engine base on this particular boring mill, which was a large machine over fifteen feet in length and about ten to twelve feet high, set on a concrete base, so that it could be worked horizontally or perpendicularly, and adjusted to do the work it was intended to do. On this machine there was a bracket of cast iron weighing about seventy-five pounds, extending from its base to the north about one foot, and from the floor about six to eight inches, leaving a hollow space under the bracket. When operating this machine on the day in question something happened which loosened the cutting tool, by means of which the hole was being bored, and Ooehli while hurrying to get to the lock wheel caught his foot on the inside of his leg under this bracket, injuring his left leg, which lie claims resulted in necrosis of the bone.

.Defendant in error (the plaintiff below) alleged in his petition that the defendant below was guilty of carelessness and negligence in the following particulars, to-wit:

First. In not providing him a safe place within which to work, taking into consideration the necessary operation of said machine, and in locating said controller so that plaintiff was compelled to pass over said bracket on the north side of said machine on and along the necessary path of travel of the operator of said machine in going quickly, as necessity required, 1'rom the face plate or table on one end of the same to the feed nut on the spindle ,of the other end thereof.

¡Second. In leaving said bracket extended from six to eight inches from the floor, and leaving the same extended about one' foot from the base upon which said machine was located.

Third. In permitting plaintiff to work on said boring mill equipped with a controller placed in such position as to compel the plaintiff in the operation of said machine to move over and across said bracket hereinbefore described, and in leaving said bracket unguarded and so placed that the operator in charge of said boring mill was liable to be injured.

Fourth. In failing to exercise proper care under the circumstances, taking into consideration the location and equipment of said boring mill and the necessary operation of the same for the safety of plaintiff.

The defendant below by answer denied that it was guilty of any negligence which contributed to or caused the alleged injuries to plaintiff; that the bracket complained of is a part of the framework of the machine and used to support the machine, and that said bracket is not in itself in any way dangerous or complicated and requires no care or protection, and that it was not necessary to go over or across said bracket in the proper operation of said machine; that said bracket and said controller and the entire situation about said machine was open and visible and known to plaintiff, and if there was any danger in the operation of said machine (which they denied) that the plaintiff realized, or in the exercise of ordinary care could have realized the same, and that whatever injuries plaintiff received, if any, were caused by his own negligence, and were not the fault or negligence of the defendant.

The errors relied upon in oral argument by counsel for plaintiff in error are:

First. That the court erred in overruling the demurrer to the amended petition.

Second. That the court erred in admitting plaintiff’s model (Exhibit 0) in evidence.

Third. That the court erred in its general charge as to the subject of comparative negligence.

Fourth. Error in the refusal of the court to give request .number,four, which was presented in writing before argument.

Fifth. That the verdict is against the weight of'the evidence.

Coming now to the alleged errors, should the demurrer to the amended petition have been sustained? We think not. From a careful examination of the allegations and statements of fact contained therein we feel that the petition is sufficient in law, and that the charge of negligence on the part of the defendant is specific and definite, and that it fully comes within the provisions of Section 6245 of the General Code of Ohio.

'Was the plaintiff’s model improperly admitted in evidence? On page 17 of the record appears the following in the testimony of the plaintiff:

‘ ‘ Q. Mr. Coehli I hand you now here what I ask the stenographer to identify as Plaintiff’s Exhibit C, and ask you to state •whether or not this substantially represents the main parts of ihe boring mill, its location on the base on which it stands, and the upright column of which you speak; the platform of the machine, the face plate, the lock nut and the controller, in their relative positions as they are on the machine in the shop? (Objection by defendant; objection overruled; exception by defendant.) A. Yes sir.”

It will be seen from the above 'testimony that it is not claimed that the model is an exact duplicate of the original, or that it is drawn to actual scale, but that it only substantially represents the main parts of the machine, and was offered only for illustrating purposes, which we think was proper and right, and that the court did not err in admitting it in evidence for that purpose.

Did the trial court err in its general charge on the subject of comparative negligence ? " An examination of the language used by the trial court in discussing this subject might as a first impression lead a reviewing court to believe that it was not properly presented to the jury, but taking all parts of the charge upon this subject into consideration we are of the opinion that the charge is correct and states the law relating to comparative negligence properly. Whatever seeming failure to properly charge in this regard is certainly cured by the trial court in the general charge as appears on page 363 of the record, where the court instructed the jury as follows:

!! If both the plaintiff and defendant were negligent, and their combined negligence operating together directly and pr'oxi-, mately caused some injury to plaintiff, the plaintiff might still recover notwithstanding his contributory negligence, if you find from the evidence and by a preponderance of it that his negligence was slight, and at the same time find by a like preponderance that the negligence of the defendant was gross. In such case, if you find upon all the disputed matters in favor of the plaintiff, you will then compare and apportion the damage suffered by plaintiff, if you find he suffered any, between the plaintiff and defendant, in the ratio of their respective contributions of negligence, and the combined negligence thus diminishing plaintiff’s recovery, if any, in accordance with the ratio previously found and fixed by you. In such case the remainder of the damages thus ascertained will be the amount of plaintiff’s recovery, provided he recover at all, on the whole ease.”

As we have already said, if we take the entire charge upon this subject into consideration we are of the opinion that it was a fair and proper exposition of the law as to comparative negligence.

Did the trial court err in its refusal to give written request No. 4 before argument, the same being as follows:

“If you find from the evidence that the bracket in question herein was a proper and ordinary part of the boring mill upon which plaintiff was working at the time complained of, then I will say to you as a matter of law, inasmuch as plaintiff admits in his petition herein that he knew it was necessary for him m the operation of said machine to pass over said bracket, that he assumed the risk of stumbling over or otherwise coming in contact with said bracket, and that he can not recover damages against the defendant company for any injuries he may have received in so stumbling over or otherwise coming in contact with said bracket.”

We do not think it necessary to discuss at length this proposition of law, but will only say if the court had given to the jury the above proposition of law it would have rendered nugatory the provisions of Section 6245 of the General Code of Ohio, and therefore the court properly refused to so charge the jury.

Was the verdict of the jury against the manifest weight of the evidence? We have read the testimony as contained in the bill of exceptions for the purpose of ascertaining whether or not the verdict of the jury is supported by the evidence, and while we find some conflict in the testimony, we are by no means prepared to say that the verdict was against the manifest weight of the evidence, and therefore the judgment below will not be disturbed on that ground.

We do not think the other alleged errors prejudicial to the rights of plaintiff in error, and finding no error in the record prejudicial to the rights of plaintiff in error the judgment of the court of common pleas should be affirmed.

Judgment affirmed.

Shields, J., and Powell, J:, concur.


author: Pollock, J.

text:
    FAILURE TO PROVIDE APPROACH TO COUNTY * BRIDGE WITH GUARD-RAILS.
    Court of Appeals for Belmont County.
    Commissioners of Belmont County v. Brown.

      Decided, May 3, 1916.

      Bridges — Construction of Section 7563 — Liability of County for Failure to Provide Guard-Rails for Approaches — 'Where Joint Negligence of Third Party Contributed to Accident.

    A county is liable for all damages which are the result of a failure to erect guard-rails on the approach to a county bridge, as required by Sections 7563 and 7564 of the General Code, though the injury was caused by the joint negligence of a third party and the failure of the board of eaunty commissioners to comply with the provisions of the sections of the General Code just noted.

      George Thornburg and A. W. Kennon, for plaintiff.

      B. W. Schertzer and G. E. Timberlahe, contra.
   Pollock, J.

Error to the Court of Appeals for Belmont County.

The defendant in error brought an action in the court of common pleas of this county against the plaintiffs in error, seeking to recover for damages which she claimed to have sustained by the failure of the commissioners of this county to provide guard-rails on the sides of the approach to the bridge over the creek known as Capitana creek. ■

She claimed in her petition in that court that she was riding in • an automobile, driven by another person, and as the machine was going up the approach to this bridge it went over the side of the embankment and she was injured. She further claimed that her injuries resulted from the negligence of the board of county commissioners in their failure to perform their statutory duty in providing guard rails along the sides of this approach.

To this petition there was an answer • filed which alleged, among other things, that plaintiff was well acquainted with this highway, with the bridge and its condition, and that plaintiff was guilty of contributory negligence; and also alleging that the driver of this automobile was guilty of negligence in approaching and attempting to drive on this bridge at a high rate of speed, and that the accident was caused by his negligence.

The case went to trial resulting in a judgment in favor of the plaintiff below, and the county commissioners are now seeking to reverse that judgment because of errors which they claim occurred in the trial of the case. .

The public road over which the automobile was traveling follows the creek bank to near the end of this bridge, and there makes almost a right angle turn upon the approach to the bridge. The approach to the bridge is up an elevation of something like twelve degrees, and there was no guard-rail on the end of this bridge or on the sides of the approach, as required by the General Code, Section 7563 and following sections. It was admitted that this end of the bridge and the approach is more than six feet above the level of the ground, or more than six feet high.

The testimony shows that on this day a neighbor by the name of Owens was passing the house of Mrs'. Brown in his automobile, and she was taken into the automobile; that they proceeded along this public road to the approach of this bridge; that as they attempted to turn upon the bridge over the approach to this bridge, that the automobile went over the side of the approach to the bridge, and the plaintiff below was injured.

There is testimony tending to show that the automobile was-driven along the public road at a rapid and dangerous rate of speed, and that the speed was not slackened as the automobile approached the end of the bridge or the elevation to the bridge, and that by reason of the rapid rate of speed, the driver of the machine was unable to turn it sufficiently to go up the approach and on to the bridge; that Owens, the driver of the machine, was negligent in not checking the speed of the machine before he came to the angle in the road required to turn on to the approach to the bridge, and that his negligence contributed to cause the injury to Mrs. Brown.

Now, in this condition of the evidence the court at the close of the testimony was requested by the defendant below to charge the jury before argument that, if from the evidence the plaintiff’s injuries did- not result solely from the failure of the commissioners to erect these guard-rails, the plaintiff below could not recover. Then in further request the court was asked to charge the jury before argument that if the accident occurred from the joint negligence of the driver of the automobile, Owens, and the failure of the commissioners to erect these barriers, the plaintiff could not recover.

The court refused to give these requests and in the general charge said that:

“If the accident involved in this lawsuit would not have happened had there been such guard-rails or hedge fence erected and maintained at the time along the sides of this approach, as we have stated to you the county commissioners. were required to erect and maintain, then the failure to so erect and maintain the same was the proximate cause of the automobile falling over said approach, and in that event the plaintiff would be entitled to recover, unless you should further find —under the rules hereinafter given you — that she was herself guilty of contributory negligence.
“If the accident would have happened even though the defendants had maintained the guard-rails and hedge fence which we have stated to you they were required to furnish, then the plaintiff could not recover in any event, for the reason that in that event the failure to so construct same would not be the proximate cause of the accident.”

Now, tbe court refused to charge as requested, and charged that if the accident occurred by reason of the neglect of the commissioners to provide these guard-rails, she had a right to recover. In other words, under the court’s charge to the jury, Mrs. Brown had a right to recover even if her injury was the result of the combined negligence of both the board of county commissioners and the driver of the automobile.

The general rule prevails in nearly all of the American courts that where a person riding in a conveyance by the invitation of the driver, having no control over him, ■ and no reason to suspect his want of due care, is injured by the concurring negligence of the driver and a third person, the negligence of the driver will not prevent a recovery of damages, from the other tort feasor. ■ 1st Thompson on Negligence, Section 502.

The plaintiff in error urges that as this recovery is based upon a statutory right, requiring the public to pay damages for the neglect of public officers to comply with provisions of the statute, and that at common law there could be no recovery against the county for failure to provide such guard-rails, that the county is not liable unless the accident occurred from its own sole negligence; that the general rule of the liability of joint tort feasors does not prevail against the county where the liability is created by statute. That is the principal legal question in this case to be determined.

The principle is well supported that, where the party injured was in the exercise of ordinary care and the injury is caused by the neglect of public officials, either municipal or county, combined with some accidental cause, the party injured may recover damages against the public body which was negligent (City of Crawfordsville v. Smith, 79 Ind., 308). While that question has never been before the- Supreme Court of this state, yet that court has approved this principle where the action was against a private corporation. (Hocking Valley Railway Co. v. Helber, Administrator, 91 Ohio State, 231). The railroad company in building their road had excavated under the public road and had built a bridge across the pub-lie road, which it was required to maintain. The horse drawing the wagon in which defendant’s intestate was riding stumbled and fell against the railing of the bridge, the railing by reason of weakness gave way, resulting in the death of the occupant of the wagon, and the railway company was held liable for negligently causing the death of defendant’s intestate.

But in this case we are asked to go a step further and to hold that the county is liable where the intervening or prior cause contributing with the negligence of the county was a negligent act.

The decisions in other jurisdictions are not uniform upon that proposition. Our attention has been called to the case of Rowell v. City of Lowell, 7 Gray, page 100 (66 American Decisions, 464), in which it is. held that where there is a negligent act in conjunction with the negligence of the city, that the party injured can not recover.

The same rule is held in Bartram v. Town of Sharon, 71 Conn., 686 (46 L. R. A., 144), placing it on the ground that because the liability is a statutory liability, and not a common law liability, then the recovery is in the form of a penalty. It is penalizing the public, and the county is not responsible, where there was another efficient concurring cause contributing jointly with the negligence of the commissioners in producing the injury.

But, on the other hand, we find a majority of the courts, at least, holding differently. The Indiana court, in the case of Knouff v. City of Logansport, 26 Ind. App., 202 ( 59 N. E., 347), held that where a party on a bridge, which was required to be guarded by the public authorities, stepped out of the way to avoid an accident with a bicyclist who was wrongfully on the bridge, and fell over the bridge, he was allowed to recover.

To the same effect is the case of Loso v. Lancaster County, found in 109 N. W., 752. The second proposition of the syllabus reads as follows:

“2. One who is injured by reason of a defective bridge, while riding in a private vehicle may recover from a county otherwise liable, notwithstanding the negligence of the driver, which may have contributed to produce the injury; the injured party being free from negligence, and having no authority or control over the driver.”

The. subject was in issue in the following cases and the court announced the same principle as in the cases to which we have just referred: Village of Carterville v. Cook, 129 Ill., 152 (22 N. E., 14); City of Rock Falls v. Wells, 169 Ill., 224 (48 N. E., 441); Van Camp v. City of Keokuk, 130 Iowa, 716 (48 N. W., 933) ; Eskeldsen v. City of Seattle, 28 Wash., 585 (70 Pac., 64) ; Gould v. Schermer, 70, N. W., 697.

We have this diversity of authorities on this question, and we are left to follow the one which seems to us more reasonable and the more consistent with justice. The diversity in the adjudicated eases seems to turn on whether the recovery provided by statute should be considered a penalty for the neglect of the public officers to perform a requirement of the statute, or an indemnity for an injury directly caused by the negligence of the public officers to comply with the statute.

Now, should we classify such a statute as a penal statute? Justice Shaw, after referring to the words “penal” and “penalty” as strictly and primarily denoting punishment for crime or offenses against the law, said:

“But they are also commonly used as including any extraordinary liability which subjects a wrongdoer in favor of the person wronged, not limited to the damages suffered. ’ ’ Huntington v. Attrill, 146 U. S., 667.

On the next page of this opinion, the ease of Reed v. Northfield, 13 Pick., 94, is referred to as follows:

“ So in an action given by statute to a traveler injured through a defect in a highway, for double damages against the town, it was held unnecessary to aver that the facts constituted an offense, or to conclude against the form of the statute, because, as Chief Justice Shaw said, ‘The action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for neglect or breach of duty operate to a certain extent as punishment; but the distinction is that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a-failure to perform that duty. The law gives him enhanced damages; but still they are recoverable to his own use, and in form and substance the suit calls for indemnity.”

We think the construction that should be placed on this statute is just what its language seems to mean. It seems to mean that the public, if they neglect a duty, should be placed on the same ground as an individual, or private corporation neglecting their duty to another, and they should respond in damages.

Section 7563 provides that the board of county commissioners shall erect or cause to be erected and maintained, where not already done, one or more guard-rails on each end of a county bridge, and also on the approaches to the bridge. That was the provision of this statute which was neglected, or not complied with by the county. Now, Section 7564 provides:

“It shall be sufficient compliance with the provisions of the next preceding section if the county commissioners shall cause to be erected and maintained, a good stock-proof hedge fence where a guard-rail is required. -Such guard-rails of hedge fence shall be erected in a substantial manner, having sufficient strength to serve a protection to life and property.”

The purpose of this section is to protect life and property. Now, the next section provides for the recovery: -

“7565. Failure to comply with the provisions of the next two preceding sections shall render the county liable for all accidents or damages as a result of such failure.”

' It seems to us there is nothing here indicating a penal statute. The county is not made liable in a gross sum for the purpose of punishment, but is liable to the party injured for all damages sustained as a result of such failure.

“A statute which gives a recovery for an injury against him by whom it is committed, to the person injured and to' him alone, and limits the recovery to the mere amount of the loss sustained, belongs clearly to the class of remedial statutes.” Boice v. Gibbons, 8 N. J. Law, 330.

The statute is remedial, and gives to the party injured compensation for the injury which he has sustained by reason of •the failure to comply with a duty imposed upon the county by statute, and is not a penalty exacted from the county for its failure to perform a statutory duty, or a recovery that should be regarded as penalizing the public for not complying, with the statute. The county, by neglecting this statutory requirement, is made liable to the party injured by its neglect just as a private person is liable for his negligence that causes injury. We think there was no error in the court charging the jury as it did, or in refusing to charge as requested.

Now, there is one other error complained of, that the verdict is against the weight of the evidence because there was a sufficient guard. It seems that there was some evidence that at the end of this bridge or its wing-wall, that at the outer edge of the same the stones were placed a a certain number of inches above the road-bed, and extending out from the bridge some distance. We do not have any doubt that, if there had been a stone abutment built up so as to answer the requirements of this statute to protect life and property, that it would be a compliance with this statutory requirement; .the county would not be required to place guard-rails or stock-proof hedge fence if something else had been provided which was equally as efficient. But all we need say about that is that the question was submitted to the jury and they found against the defendant below, and the verdict is not so manifestly against the weight of the evidence that we would be at liberty to disturb the verdict on that ground.

Judgment affirmed.

Spence, J., and Metcalfe, J., concur.


author: Gorman, J.

text:
    SPLITTING CLAIM UP INTO SEVERAL CAUSES OF ACTION DEPRECATED.
    Court of Appeals for Hamilton County.
    William Boswell v. Security Life Insurance Company.
    Decided, December 21, 1916.

      Pleading — Damages for Breach of Contract — Successive Breaches do Not Require Separate Causes of Action — Arrest of Cause from Jury.

    1. Several breaches of a contract do not constitute separate causes of action, and in a suit for damages growing out of the breach it is not good practice to split up the claim into a number ■ of causes.
    2. The fact that a trial court in arresting a cause from the jury based its action on wrong grounds is immaterial where other grounds existed which warranted such action.

      Bettinger, Schmitt & Kreis, for plaintiff in error.

      G. B. Matthetos, H. D. Einman and J. L. Gregory, contra.
   Gorman, J.

Plaintiff in error asks for a reversal of the judgment of the court of common pleas in this proceeding. The trial court at the close of the evidence arrested the case from the jury or instructed a verdict for the defendant in error, which was the defendant below.

The plaintiff below brought an action to recover $250,000 damages upon three alleged causes of action, which were pleaded in the alternative, for a breach of a contract entered into between the parties whereby the plaintiff in error had been appointed the exclusive managing general agent for the defendant company for the purpose of soliciting life insurance for the defendant in the states of Ohio, Kentucky, West Virginia and Tennessee. The first draft of the contract provided that the time of the agency was indeterminate or indefinite; shortly afterwards the contract was amended so as to limit fh’é per id d of plaintiffs agency to twenty years from October 30, 1901. The breach of the contract is alleged to have occurred on Jam uary 1, 1912, and it was sought to recover the damages which the plaintiff alleged he sustained for the unexpired period of the contract — nine years.

The contract consisted of several distinct paper writings, but it will not be necessary for the purpose of this decision to set out these contracts in full, but merely to refer to those portions thereof which are involved in this litigation.

In substance the contract provided that the plaintiff, Boswell, was to act as the agent of the defendant in the states above named for a period of twenty years from October 30, 1901. He was to have the exclusive right to appoint agents and sub-agents in the territory, and was to receive as commissions upon all policies of insurance secured by him, or upon all insurance written by him or his sub-agents a graduated amount, being 70% on some policies, 60% on others, 50% on others, 40% on others, 30% on others, and 20% on others, of the first year’s premium collected on the insurance produced by him and his sub-agents. He was also to receive upon all renewal premiums paid to the company upon policies produced by him and his agents 8% during the life of the policy on the condition that $100,000 of insurance produced under the contract remained in force.

The contract stipulated that the plaintiff should not act directly or indirectly as the agent of any other life insurance company during the period of time that he was to act as agent for the defendant company. The contract further provided that it should remain in force so long as its conditions and requirements were fulfilled.

While the amended petition of the plaintiff sets out three causes of action, it appears to .us that there was but one cause of action, although there may have been more than one breach of the contract. The action was to recover damages for a breach of contract, and it is immaterial how many breaches of the contract there may have been, there could be but one cause of action, and we do not think that the practice indulged in by the plaintiff in this case, in setting out three alleged causes of action, is one to be encouraged, as this appears to ns to be merely a splitting up of the cause of action, and not a case of separate causes of action. However, this is not a material fact to be determined in the decision of this proceeding in error.

Among other things, the contract provides that the payment of the plaintiff commissions as agent is to be on the following terms and conditions, which are agreed to by the parties hereto. Then follow some fifteen separate paragraphs or provisions of the contract. The second paragraph provides that the plaintiff shall devote his entire time and best energies to the service of this company, and shall have the exclusive right to appoint agents in said district. The fourteenth paragraph or stipulation provides that so long as its conditions and requirements are fulfilled this contract shall continue in force. And the fifteenth paragraph or clause of the contract reads as follows:

“It is one of the conditions of this contract that there shall be produced by said second party from the territory included in the terms of this contract, accepted and paid for new business of the following amounts, to-wit, during the year 1902, from the state of Ohio $1,000,000; from the state of Kentucky $500,-000; from the state of West Virginia $150,000; and that each calendar year thereafter accepted and paid for new business shall equal or exceed the following amounts, to-wit, in the state of Ohio $1,500,000; in the state of Kentucky $750,000; and in the state of West Virginia $250,000; or in lieu thereof $2,500,-000 from the entire territory. The termination, however, of this contract for any cause, shall in no event terminate or cancel the renewal interest of said second party as provided in paragraph fourth hereof.”

After the state of Tennessee was added to the territory of the plaintiff it was stipulated that he should produce in each calendar year after the first, during the life of the contract, $400,000 worth of accepted and paid for new business in that state, making the total amount which the plaintiff was required to produce of new business after the first year $2,900,000.

It is in evidence that down to January 1, 1912, the date of the alleged breach of the contract by the defendant, the plaintiff-Boswell failed to produce the minimum amount of business provided for in the contract, excepting during the two years 1909 and 1910. In each and every year in which the plaintiff failed to produce the minimum amount of business required by the contract the company waived in writing that provision of the contract which required Boswell to produce the minimum amount of business, excepting the last year, 1911, in tfhieh year the plaintiff failed to produce the minimum amount of insurance, and the defendant company did not waive in writing or otherwise the provision of the contract requiring him to produce this amount of business. During the years 1909 and 1910 the plaintiff wrote and paid for more than the minimum amount of insurance required from his territory, but it was claimed that this business was secured by him by practicing rebating.

One of the defenses set up by the company was that the plaintiff had breached the contract' by granting rebates contrary to the law of the state of New York and contrary to the provisions of the contract. .The insurance company further claimed in its answer that Boswell, the plaintiff, had breached the contract by failing to produce during the year 1911 the minimum amount of business required by the contract to be produced, and that inasmuch as the contract was to continue upon the condition that he did produce this amount of insurance, his failure in this regard automatically and ipso facto worked a discontinuance of his contract and rendered the insurance company immune to liability.

The plaintiff claimed that he was wrongfully discharged as agent on or about the 1st of January, 1912. The company denied that it had discharged him wrongfully or had discharged him at all but, as stated above, it claimed that he had breached the contract by his failure to produce during the year 1911 the minimum amount of the business, and had further breached the contract by resorting to rebating, and still further breached it by devoting a part of his time and attention to another insurance company — the Massachusetts Mutual Life Insurance Company.

The trial court in arresting the case from the jury was of the opinion that Boswell, while he was acting as agent for the defendant company during the year 1911, took on an engagement with the Massachusetts Mutual Life Insurance Company and devoted a part of his time and attention to securing a contract with that company, which was a- competitor of the defendant company, and that by reason of that fact and by reason of the further fact that Boswell during the years 1909 and 1910 had resorted to rebating without the knowledge and consent of the defendant company, he was thereby guilty of a breach of the contract and was not entitled to recover any damages — assuming that the defendant company had discharged him, as he claimed, on or about January 1, 1912.

We are not satisfied that the evidence in this case shows conclusively that there was rebating by Boswell unknown to the defendant company, or that it was not approved by or condoned by the defendant company; nor are we satisfied that Boswell devoted any of his time or attention during the year 1911 to any company other than the defendant company.

We are inclined to the opinion that the court was not justified in arresting the case from the jury upon the grounds that Boswell had been guilty of rebating, or that he had not given his entire time and attention to the service of said company.

We are, however, clearly of the opinion that the provision of his contract which required him to produce $2,900,000 worth of business each year after the first year during the period of the contract was a condition precedent, and upon his failure to comply with this condition he lost all of his rights under the contract; he breached the contract and was not entitled to recover anything in the action. It is clearly made a condition precedent to the continuance of the contract that Boswell shall produce the amount of insurance stipulated in the contract. Although the court’s action in arresting the case from the jury was predicated, in our opinion, on the wrong grounds, nevertheless, the court’s action in arresting the ease from the jury was justified under the state of facts brought out in the trial of the ease. It is not material upon what grounds the court’s opinion is based if the conclusion of the court be the correct one.

In this case we have no doubt that Boswell, by reason of the failure to produce the minimum amount of insurance, should have been non-suited and his action dismissed. It appears from the evidence that both parties to this contract considered themselves that the condition in the contract requiring Boswell to produce the minimum amount of business was a condition precedent, from the fact that the company waived the condition each and every year of Boswell’s failure to produce the required amount of business, excepting the last year, 1911. There was no waiver for the years 1909 and 1910 for the simple reason that Boswell produced more than the minimum amount of business during each of those years.

In the letters which passed between the president of the company and Boswell they both speak of the fact that it was incumbent upon Boswell to produce this minimum amount of business or his rights under the contract would be forfeited.

The record in this case is quite voluminous; indeed,, it has seldom- happened that a record so large as this one has been presented to this court, and we do not deem it expedient or profitable to comment upon the evidence or to cite numerous authorities in support of the conclusion which we have reached. Many authorities have been cited by counsel on both sides, but we think a reading of the contract, giving to the language the plain meaning which the parties intended it should have, shows conclusively that the provision of this contract requiring the production by Boswell of the minimum amount of business specified in the contract was a condition precedent to the continuance of the contract of agency; and Boswell having failed to produce the. minimum amount, and the company having failed to waive this condition for the year 1911, either in writing or verbally, Boswell has no right of action, and the judgment of the court' below in arresting the case from the jury or in instructing a verdict for the defendant was correct and the judgment will be affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Richards, J.

text:
    PROSECUTIONS IN MINOR. TRIBUNALS.
    Court of Appeals for Lucas County.
    State of Ohio, ex rel Raymond C. Hilt, Justice of the Peace, v. William F. Renz, Clerk of the Court of Common Pleas.
    Decided, June 19, 1916.

      Mandamus Against Cleric of Court — To Compel Drawing of Jury Venire for Justice of the Peace — Section 1SW Construed — Directs Method of Procedure Only.

    1. Section 13432, General Code, does not confer jurisdiction upon justices of the peace, police' judges or mayors, but directs the method of procedure for obtaining a jury in eases in which such magistrates have final jurisdiction.
    2. Mandamus will not lie against the clerk of the court of common pleas to compel him to draw from the jury wheel names of persons to serve as jurors in a proescution before a justice of the peace for the violation of Section 12475, General Code.

      P. J. Phelan and George 8. Moss, for relator.

      J. G. D’Alton, Prosecuting Attorney, and A. J. 8eney, contra.
   Richards, J.

This is an original action in mandamus commenced in this court, the object of which is to compel the clerk of the court of common pleas of this county to draw from the jury wheel names of persons to serve as jurors in a certain prosecution before a justice of the peace.

The petition discloses that an affidavit has been filed before the relator, as a justice of the peace, charging one E. H. Drink-water with an offense under Section 12475, General Code. That section prescribes a fine or imprisonment, or both, for whoever, with intent to defraud, sells, secretes, destroys, or converts to his own use, or otherwise disposes of chattel property which has been given him in trust, or on deposit; or under an agreement to purchase on the installment plan, and- prescribes a like penalty against whoever, with intent to defraud, removes the property beyond the county. The petition further avers that the defendant on being arraigned entered a plea of not guilty and demanded a jury, and that the relator fixed the time of trial and certified to the clerk of the court of common pleas the fact of such prosecution pending before him and demanded that the clerk certify a jury in said cause.

The defendant has filed a general demurrer to the petition and the only question to be decided is whether it is the duty of the clerk of courts, under the circumstances shown, to draw names of persons to serve as jurors.

It is insisted on behalf of the relator that this duty is enjoined by virtue of the language of Section 13432, General Code, which reads as follows:

“Section 13432. In prosecutions before a justice, police judge or mayor, when imprisonment is a part of the punishment if a trial by jury is not waived, the magistrate, not less than three days nor more than five days before the time fixed for trial, shall certify to the eierk of the court of common pleas of the county that such prosecution is pending before him.”

The section above quoted does not bestow, nor does it purport to bestow, any jurisdiction upon justices of the peace, police judges or mayors, but simply provides the method of procedure for obtaining a jury in cases in which such magistrates have final jurisdiction. Unless, in the case under consideration, the justice of the peace has final jurisdiction, he has no occasion to require the services of a jury and no authority exists for causing the names of persons to serve as jurors to be drawn from the wheel; and by final jurisdiction, I mean, of course, the authority to try the defendant on the charge made against him, and to impose a penalty or acquit him, and not the mere authority to inquire into whether an offense has been committed, and discharge the defendant or bind him over to another court. The final jurisdiction given by statute to justices of the peace in criminal cases is specifically set forth in other sections of the statutes, particularly Sections 13423, 1153, 4414, 4416, 4417, 12519, 12520, General Code, and many others. Under Section 13423, General Code, a large number of offenses are named over which justices of the peace, police judges and mayors are given final jurisdiction, and in numerous other instances throughout the statutes these magistrates are given jurisdiction over additional offenses, but nowhere is such final jurisdiction given to a justice of the peace to try a defendant and impose a penalty in a ease where the charge is under Section 12475, General Code, unless the accused in writing duly waive a jury and submit to be tried by the magistrate, as provided by Section 13511, General, Code.

It is perfectly clear, therefore, that Section 13432, General Code, can only apply to a case where the officials therein named are given by appropriate statutory enactment final jurisdiction to try the accused, and that said section can have no application to a prosecution under Section 12475, General Code. Manifestly the purpose of Section 13432, General Code, was to make operative all the statutory provisions conferring final jurisdiction of offenses upon the officials named in the section, where imprisonment may be a part of the punishment, and the section can only relate to that character of eases. To hold otherwise would be to decide that the codifying commission and the General Assembly, in adopting its report and enacting the statute, had indirectly enlarged the jurisdiction of the officials named in this section so as to embrace all prosecutions where imprisonment is a part of the penalty. It is inconceivable that the General Assembly had any such intent in view of the fact that the jurisdiction of these officials- is carefully stated in detail in various sections of the General Code, and that they have no jurisdiction except such as may be specially conferred by statute.

Courts will not extend the jurisdiction of a justice’s court by construction beyond the plain language of the statute giving such jurisdiction (McCleary v. McLain, 2 O. S., 369). In analogy to what was said by the Supreme Court in In re Application of George Hesse for a writ of habeas corpus, 93 O. S., 235, so I may here, if the General Assembly had intended to amend the various statutes prescribing the jurisdiction of justices of the peace and to substitute in lieu thereof the general language used in Section 13432, General Code, it would have been easy to have done so in unequivocal language.

It is true that a contrary conclusion was reached in the probate court in Stark county in the case of State v. Pohlman, reported in 13 N.P.(N.S.), 254, but we can not concur in either the conclusion or the reasoning of the court in that case.

The conclusion which we have reached is in accordance with opinions given county. prosecutors by the present Attorney-General of Ohio and by his predecessor in office.

For the reasons given, we hold that the demurrer to the petition must be sustained and the petition -dismissed.

Chittenden, J., and Kinkade, J., concur.


author: Houck, J.

text:
    VALIDITY OF NOTE GIVEN IN PAYMENT OF INSURANCE PREMIUM.
    Court of Appeals for Muskingum County.
    McDonald & Frazier, a Partnership Composed of Charles McDonald and Jay W. Frazier, v. Herb Schervish.
    Decided, May Term, 1916.

      Life Insurance — Execution of Note, Without Interest, in Payment .of First Premium — Not Within the Prohibition of the Statute, When ■ — Suit Lies on such a Note.

    Where the evidence is to the effect that a contract was entered into for a policy of life insurance and the amount of the premium • agreed upon, and thereafter a note was accepted from the insured for the first year’s premium, due in sixty days without interest, the accommodation thus extended as to the time for paying the first premium can not he regarded as an inducement for taking out the policy, or as within the inhibition of Section 9404, General Code; and where the insured made no complaint until after the note had become due and the agents receiving it had paid the premium to the insurance company, the defense that the note was void because in contravention with said section does not lie.

      E. R. Meyer, for plaintiffs in error.

      J. G. Bassett, contra.
   Houck, J.

This is a proceeding in error seeking to reverse a judgment of the Common Pleas Court of Muskingum County, Ohio. The parties occupy the same position in this court as in the court below, the basis of the suit being a promissory note for $152 given to McDonald & Wagner by Herb Schervish in payment of the first premium on a life insurance policy in the Bankers’ Life Insurance Company, of Nebraska, which was sold by McDonald & Wagner, the agents of said insurance company, to the said Schervish, the note being sold and transferred by said MicDonald & Wagner to the plaintiffs in error, who filed suit in the common pleas court of this county, the petition being drawn under the usual short form of petition on promissory notes.

The answer contains three defenses:

1. Admits the plaintiffs are the owner and holder of the note in question; admits its execution, delivery, and the endorsements thereon, but denies all the other allegations therein, and especially avers that the note was given without any consideration therefor.

2. That it was null and void, and against public policy, and in violation- of Section 9404 of the General Code of Ohio, because the plaintiffs’ assignors, in order to induce the defendant to take a $5,000 life insurance policy at the usual rate of annual premiums agreed to defer the payment of the first premium for sixty days, without interest, instead of requiring the same to be paid in cash as the policy provided.

3. That the defendant was induced to take said insurance by reason of certain false and fraudulent statements made by the original payees of the note to the defendant, in this, to-wit, that said policy, at the end of twenty years, if the insured paid the annual premiums thereon, would be entitled to receive in cash not less than $4,800, nor more than $5,200, and that this and other representations made to him at that time were not true.

A reply to said answer was filed by the plaintiffs, admitting that McDonald & Wagner were the agents of the said Bankers’ Insurance Company; that the first premium was payable on delivery of the policy, and that McDonald & Wagner, in lieu of payment in cash, accepted said note for such premium, and denied all the other allegations in the answer.

On these pleadings and the evidence the cause was submitted to a jury and a verdict returned for the defendant. The usual motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict. The plaintiffs in error seek a reversal of this judgment for the reason that the verdict of the jury and the judgment entered thereon are against the manifest weight of the evidence and contrary to law.

It is claimed by the defendant in error that there was a rebate in favor of him when he was permitted to give the note in suit for sixty days, without interest, in payment of the first premium on said policy in question.

We find from an examination of the bill of exceptions that the great weight of the evidence is to the effect that the contract for the policy and the amount of the premium was agreed upon before the execution of the note, and that the question of the time of the payment of the first premium could not have been and was not in any way an inducement to the defendant to take the policy.

The defendant claims that the note is void under favor of Section 9404 of the General Code, which is as follows:

“No life insurance company doing business in this state, or any officer, agent, solicitor, employee, or representative thereof, nor any other person, shall pay, allow, or give, or offer to pay, allow, or give, directly or indirectly, as an inducement to insurance, nor shall any person, co-partnership or corporation knowingly receive as such inducement to insurance, any rebate of premium payable on the policy or any special favor or advantage in the dividends or other benefits to accrue thereon, nor any special advantage in the date of a policy or date of issue thereof; or any valuable consideration or inducement whatsoever; or give or receive, sell or purchase, or offer to give or receive, sell or purchase, as inducement to insurance or in connection therewith, any stock, bonds, or other obligations or seeurb ties of any insurance company or other corporation, association, partnership, or individual.” * * *

If we rely upon the facts as to the execution and delivery of the note in question, as disclosed by the testimony in the bill of exceptions, we have no hesitancy in saying that none of the provisions of said section of the code has been violated. The contract entered into by the defendant for said policy of insurance and the note executed and delivered by him for the first premium can not be set aside and held for naught, unless the same be established by clear and convincing evidence. The defendant made no complaint until after the.note had become due, and not until after the payees had settled with the insurance company.

As to the misrepresentations claimed by the defendant in error, counsel earnestly urge that he did not receive the kind of policy he was led to believe he was getting; that the settlements shown and represented to be on similar policies were not only not similar, but were known by the agent not to be similar. It is not a question of opinion as to what the earnings of the company would be, but whether the representations as to the sameness cf the policies were not only false, but known to be false by the agent and believed by the defendant. If the contention of the defendant-is sound, then a recovery could not be had upon the note in suit because it was obtained in fraud of the rights of the defendant.

Fraud is never presumed, but must be established by clear and convincing evidence. This, as we view the testimony as shown in the bill of exceptions, has not been done — the burden of establishing the facts alleged in the answer being upon the defendant — and we think it has not been done by that degree of proof required by law.

From what we have already said it necessarily follows that in our opinion the note is founded upon a sufficient consideration, and therefore we need not discuss that question further.

We therefore find that the verdict of the jury was against the manifest weight of the evidence and contrary to law, and that the trial court erred in entering a judgment on the verdict. Finding error in the record prejudicial to the rights of the plaintiffs in error, the judgment of the common pleas court must be reversed, which is now done, and the cause is remanded to the court from whence it came for further proceedings.

Shields, J., and Powell, J., concur.