author: Shohl, P. J.

text:
    CARE REQUIRED BY OWNER OF PREMISES FOR SAFETY OF EMPLOYEE OF AN INDEPENDENT CONTRACTOR.
    Court of Appeals for Lucas County.
    (Show, P. J., and Hamilton and Cushing, JJ. of the First District, Sitting by Designation in Place of Kinkade, P. J„ and Richards and Chittenden, JJ., of the Sixth District.)
    The National Machinery Company v. Charles D. Towne.
    Decided, June, 1919.

      Negligence ancl Assumed Risk — Employee Sent to Rapair Windows of a Factory — Injured Toy a Traveling Crane — Degree of Care Required of Proprietor for the Safety of a Contractor’s Employee— Charge of Court — Proximate Cause.

    1. A landowner owes to an employee of an independent contractor, who is rightfully on his premises, the duty to use ordinary care not to injure him.
    2. Where plaintiff, an employee of an independent contractor, with de. fendant’s knowledge used the track of a traveling crane in making repairs on defendant’s factory building, plaintiff did not assume the risk of defendant’s negligence in operating the crane on such portion of the track where plaintiff was standing, without notice to him.
    3. The promise of the operator of the traveling crane to plaintiff, while it created no new obligation on the part of defendant, was a proper element to be considered in determining whether the conduct of plaintiff was that of a reasonable man.
    1. The negligence of plaintiff, to bar relief, must proximately cause the injury.
    5. The word accident, as used in actions for damages for personal injuries, sometimes means an occurrence to which human fault does not contribute; and the court did not err in refusing to give a special charge so characterizing the occurrence.
    6. Where instructions are requested by a party after argument, the court is not required to use the precise terms or language submitted; it is sufficient if the substance thereof be given in other instructions or in the general charge.

      Roger & Spitler, McCauley <& Weller, Marshall & Fraser, for plaintiff in error.

      Kohn, Northup <& McMahon, contra.
   Shohl, P. J.

Defendant in error, Charles D. Towne, was employed by one Arthur O. Souders, who was an independent contractor making some repairs on the factory building of The National Machinery Company of Tiffin, plaintiff in error. He was putting flashing in some windows and was standing inside the building on the track of a traveling crane, when he was struck by the moving crane and injured.

The petition alleged that the traveling crane was 30 to 35 feet above the ground, tracks being approximately 35 feet apart and constructed about the room near certain ventilating windows; that the crane could be easily moved or stopped by the defendant; that the plaintiff was employed by a third person as roofer and roof repairer; that it was necessary for him to stand upon the track and make repairs on all the windows; that immediately before he took his position on the track, he was informed by the defendant that defendant would beep a lookout for him, if the crane was to be moved, and would give him ample signal by bell so that he could remove himself tc a place of safety. At the time he was injured he was standing with his back to the crane, as it as necessary for him to do to make the said repairs; that the operator of the crane, without any warning or signal to him, negligently started and propelled the crane and ran it upon and against the plaintiff. After reciting the injuries received, it avers:

“Plaintiff says that the defendant negligently caused said crane to strike and crush plaintiff's legs as aforesaid, in that it propelled said crane upon him without giving any warning or signal whatever of its intention so to do, and plaintiff did not see and did not hear said crane as it was propelled upon him, and had no opportunity whatever to remove himself to a place of safety. That said defendant in the exercise of ordinary care would have seen plaintiff and would have given him timely warning before injuring him as aforesaid.”

The defendant filed an answer denying the substantial averments of negligence, and, by way of second defense, alleged that if the plainiff: was injured at the time and place alleged in the petition, such injuries were caused solely and proximately by his own carelessness in that he voluntarily and needlessly, without the advice, direction or knowledge of the defendant, suddenly placed himself in front of the crane, which, as the plaintiff well knew, was a place of great danger, which he also knew was constantly moving from one end of the building to the other along a rail; that the operator of the crane would not know and did not know that the plaintiff was at that time near or in front of the crane in a place of danger; notwithstanding the said knowledge, plaintiff placed himself immediately in front of said crane and carelessly turned his back on it and exercised no care to learn its movements, and in placing himself in this danger, he, without any warning to defendant, climbed into one of the ventilating windows in the roof of the building so that the operator of the crane, in the exercise of ordinary care and in the exercise of his duties, would not, could not and did not know of his presence there.

The reply denied the allegations of new matter contained in the answer.

The case was tried twice. At the first hearing a verdict was rendered for the plaintiff for eight thousand dollars, and that was set aside by the trial court for misconduct of a juror. The second trial took place in January, 1919. There was a conflict in the evidence, which it will not be profitable to set out at length. The jury rendered a verdict for plaintiff for fifteen thousand dollars.

Plaintiff in error contends that defendant in error was guilty of contributory negligence, or assumed the risk of injury by exposing himself to an obvious and appreciated danger. It is not vital to determine whether the doctrine of assumed risk, as distinguished from contributory negligence obtains in Ohio in cases that do not arise out of the relation of master and servant. See 5 Corpus Juris, 1413 and 14. The risk Avhich Towne would have assumed, if the doctrine of assumption of risk was applicable, is the risk of working in a dangerous place. He did not assume the risk of defendant’s negligence in operating the crane, on the part of the track where he was .standing, without notice to him. Standard Steel Car Co. v. McGuire, 161 Fed., 527. Bui whether the defense be regarded as assumed risk or contributory negligence, the situation must be considered in connection with the alleged conversation between the plaintiff and Negele, the operator of the crane. Plaintiff testified to the allegations of the petition in respect to the promise by Negele to warn him. that Negele said he would give him warning and lookout for him.

Negele was without authority to extend an invitation to an outsider, who would otherwise be a trespasser or licensee on the premises. Curtis v. Stone Quarries, 37 Wash., 355, 362; Macartney v. Coldwell, 29 R. I., 21; Formall v. Standard Oil Co., 127 Mich., 496. See 6 Labatt on Master and Servant, Sec. 2500.

' It must be borne in mind, however, that Towne was not a trespasser and was rightfully on the premises, independent of any invitation from Negele. 1 Thompson on Negligence, 2nd Ed., Secs. 680, 979; Penn Co. v. Gallagher, 40 O. S. 637, 644.

If Negele did in fact tell plaintiff that he would lookout for him and would warn him before moving the crane, even though that created no duty on the part of the company, it would have bearing and would be entitled to weight in the determination of whether Towne’s conduct under all the circumstances was that of a reasonable man. If the jury believed and found that Negele had spoken as Towne testified, the conduct of Towne in working with his back to the crane and without looking around at frequent intervals, did not constitute negligence as a matter of law. It presented a question for the jury. We cannot say therefore that the judgment is contrary to law, nor in view of the entire record is it so manifestly against the weight of the evidence as to warrant a reversal on that ground.

Complaint is made because the court gave certain special charges before argument among which are the following:

No. 7. “The fact, if you should so find it to be, that the work Towne was doing could be done as well from the outside of the window as from the inside is entirely immaterial if his presence was known to Negele at the time of starting the crane just prior to the time that Towne was injured, or if Negele in the exercise of ordinary care would have known of Towne’s presence on the track.”
No. 14. “If you find from a preponderance of the evidence that the cranesman, Negele, knew that said plaintiff and other persons were engaged the morning of the accident and prior thereto, in working upon said track, then I charge you that it was the duty of said cranesman to exercise .ordinary care toward them and if you find from a preponderance of the evidence that he did not exercise ordinary care toward them, and thereby the plaintiff was injured, you will be warranted in finding that defendant was negligent.”
No. 18. “The defendant owed the duty of using ordinary care towards Towne independently of-promises on the part of Negele. So whether Negele promised Towne to watch out for him and give warning by gong, or did not so promise, nevertheless if he failed to use ordinary care towards Towne in the operation of the crane and thereby solely and directly caused the injury to Towne, Mr. Towne is entitled to a verdict at your hands. ’ ’
No. 18. “The defendant owed a duty to Towne not to negligently bring force to bear upon him. It owed this duty independently of any promise on the part of Negele or any other person and if the defendant negligently brought force to bear upon the plaintiff, it is liable for whatever damages were directly and proximately caused thereby.
“In this connection I say to you that the negligence of Negele, if any there was, was the negligence of the defendant company.”

Charge No. 7, fairly construed, does not assume the presence of plaintiff on the track to have been established as prohibited by the rule set forth in Cline v. State, 43 O. S., 332, and Weybright v. Fleming, 40 O. S., 52. It states the law applicable if the jury found that plaintiff was in fact on the track. Nor is it otherwise incorrect in the case at bar. The defendant had actual knowledge of Towne’s presence on the premises. He was rightfully there. They owned to him as the employee of an independent contractor the duty to use ordinary care. 1 Thompson on Negligence, 2nd Ed., and Supplement, Sec. 979; Penn Co. v. Gallagher, 40 O. S., 637; Kelly v. Howell, 41 O. S., 438; Graham v. Brandt Shoe Co., 165 Mo. App., 361; Winona Technical Inst. v. Stolte, 173 Ind., 39, 48.

The ease is distinguished from that of a trespasser or person who is wrongfully on the premises of another as in the ease of Erie R. R. v. McCormick, 69 O. S., 45. See Railroad Co. v. Harvey, 77 O. S., 235, 240. Having knowledge of his presence, their duty to use ordinary care might be found by the jury to include an obligation, to keep a lookout for him under the conditions shown in the case at bar. Standard Steel Car Co. v. McGuire, 161 Fed. 527.

Charge No. 14 is not seriously objectionable as tending to confuse the jury by reference to the duty of the eranesman to other persons. The jury could not have been misled. Nor was the court wrong in charging the jury on the law applicable if Negele knew beforehand that plaintiff was working on the track. Though it was not alleged in the petition, the court might properly charge respecting the situation developed by the evidence. Rayland Coal Co. v. McFadden, 90 O. S., 183.

Charges No. 18 and No. 19 were correct statements of law for the reasons already stated in the consideration of the evidence as to the promise of Negele in its bearing on the points hereinbefore discussed.

'The court refused certain special charges requested by defendant before argument.

No. 8. “If the plaintiff in any degree directly contributed by any act of his to bring about this accident then your verdict must be for the defendant.”

The negligence of plaintiff to bar relief must proximately cause the injury. Schweinfurth v. Railway, 60 O. S., 215. This was not made entirely clear by the charge in the form requested. Furthermore, the occurrence is characterized as an “accident.” The word “accident,” as used in actions for damages for personal injuries, sometimes means an occurrence to which human fault does not contribute, 1 Corpus Juris, 390-392, and the use of the word might tend to mislead the jury.

Charge No. 9 as requested is:

No. 9. “If the work of nailing- on the tin Hashing could have been as conveniently and safely done from the outside of the building, then your verdict must be for the defendant.”

If counsel were aiming to state the rule as laid down,. in Schaefler v. Sandusky, 33 O. S., 246, to the effect that whoever voluntarily and unnecessarily encounters a known and easily avoidable peril, cannot be regarded as exercising ordinary prudence, then the foregoing charge is not within it. If the charge requested were correct, it follows, that if it were equally convenient and safe to do the work from the inside as from the outside, a plaintiff could never recover no matter where he worked if his choice of sides resulted in injury.

After argument the defendant requested the court to charge:

“You are instructed that if the plaintiff by a failure to exercise ordinary care for his own safety directly and proximately contributed to produce this injury,- then your verdict must be for the defendant. You are further charged that if this accident was caused by the joint negligence of the defendant and plaintiff, that negligence of both parties combined to produce the result, then your verdict must be for the defendant.”

Even if the instruction requested is proper, unless counsel comply with Section 11447 and present it in writing before argument, the court is not required to give it in the precise terms or language as submitted. It is sufficient if the substance thereof be given in other instructions or in the general charge. Rheinheimer v. Aetna Life Ins. Co., 77 O. S., 360. The language of the instruction requested was not altogether fortunate. There was no “joint” negligence alleged or proved. If counsel had in mind concurrent negligence, the court charged properly upon that point.

Complaint is made that in explaining the law as to the negligence of both parties the court charged on the effect of the negligence by plaintiff using the phrase “the proximate cause.” With reference to the negligence of plaintiff the phrase ‘ ‘ a proximate cause” would probably have been clearer. The court stated that if the jury find from the evidence that the defendant was guilty of negligence, and, if they further find the plaintiff was guilty of negligence and that this latter negligence contributed to and was the proximate cause of the injuries, the verdict must be for the defendant. The court further charged that if the negligence of the plaintiff was the sole cause of his injuries, he could not recover. Taking the charge as a whole it is apparent that the phrase “the proximate cause” was not used to mean “the sole, proximate cause.”

The court said in another part of the charge that the negligence of the plaintiff would bar recovery if it was the proximate and immediate cause of the injury. Plaintiff in error complains .of the use of the word “immediate.” The negligence that defendant charges against plaintiff consisted in suddenly placing himself in front of the approaching crane. The issue on that point was simple. Under all the circumstances, the use of the phrase “proximate and immediate cause” in its context meant no more than “proximate cause.” See Lonabaugh v. Ry. Co., 9 Nev., 271, 294, Kline v. Ry. Co., 37 Cal., 400, 406; Fitch v. Ry. Co., 45 Mo., 322, 327.

The verdict and judgment were for fifteen thousand dollars, which it is contended is excessive. We will not attempt to set out the evidence in respect to the extent of the injuries, the pain and suffering, and the earning capacity of the plaintiff before and after the injury. Upon consideration of all the evidence, facts and circumstances, the court finds that a verdict and judgment in excess of ten thousand dollars should not be allowed to stand in the case. Accordingly, if counsel for plaintiff in error will consent to a remittitur in the sum of five thousand dollars the judgment, as modified, will be affirmed; otherwise it will be reversed and a new trial ordered.

Hamilton and Cushing, J. J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    ACCEPTANCE AND PAYMENT OF A CHECK.
    Court of Appeals for Cuyahoga County.
    (Jones, P. J., Gorman and Hamilton, JJ., of the First District, Sitting by Designation in Place of the Judges of the Eighth District.)
    Petrie v. The Garfield Savings Bank Co. et al.
    Decided, July 2, 1917.

      Banks and Banking — Check Deposited in a Branch Bank — {Effect the Same as Though Deposited in the Main Bank — iEffect of Passing to the Credit of a Depositor the Amount of a Check Drawn on the Bank in Which it is Deposited.

    1. The deposit of a check in one of the branch banks of the banking company upon which it is drawn is the equivalent of depositing it in such company’s main bank. This is true without regard to what the- practice may be with reference to putting through the clearing house checks deposited in the branch banks.
    2. Where a person in whose favor a check is drawn deposits such check in the bank upon which it is drawn, and the bank passes to the credit of such person in his checking account the amount of the check, such action on the part of the bank amounts not only to an acceptance but also to a payment of the check.

      Walter J. Hamilton and H. H. Henry, for plaintiff in error, error.

      Ford, Snyder & Tilden, contra.
   Gorman, J.

Error to Common Pleas Court of Cuyahoga County.

The plaintiff in error, John R. Petrie, commenced this action against defendants in error in the common pleas court of Cuyahoga county. After filing a petition and amended petition, he filed by leave of court a second amended petition, in which he sets out that defendant is a corporation organized under the banking laws of the state of Ohio, and engaged in the general banking business in the city of Cleveland; that on the 17th day of November, 1915, one James Lawson executed and delivered to plaintiff his check drawn upon the defendant bank for the sum of $208, on account of services for work and labor performed by the plaintiff as a plumber; that at the time said Lawson executed and delivered to plaintiff said bank check, which was dated November 16, 1915, said Lawson had on deposit in one of the branch banks of the defendant company the sum of $700. Plaintiff further avers that on the 18th of November, 1915, he deposited said check for $208 in the defendant bank, at the Superior avenue and East 105th street branch, to the credit of his checking account, and at the time of such deposit said bank had to the credit of said Lawson in his checking account and subject to payment of plaintiff’s check an amount more than sufficient to pay said cheek in full. Plaintiff further avers that on the 19th day of November, 1915, at 1:25 p. m., said James Lawson filed a voluntary petition in bankruptcy in the district court of the United States for the northern district of Ohio, eastern division, and was immediately thereafter declared a bankrupt under the bankruptcy act of the United States; that upon learning of the filing of said petition in bankruptcy said defendant bank refused payment of said check, charged plaintiff’s account with the same, and returned it to the plaintiff unpaid, and now refuses to pay the same, though payment has been demanded by plaintiff.

Plaintiff set out other matters in his petition to the effect that said Lawson had received said sum of $700 from the owner of the building which said Lawson was constructing, and had agreed and promised to deposit said money in the defendant bank for the purpose of paying the plaihtiff and other workmen and materialmen who performed labor and furnished material on said building. He further averred that said fund was a trust fund and that he had an equitable interest in said $700 to the extent of the amount of the check given him by said Lawson. Plaintiff further averred in his petition that the only claim which ,the defendant bank had upon said fund so deposited by Lawson, to-wit, said sum of $700, arose from a note of $400 made by said Lawson and his wife to said bank; but that the same was not due when the petition in bankruptcy was filed or when said fund was deposited.

Plaintiff prays that he may be found to have such equitable lien upon the balance in said bank to the credit of said Lawson at the time of the filing of the petition in bankruptcy as may be necessary to satisfy his said cheek, and that the bank may be ordered to pay such amount, to-wit, $208, to plaintiff, and for all other relief that he may be equitably entitled to.

To this second amended petition the defendant demurred, and the court below sustained the demurrer and entered judgment in favor of the defendant, and ordered that the defendant go hence without day and recover its costs; to all of which ihe plaintiff excepted.

The principal question presented by the second amended petition and the demurrer thereto, which was not really argued by counsel in their briefs, but which was suggested by the court at the time of the oral argument, was this: Does the petition show, first, that the plaintiff was entitled to have the check credited to him as the bank■ credited it?

The averments of the petition show that the check given by Lawson to Petrie was not only accepted by the bank, but was paid, when the bank passed to the credit of Petrie’s checking account the face value of the cheek, $208. This can be construed in no other light than as an acceptance and payment, in view of the fact that the cheek was drawn on the defendant bank itself. If it had been drawn on another bank it might be claimed that the check was taken for collection. The mere fact that the check was deposited in one of the branch banks of the defendant company makes it no less a check drawn on the defendant bank, and, whatever the practice may have been or may be with reference to putting through the clearing house checks deposited in the branch banks, we hold as a matter of law that the deposit of this cheek in one of the branch banks of the defendant company was the equivalent of depositing it in defendant’s main bank, and that it was a payment by it of said check when it credited Petrie’s checking account with the amount of this check.

The negotiable instruments act, Section 8290, General Code, defines a cheek “a bill of exchange drawn on a bank payable on.demand.” And Section 8293 reads as follows: “When the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.”

Section 8290, General Code, further provides:

“Except as herein otherwise provided, the provisions of this division applicable to a bill of exchange payable on demand apply to a check.”

Section 8237, General Code, provides:

“The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer.”

We think there can be no question in this case but that'when the branch bank of the defendant company passed to the credit of Petrie in his checking account the amount of this check, $20(8, drawn by Lawson, it thereby not only accepted but paid the same. This transaction was the equivalent of paying over the counter to Petrie $208, and Petrie immediately depositing the $208 of currency to his credit in this branch bank.

The bank was not justified, the day following, in sur-charging Petrie’s account with the $208 which it had credited him on receiving the check the day before. Its only claim for doing this, under the averments of the second amended petition, arose from the fact that Lawson, the drawer of the check, had executed and delivered to the bank a note for $400, which note was not yet due. If the note had been due or past due, and the bank had not accepted and paid the check, it would have had a right to offset the amount of its indebtedness of $400 against the balance due Lawson in his checking account in the bank. But the bank in this instance was not fentitle'd to set off the $400 against Petrie’s check, nor did it attempt to do so until the day after it had accepted the check and paid the same to Petrie. If Lawson had brought an action to recover the $700 in the bank due him, the bank could not at that time by cross-petition have set off its $400 note, because there was no set-off or-claim due it at that time. The note had not yet matured, and it could only have a set-off in an action brought against it on a claim which had matured.

We think the principles here enunciated will be found fully discussed and approved in the following cases: C., H. & D. Rd. Co. v. Metropolitan Natl. Bank, 54 Ohio St., 60; Metropolitan Natl. Bank v. Lloyd, 90 N. Y., 530; Oddie v. Natl. City Bank, 45 N. Y., 735, 741; Covert v. Rhodes, 48 Ohio St., 66; Bank v. Brewing Co., 50 Ohio St., 151, and Blake v. Hamilton Dime Sav. Bank Co., 79 Ohio St., 189.

On the question of the right of the bank, the defendant in this case, to set off its claim against the amount credited to Lawson in its bank at the time he filed a petition in voluntary bankruptcy, see Fuller v. Steiglitz, Assignee, 27 Ohio St., 355.

For the reasons stated, we are of the opinion that the court of common pleas erred in sustaining the demurrer to the second amended petition; and we do not deem it necessary to consider the question raised by the second amended petition, that the $700 deposit by Lawson was a trust fund, as.there is nothing in the pleadings to indicate that the bank had any knowledge that the money was deposited as a trust fund.

Judgment of the common pleas court reversed.

Judgment reversed.

Jones, P. J. and Hamilton, J., concur.


author: Powell, J.

text:
    CONSTRUCTION OF AGREEMENT TO SELL LAND.
    Court of Appeals for Licking County.
    H. H. Edmund v. Mary J. Boring et al.
    Decided, October Term, 1918.

      Covenant <of Warranty■ — ■Agreement to Deliver.a Warranty Deed — Is not a Covenant Against Incumbrances — Specific Performance — Protection of One Holding an Inchoate Contingent Right of Dower.

    1. Where a contract for the sale of real estate binds the owner to make and deliver a warranty deed on a certain date, but contains no mention of a covenant against liens and incumbrances, the purchaser must be held to have agreed to take the land subject to such liens and incumbrances as were in existence at the time the contract of sale was executed, and the seller is entitled to receive the full amount named in the agreement without deduction for liens and incumbrances.
    2. In such a case, it appearing that the husband of the owner did not sign the agreement to sell and in no way bound himself by the terms of the agreement, the land will be ordered transferred subject to his inchoate contingent right of dower.

      Fitzgibbon, Montgomery <& Blade, and W. A.. Rite, for plaintiff.

      B. G. Smythe and L. G. Bussell, contra.
   Powell, J.

This was an action commenced in the court of common pleas by the plaintiff to enforce specific performance of a contract for the sale of real estate, entered into by him and the defendant, Mary J. Boring, on the 5th day of July, 1917. Said contract is' as follows:

“Article of agreement by and between Mary J. Boring, of Thornville, Ohio, party of the first part, and IT. IT. Edmund, of Thornville, Ohio, party of the second part, Witnesseth:
“Mary J. Boring, this day sells her farm in Bowling Green township, Licking county, Ohio, consisting of one hundred and eight acres, more or less, to H. IT. Edmund for the sum of $7,-500, and agrees to make and deliver a warranty deed on the 15th day of September, 1917, and she further agrees to take the same care of the farm and buildings as she has in the past. The said Mary J. Boring hereby acknowledges the receipt of $300 as advance pay on the $7,500 purchase money, leaving a balance of $7,200, which IT. H. Edmund agrees to pay in cash on the ,15th day of September, 1917, when deed is delivered.
(Signed): “Mary J. Boring,
(Signed) : “H. H. Edmund.”

An answer was filed by the defendant, Mary J. Boring; also an answer and cross-petition by the Peoples Bank of Thornville, setting up a mortgage lien against the premises for which contract of sale had been made.

The plaintiff filed a reply to the answer of the said Mary J. Boring, denying all the allegations of said answer inconsistent with the averments of the petition. •

The petition, in addition to setting out the facts relative to the contract of sale, recites the mortgage of the Peoples Bank and that the defendant, the Columbus Natural Gas Company, was the owner of liens or encumbrances against the farm agreed to be sold by said defendant, Mary J. Boring.

It will be noted that in the contract of sale, while Mary J. Boring agrees to make and deliver a warranty deed on the 15th day of September, 1917, it does not contain any agreement on her part for covenant against liens and encumbrances, and the question is made as to whether or not the liens and encumbrances against the farm were to be paid out of the purchase price to be received by the said Boring, or whether plaintiff bought the farm subject to such liens.

This court is of the opinion that, by a proper construction of the articles of agreement or sale, the said plaintiff, Edmund, will be held to have purchased said land subject to any liens or encumbrances then standing against it, as no provision is made therein that the farm should be conveyed to him clear and free of encumbrance or lien.

The husband of the defendant, Mary J. Boring, did not sign the article of agreement and nowhere bound himself to release his contingent inchoate right of dower in the land sold. It is conceded, however, that his rights in said land are such that, while not an encumbrance but an interest in the land that may never accrue, the plaintiff, Edmund, should be required to take the land subject to such right of dower; but no question is made in the pleadings or evidence as to this.

The court of common pleas entered a decree for specific performance, but required the defendant, Mary J. Boring, to pay the amount of the mortgage lien against the land. This court is of opinion otherwise; that there being no covenants other than a covenant of warranty, which has been held to be a warranty of title only, plaintiff is not entitled to have the amount of the mortgage lien due the bank paid out of the purchase money before paying to the said Mary J. Boring the amount of the balance agreed to be paid to her, namely: the sum of seventy-two hundred dollars.

We hold that while the plaintiff is entitled to a decree for specific performance, such decree should be entered subject to the contingent right of dower of Allen Boring, husband of said Mary J. Boring, in said lands. Such decree will also be entered awarding said lands subject to the payment of any mortgage lien thereon at the time said contract was made, as well as any other claim or lien that may have been against said lands when said contract was entered into.

A warranty of title can not be enforced, unless the plaintiff is evicted from the lands by reason of a superior or paramount title, or something equivalent thereto.

The court of common pleas was without authority to order the amount of the mortgage lien to be paid out of the purchase money still due the said Mary J. Boring.

The decree of this court will be a decree for specific performance of the contract on payment by plaintiff of the agreed purchase price, subject, however, to the payment by the plaintiff of any liens or encumbrances existing against said land at the time said contract was made, or was to have been carried into effect, namely: September 15, 1917.

A motion for new trial, if one is filed, will be overruled.

ITouck, J., concurs; Shields, J., dissents.


author: Grant, J.

text:
    IMPROPER CONDUCT TOWARD CUSTOMERS AS A GROUND FOR DISCHARGE.
    Court of Appeals for Cuyahoga County.
    Charles F. St. John v. The Cleveland Collateral Loan Company.
    Decided, February 2, 1914.

      Contract of Employment — Alleged to have been Terminated without Cause — Error in Instruction to Jury as to Misconduct of Employee Injuring the Business of his Employer.

    It is error to instruct a jury that salacious conversation on the part of the manager of a collateral loan company with certain female patrons would tend, as a matter of law, to injure the business of the company and afford ground for terminating the contract of employment, where the testimony tended to show that the conversations complained of were with women of easy virtue and the business of the company was in no wise -injuriously affected thereby.

      Mr. J. A. Fogle, Counsel for Plaintiff in Error.

      Ammerman <& Thompson, contra.
   Grant, J.

Error to the Court of Common Pleas.

This petition in error asks the reversal of the judgment of the court of common pleas. The parties are as they were below.

The facts as stated in the plaintiff’s brief and its statement of his claim of error may be treated here as sufficiently accurate for the purposes of this opinion; they are as follows:

“On October 8, 1909, defendant by written contract, employed plaintiff as its general manager for the term of three years, at a salary of $3,000 per year. The written contract was silent as to when the term began, but by the assent of both parties, plaintiff entered upon his duties under said contract on November 20, 1909, and continued to perform the same until the 12th day of July, 1911, receiving his salary up to the last named date at the rate of $3,000 per annum according to the terms of the contract. On the last named date he was summarily discharged by the defendant, and in due course he brought this action to recover damages for alleged breach of he contract in discharging him without cause. The defense set up in the answer, after admitting the contract of employment, of service thereunder and the payment of wages during the period of actual service, as alleged in the petition, proceeds as follows:
“For further answer defendant says that on the 12th day of July, 1911, plaintiff was discharged from the further service of the defendant company for cause in this, to-wit:
“First, because he failed, neglected and refused to devote all of his time, ability, energy, and attention to the business of the defendant company; second, because he failed, neglected and refused to obey and execute orders given by defendant company; third, because while in the employment and acting as general manager- of the defendant company, he mistreated, misused and insulted numerous lady patrons by improper and indecent proposals and conduct toward them, to the great and irreparable injury of the business, good name, and reputation of the defendant company.”

Plaintiff, by reply, denied the foregoing allegations of the answer.

Issue being thus joined, a trial was had resulting in a verdict for plaintiff, which was set aside by the court for errors of law, and upon a retrial a verdict was returned for the defendant, and judgment rendered thereon, and this proceeding is prosecuted to reverse that judgment.

Plaintiff claims that there was manifest error on the part of the court in its charge to the jury, which error was material and substantial and prejudicial to plaintiff’s rights, and in addition to that plaintiff contends that the verdict and judgment is against the manifest weight of the evidence and is contrary to law.

Taking these assignments of error in the order of statement and the first is concerned with the charge of the trial court given to the jury in writing before argument, at the request of the defendant. It is as follows:

“The court: The defendants have requested the court to charge the jury before argument, which request the court grants. The statute permits either party to give certain charges in writing. Of course, the court will charge you generally after the argument is over, but I give this special charge to you now: ‘If you find from a preponderance of the evidence that the plaintiff, Charles F. St. John, while acting as manager for the defendant company, did have any conversation with Mrs. Elizabeth Sexton, Mae Miller and Anna Lucas Jackson, or either of them, while such persons or either of them were patrons or borrowers of the defendant company, wherein it was proposed or suggested by him that they consent to improper relations with him, or if you find that he made or approved one or more loans from the defendant company to Margaret Smith, with the understanding or agreement that said loan was to be paid, in whole or in part, by her submitting to improper relations with him, then I instruct you, as a matter of law, that such conversation or conduct on his part would tend to injure the business of the defendant company, and would be sufficient cause for his discharge.’ ”

Instructions given in writing before argument are thought to be, and undoubtedly are, in some respects at least, of a more weighty and imposing character than the general and ordinary charge. They are to be with the jury in their retirement. They may not be enlarged or contradicted by any subsequent instruction, and to satisfy the requirements of the statute allowing them they must in all their parts state the law^ — no more and no less.

In this view of the matter, we think the charge complained of puts the case against the defendant much too strong, if it is to be measured by the real significance of the facts to which it purported to be applied. It said, roundly and as inerrant matter of law, that the tendency of the alleged talks, if they were proved, of the plaintiff with three named women, or with either one of them, was “to injure the business of the dendendant company.” The defendant company was not running a Sunday school, nor was it a society for the promotion of social purity iii Cleveland. It’s business was something quite different; it was that of loaning money and, as a part of its name implies, traps and calamities — alias the furniture of the dissolute as well as of the virtuous — ^were the securities with which it had to do. Its patrons must have included all sorts, and presumably among them the bind of people upon whom the alleged Lotharian proclivities of Mr. Saint John would not only produce no adverse impression, but on the other hand would be a positive allurement and .incentive to do business of the kind pursued by the Cleveland Collateral Loan Company. The company was “out for the stuff.” All was grist that came to its mill. Common experience, or at least common sense, teaches that it trafficked in the necessities of the unfortunate, and the unfortunate, as is well known, include the morally loose and disreputable, who figure extensively in the kind of trade driven by the denizens of the underworld as well as the defendant company and its kind, much to the profit of the latter. The word “Saint,” crystallised in the plaintiff’s name, would not, probably drive one of these people from the friendly doors of the defendant, while to the holy it might be a recommendation and an advertisement. The word is a part of his name and does not signify, neceessarily, his habits or proclaim his business as being saintlike. His namesake of old was so merciful that he said: “He that hath two coats, let him impart to him that hath none; and he that hath meat, let him do likewise.” A manager of a collateral loan company known as having such a name, might well be an attraction to both sorts.

Putting the worst construction upon what Mr. St. John is charged with having said to any of these women, and it is not easy to find in it the tendency which the court charged as matter of law was in it, beyond explanation or construction more charitable than the evil intent which the court imputed to it. And this is said bearing in mind that the injury which the company says it suffered because of St. John’s unsaintly talk was a business injury and not an injury to that which a corporation, and much less a collateral loan company in a large city, cannot have— morals. Of course the exuberant talk of Mr. St. John cannot have affected the business of the defendant injuriously — and an injury to it in a business point of view would alone justify his discharge — unless actual or intending customers were driven away by it. And to have been so driven away, disgusted or virtuous patrons must have known of it. There is no evidence in the record to show that they did, except in the cases of the women named — and of these presently. That the women told anyone of it does not appear. That St. John’s alleged salacious conversations did not drive the women themselves from the defendant company, is clear. Mr. S. Sexton, while intimating that she did not like that kind of talk and that she made up her mind to be quit of the concern as soon as she could, on that account, seems to have thought better of it later. She says, she called St. John personally by telephone three, or perhaps four times, asking for more time on her loan.’ This was not the conduct of a badly insulted woman, nor did it deprive, or tend to deprive, the loan company of a single intending patron, or drive off one already there.

To the same purport and of like undamaging effect, and, as we think, tendency, is what is said to have passed between St. John and Mrs. Miller. Mrs. Miller says she did not think his talk was “very nice”; but it does not appear to' have acted as a deterrent to her dealing with the company. She went on negotiating for a loan, which she finally declined to take, not because St. John’s talk was “not very nice,” but because she thought that the ten dollars which this corporation of outraged moral sensibilities charged for the use of sixty dollars was more than she ought to pay. The company’s virtue did not suffer by the occurrence, but remained inviolate for all that St. John did towards ruining it by his barren advances to Mrs. Miller.

Dickens makes Wackford Squeers, the Yorkshire schoolmaster, assure Mr. Snawley that he had “come to the right shop for morals, ’ ’ and such seems to have been the thought of Mrs. Jackson in the present case. She says that she simply paid no attention to what St. John said to her, but passed it off as perhaps a piece of rather awkward, or unhappily worded pleasantry — a construction which may be put upon it by a charitably minded person, doubtfully including a collateral loan company. At page 122 of the record Mrs. Jackson says:

‘‘Q. If Mr. St. John made any suggestions to you or advances to you, Mrs. Jackson, I wish you would state what they were?
“A. He just naturally made a slight remark about making a little engagement, but I didn’t pay any attention to it.”

And on page 124:

•‘‘A. I didn’t pay any attention to it.”

So Mrs. Jackson was not disgustedly driven away from trafficking with the company by any supposed lapse from vitrue of Mr. St. John.

The case of Mrs. Smith alone remains. Her name is not so uncommon that the attention of intending dealers with the company would be likely to be attracted to it adversely to the latter if her alleged illicit commerce with Mr. St. John were known. But the transactions imputed to the two were of all things the least likely to become known. People who go about to do what they are charged with doing do not publish the fact in the newspapers or station a brass band in front of the house to proclaim what is going on within. Granting that Mrs. Smith was an underwordling, as is claimed, plying her avocation in Cleveland, and still the fact does not necessarily and as matter of law evidence the tendency postulated in the charge complained of, assuming also that she and St. John were guilty of improprieties as charged and that the fact was known in the circles in which Mrs. Smith moved. Indeed we think the tendency might be quite the other way and quite to the advantage of the loan company. For, assuming — as experience allows — that the patrons of loan companies are largely recruited from the purlieus of such places as Mrs. Smith is said to have kept, and it would be likely to follow that in those parts St. John might be accounted a pretty popular fellow, and one calculated, for his company, to do a stiff .business. The charge against him in this case is not that Mrs. Smith’s money would have been tainted money, if the company had got it, but that the company did not get it. If the complaint was that St. John instead of the company reaped the usufruct of the Mrs. Smith loan, that would be one thing; it might amount to an embezzlement of assets. But what is complained of is not an act but a tendency necessarily engendered by the act. We do not think that such tendency necessarily, or even probably, arose from what St. John is charged with having done — if he did it.

And St. John denies, point blank, all the delinquencies imputed to him. As to a good deal of it, after all, an innocent as well as evil construction may be put upon it. That is, the comparatively innocent construction that the talk was the inconsiderate outcrop of a badly regulated habit of thinking, sometimes observable in men after they have arrived at an age when such expectorations of speech cannot mean much more than talk, and which at worst are put forward tentatively rather than with danger of harmful action.

Upon all these considerations, it seems that the question of the tendency of St. John’s alleged remarks and acts to injure the business and not the morals of the loan company, was one of fact to be resolved by the jury, under proper instructions, and not by the court, dogmatically and as matter of law.

That it was not left to the jury was error, to the clear prejudice of the party entitled to have it so left.

Error is also alleged as to the general charge. That charge in the respect complained of was in the following language:

“If you, therefore, find by a preponderance of the evidence in this case, and I have defined that to you, that the defendant on the 12th day of July, 1911, discharged the plaintiff for any one or all of the causes set out in its answer, or for any other just and reasonable cause, then I say to you that the plaintiff cannot recover in this action, and that your verdict should be for the defendant. If, however, from all the evidence in the case, you find that the defendant did not discharge the plaintiff from its employment for the reasons claimed by it and set up in its defense, in its answer, or for any other just and reasonable cause, then the discharge of the defendant would be a wrongful discharge, and without just cause, and your verdict should be for the plaintiff. ’ ’

Twice here the jury is allowed to defeat the plaintiff’s claim “for any other just and reasonable cause,” meaning thereby for a cause other than any alleged in the answer as a defense, and other than any to which the proof in the ca,se was alone addressed. This is doing better by a litigant than he has seen fit to do for himself. “Ask, and ye shall receive,” says the Scripture. Here the court says one may receive without asking.

Elsewhere in the charge the same thing is negatively stated thus: “And I say, as I have already said before, that if you find from all the evidence in the case that the reasons set up in defendant’s answer were not the reasons why it discharged the plaintiff, and that those reasons did not exist in fact; and that it discharged the plaintiff without any good and sufficient cause, then the plaintiff would be entitled to recover in this action.” And in still another place this negative statement is made. To give this in charge to the jury and not to cure it by anything to be found elsewhere in the instructions given, is absolutely error, prejudicial to the plaintiff.

Complaint is made as to the sufficiency of the charge as given in respect of the alleged defense that the plaintiff was inattentive to the business of his employer; it may be enough to say that no request was made to make the charge more sufficient. The charge covered the point' — rather meagerly, it is true — but in the absence of a request to say more, it was enough.

We decline to disturb the judgment on the weight of the evidence. There was evidence fit to go to the jury which should have brought a right verdict if the instructions had been proper.

For the errors found the judgment complained of is reversed and the cause remanded for further proceedings according to law.

Winch, J., and Meals, J., concur.


text:
    PAYMENT OF CLAIM OF TAX INQUISITOR ENFORCED.
    Court of Appeals for Holmes County.
    The State of Ohio, on the Relation of Ed. A. Bowman, Plaintiff in Error, v. The Board of Commissioners of Holmes County, Ohio, J. J. Hershberger, Auditor of Holmes County, and W. O. Miller, Treasurer of Holmes County, Ohio, Defendants in Error.
    Decided, 1918.

      Claims against Boards or Officers — Payment of, may he Enforced hy Mandamus — Where Based on an Executed Contract — Board Making the Contract not a Necessary Party.

    1. Mandamus is the proper form of action to compel payment of an amount due from a public board or officers under a contract which fixes the amount to be paid.
    2. In the case of a contract executed by county commissioners with a tax inquisitor, providing for payment of a certain percentage of taxes collected on omitted property, mandamus lies to compel the county auditor to issue his warrant in payment thereof.
    3. In such a case, allowance having been made in the contract for whatever claims might arise thereunder, the members of the board of county commissioners are not necessary parties.

      Loren E. Wise, for plaintiff.

      Wayne Stilhvell, Prosecuting Attorney, for defendants.
   Powell, J.

This action is in this court on error to the judgment of the court of common pleas in a proceeding in that court in which the state of Ohio on the relation of Ed. A. Bowman seeks a peremptory writ of mandamus to compel the defendants, who are the board of commissioners of Holmes county, Ohio, and the auditor and treasurer of said county to take such proceedings as may be necessary to pay to the said Bowman out of the county treasury of said Holmes county twenty per cent, of a certain amount collected as delinquent taxes, through his efforts as tax inquisitor of said county.

The record discloses that said Bowman was formerly tax inquisitor of said county under a contract in writing between him and the defendant, the board of commissioners. The said contract provided that on the collection of taxes bn omitted property in said county the relator was to receive for his compensation as such tax inquisitor twenty per cent, of the amount so collected. The petition alleges that an amount in excess of four thousand dollars had been collected on property omitted from the tax duplicate out of which he had not received his compensation as provided by said contract.

It is admitted in the answer that the contract was executed as claimed; that the amount as set forth in the petition for a writ of mandamus was the correct amount; that if said relator is entitled to any part of said taxes so collected as his compensation the amount alleged is the correct amount so that there is no question before the court save as to whether or not the claim is a valid claim, and whether or not the relator is entitled to a writ of mandamus requiring defendants to either allow and pay his claim, or that the auditor be required to draw a warrant for the payment of the same, to be paid by the county treasurer. It is contended on the part of the defendants that the action is improperly brought; that the claim as pleaded by the relator cam not be collected in the way in which this action is brought, or in other words that the writ of mandamus is not the proper remedy for the collection of claims of the kind described in the petition.

This court, however, is of the opinion that where there is an amount due on contract from public officers or boards and such amount is agreed upon between the parties, and the properly constituted authorities to make payment of such amount refuse or fail to draw the necessary warrants or vouchers for the payment of the same, a writ of mandamus will lie to compel such payment.

Section 12283 of the General Code provides among ■ other things that mandamus is a proper remedy to compel “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Where a claim is presented for payment arising out of a contract with the county commissioners, which provides for ascertaining the amount thereof when the services are performed or the obligation to pay the claim arises, mandamus is a proper remedy. In this case it was provided in the contract itself that the relator should receive twenty per cent, of the amount collected, and that it was the duty of the county auditor to draw his warrant for that sum whenever any omitted taxes were paid into the county treasury as a result of the efforts of such tax inquisitor under said contract, and it would be the duty of the county treasurer to pay the warrant so drawn by the county auditor. That is, the drawing of a warrant in such cases is an act enjoined as a duty resulting from the office of county auditor, and upon this record mandamus would lie against him to compel the same to be done. In cases where the amount claimed is to be ascertained by evidence, mandamus would not lie, but some of the other means of enforcing the collection of claims should be employed.

We think that the court erred in refusing to issue a peremptory writ as prayed for under the special provisions of Section 12283 above mentioned. We think further, that there is no necessity for the commissioners of said county to allow the claim sought to be collected as the allowance thereof had been provided for at the time of the execution of the contract, so that there was no duty arising in the case to be performed by the county commissioners and they were not necessary parties to the suit. We think also that the auditor’s failure to perform his statutory duty in refusing to draw his warrant for the payment of the amount due on the delinquent taxes, requires that a writ issue against him requiring him to issue the warrant as prayed for in the petition herein.

It is the judgment of this court that the judgment of the court of common pleas, refusing the peremptory writ against the county auditor should be reversed, and as there are no disputed facts in the ease requiring further adjudication this court will render the judgment that ought to have been rendered in the court below. It will therefor be the order and judgment of this court that a peremptory writ issue as prayed for requiring the county auditor to draw his warrant on the county treasurer for the amount shown to be due said relator, as prayed for in the petition, and that the treasurer pay the amount of said warrant when so drawn, and the case will be remanded to the court of common pleas to carry this judgment of the court of appeals into effect.

Judgment accordingly.

Shields, J., and Houck, J., concur.


author: By the Court.

text:
    VIOLATION OF AN INJUNCTION.
    Court of Appeals for Hamilton County.
    The Union Reduction Co. v. Story.
    Decided, July 9, 1917.

      Nuisance — Violation of Injunction Against Maintaining of — Contempt Proceedings — Showing of Intention to Disregard Injunction Not Necessary.

    1. In proceedings for the punishment of a defendant charged with violating an order of injunction, Sections 11887 and 11888, General Code, relating to contempt for violation of an injunction, are the proper sections to apply, and not the sections providing for the punishment generally of contempt of court.
    2. If a person or corporation can not carry on his or its business without making it so offensive and and annoying to others who have property in the neighborhood as to deprive them of the enjoyment and healthful use of their own property, courts of equity should enjoin the continuance of the business entirely.
    3. The intention to violate an injunction is not to be considered, if the injunction is actually violated.

      Healy, Ferris <& McAvoy and Peek, Shafer & Peck, for plaintiff in error.

      Kelley <& Bemke, contra.
   By the Court.

Erroi? to tbe Court of Appeals for Hamilton County.

This case is here on error to a judgment of the Superior Court of Cincinnati.

The action was brought by defendant in error, John Story, three years ago last October to enjoin the plaintiff in error from committing a nuisance by casting upon the premises of plaintiff, in and about his house, offensive and noisome odors and gases arising from the operation of a reduction plant in the western part of the city. Upon the hearing of the cause in the superior court the defendant was enjoined as prayed for in the petition. Upon error being prosecuted to this court the judgment of the lower court was affirmed. Thereupon counsel for The Union Reduction Company made application to the supreme court for an order directing the court of appeals to certify its record to the Supreme Court. This application was denied on May 29, 1916. On October 9, 1916, an application was filed in the superior court of Cincinnati, in the original case, for an order on the defendant to show cause why it should not be punished for contempt for its repeated violation of the injunction which had theretofore been entered by the court. A hearing was had, and at the conclusion of the evidence-the court found the defendant, The Union Reduction Company, guilty of contempt of court for disobeying the injunction; and imposed a fine of $200 and costs upon it in such contempt proceedings. Error is prosecuted to this court from that judgment.

It was claimed by counsel for The Union Reduction Company, in the case filed in the court below, that the proceedings to punish for contempt in the case should have been brought under Section 12137, General Code, which section provides generally for the punishment of indirect contempt for:

“1. Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer.
“2. Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions.
“3. A failure to obey a subpoena duly served, or a refusal to be sworn, or to answer as a witness, when lawfully required.
“4. The rescue, or attempted rescue, of a person or of property in the custody of an officer by virtue of an order or process of court held by him.
“5. A failure upon the part of a person, recognized to appear as a witness in court, to appear in compliance with the terms of his recognizance.”

The trial court ruled that the proceedings in contempt in this case did not fall under the provisions of Section 12137, but under the special provisions in Sections 11887 and 11888, General Code, providing for the punishment, as for a contempt, of the violation of an injunction or a restraining order.

In this holding we are of the opinion that the trial court did not err, but that these special provisions, Sections 11887 and 11888, relating to contempt for violation of an injunction, are the proper sections to apply to this case, and not the sections providing for the punishment generally of contempt of court. It is elementary law that where there are special statutes relating to a matter they will govern to the exclusion of a general statute touching the same subject-matter.

It is further claimed by plaintiff in error that the rule of evidence to be applied in cases of this kind is the rule applied in criminal cases, to-wit: that it must be established beyond a reasonable doubt that the person charged with the commission of the contempt was guilty. We think it is very doubtful, to say the least, that this rule should be applied in case of a charge of contempt for the violation of an injunction. However that may be, the trial court ruled with the plaintiff in error, — that the evidence must show beyond a reasonable doubt that the plaintiff in error was guilty of contempt, — so that whether or not that was the proper rule to apply, plaintiff in error can not complain, as it had the benefit of the rule which it invoked.

The only other question in the case is whether or not the judgment of the court below was against the weight of the evidence There were nineteen witnesses heard on the charge of contempt, many of them living near this reduction plant and others living as far away as two or three miles. Without undertaking to analyze the testimony, suffice it to say we are clearly of the opinion that the court was warranted, under the evidence, in finding that the plaintiff in error beyond a reasonable doubt had violated the injunction. We think the evidence clearly-established that the plaintiff in error had not done’ all that it could to eliminate the noxious and nauseating vapors which rendered the property of plaintiff, Story, almost uninhabitable.

It may be said in passing, as has been frequently said in nuisance cases, that those businesses which can not be conducted without being so obnoxious and noisome to the property owners in the neighborhood as to amount to a nuisance should not be permitted to be conducted at all. If a person or corporation can not carry on his or its business without making it so offensive and annoying to others who have property in the neighborhood as to deprive them of the enjoyment and healthful use of their own property, courts of equity should enjoin the continuance of the business entirely.

It is further claimed in the case that the plaintiff in error sl'owed no intention to violate the injunction issued by the court and for that reason should not be punished as for contempt of court. We think the intention to violate the injunction is not to be considered, if the injunction was actually violated. The thing forbidden was the operation of the plant in a manner to create, an injurious nuisance to the plaintiff Story, and this nuisance might well arise from the failure of the reduction company to do all that it could to operate its plant in a proper manner, by its passive negligence; or it might result from the commission of active wrongs in the operation of its plant. It was bound to take precaution to prevent the nuisance which the court had enjoined, and if the nuisance actually resulted from the operation of the plant it could not be a defense or an excuse that the defendant did not intend to create a nuisance. 2 High on Injunctions (4 ed.), Section 1418, lays down this rule:

“The violation of an injunction constitutes a contempt of the court from which it issued, and will be punished accordingly. Nor does the question of the motive or intent with which the writ was disobeyed alter or vary the responsibility for the violation. ’ ’

See also Indianapolis Water Co. v. American Strawboard Co., 75 Fed. Rep., 972, where it is said at page 975:

“The breach of the injunction consists in doing or failing to do the thing commanded, and not in the intention with which the act was done.”

Upon a careful review of the case, we are of the opinion that there was no error committed by the trial court prejudicial to the plaintiff in error, and the judgment is therefore affirmed.

Judgment affirmed.

Jones, Gorman and Hamilton, JJ., concur.

      For other proceedings in the same case,-see 25 C.C.(N.S.), 533.


author: Shields, J.

text:
    DEATH CAUSED BY FREEZING IS AN “ACCIDENTAL DEATH.”
    Court of Appeals for Richland County.
    The Commonwealth Casualty Company of Philadelphia v. Melissa Wheeler.

    Decided, April 18, 1919.

      Accident Insurance — Voluntary Exposure to Gold not a Bar to Recovery under an Acoident Policy Covering “Freezing" — Where the Result of the Exposure was Wholly Unexpected and did not Follow as the Usual Effect of a Known Cause — Or where not a Natural or Probable Cause — Indemnity from Bodily Injury through Accidental Means Resulting Directly, Independantly and Exclusive of all Other Causes.

    A foreman, while walking from the factory to his home with the thermometer 20 degrees below zero, found that his face was frozen, and stopped at the home oí his daughter where he died a few minutes later. His physician testified that he was “frozen to death from exposure,” and the record showed no antecedent physical injury. The company defended on the ground that even if it were true that he died as a result of freezing, no liability attached for the reason that he voluntarily exposed himself to the cold and his death, therefore, was not due to an accident.

      Held: That upon reason and authority his death was due to “accident”
    within the meaning of the policy.

      Harry T. Manner for plaintiff in error; McBride & Wolfe, contra.

      Motion. to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 7, 1919,

   Shields, J.

In the court below the defendant in error, as beneficiary under a certain policy of accident insurance issued by the plaintiff in error to one C. Y. Wheeler, brought suit to recover of the plaintiff in error the sum of $600 for the death of the said C. Y. Wheeler which occurred January 12, 1918, as the result of an accident from freezing while returning to his home on said day from his usual occupation and place of employment.

It is averred that his death was caused solely from freezing and due directly to “such injury” and that at the time of “such injury” and death, said policy was in full force and effect by the payment of premiums due thereon from time to time; that during his lifetime the said C. Y. Wheeler, and his wife, the said Melissa Wheeler, beneficiary under said policy, since the death of the said C. Y. Wheeler, each duly performed all the conditions of said policy on their part to be performed, and that although requested, the plaintiff in error has refused and .failed to pay the amount named in said policy according to its terms, and judgment is prayed for.

Said company filed an answer admitting that the said Melissa Wheeler is the widow of the said C. Y. Wheeler, deceased, and that she was named as the beneficiary in a certain insurance policy issued by said company, and except that said company is a corporation authorized to do business in this state, a general denial of the allegations in said petition is made.

For a second defense, after reciting the provisions of said policy contained in Sections 1 and 2 under the insurance clause therein, said company denies that the cause of death of the said C. Y. Wheeler falls within the intent and meaning of said Section 1, and further avers that “whatever injuries the said C. Y. Wheeler may have sustained, if any, were not caused from freezing to death as alleged in the petition of the plaintiff, and the same was not covered by the terms of said policy.”

For a third defense said company avers “that the said C. Y. Wheeler died by reason of sickness and a diseased condition, and not as a result of any accident, and had defaulted in his premiums due said company.”

For a fourth defense said company avers that in the application made by the said C. Y. Wheeler for said policy of insurance, he stated, among other things, that he had never had any form of heart trouble, when in fact said statement was untrue, and that the said C. Y. Wheeler had heart trouble and was not in sound condition of health at the time he made application ; that he had on other occasions been treated for heart trouble and that at the time said application was made the same was unknown to the defendant company 'but was known to said decedent.

For a fifth defense said company, after pleading the provisions of said policy in “C” under “Additional Provisions,” avers that the said C. Y. Wheeler “did expose himself to obvious risk ol' injury or known danger which indirectly caused his death by reason of the weakened condition of his heart * * * that his death was not caused directly by said exposure, but the same was only the indirect cause thereof; that his death was caused directly by his diseased condition, and that if any liability exists under this policy, under the terms thereof, the limit of liability would not exceed one month’s indemnity of $60 and no' more.”

In a reply the plaintiff below admits that said policy contained the provisions quoted in said defenses Nos. 2, 3 and 4 in said answer, 'but denies each and every other allegation therein contained.

Upon the submission of the case to a jury, a verdict resulted in favor of the plaintiff below, and upon a motion filed for a new trial, including a motion for judgment for the defendant below notwithstanding said verdict, said motions were overruled and judgment was entered upon said verdict. A petition in error was filed in this court containing numerous assignments of errors for a reversal of said judgment.

The principal contention made on behalf of the plaintiff in error in argument was (1) that the death of the insured was not caused alone from freezing, as shown by the evidence, and therefore a liability on the part of said company does not arise under the terms of said policy; (2) or if his death was so caused, that it was caused by voluntary exposure to an obviously known danger, and therefore the indemnity named in said policy is not recoverable.

After reciting the consideration and premium paid and the statements made in the application for the issuance of said policy, it is provided therein that said company “does hereby insure O. Y. Wheeler of Mansfield, State of Ohio, * * * against:

“(1) The effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy. solefy through external, violent and accidental means (suicide, sane or insane, not included), said bodily injury so sustained being hereinafter referred to as ‘such injury’ * * * which said section with Section 2 provide for the amount of indemnity to be paid - for specific losses expressly mentioned therein. ’ ’

Section 5 of said policy under “special rate indemnity,” provides :

“If loss of life of the insured shall within ninety days from the date of exposure or infection, result solely from sunstroke, freezing or hydrophobia, due directly to ‘such injury,’ or if loss of life shall result solely from accidenetal drowning, the company will pay the full original principal sum.”

As stated, under the defenses set up in Nos. 3, 4 and 5 in said answer, it is averred, among other things, that the said C. Y. Wheeler died by reason of sickness and disease, and that he was suffering from a weakened condition of his heart and that at the time he made application for said policy of insurance he falsely represented his condition of health. Under the facts disclosed in the record, we find no foundation whatever supporting these allegations.

It is charged in the petition that the death of the said C. Y. Wheeler was caused solely by freezing from exposure to the severe cold. It appears that the weather on the day of his death was about 20 degrees below zero; that on that morning he left his home in his usual health, walking some two and a half miles to a manufacturing industry in the city of Mansfield, Ohio, of which he was foreman; that on his return homeward before noon of said day he stopped on his way at the home of his daughter, after walking perhaps some two miles, and on entering his said daughter’s home he spoke of the severity of the weather and complained of portions of his face being-frozen. Drawing near to a fire, he laid aside his mittens and hat, unbuttoned his- outer coat, and after sitting on a chair and conversing for a period of about five minutes, he suddenly and. without warning fell to the floor. A physician was quickly summoned who pronounced life extinct. Counsel on behalf of plaintiff in error argued that the death of said decedent was not shown to have been caused solely by freezing, that the pathological history of his ease showed that he was afflicted with other ailments which contributed to his death. It is said that medical science is but an aid in determining the cause of one’s death, and that in some cases at least, it appears to be beyond the domain of science or the power of human agency to define absolutely the cause of death, but without here theorizing and without discoursing the generally accepted opinion of the office and experience of the medical profession in this respect, when we consider the state of said decedent’s health on that morning-prior to his death, as already indicated, the intense cold and the declarations of his physical condition when he entered his daughter’s home, as testified to by the witnesses Thomas Dickerson and Ella Dickerson, his wife, the discoloration of his face and neck and certain portions of his body, and the opinion of Dr. R. R. Black, his former family physician, who testified that “he was frozen to death from exposure,” we do not hesitate to .say that in our judgment the jury on this issue might well find that said decedent’s death was due to freezing as described in the plaintiff’s petition.

Under the head of “Standard Provisions” it is provided in Section 8 of said policy that,

“The company shall have the right and opportunity to examine the person of the insured when and so often as it may reasonbly require during the pendency of claim hereunder, and also the right and ■ opportunity to make an autopsy in case of death where it is not forbidden by law. ’ ’

Here it appears that notice of the death of said decedent Avas given to the plaintiff in error soon after said death, and it likewise appears that no autopsy was made by said company, nor was any requested to be made.

It was further argued on behalf of the plaintiff in error, and as is averred in the second defense of said answer, that whatever injuries said decedent may have received by reason of his exposure on the day in question “the same were not covered by the terms of said policy.” It is scarcely necessary to state that the application made to said company by the said decedent in his lifetime was for a policy of indemnity to cover accidents, that such was contemplated by the contracting parties and that such a policy was issued to the insured. Commenting on the object and purpose of the contract for this kind of insurance, it is laid down in Yol. 1, Wood on Insurance, 2nd Ed., p. 146, that:

“Indemnity is the real object and purpose of all insurance; that is what the assured bargains for, and what the assurer intends to provide.
“The predominant intention of the parties in a contract of insurance is indemnity, and this is to be kept in view and favored in putting a construction upon; a policy. Having indemnity for its object, the contract is to be construed liberally to that end, and it is presumedly the intention of the insurer that the insured shall understand, that in case of loss, he is to be protected to the full extent which any fair interpretation will give. The spirit of the rule is, that when two interpretations, equally fair, may be given, that which gives' the greater indemnity shall prevail.”

Here the insurance contract in the section heretofore referred to expressly provides for indemnity against death from freezing, hence the duty of construction does not arise and the rules which are designed to aid doubtful meanings require no discussion, but if there was room for such discussion, such construction should be observed as would not defeat the intention of the contracting parties. Insurance Co. v. Myers & Co., 62 O. S., 529.

Of course the contract is to be considered as a whole, in all of its parts, and the general insuring clause, Section 1, providing against “effects resulting directly and exclusively of all other causes from bodily injury sustained * * * solely through external, violent and accidental means” is to be considered in connection with said Section 5 providing for indemnity from freezing. We are then met with the inquiry, was the death of the said decedent caused “solely through external, violent and accidental means? Both lexicographers and courts have defined the different words here used, and we find no difficulty in ascertaining their meaning, the term “accident” being defined as “an event that takes place without one’s expectation” — “an undesigned, sudden and unexpected event” — “an event which proceeds from an unknown cause or is an unusual effect of a known cause, and therefore unexpected. ’ ’ The term ‘ ‘ accidental means,” as employed here, as we understand it, means accidental cause, “means” and “cause” being intended to be nsed interchangeably. In the ease of U. S. Mut. Accident Assn. v. Barry, 131 U. S., 100, 121, which was an action on an accident insurance policy, Mr. Justice Blatchford in speaking for the court in that case, when referring to “means” in connection with ‘ ‘ accidental ’ ’ says:

“That the term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected;’ that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it can not 'be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.”

See also Bryant et al v. Continental Casulaty Co., 107 Texas, 582, 585, et seq.

With “means” and “cause” thus used synonomously, and so understanding them, applying the testimony of the witnesses heretofore mentioned to the 'facts and circumstances immediately preceding said decedent’s death, the solution of the main question presented here is relieved of much difficulty.

Recurring to Section 5, which provides that “if death shall * * « resuit solely from sunstroke, freezing, hydrophobia or drowning due directly to ‘such injury,’ the company will pay the full sum named in said policy,” all of these several questions are enumerated in the same paragraph in said section, for either of which, said policy provides that said company shall be liable for said sum in case of accidental death. ft might well be asked why these specified causes were inserted in and made a part of the insurance contract, unless they were to be complied with, and if not complied with, why they should not be enforced in case of death by accident the same as any other provisions of said contract? Why was freezing inserted in said policy, unless it was intended to be among the risks assumed by said company and therein named as a form of bodily injury,, if in the construction of the policy, as now argued, it is to be considered something other than a risk and therefore not embracing any element of bodily injury? In this connection and in addition to the quotation from Wood on Insurance already given, we herewith also quote from the opinion in Pack v. Prudential Casualty Co., 170 Ky., 47, 54, which was an accident insurance case and the policy issued by said company contained similar provisions to the policy here sued on, including freezing, the judge announcing the opinion of the court in that ease in commenting on the clause in the policy providing for indemnity against accident and the object of the insured in taking out said policy says:

“Unless the clause in this contract providing indemnity against sunstroke is construed to embrace cases like the one we have, it is deceptive and misleading and fails to afford the protection its reading implies. If an insured who should suffer sunstroke when engaged in his usual occupation or in doing the things he usually does, is not to be protected by this clause in the policy, it has little beneficial meaning, for, according to the construction contended for, the insured would not be protected in any state of case unless the sunstroke happens while the insured was by accident or misfortune involuntarily placed in a position or surrounded by conditions that would subject him to the rays of the sun in an unexpected and unforseen manner.
“ It is of course true that sunstroke suffered in this way would be accidental, but not more so than would sunstroke suffered under ordinary conditions when it could not be reasonably anticipated or foreseen that it would happen.
“The very purpose of accident insurance is to protect the insured against accidents that occur when he is going about his business or attending to his work or affairs in the usual way without any thought of being injured or killed, and when there is no probability, in the ordinary course of human experience, that he will meet with accident or death. The reason why men secure accident insurance is to protect them against unforeseen and unexpected accidents that may happen in the ordinary course of their lives and when they are pursuing in the usual, way their daily vocations, or doing in the ordinary way the things that men do in the common, everyrday affairs of life.
“Nearly all accidents happen when people are going about their business in the usual way and are voluntarily doing the things before them to do. There are many clauses in this policy, protecting the insured against accidental injury or death, and if the argument of counsel is sound when applied to the sunstroke clause in the policy, there seems no good reason why the construction contended for should not embrace all of the other indemnity features, with the result that the insured would find himself without protection against the very things for which he secured the insurance as indemnity.”

To our minds, freezing was designated as one of the risks covered by said policy. Without extending this discussion further, it is sufficient to say that in our judgment these different clauses were inserted in said policy for a purpose — for the protection of the insured — and relying on said company’s written promise to pay the full indemnity in case of accidental death, said policy was accepted and the premium due thereon was paid by the said decedent.

Although it appears that the said decedent was up to the time of his sudden death engaged in his usual business and work, returning to his home on the day in question, as was his privilege, with no antecedent physical injury suffered by him on said day or before, so far as the testimony shows, but counsel for said company urge that he voluntarily and knowingly exposed himself to the intense cold and did just what he intended to do — to return to his home when he knew of the state of the weather and thereby invited the result which befell him. True it is reasonable to suppose that he knew of the. state of the weather in view of his going to work that morning, but it appears also that he was comfortably clothed with reference to such weather, and for aught that appears he may have walked the same distance under like conditions of weather before that time. In their brief counsel for plaintiff in error quote the following from what is known as the cold plunge bath case, the New Amsterdam Casualty Co. v. Johnson, Admrx., 91 O. S., 155, 159, as tending to show that death was not caused by ‘ ‘ accidental means,” wherein Chief Justice Nichols in announcing the opinion of the court says:

“The attending physician in the case at bar says that the result which followed the bath, while unusual, was yet the direct and natural effect of the voluntary immersion of the body of the insured. The insured did nothing but that which he intended to do. He planned for and deliberately entered on the project and, so far as appears, it was carried out precisely as intended. He did not slip or fall.”

The principles of law applicable to the foregoing case are not, in our judgment, applicable to the ease at bar. There the insured after being out horseback riding and on returning to his home took a cold plunge, as had been his custom, and that in consequence of the shock caused to his system, by contact externally of the cold water in said plunge with his body, an acute dilation of the heairt followed for several weeks. It will thus be seen that the insured in that case deliberately planned and created the condition that caused his death, a different condition from the ease before us and clearly distinguishable from it, as we see it. Here the undisputed testimony is that the insured was returning to his home from his place of employment in his usual way, apparently unconscious of any danger from any exposure to the cold, with no apprehension of injury on that account, and doing nothing under his control to invite accident or injury before he was stricken as stated. His exposure to the cold may have been voluntary, but the result was wholly unexpected and did not follow as the “usual effect of a known cause.” It was not the natural and probable consequence” thereof as was held in U. S. Mut. Accident Assn., v. Barry, already cited. See also U. S. Mut. Accident Assn., v. Hubbell, 56 O. S., 516.

In the course of the hearing we were not cited by the plaintiff in error to any adjudicated case involving accidental death from freezing, nor have we been able to find any such reported case, but the following eases of sunstroke were cited, which in principle, in our judgment, are analogous to the case at bar and which contain a statement of the law applicable to said ease and are of controlling effect, although it is but proper to state that courts in different jurisdictions in their holdings on this subject are not unform; especially is this true as between the federal and state courts.

In Gallagher v. Fidelity & Casualty Co., of N. Y., 148 N. Y. Supp., 1016, which was a case of sunstroke, said company issued its policy of accident insurance insuring the person named therein “against 'bodily injury * * * through accidental means (excluding suicide, sane or insane, or any attempt thereat) and resulting directly, independently and exclusively of all other causes. Among others, sunstroke and freezing were defined in the insuring clause of said policy to be “bodily injxiry” within the meaning thereof. Here it was admitted by the defendant company that the insured suffered a sunstroke, but having exposed himself voluntarily, it was claimed that death of the insured was not due to “accidental means” within the terms of the policy. Upon an appeal taken to the appellate division of the supreme court, said court held that:

“An accident policy, insuring against bodily injury from accidental means, provided that ¡sunstroke, suffered through accidental means, should be deemed bodily injury. Insured, after being exposed to the sun’s rays in the necessary conduct of his business, suffered a ‘sunstroke’ which is defined as an inflammatory disease of the brain, brought on by exposure to the too intense heat of the sun’s' rays, or to overheated air. Held, that, as insured while intending to be in the sun did not intend to produce a sunstroke; the sunstroke was an ‘accident’ which is an event that takes place without one’s foresight or expectation, and hence was within the policy, being produced by ‘accidental means’ which are agencies that produce effects that are not their natural and probable consequences; the requirement that the sunstroke be produced by accidental means not requiring an accident to precede the sunstroke.”

The above case was afterward taken to the Court of Appeals of New York, which court affirmed the judgment of the court below. 221 N. Y. Court of Appeals, 664.

Bryant et al v. Continental Casualty Co., 107 Texas, 582, already cited, an interesting and instructive case, contains a lengthy discussion of the different phases of accident insurance law and cites numerous authorities pertaining thereto. The case was one of sunstroke or heat prostration, and the policy of insurance sued on, after providing against personal bodily injury “effected directly and independently of all other causes through external, violent and purely accidental means,” also provides:

“If sunstroke, freezing or hydrophobia, due in either case to external, violent and accidental means, shall result, independently of all other causes, in the death of the insured within ninety days from date of exposure or infection, the company will pay said principal sum as indemnity for loss of life.”

It was held by the Supreme Court that:

1st. Syl. “Under a policy insuring against death from ‘bodily injury effected directly and independently of all other causes, through external, violent, and purely accidental means,’ with- provision, under the title ‘ Special Accident Indemnities, ’ for payment in case of ‘ sunstroke * * # due * * * to external, violent and accidental means, shall result, * * * the beneficiary could recover for the death of insured from sunstroke suffered on a warm afternoon while walking the city streets in the ordinary course of his occupation as a collector of accounts.
4th Syl. “Treating sunstroke as a form of bodily injury, rather than a disease, it should be considered as due to ‘accidental means’ where the result was something unforeseen, unexpected, and out of the ordinary course, though arising from voluntary exposure of himself by insured to solar heat.”

Quoting from the opinion in said ease, on p. 594, Chief Justice Phillips says:

“A large number of the injuries, plainly accidents, are suffered in the performance of intentional acts. Whether the immediately preceding act was intentional, is a mistaken point of the question. The proper and true test, in all instances of voluntary action, is that defined in the Barry ease (heretofore referred to); if in the act which precedes the injury, though an intentional act, something unforeseen, unexpected and unusual occurs which produces the injury, it is accidentally caused.”

Continental Casualty Co. v. Clark, reported in the advance sheets of the Pacific Reporter under date of July 22, 1918, Vol. 173 Oklahoma, 453, was an accident insurance case as its title implies, and Paragraph 4 of the insurance contract provided that:

“If sunstroke, freezing, or hydrophobia, due in either ease to external, violent or accidental means, shall result, independently of all other causes, in the death of the insured within ninety days from the date of the exposure or infection, the company will pay said principal sum as indemnity, for loss of life. ’ ’

In affirming the judgment of the court below, the Supreme Court held that:

“In an accident insurance policy which provides ‘If sunstroke, freezing, or hydrophobia, due in either case to external, violent or accidental means, shall result, independently of all other causes, in the death of the insured within ninety days from the date of the exposure or infection, the company will pay said principal sum as indemnity for loss of life,’ held, that ‘accidental means’ is used to denote ‘accidental cause,’ 'and in case of sunstroke, if the same was suffered while the insured was engaged in his usual avocation or going about his affairs in an ordinary manner as any other person might have been under, like or similar circumstances, and did not intentionally and voluntarily subject himself to an intense heat calculated to produce sunstroke, with the knowledge that it would probably occur, then the sunstroke was suffered from ‘accidental means’ or ‘accidental cause,’ within the meaning of the policy.”

The judge announcing the opinion in said case when commenting on said paragraph 4, at page 455, says:

“In view of the mechanical construction of paragraph 4 of the contract in question in placing sunstroke, freezing, and hydrophobia in the same paragraph and providing that in case of death caused by either due to external, violent, and accidental means the company would pay the principal sum as indemnity for loss of life, it being so very apparent that, if deceased had lost his life by freezing in such a way that death from said cause was without insured’s expectations or was undesigned by him, or was an unusual happening from a known cause, the liability of the company would have been fixed and established, and this would have been true had deceased lost his life by hydrophobia, then why not when death resulted from sunstroke? Was not the sunstroke suffered by the deceased an event that took place without his expectation, undesigned and unexpected? Is not this the reasonable construction to place on this contract, in the light of its context? If .not, why was it placed in the same paragraph with the other two diseases or injuries, whichever you are pleased to call them, requiring this particular construction? To place any other construction upon this feature of the liability assumed by the company would practically read it out of the contract; and we therefore hold that inasmuch as the evidence tended to show that the deceased on the day jn question was going about his affairs in an ordinary manner, was engaged in no unusual or unnecessary exposure,- and the sunstroke was without the expectation of the insured, was undesigned by him, and was an unusual happening, the same was suffered by ‘external, violent, and accidental means’ witbin the meaning of the policy; and we accordingly hold that the defendant was liable upon this contract under the evidence adduced at the trial.”

Other cases were cited by counsel, sustaining the same doctrine laid down 'by the foregoing authorities, but which we do not deem it necessary to analyze or refer to. As against these, authorities are cited by counsel for plaintiff in error upholding a contrary doctrine in which sunstroke is held to be a form of disease and classifying freezing in the same category of alleged accidents as sunstroke, counsel contending that freezing, as here claimed and shown, does not fall within the terms of the policy sued on. As before stated, while the decisions of the courts have not been uniform in their holdings on this question, we are of the opinion that upon both reason and principle the weight of authority is that the cause of death here ascribed, to-wit, “freezing,” disassociated with all other causes, is death suffered from accidental means or accidental cause within the meaning of - said policy.

Counsel for plaintiff in error urged that the court below erred in permitting one "W. C. Wappner, a witness for the plaintiff below, to give to the-jury his opinion as to the cause of death of the insured (see p. 15 of bill of exceptions). The witness testified that he had been engaged as undertaker and embalmer for some ten years and had known the said decedent for that period of time, and that he prepared his body for burial in, the early afternoon of the day of his death. After describing the physical condition of decedent’s face, neck and body, he was asked if he could give the cause of decedent’s death. The record shows that this question was objected to, and on being overruled an exception was taken. Thereupon the witness answered, “I judge that he was frozen to death.” While perhaps the witness did not qualify as an expert, his answer was not responsive to the question asked, and had he first stated that he could give an opinion, his answer was only a qualified one, and further, his testimony was cumulative at most. We do not regard the action of the trial court as working any prejudicial error to the interests of the plaintiff in error.

.In the petition in error one of the grounds of error assigned therein is that the trial court erred in its charge to the jury, and in their argument counsel for plaintiff in error argued that said court refused to give in charge to the jury a certain request submitted on behalf of the defendant below. While the bill of exceptions recites that “counsel for defendant requested that the court charge the jury before argument, which request was granted,” we find no copy of such request set out in or attached to the bill of exceptions, and it nowhere appears that such request, if made, was in writing, which must affirmatively appear to insure action thereon by a reviewing court.

Under the foregoing review of this.ease, we deem it unnecessary to state that we find no error in the action of the court below-in overruling the motion of the defendant below to direct the jury to return a verdict for the defendant at the close of the evidence given on behalf of the plaintiff below and renewed at the close of all the evidence in the case, nor in. overruling said defendant’s motion for a new trial, nor its motion for a judgment in its favor non obstante veredicto, nor do we find any prejudicial error in the charge of the court to the jury, nor in the record, and so finding, the judgment of the Court of Common Pleas will be affirmed, with costs.

Exceptions.

Houck and Patterson, JJ., concur.