author: RICHARDS, J.

text:
    ABORTION — CRIMINAL LAW
    [Lucas (6th) Circuit Court,
    February 24, 1912.]
    Wildman, Kinkade and Richards, JJ.

      Mary Bridge v. State of Ohio.
    Proof of Negative Averment Under Statute Relating to Procuring Miscarriage not Necessary.
    While it is incumbent on the state in order to convict in an indictment under Sec. 12412 G. C., for procuring an abortion, to prove that the same was not necessary in order to preserve the life of the mother, the state is not required to prove that such act was not advised by two physicians to be necessary for such purpose, as this latter negative averment may be easily shown by the defendant, while it would be very difficult,' if not impossible, to be established by the state.
    Error.

      TJlery & Merrill, for plaintiff in error.

      Holland G. Webster and Boy Stuart, for defendant in error.

       Affirmed, no opinion, Bridge v. State, 87 Ohio St. 464.

   RICHARDS, J.

The plaintiff in error was convicted in the common pleas court under Sec. 12412, G. C., of procuring a miscarriage upon the body of one Minnie Parrish, and was sentenced to the penitentiary for a period of five years. The bill of exceptions contains all of the evidence upon the trial of the ease, and all of the evidence which was offered upon a motion for a new trial, filed in the common pleas court.

It is contended by counsel for Mary Bridge that the conviction was wrong and that she is entitled to have the same reversed by reason of the fact that the record contains no evidence to substantiate the negative averments contained in the statute and in the indictment. The'statute to which reference has been made authorized a conviction “unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof.”

Of course this provision which has just been quoted may be sustained by any competent evidence, and with a view to ascertaining whether it is sustained, we have very carefully examined the evidence and find abundance of evidence warranting the jury in so concluding. Indeed there is nothing in the evidence relative to the condition of Minnie Parrish at the time of the operation that in any wise tends to show any necessity for the performance of the operation in order to preserve her life.

It appears from the evidence that she, at some time before the operation, consulted with two physicians and she states in her evidence that they had not advised her to have a miscarriage performed for the purpose of saving her life. We think no error was committed by the trial court in allowing that evidence. While the duty devolved upon the state, under authority of Moody v. State, 17 Ohio St. 110, to prove the negative averment, yet the burden of proving that branch of it which relates to the advice of physicians would not, by the language of the case just cited, be east upon the state.

The defendant in the common pleas court, within three days after the verdict of guilty was rendered, made a motion for a new trial, one ground of which was based upon the claim of certain newly-discovered evidence. Upon the hearing of that motion, she called to the stand one of the assistant prosecuting attorneys and sought to show by him that he was present before the grand jury when Minnie Parrish testified and that she had there given a different version of the case from that testified to by her on the trial. The bill of exceptions contains a statement of the evidence expected to be shown, and it is not of such a character as would have justified the trial court in granting the motion. The evidence, if introduced, would have a tendency to impeach the testimony of Minnie Parrish, and to have cast upon her testimony the suspicion that attends the statements made by an accomplice, as indicated in State v. McCoy, 52 Ohio St. 157 [39 N. E. 316], Such evidence would not, in view of the other evidence contained in the record, have required a different verdict upon a retrial of the case.' It seems to us, on the contrary, that if there had been a retrial, and if upon such retrial this impeaching evidence had been introduced, that the same result would necessarily have been reached. The rule that a new trial will not be granted on the ground of newly-discovered evidence, unless such evidence would require a different verdict, has often been laid down by this court, and is sustained by many reported cases. We cite only, Cincinnati Trac. Co. v. Fesler, 31 O. C. C. 631 (12 N. S. 565); and Cleveland, C. C. & I. Ry. v. Long, 24 Ohio St. 133.

The record in this case fails to disclose any act of diligence on the part of plaintiff in error in seeking to discover the evidence upon which she relied for the granting of her motion for a new trial.

For the reasons given, and finding* no error to the prejudice of plaintiff in error, the judgment of common pleas court will be affirmed.

Wildman and Kinkade, JJ., concur.


source: Caselaw Access Project

author: Jones, E. H., J.:

license: Public Domain

text:
    LANDLORD AND TENANT
    [Hamilton (1st) Court of Appeals,
    March 1, 1913.]
    Swing, Jones and Jones, JJ.
    John J. Henderson, Admr. v. Moses Ruskin.
    Responsibility for Protecting from Fire Occupants of Buildings under Lease.
    The duty of providing convenient exits in case of fire, from a building more than two stories high, used as a factory, tenement, inn, or public house, is not placed by G. C. 4658, upon the owner of the fee, where all the floors above the first are leased to a tenant who is in possession and control thereof.

      Jackson <& Woodward, for plaintiff in error.
    J. Louis Kohl, for defendant in error.
    The decedent lost her life in a fire in December, 1909, in a building on Third street, owned by Mr. Ruskin, who was in possession of the first floor but had leased the three upper floors to one Wilson as a tenement house. The action was for damages, and at the hearing below a demurrer to the petition was sustained.
   Jones, E. H., J.:

We are of the opinion that the construction to be placed upon the word ‘ ‘ owner ’ ’ as used in Gr. C. 4658 is not affected by legislation enacted since the decision in Lee v. Smith, 42 Ohio St. 458 [51 Am. Rep. 839]. The syllabus in that case reads:

“Section 2573 R. S., as amended April 19, 1883, does not impose upon any owner in fee of a building more than two stories high, the duty to provide a convenient exit from the different upper stories of said building when such owner is not in possession or control thereof, although his tenant in possession and control of the building may use the same as a factory or workshop.”

Upon the authority of that case the demurrer to the amended petition was properly sustained by the court below and the judgment is affirmed.

We may add that the decision in Rose v. King, 49 Ohio St. 213 [30 N. E. 267; 15 L. R. A. 160], cited by plaintiff in error, cited by plaintiff in error, in view of the above holding, is of no avail as against this defendant.

Swing and Jones (O.B.) JJ., concur.


author: Swing, J.

text:
    COLLATERAL INHERITANCE TAX — BEQUESTS TO DENOMINATIONAL BOARDS.
    [Circuit Court of Hamilton County.]
    Humphreys, Executor, v. State of Ohio.

      Notice of Appeal by the State — Exemptions under the Collateral Inheritance Tax Law — Charitable Institutions Incorporated under the laws of other states.

    1. Where the state is a party to a suit, and prosecutes an appeal, notice entered upon the record is a proper notice of appeal.
    2. The exemption in the Ohio collateral inheritance tax law of bequests for the use of institutions for purposes of purely public charity should be limited to bequests to purely Ohio institutions. Denominational corporations, organized under the laws of other states, are not a care of the state of Ohio, and bequests to such institutions are not entitled to the exemption, notwithstanding they are organized for purely charitable purposes, and some portion of such bequests may be used in Ohio.
    The statement' of facts in this case is taken from the opinion of Judge Hollister, rendered in the Court of Common Pleas, and now affirmed.

      The Facts Stated.
    • Isabella Brown made by will large bequests j'tó: several .of the boards of-the Presbyterian Church, and to other-charitable'institutions.
    These boards are incorporated under the laws of states other than Ohio and are under the supervision and control of the General Assembly of that church. The General Assembly is a representative body composed of delegates from Presbyterian Churches in all .parts of the United States, and meets annually. Generally speaking, the moneys disbursed by the boards in carrying on the charitable work of the church is spent partly in; Ohio, but the major part of it is used elsewhere. For instance, the Board of Foreign Missions of the Presbyterian Church maintains two homes for the education in Ohio of the children of foreign missionaries ; the Board of Church Erection Fund' has erected churches in this state at a cost of more than $240,000; the Board of Home Missions assists in sustaining the preaching of the gospel in churches and congregations in Ohio.
    The members of that church in this state are about one-eleventh of the entire membership in the United States, and contribute largely to the funds of the church expended by its various incorporated boards in the special kind of charitable work undertaken by each.
    The question involved in this case is whether or not the specific bequests made by Mrs. Brown to several of these boards are taxable under the so-called collateral inheritance tax laws of.Ohio found in 94 O. L., 101 (the act of April 6, 1900, 2731-1 R. S.) It is conceded that the provisions of the act would apply to these bequests unless they may be brought within the saving clause of that act, which reads: 11
    “Property or interests in property . . . embraced in any bequest, devise or transfer or conveyance to, or for the use of the state of Ohio, or to or for the use of any municipal corporation or other political subdivision of said state for exelusivelypublic purposes, or public institutions of learning, or to or for the use of any institution in said state for purposes of purely public charity, or other exclusively public purposes ...”

      It is conceded by counsel for the state that these bequests are for purposes of purely public charity; but it is claimed that none of the boards of the Presbyterian Church named in Mrs. Brown’s will are institutions in this state within the’ meaning of the law.
    Lawrence Maxwell, Jr., representing the various organizations named in the will,
    cited as to notice of appeal, Section 6408 R. S.; Willis v. Willis, 20 O. C. C., affirmed without report, 38 Bull., 300; followed in Browne v. Wallace, 21 O. C. C., 417.
    On the question of liability for collateral inheritance tax, Gerke y. Purcell, 25 O. S., 229, 244; Rice y. Bradford, 63 N. E. 7; Morawet'z on Corps. (2d Ed.), Sec. 1046, p. Í006; State v. Standard Oil Co., 49 O. S., 137 (1st Syl.)
    Hoffheimer,' Morris & Sawyer
    cited on behalf of the state: 2 Bates Digest, col. 2229, note 157, citing 46 O. B., 155; 42 O. II., 128; 19 0., 110; Cooper v. Shaw, 176 Mass., 190; Estate of Prime, 136 N. Y., 347; Estate of Bailies, 144 N. Y., 132; Alfred University y. Hancock, 46 Alt., 148; People v. Seamens’ Friends, Society, 86 111., 246; Keck v. Douglass, 6 C. C., 649; 57 O. S., 234; 66 O. S., 57.

      This case is now pending in the Supreme Court of Ohio.

   Swing, J.

We think the judgment of the Court of Common Pleas should be affirmed.

The court did not err in refusing to dismiss the appeal from the Probate Court.

The provision in Section 6408, R. S., which requires a written notice to be given, does not -apply to the state of Ohio. We find no provision of the -statute which does, in terms, apply to the state taking an appeal, therefore, under Section 6411, R. S., Section 5227, R. S., is the section which governs, and under it a notice entered on the records is .a proper notice of appeal.

The bequests are to institutions organized for purely public charities, but' in our opinion -are not institutions in the- state of Ohi-o. They'are all incorporated under the laws of other states, and while controlled exclusively by the Presbyterian Church, which churfch has a very large membership in the state of Ohio, this is not sufficient to make these institutions Ohio institutions' within the meaning of this act. The obj'ect of the act, we think, was to limit the exemptions to purely Ohio institutions, and this can not be claimed of any of these institutions. The state must be presumed to have a care for only its' own 'people and its own institutions. While most of these institutions dispense public charity in Ohio, not all of them- do. For instance, the Board of Freedmen’s Missions is a corporation under the laws of Pennsylvania, and its charitable work is among the freedmen of the South, so that the only way that this can be considered an Ohio institution is from the fact that a portion of the Presbyterian Church is in Ohio. It seems to us that to hold that this is an institution of Ohio would be beyond the meaning of the statute. As to those other charities which operate in Ohio, as far as these bequests are concerned, it is not required, nor is it contemplated that they shall be used exclusively in Ohio. It is possible that' all of the bequests may be expended outside of Ohio. No doubt these institutions are in their broadest sense national, although incorporated under the laws of different states, and that the Presbyterians of Ohio furnish a large portion of that organization, but being national is the reason why it is not an Ohio institution within the meaning of the act.

Lawrence Maxwell, Jr., for plaintiff in error.

Hoffheimer, Morris & Sawyer, prosecuting attorneys, contra.


text:
    UNLAWFUL USE OF FOREIGN FIRE INSURANCE FRANCHISE.
    [Circuit Court of Franklin County.]
    State v. Amazon Insurance Company.

      Fire Insurance — Nature of the Business Transacted — The Contract Personal — Place of Transacting the Business — Unlawful Use of Franchise.

    A fire insurance company, organized under the laws of another state, that maintains an office in this state and there enters into contracts of insurance respecting property in other states, or transacts the business of insurance respecting property in other states, is engaged in this state in the transaction of the business of insurance, notwithstanding it does not enter into contracts of insurance with ■citizens of this state, nor insure property in the state.

      Summers, J.; Wilson and Sullivan, J. J., concur.
   The averment's of the petition, filed May 16, 1902, are as follows:

“The relator is the duly elected, qualified and acting attorney general of the state of Ohio. Said relator avers that the defendant, the Amazon Insurance Company, is a corporation organized under the laws of the state of West Virginia. That said-company is so. incorporated as a'stock company for the purpose of making insurance upon house, buildings 'and all other kinds of property against loss or damage by fire or lightning. That said defendant corporation has exercised franchises, privileges and rights in this state in contravention of law, and especially in the following particulars, to-wit:
“1. Said defendant company has located and now has its principal office or place of business in the city of Lima, Ohio, and is now and for a long time past has been transacting its said business of insurance within this state. .
“2. Said defendant has not' procured from the superintendent of insurance of this state a certificate of authority as required by Section 3656, Revised Statutes of Ohio.
“3. Said defendant is not possessed of the amount of actual capital required of similar companies organized under the provisions of the laws of Ohio.
“4. Said defendant company has not filed with the superintendent of insurance of this state, a certified copy of its charter, nor has it filed a statement under the oath of its president', vice-president or other chief officer and the secretary of the company, stating the name of the company, the place where it is located, and the amount of its -capital with a detailed statement'of the facts' and items required from the companies organized under the laws of this state by Sections 3653 and 3654, Revised Statutes.
“5. Said defendant company has not complied with any of the laws of the state of Ohio, regulating and applying to companies organized under the laws of other states,- and transacting the business of insurance -in this state.”

Wherefore, the attorney general prays that said company may be ousted from transacting such business within this state.

For amended -answer, the defendant says: “That it has never done nor attempted to do any business in the state of Ohio; that it has never solicited nor attempted to solicit any business of any kind or nature in the state of Ohio and that it is not engaged in business in said state; that it denies t'he allegation first made in plaintiff’s petition, t-o-wit, ‘That it is now and has been for a long time past transacting its said business of insurance within this state.’

“Defendant admits each and every other allegation contained in plaintiffs petition.”

A special master was appointed to take the testimony and to report the same together with his findings of fact and conclusions óf law thereupon.

Among his findings of fact are the following:

“2. That the defendant has appointed a statutory attorney, to comply with the laws of West Virginia, and some of the records showing corporate capacity of the company are kept at Charleston, West Virginia; but that the defendant company for the purpose of transacting "all business contemplated by its charter has, since its organization, been located at Lima, Ohio, and now has its principal office or place of business in the city of Lima, Ohio.
“7. That the defendant company in conducting its business is managed and controlled entirely by the secretary of the company who resides at Lima, Ohio; that this secretary receives all premiums, disburses all the money of the company,’keeps all the accounts of the company, and pays all the losses of the company at Lima, Ohio.
“8. That the total number of policies issued by the defendant company is four hundred and ninety-seven, ninety-nine of which have been issued by the secretary direct from the office of the defendant company at the city of Lima, Ohio, and three hundred and ninety-eight of which have been issued from brokers, to whom blank policies were delivered by the secretary from the Lim'a office of the defendant company; and the average amount of each policy issued is a risk for the sum of three hundred dollars.
“10. That the defendant company never issued any policies on property of any kind situate within the state of Ohio; but its secretary in charge of its office at Lima, Ohio, received applications by mail for insurance, had authority to accept or reject the same, and in fact did accept a large number of such applications, collect the premium therefor, and deposit the policy addressed to the applicant in the post-office in the city of Lima, Ohio.”

The special, master concluded as a matter of law that the defendant was engaged in this state in the transaction of the business of insurance contrary t'o law. The defendant excepts to each of the master’s conclusions of law, but to none of his findings of fact.

Section 289, R. S., as amended May 12th, 1902, (95 O. L., 553), provides that it shall be unlawful for any corporation, whether, organized in this state or elsewhere, either directly or indirectly, to - engage in the business of insuring, or to enter into any contracts substantially amounting to insurance, or in any manner to aid therein, in this state, unless the same is expressly authorized by the statutes of this state, and such statutes and all laws regulating the same, and applicable thereto have been complied with.

Section 3656, R. S., provides that' no insurance company, other than life, organized under the laws of any other state, shall do any such business in this state, until it procures from the superintendent a certificate of authority so to do; nor shall any person or corporation act as agent in this state for any such company, directly or indirectly, either in procuring applications for insurance, taking risks, or in any manner transacting the business of insurance, until it procures from the superintendent a license so to do.

The contention by counsel for the defendant is, that these statutes were enacted for the protection of citizens of Ohio only, and that inasmuch as it has not entered into a contract of insurance with any citizen of this state nor into any contract of insurance respecting any property in this state, it has not, within the provisions of the statute, transacted any business of insurance within the state.

The following citations are made in support of this contention:

“In the case of The Commonwealth v. Long, 1 Pa. Co. Ct., 190, McPherson, J., says: ‘The test of doing business is whether the acts done were a part of the necessary work for effecting the object for which the association was formed and created.'
“And in the case of Beard v. Publishing Company, 71 Ala., 60: ‘There must be a doing of some of the works, or the exercise of some of the functions, for which the corporation was created.'
“A foreign company holding its meetings for convenience .in Pennsylvania at which subscriptions to stock were made and áre sued upon in Pennsylvania, but which is engaged in the business of building a pavilion in New Jersey, is not doing business in Pennsylvania. Wildwood, Pavilion Co. v. Hamilton, 15 Pa. Superior Ct., 389.
“ ‘The Minnesota statute, providing for the conditions upon which foreign building and loan associations may transact business in this state, and prohibiting under penalties the transaction of business by such foreign corporations unless'the conditions have been complied with, I think necessarily refers to the ordinary business of such associations. . . . The same rule applies to any foreign insurance where similar conditions, are required to be complied with before it shall do business in this state; the business referred to is its ordinary business of insurance. . . . The prohibition of the statute is only against transacting their ordinary peculiar business in this state so long as the statutory conditions are not complied with. Sullivan v. Sheehan, 89 Fed. Rep., 247.
“ ‘The law requiring foreign insurance companies to comply with the terms' imposed, as a condition of doing business in this state relates to the business of insurance companies as such, and does not prohibit a company which has not complied therewith, from loaning money on mortgage within the state and prosecuting proper proceedings for the collection thereof.’ Smith v. Iron Hall, 77 Ill. App., 469.
“ ‘A foreign mining corporation which has not engaged in mining in the state but which owns lands and rents the same is not engaged in the business for which it was incorporated within the state.’ Mo. Coal & Mining Co. v. Ladd, 61 S. W., 191.”

These cases need not be further noticed, for none of them, so far as appears from the statement of counsel, militate against the conclusion we reach.

The contention of counsel for the defendant is not sound. The fair name of the state and the good of the people of the state may be injuriously affected by the manner of transacting insurance business here, although transacted solely with non-residents of the state and wholly respecting property located outside the state.

The lottery could not escape upon such ground. Our criminal laws are enacted in the exercise of the same power that energizes laws regulating the business of insurance, and acts in violation of the criminal laws are not excusable on the ground that the victims are non-residents of the state.

In State, ex rel, v. Ackerman, 51 O. S., 163, 193, Williams, J., speaking of the statutory provision pertaining to foreign insurance companies says: “They are reasonable and just, and were adopted for the laudable purpose of protecting the public against imposition by unreliable and untrustworthy companies and associations.”

Some of the statutory regulations apply only to insurance on property in this state. (Section 3643a.) But with few exceptions they are general ’and apply to the transaction here of the business of insurance, and Section 3641 provides that “A company organized under this chapter may: 1. Insure houses, buildings and all other kinds of property against loss or damage by fire and lightning and tornadoes. in and out of the state, and make all kinds- of insurance on goods, merchandise and other property in the course of transportation, whether on land or water, or on any vessel or boat wherever the same may be.”

Such a company, would be transacting business of insurance in this state if it did not insure any property located in the state, but in this state, entered into contracts of insurance on property outside the state, and so does a company organized under the laws of any other state.

In none of thecaseswe have examined is arule laiddownfor determining what is transacting business in thestate. Many of them determine that the doing of particular things is not the transaction of insurance business, but the reasoning in each is upon the assumption that such business is done in the state where the contract is made. Hyde v. Goodnow, 3 Comstock, 367; Western v. Genesee Mut. Ins. Co., 12 N. Y., 258; Columbia Fire Ins. Co. v. Kinyon, 37 N. J. L., 33; Franklin Ins. Co. v. Louisville & Arkansas Packet Co., 9 Bush., 590.

In some states it is held that the issuing of a policy of insurance on property within the state is transacting business of insurance in the state where the property is irrespective of the place where the contract is made and the policy delivered. Swain v. Munson, 191 Pa. St., 582; Rose v. Kimberly & Clarke Co., 89 Wis., 545, but it may be doubted whether a state can make it unlawful merely to effect insurance on property in the state, contract being made with a foreign company and made and to be performed in another state. Allgeyer v. Louisiana, 165 U. S., 578. So that it is possible for the defendant company to insure property in a state without transacting the business of insurance there, and if the contention of its counsel is sound that such business transacted here is not insurance business, then it is transacting the business, but not at any place.

The business of insurance is, principally, contracting. Strictly speaking it is not insuring property. No precautions need be taken to secure or preserve the thing said to be insured.

The business is contracting with a party to indemnify him in case of loss of a particular thing; the contract is a personal contract of indemnity and. is not incidental to or transferable with the thing insured. May on Insurance, Sec. 6; Carpenter v. Providence Washington Ins. Co., 16 Peters, 495; Clay Fire & Marine Ins. Co., v. Huron Salt & Lumber Mfg. Co., 31 Mich., 346.

Geo. H. Jones, Assistant Attorney General, for plaintiff.

H. P. Williamson, for defendant.

It appears from the evidence and algo from the findings that the defendant company enters info contracts of insurance in this state — all of its contracts are Ohio contracts and are valid here. The company may, because they are Ohio contracts and because of the comity shown "her, enforce them in the courts of any other state, the policy of whose laws is not contravened by the' contract.

The facts of this case very clearly disclose the importance of reg'ulating the manner of doing such business in this state, regardless of the situs of the property. It appears from the evidence that the defendant company was incorporated in May, 1901, under the laws of West Virginia, for the purpose of doing a fire insurance ‘ business. Its authorized capital is $100,000, but less than $3,000 has been paid in. It has an 'attorney in West Virginia, in order to comply with the laws of that state, but no office. The office of the company since its organization has been at Lima, and there, so testifies its secretary; he has transacted in its name the ordinary business of fire insurance, except only that no property situate in Ohio has been insured. Himself & Co. 'are the general agents for the United States for the insurance company and he testifies that t'he “Oo.” is a fiction. He receives 'all premiums and deposits them to his own credit, the company keeping no bank account, and if any losses have been paid he has paid them. The company has issued 497 policies, 97 of which have been issued direct from the office at Lima by the secretary, and the average amount covered by each policy is three hundred dollars. The secretary testifies that he has received about $3,000 and that he has paid it all out, so that if all of these policies are still outstanding there is a liability of $150,000 and no assets.

It is ruled in State, ex rel, v. Ackerman, supra, that an insurance company carrying on its business here without obtaining permission so to do is unlawfully exercising a franchise and may be ousted, and.it is so ordered.


text:
    STREET ASSESSMENTS — THElRIGHT TO LEVY.
    [Circuit Court of Hamilton County.]
    The City of Cincinnati v. Shoemaker.

      Section 22645 Unconstitutional — Fundamental Right to Improve and Assess Cost — Abutting Property — Benefits.
    A municipality has the fundamental right to mate a street improvement and assess the cost equitable upon the abutting property.
    The Facts Stated.
    The defendant in error filed a suit in the Court of Insolvency, which has been given jurisdiction in that class of cases, to enjoin the collection of an assessment for a street improvement, levied, under the provisions of E. S., Section 22645, which bases the assessment upon the abutting frontage of the lot, but applies to only three municipalities of the state. The City demurred to the petition, and the demurrer was overruled. The case was then taken to the Circuit Court, where the action below was sustained in an unreported decision, the holding being that Section 22645, is unconstitutional, and the assessment should be enjoined, and a reassessment permitted under Section 2264. The ease was remanded for further proceedings; whereupon the City filed an answer containing the following allegations:
    “The defendant says that the assessment levied, as described in. the petition, is in proportion to the special benefits conferred, by the improvement of Mercer street, on said property of the plaintiffs, and on each abutting foot thereof, upon which said assessment Was made; that said assessment levied upon said property, and each abutting foot thereof, are not in excess of the special benefits conferred upon said property and each abutting foot thereof; that said special benefits do in fact, as to said property and each abutting foot' thereof, fully equal the assessments levied thereon, and as to each parcel of land and each abutting foot thereof, upon which the assessments for said Mercer street were levied, the assessments are in proportion to the special benefits conferred thereon by said improvement of said street.”
    To this answer the abutting property owners demurred; the demurrer was sustained, and the case was again taken to the Circuit Court.

      Albert EL Morrill
    argued for thé City that with the facts thus admitted the case falls within Schroder v. Overman, 61 O. S., 1; that this authority is of special force, since it is of the date when Baker v. Norwood, 172 U. S., 269, was supposed to have invalidated front foot assessments; that the rules of assessment are subject to Section 2283 E. S., requiring that “regard must' be had in making special assessments to. the probable benefits to the property assessed,” Walsh v. Barren, 61 O. S., 15; that in as much as the property in this ease would have been assessed for the same amount under the rule of benefits, the abutting owners are not prejudiced, Voight v. City of Buffalo, 133 N. Y., 463; and that a court of equity will not concede to these abutting owners any greater exemption than in a case brought by a contractor for the collection of a defective assessment, where under Section 2289 and 2327 judgment would be rendered for the amount properly chargeable, Walsh v. Sims, 65 O. S., 211.
    Chas. B. Wilby and Chas. B. Tenney
    argued for tire property owners that in as much as the assessment under the decision of the court is as a nullity, the case stands as if no assessment had been made by any board, and the City through its auditor were trying to collect money from the plaintiffs in the entire absence of any proceedings for the levying of an assessment; that under Section 5848 E. S., the plaintiff need not make out a case in every element in order to be entitled to equitable relief, Tone v. Columbus, 39 O. S., 281, but that it is sufficient to show the assessment is illegal; and that the assessment being void, and not merely tainted with irregularity, which is curable under the provisions of 2289 E. S., providing for the disregard of any technical irregularity or defect, and not falling under Section 2289a and 2289c, which provide that assessments shall not be enjoined for certain defects or procedure described'therein, it should be set aside, and the City forbidden to collect for the improvement until the proper board shall have made a proper law.
    Jelke, J.; G-ifeen, P. J., and Swing,-J., concur.
   The former holding of this court that E. S. 22645 is invalid, has nothing to do with the City’s fundamental right to make the improvement and assess the cost thereof equitably on the abutting property. It merely held invalid a rule for estimating the amount of the assessment different in Cincinnati, Toledo and Springfield from all the other municipalities in the state. If the benefits conferred are equal to the assessment, there is nothing to move a court of equity to intervene by injunction. Hence the answer of the City in this case sets up a good reason and defense why an injunction should not be allowed.

Chas. J. Hunt, for the City.

Chas. B. Wilby and Chas. E. Tenney, contra.

This we believe to be in accord with the principles underlying Schroder v. Overman, 61 O. S., 1, and Walsh et al v. Sims, Treas., 65 O. S., 211.

Judgment reversed.


text:
    KNOWLEDGE OF A CORPORATION THE COMPOSITE KNOWLEDGE OF ITS SERVANTS.
    [Circuit Court of Hamilton County.]
    Neal v. Cincinnati Union Stock Yards Company.

      Physical Facts and Resultant Injury — Burden of Proof — Knowledge of Servants as to Separate hut Dependent Facts.

    1. The burden is upon a defendant corporation of showing itself without fault, where the physical facts of the violation of a statutory provision and resultant injury are shown.
    2. A corporation is chargeable with the composite knowledge which comes to it through the channels of its several servants.
    The Facts Stated.
    The plaintiff sued for $23,500 damages alleged to have been sustained by reason of the infecting of a herd of four hundred cattle, located on lands in Lawrence county, with Texas fever, by the introduction among them of cattle purchased by the plaintiff from the defendant, the Cincinnati Union Stock Yards Company. The cattle so purchased were shipped to Cincinnati from Grenada, Miss., which was within the “infected” or “scheduled” district, as to which federal regulations and provisions of Sections 4211-19 ei seq., Ohio Statutes applied. One Edmunds, a clerk in the employ of the Stock Yards Company, in its main office, knew or should have known from the way bill which he received from the railroad company, that the cattle came from Grenada, but he did not know that the car in which they arrived was not placarded, as it should have been, with indicia that the cattle came from the “scheduled district,” and he was also ignorant of their having been placed in “native” pens. The defendant company’s foreman of the unloading crew did know that the cattle h’ad been placed in “native” pens, but he did not know that they came from the infected district. The plaintiff found the cattle in the native pens, and purchased thém for native cattle. ’His suit for damages was based upon the statutory provisions above referred to. The case was submitted to the judge of the court below, without the intervention of a jury, and resulted in a judgment for the defendant company, on the ground that it was without sufficient knowledge as to the character of the cattle to- render it liable.
    W. D. James
    cited for the’ plaintiff in error on question of liability:-. Cooley on Torts, 780 and 790/Conrad v. Crowdsón, 75 111. App., 614; Rose v. King, 49 O. S., 224; Wharton on Negligence, Sec. 443; Couch v. Steele, 3 E. & B. Rep., 414; Hayes v. Railway Co., Ill U. S., 328; Taylor v. L. S. & M. S. Railway, 45 Mich., 74; Chamberl-aine v. Chester Railway Co., 1st Exch., p. — ; Ballance v. Falle, 13 Q. B. D., 109; Britton v. Great Western Cotton Co., L. R., 7th Exch., 130; Holmes v. Clark, 6 H. & N., 348; Fawcett v. York & North Midland R. R. Co., 16 Q. B., 610; Sec. 4212 R. S. Ohio; Preston v. Compton, 30 O. S:, 304; Knapp v. Bailey, 79 Me., 195; 16 Ain. & Eng. Ency., 790.
    On the question of implied notice: 16 Am. & Eng. Ency. of ’Law, 195, 795, and 419 and cases there cited.
    That the plaintiff was not guilty of contributory negligence: Shearman & Redfield on Negligence, Sec. 3044; Beach on Con. Neg., 39 -and Secs. 22, 36, 38 and 67; Deering on Neg., See. 16; Wharton on Neg., See. 423; Railroad v. Crawford, 24 O. S., 640.
    John W. Warrington
    cited for the defendant, as to alleged negligence on the company’s part: Railroad v. Husen, 95 U. S., 465; Phila. Southern St. Ship Co. v. Penn., 122 U. S., 326; Salzenstein v. Mavis, 91 111., 390; C. & A. R. R. v. Erickson, 91 111., 613; State v. Duckworth, 51 Pac., 456.
    The state had no right to impose regulations upon carriers more drastic than the federal requirement: Bowman v. C. & N. W. Ry., 125 U. S’., 465; L. & M. S. Ry. v. Ohio, 125 U. S., 173; 23 TJ. S. Stat. at Large, 1885-5, p. 31, Ch. 60; Rules and Regulations Secretary of Agriculture, Ex. A. (Par. C); and as t'o the assumption that the cattle were infected with a' germ, Davis v. Walker, 60 111., 452.
    The degree of care is higher than is ever imposed upon a bailee like the defendant: D. L. & W. R. R. Co. v. Central Stock Yard & Transit Co., 45 N. J. Eq., 50: Schuler on Bailments (3d Ed.), Sec. 353; O. R. S., 3876.
    A statutory declaration that a thing shall not' be done does not create a liability in favor of individuals: Clark & Lindsell on Torts (2d Ed.), 26.
    ' Edmund’s agency was such that constructive notice or knowledge can not be ascribed through him: Meachem on Agency, Secs. 725 and 718; Ponnoyer v. Willis, 36 Pac., 568; Trentor v. Pothen, 49 N. W., 129; Labbe v. Crobett, 6 N. W., 812; Lieberman v. First National Bank, 48 L. R. A., 514.
    Jelke, J.; Swing, J., concurs; Gieeen, P. J., did not participate.
   A part of the court incline to the opinion that the physical facts of a violation of the provisions of the Ohio Statutes and resultant injury to plaintiff being shown, makes out a prima facie case and puts the burden upon the defendant company to show itself without fault.

For the purpose of the consideration of this ease, however, we will adopt the rule as to liability most favorable to defendant in error, viz.: If the defendant company knowingly permitted these one hundred and fifty-four head of southern cattle to remain in native pens for any other purpose than to be fed and watered or for immediate slaughter, and to be dealt with as native cattle, and injury resulted to plaintiff, Neal, without fault on his part, then the defendant company is liable.

So far as any knowledge could come from a mere inspection of the cattle, we put plaintiff and defendant on the same plane, and hold both alike free from negligence.

It appears that these cattle were in the native pens from about six-thirty o’clock p. m., of April 12, until about one o’clock p. m., of April 14; that Edmunds received and checked off the bills of lading by eight o’clock on the morning of-the 13th, and that these bills showed these cattle to be from the southern or schedule district. These facts are without dispute, and it is from these facts that the court' below in our opinion made an erroneous deduction.

W. D. James and A. B. Johnson, for the plaintiff in error.

John W. Warrington, contra.

Because the foreman of the unloading crew did not know, in the absence of the indicia required by statute, and not in the course of his duties having anything to do with the bills of lading, and Edmunds in the course of his duties not' knowing where the cattle were, the court below held that the defendant company could not be held in law to know that these southern cattle were in native pens. While the corporation only is chargeable with that knowledge which comes to each of its servants within the scope of the duties of each of its servants respectively, the coloration as the common head, brain center so to speak, must be held to have the composite knowledge which comes to it through the channels of its .several servants. It is not necessary that' any one servant should know all the facts. If it were, all a corporation would have to do would be to limit the scope of the duties of each servant, and the •corporation could never be held to know all about anything.

Because the hand can not distinguish color, or the eye apprehend Irardness, are we to say that a man can not be charged with the composite knowledge that iron is grey and hard? Or could a corporation by limiting the number and authority of its agents so •deprive itself of avenues of approach or information that it could not know certain palpable facts at all ?

No. Between eight a. m. of the 13th and one p. m. of the 14th of April, the defendant' company must be held to have known both what Edmunds knew in the usual course of his duties and what the foreman of the unloading crew knew in the usual course of his duties, and putting this knowledge together the company must be held to have bad culpable knowledge of the wrongful fact.

We are, therefore, of opinion that the judgment of the Common Pleas Court should be reversed.

We are further of opinion that in the trial of a cause like this the distinction between issues of fact and law is better preserved ,by a trial with jury.


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    AUTHORITY TO SETTLE DEATH CLAIM — THE FELLOW SERVANT ACT.
    [Circuit Court of Knox County.]
    The Baltimore & Ohio Railroad Co. v. Joyce Hottman, Administratrix.
    Decided, April, 1903.

      Action for Wrongful Death — Authority of Administratrix to Settle— Constitutional Law — Excessive Damages.

    1. A settlement by tbe widow and administratrix of a decedent killed by a wrongful act is void as against tbe minor children of the deceased, where it does not appear that the probate court consented to and approved the settlement.
    2. Section 3365-22, Revised Statutes of Ohio, known as the “fellow servant act,” is constitutional.
    3. A verdict for $5,500 in favor of two minor children of a locomotive fireman, thirty-three years of age and earning $75 per month, is not excessive.
    The Facts Stated.
    J. E. Hottman,
    the decedent, while employed by the B. &. O. R. R. Co., as brakeman on a freight train, was killed on November 7, 1900, in a collision near Belleville, Ohio, brought about by the negligence of the conductor and engineer of another freight train. He was at the time a member of the relief department of the B. & O. R. R. Co., a feature of which relief department' is a certain insurance scheme, whereby in consideration of the payment of certain premiums, his wife became entitled to receive $1,000 in case of his death. The widow, Joyce Hottman, was appointed administratrix of her husband’s estate, and proceeded to collect the $1,000 payable to her as insurance money, for which she signed a receipt as widow and as administratrix, and for which release she was paid nothing except the $1,000 insurance money. The decedent left two children of fender years, who were not entitled to any part of the $1,000 insurance money, and received no part of it. Thereafter, in February, 1901, the present suit was brought on behalf of t'he two minor children, claiming $9,000 damages for the wrongful death of their father, and a jury awarded a verdict upon which judgment was rendered in their favor for $5,500. No claim was made upon behalf of the widow.

      The trial judge charged the jury that the evidence offered by the defendant, showing vouchers and papers signed in settlement by Joyce Hottman as widow and as administratrix, did not bind the minor children, for the reason that the consent of the probate court, as required by Section 6135 in order to make a valid settlement by the administratrix for the children, had not been obtained, and further that the widow being entitled to the entire sum of $1,000, no part of which was paid to the children, the release was as to them without consideration and void.
    It was argued in behalf of the children that the statute, Section 6134, conferring the right of action for wrongful death is a new principle unknown t'o the common law: Davis v. Justice, 31 O. S. 363; Kirchner v. Meyers, 35 O. S., 85. Then follows Section 6135, which confers upon the personal representative a qualified power to settle, which can only be exercised by the consent of the court which appointed the personal representative, who is a merely nominal party in such proceedings: Wolf v. Railway Co., 55 O. S., 517, 530; Stewart v. B. & O. R. R. Co., 168 U. S.; Barber v. Cary, 11 N. Y., 397; Gulick v. Griswold, 160 N. Y., 398; Masterson v. Stevens, 37 S. W., 364, and 90 Texas, 417; Berriman, trustee, v. Thomas, 65 Ga., 61; Loring, trustee, v. Salsbury Mills, 125 Mass., 138; Simpson v. Hornby, 2 Vt., 723, Ch. Pr. 452; R. R. Co., v. McCamey, 12 O. C. C., 543; Helman v. Ry. Co., 58 O. S., 401. And as to the constitutionality of the fellow servant act there was cited: Pierce v. Wan Dusen, 78 Fed. Rep., 697; Froelich v. Ry. Co. (Circuit Court of Toledo), not yet reported; Roe v. Ry. Co. (Huron Common Pleas), 68 O. L. B., p. 260, Jan. 26, 1903.
    McCarty, J. (orally); Yoorhees, J., and Donahue, J., concur.
   This is an action by the personal representative to recover for what is known as a death loss. An injury to the decedent in this case resulted in his death and Joyce Hottman, his widow, was appointed administratrix of his estate and thereby authorized to bring an action against the Baltimore & Ohio Railroad Company for that death and the loss occasioned thereby.

There are several questions of importance — intricate questions— involved in this record. Mr. Hottman, while in the service of the railroad company became a member of the benefit association of the company. He signed an application for membership .therein and made a contract by the terms of which, in case of death, the widow as beneficiary, became entitled to receive $1,000, in consideration of which the widow was to execute a voucher releasing the company from any and all liability by reason of the death of decedent, and also a voucher by her in her representative capacity also releasing the railroad company from any liability on account of the death.

The action was brought in the court below by this widow as the personal representative of the decedent', making the usual averments as to the negligence of the company, the death resulting thereby, and that he left at his death his widow and two minor children; that the widow had foreclosed and estopped herself by means of these vouchers from making any claim in her own behalf so that she brought the action solely for the benefit of the two children, one four and the other two years old and expressly disclaims making any claim on her own behalf on account of the death. I will read enough of the petition to show that she disclaimed making any claim on her own behalf:

“The plaintiff further says that after her appointment as administratrix, as aforesaid, without the advice of counsel, and without the advice or consent of the probate court which appointed her, and without knowing that she had a right to apply to the probate court for advice, she accepted the sum of $1,000 from the relief or insurance department of said defendant company, and signed a paper in the form of a full release of her right' of action, as said administratrix, for the death of her husband, as aforesaid. Plaintiff is informed that she is thereby estopped from claiming anything as a beneficiary in this action, and therefore brings this action for the sole benefit of her two children, as aforesaid, who have been damaged in the premises in the sum of $9,000, for which plaintiff prays judgment.”

Now that is the claim made in the petition. That is the prayer of the petition and it is an express disclaimer on the part of the plaintiff of anything in her own behalf by reason of the death of her husband, setting forth in express terms that she without the advice of counsel, having received that $1,000 was thereby estopped from making any further claim and there is no doubt about' the truth of that.

Defendant for a second answer to plaintiffs petition, sets up the contract of insurance providing that the company shall p'ay in case of death to the widow as beneficiary the sum of $1,000 which payment shall be a complete and full discharge of the railroad company as to any liability on account of the death loss whether the company was guilty of negligence or not; so that the question is squarely made whether, this widow acting in her representative capacity and bringing this action on behalf of the children, by signing these vouchers which she did sign both as widow and as administratrix, has foreclosed the right of these children to recover from the railroad company.

One of these children was two years of age and the other four. Of course, nobody would contend that they had any power to consent. The question is whether this representative could consent for them. Now we are free to admit that she could consent for them providing she did so in pursuance of the statute. The statute authorizes a settlement to be made after action is brought, or before, by the consent of the court which appointed the legal representative, to make that settlement. The authority or power to make the settlement depends upon the consent of the probate court who appointed the personal representative.

Now, it is contended on behalf of the railroad company that, although there is no consent shown to have been given by the probate court that appointed the administratrix, yet inasmuch as she signed these vouchers as administratrix, she cut off all right which her children had to recover any damages in this action. Now, considering the statute permitting recovery for wrongful death, I will remark that the action conferred by this statute is a creature of the law. The older members of the Bar will remember when there was no such action or cause of action. The common law provides for no such cause of action and if it were not for the statute there would be no cause of action on behalf of these children and none could be maintained. Now the cause of action being a creature of the statute, the statute must be complied with in all respects.

In the case of Mack and wife v. Brammer et al, 28 O. S., 508, a military land warrant was issued to the widow and minor children of a soldier of the Mexican war under a statute which provides that the guardian of such minor children may “upon being duly authorized by the orphans or other court having probate jurisdiction, have power to sell the warrants”; the guardian of the minor child with the widow, assigned the warrant without being authorized to do so by the probate court to a person who knew all the facts of the case but supposed that the assignment gave him a clear title to the warrant. The Supreme Court held that the assignment of the guardian without authority of the proper court did not transfer the right of the minor in the warrant to the purchaser; that where the statute requires a particular authority to be pursued in the transfer of an interest in property, the purchaser is presumed to know such authority and if he purchases where the authority has not been pursued, he does so at his peril.

So that the rights of these minor children could not be cut off by any unauthorized act of their mother, the plaintiff below. The language of 'the statute, Section 6135, providing for action for wrongful death, is as follows:

“Every such action shall be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this state, with the consent of the court making such appointment may, at any time before or after the commencement of a suit, settle with the defendant the amount to be paid, and the amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making such appointment, may, at any time before or after the equitable, having reference to the age and condition of such beneficiaries, and the laws of descent and distribution of personal estates left by persons dying intestate.”

So that it will be observed that' the administratrix had no powder of making any settlement that would be binding on these minor children, without the consent of the probate court making the appointment. If the probate court had consented, in the proper way, so as to be evidence of its consent, she could then have made the settlement, and that settlement would then have been binding, and would have bound those minor children, because the statute authorizes that sort of a settlement to be made. But there is no pretense in the testimony in this case that the probate court ever consented to anything of that sort, although possibly counsel may have, in their zeal, said something to the effect that the probate court did, perhaps, consent — as there is no proof to show that it did not, there is no proof to show that it did; but that very fact, that there is no proof to show that it did, conclusively concludes the party from any such contention as that.

Now then, the action is prosecuted in behalf of these two minor children. They are the only parties in interest, and, as is said in Wolf v. Ry. Co. 55 O. S., 517, the administratrix is simply the representative, and has no personal interest in the affair. I want to call attention to the syllabus in this Wolf case:

“In actions in the name of an administrator under Sections 6134 and 6135 of the Revised Statutes, the administrator is a mere nominal party, having no interest in the case for himself or the estate he represents, and such actions are for the exclusive benefit of the beneficiaries in such sections named. In arriving at the total amount of damages in such case the jury should consider the pecuniary injury to each separate beneficiary, not found guilty of contributory negligence, but the verdict should be for a gross sum, not exceeding ten thousand dollars.”

In this case the Supreme Court in an extended and elaborate and interesting opinion, by Judge Burket, s'ay: “The action was brought under Sections 6134 and 6135, Revised Statutes. At common law such an action could not be maintained. The action being the creature of the statute must be governed by the statute.” “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act or default is such as would, if death had not ensued, have entitled the party injured to have maintained an action, and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.” And on page 531, the court say:

“The following authorities show that the administrator is a mere nominal party, and that the action will be defeated by the contributory negligence of the beneficiaries,” holding, in effect, that the action is for the benefit of the parents — the beneficiaries — and that the personal representative has no personal interest in it; could not even take it for the payment of the ordinary expenses of the settlement of the estate.

Now, taking that view of the matter, in the mind of the court, it disposes of the requests made to charge, which are, in effect that those vouchers signed by this administratrix foreclosed any right that she or the beneficiaries whom she represented had to participate in the fruits of this section. The counsel below requested the court to so instruct the jury. The court refused to so instruct the jury. The requests were made in several different forms so as to completely and skillfully cover the ground. Then exceptions to the refusal of the court' to so instruct the jury were taken; and properly saved in the record, and then what the court did say in its charge was also excepted to, and that is properly saved in the record.

It was also urged that the statute upon which the liability in this case arises is unconstitutional — that is, the act providing that the railroad company should be liable for the negligence of an employe in authority over employes in any separate branch or department, the claim being made that some person in authority •on some other train of the defendant company was guilty of negligence that produced the injury that resulted in the death of this decedent — that that act was probably unconstitutional. But we find otherwise.' We don’t think it is unconstitutional. It has been before the Supreme Court a number of times, and has received a settled adjudication — not on the direct question, but it has passed in review before the Supreme Court, and it is pretty safe to say where a case has been carried to the Supreme Court on particular questions, and the court has passed upon them, and no question raised there by counsel or court as to the constitutionality of such actions, that they may be considered as pretty well settled, and we do not feel disposed to disturb the finding of the court on that •question.

There is but one other question which we are called upon to decide. The verdict below, as shown by the record was $5,500. The action was for $9,000. In view of the disclaimer on the part of the widow, the question is as to whether this was excessive as a verdict in favor of the children. It is contended on the part of the plaintiff in error that there was some prejudice, or something else, that induced the jury to go beyond what' they ought to have done in awarding damages in behalf of these children. Now it is true that $5,500 is considerable of a verdict, but yet it is but $2,750 for each of these children. The father of those children was able to earn probably from $75 to $100 per month. He was said in the record somewhere to have been 33 years old. He was in the full vigor of manhood, able to earn that amount of money, and take care of his children and family, and all of us know who have done anything in that regard, that children of that age need considerable for taking care of them, and providing for their education, and their clothing. And then they may have some expectation to inherit, on the death of their father. The jury, under proper instructions of the court, took into account all of these things. They had the whole matter before them. The matter was properly submitted to them, and they, in the exercise of their discretion, concluded $5,500 was not excessive; and while we say and are of opinion that that is a pretty large verdict, still it is not so excessive that we feel we ought to disturb it. The conclusion we have reached is that the judgment should be affirmed, with costs, without penalty. And that will be our finding.

Waight & Moore and J. H. Collins, .for plaintiff in error.

Charles M. Cist and F. V. Owen, for defendant in error.


text:
    CONTRACT OF OPTION.
    [Circuit Court of Hamilton County.]
    H. Clay Evans, doing business as the Chattanooga Car & Foundry Company v. The Peck-Hammond Company.
    Decided, March, 1903.

      Consideration Supporting Contract — Rule to he Followed by the Court in fixing an Ambiguous Time Limit.

    1. While adequacy of consideration will not be inquired into in a suit at law, the consideration relied on to support a contract must be the consideration in mutual contemplation of the parties, and can not be something which is a mere incident to the essential terms and objects of the contract.
    2. It is the duty of courts to sustain rather than to defeat contracts, and to make certain that which can be made certain, but these principles must not be carried in fixing a time limit to a contract, which is silent or ambiguous in this particular, to the extent of fixing an arbitrary limit which the court can not reasonably find existed in the minds and by the intention of the contracting parties.
    Jelke, J.; Swing, J., concurs.
   There are a number of assignments of error herein, but sifting them discloses that they all hinge upon the validity or invalidity of the contract marked “Exhibit B” and attached to the bill of exceptions, which is as follows:

“We propose to make for you any and all gray iron castings which you may order of us of the same class of work as furnaces 42, 48 and 54, in such mixtures as shall equal in quality,, durability and finish standard castings of like kind, thoroughly cleaned, chipped and acceptable to you, for the sum of (l%c) one and three-quarter cent's per pound f. O. b. cars Chattanooga, Tennessee.
“This contract to be in force until January 1st, 1901, with privilege of renewal year by year with a readjustment of price on January 1st of each year, increasing or diminishing price of (l%c) one and three-quarter cents per pound by difference, if any, in cost of pig iron in the general market at the time of said renewal, as compared with the present cost of such iron in the general market, and no change shall be made unless the difference in price of pig iron in the general market is at least ($1.00) one dollar per ton and has existed ninety days prior to said renewal.
“We will invoice castings at' an agreed weight, which is to be determined by adding (6) six per cent, to the weight of metal patterns.
“Pattern weights of such castings as are made from wood patterns to be determined by talcing average of ten castings from said patterns and deducting six per cent.
“We will furnish flasks, follow boards, and such other appurtenances as are necessary for making first-class castings.
“We agree to begin to deliver castings within thirty days after patterns are received by us.
“We agree to keep patterns insured in such an amount as will replace" them, in case of loss nr damage, in as good condition as they were before they were lost or damaged.
“You are to furnish us at your convenience, f. o. b. 'cars at Chattanooga, iron and wood patterns in good condition to make castings from. We agree to inspect said patterns and to return to you said patterns in as good condition, ordinary wear and tear excepted, immediately on your demand, and on our failure to do so hereby authorize you to take possession of same without process of law.
“We also agree to mount radiators, you to furnish steel cut to size for same, fit, paint t'he fronts, bronze the letters and crate and box ready for shipment any or all apparatus as follows, provided it can be done' without loss to us:
“42 inch furnace for sum of $1.50 each.
“48 inch furnace for sum of $1.75 each.
“54 inch furnace for sum of $2 each.
“We also agree, if you will keep such things in stock with us, to include in our boxing and crating and shipping with the above apparatus, such items as castings, casing caps, asbestos cement, paper, poker, check damper, regulators, etc., without extra charge.
“We agree to make and keep in stock one month’s orders thirty days in advance of month for which they are ordered.
“We agree, when orders are received for immediate shipment, to ship out eastings which we have on hand, or immediately make up castings to full capacity of patterns and ship until orders are filled.
‘ ‘Castings on hand for stock orders which are used to fill orders for immediate shipment, will be replaced, if you so desire, as soon as possible, running to full capacity of patterns to do so.
“We agree to store and insure, free of cost, and keep perfectly dry, all castings not used and such other material until such time as they are ordered shipped.
“We agree, if we fail to make and ship your castings in accordance with your orders and specifications as 'above stated, to pay all loss or damage which you may sustain by reason of such failure on our part, causes beyond our control excepted.
“We agree to bind ourselves, while making your castings, not to make castings of similar patterns or go into the furnace business on our own account or allow your patterns to be used for any purposes than to produce such castings as you may order.
“Should we wish, you are to furnish us an experienced superintendent, we to pay his salary and expenses until such time as our superintendent is familiar with mounting the work.
“Settlement to be made under date of t'he 10th of each month for all castings delivered during previous month, by giving a 90 day note or pay cash deducting 2 per cent.
“Castings made up and ready for shipment on orders from you are to.be included in each month’s settlement.
“The rendering of bill for stock unshipped and the accepting of settlement for said unshipped stock, is hereby acknowledged a warehouse receipt, and such stock is hereby acknowledged to be your property, and shipment of same when ordered is to be made by us without expense to you.
“Above proposition to be accepted on or before June 1, 1900.
“Chattanooga Oar & Foundry Co.
“J. E. Evans, Manager.”

When we have determined this, answers to all other questions in the case are but corollaries to such determination.

Counsel for plaintiff in error contend that all provision in said contract beyond and after the first year, that is after January 1st, 1901, is void and of no effect for two reasons: First, for want of mutuality or consideration; and second, for indefiniteness and uncertainty.

After elaborate argument and exhaustive briefs by learned counsel on both sides of this case it is revealed, as it so frequently is, that the several propositions of law contended for are all sound; so that the real problem is to work out' the correct result in the light of these legal principles from the writing and the facts and circumstances surrounding the parties.

Counsel for plaintiff in error start with the proposition that a promise is a good consideration for a promise only where there is a perfect mutuality of engagements so that each party may enforce the contract against the other, and that since the Peck-Hammond Company does not engage to take a stipulated amount of castings, or all or any castings used by them from H. Clay Evans, the promise made by H. Clay Evans to furnish castings is not binding for want of such mutuality.

Counsel for defendant' in error says that the proposition of law in the abstract is true, but does not apply to his case because the Peck-Hammond Company does not rely on any engagement of that kind on its part as a consideration for the promise of H. Clay Evans which it is seeking here to enforce.

Counsel for defendant in error contends that by its executed undertaking to furnish H. Clay Evans f. o. b. ears Chattanooga iron and wood patterns in good condition to make castings from, and to furnish an experienced superintendent, the Peck-Hammond Company bought and paid for an option which was thereafter exercisable at the pleasure of the Peck-Hammond Company. Counsel say that was the contract, and that the adequacy of such consideration can not' be inquired into in this court of law.

“If the promisee gives anything for the promise in excess of what he is legally obligated to give, whether such a return by a counter-promise upon the part of the promisee or an act done by him, the promise is binding upon the promisor, and it makes no difference whether the counter-promise or act given or done by the promisee be adequate or not,”

Is a sound proposition at law and is supported by abundant' authority. But this to a certain extent begs the first inquiry as to whether there was a consideration at all or not.

Adequacy or inadequacy is not determinative, but inadequacy is a fact or circumstance, like any of the many surrounding circumstances, which enables the court to find whether the thing claimed to be the consideration was a, consideration or the consideration in contemplation of the parties and by their mutual intent. Of course there is no more essential element upon which the minds of the parties to a contract must meet than the consideration, and one thing can not be the consideration in the mind of one and another thing in the mind of the other.

This then brings us to the question: Was this furnishing of patterns and a superintendent the consideration in a contract of option in the contemplation of the parties?

This is the stand taken on this branch of the case by counsel for defendant in error, and if such is not the consideration, the contract must fail. He says truly and fairly “a privilege of renewal subsisting to both 'parties to a contract would be a manifest absurdity.”

After careful deliberation we are of opinion that such was not the nature of the contract. The furnishing of the patterns and a superintendent was but an incident, a working detail of the fixed and certain part of the contract and such renewals thereof as the parties might thereafter agree upon. It defined and described the subject matter of the contract. We do not think that this provision over and above the part it played in defining the subject matter in the fixed contract, ever was thought of by the parties as furnishing a consideration for a contract of future option. In fact after warm debate this idea only came to the mind of faithful and astute counsel in the exigencies of argument.

We now come to this second infirmity charged against this contract' : That the provision for renewal is void for indefiniteness and uncertainty in that.there is no limit fixed to such renewals.

Full deference must be paid to the many high authorities cited by counsel for defendant in error pointing out that it is our duty to make every effort to sustain rather than to defeat contracts and id facere cerium quod cerium reddi potest. On this question counsel for defendant in error has taken his stand with frankness and courage where he saj's in his brief:

“The contract is therefore unlimited in its final duration except by the legal and practical continuance in business of the parties thereto. If either of the parties should die or cease doing business, or should go into bankruptcy or shall for any reason bona fide cease the business he or it is engaged in, the contract would thereby come to an end. While the parties, however, continue in business and are in position to carry- out' the terms of the contract, the contract will continue from year to year, the price being adjusted each year as before set forth.”

This is the only limit counsel can find in the writing, in the evidence and in the circumstances of the parties.

Reflection will show that such was not the limit in contemplation of the parties fixed in the contract by intention, when it is observed that' it is the limit which exists ex necessitate to all earthly possibility. It is the limit fixed not by the parties, but by the Lord upon all human engagements. It exists without contract, notwithstanding contract, and in spite of contract.

Such a construction would mean that this contract, by the annual exercise of an option by one of the parties, is to go on until it can't go on any more. We do not believe the parties intended this, and we do not know and can not find out what intention, if any, ' the parties had in this regard.

Counsel has called our attention to the class of cases where railroads have employed persons in'settlement' of claims for personal injuries in which there has been no limit in the contract of employment, but the courts have nevertheless fixed a reasonable limit and sustained the contracts. In those cases one of the very essentials of the contract is the estimated diminution of the employe’s earning capacity for the rest of his life. It is a compensation substituted by contract for the measure of damages, so that by an-annuity the diminished earning capacity is made whole for the balance of claimant’s working life.

Nobody -can believe that two strong commercial organizations, between which existed no obligation, dealing as to a'commodity in the open market had any such limit in their minds. It is too unusual to be lightly supplied by us in the absence of express agreement or indicia pointing clearly to such agreement. We feel it would be making a contract for the parties which they themselves have not made. The same difference exists between such cases as Caring v. Carr, 167 Mass., 544, where there was a contract for permanent employment, and the case at bar.

We do not' find the law cited by counsel relative to tenancies of land from year to year helpful for this reason, that there are and always have been conditions pertaining to the soil which have controlled the making of term contracts as to land — that is, leases— and these have so invariably been circumstances of the making of the contract that they have grown into the body of the law on that subject and hence it is not' safe analogy to apply those principles to free contracts.

Further, there has been nothing like a holding over here where in the absence of an express agreement the law' implies in fact a contract between the parties.

Before the first year was out the attitude of both parties was clearly defined on -the subject of renewal, one expressly claiming the right to renew, and the other with equal explicitness repudiating such right; so that such right must be determined from their subsisting contract, if any.

So, as to the cases cited of holding over contracts of employment. No case is found in which an employer is held bound where, contrary to express notification in ample time before the end of the term of an employe, he persists in coming around after the termination of the employment and trying to go to work despite his discharge.

Edward Colston and George Hoadly, for plaintiff in error.

"William C. HerroUj for defendant in error.

We understand that counsel for defendant in error has abandoned his claim that there was some right or advantage gained'by one party speaking or exercising his option first during the year 1890-1891, when he said that a privilege of renewal to both parties would be absurd. At all events, we 'are of opinion that such a thing can not be. The judgment below should have been for the plaintiff.

Judgment reversed.


text:
    PROCEDURE IN ERROR CASES FROM JUSTICES OF THE PEACE.
    [Circuit Court of Hamilton County.]
    Roller v. Esman.
    Decided, February, 1903.
    Where there is a judgment of reversal in an error case from a justice of the peace, the action should be retained by the common pleas court for final judgment as in cases on appeal.
    Swing, J.; Jelke, J., concurs; Giefen, P. J., not sitting.
   Section 6733, R. S., provides that when the proceedings of a justice of the peace are taken on error to the court of common pleas and in such action the judgment of such justice is reversed, the court shall render judgment of reversal, and the subject of the action shall be retained by the court for trial and final judgment as in cases on appeal.

The judgment of the court in this case was simply one of reversal and for costs, and the court did not order the case retained for trial in said court'. In not rendering such judgment the court erred, and to that extent said judgment is reverséd and said court is hereby ordered to render judgment in said action, retaining said action in said court’for trial, and final judgment and a special mandate is ordered to issue'to said court' to carry this judgment into execution.

Gideon G. Wilson, for plaintiff in error.

John A. Deasy, contra.


author: Per Curiam.

text:
    JUDICIAL DISCRETION AS TO QUALIFICATIONS OF AN INTERPRETER.
    [Circuit Court of Hamilton County.]
    Harry Fennen v. The State of Ohio.
    Decided, March, 1903.
    The qualifications of an interpreter in a court proceeding is a matter within the sound discretion of the court.
    Heard on error to a judgment of guilty under an indictment charging robbery.

      Robert C. Pugh and Vincent Schwab, for the plaintiff in error. R.. Froome Morris, contra.
   Per Curiam.

Yerona Persel spoke some dialect of the Polish language which the official interpreter could not understand and translate. Mary Batsclie was called and examined by the court as to her qualifications, which the court approved, and thereupon she was sworn to act as interpreter. It is complained that' she was not sworn on her voir dire, that is, before answering the court’s interrogations as to her qualifications.

The passing upon the -qualifications of an interpreter is peculiarly within the sound discretion of the court, and this being so, it is for the court to determine as to the character of testimony, sworn or unsworn, which will satisfy that discretion, and the court’s approval is conclusive in the absence- of a charge of abuse of discretion.

The evidence sufficiently sustains the verdict of guilty on the charge of. robbery.

Judgment -affirmed.


text:
    ASSUMED RISK BY AN EMPLOYE.
    [Circuit Court of Hamilton County.]
    The Memphis & Cincinnati Packet Co. v. Britton.
    Decided, July 5, 1898.

      Pleading — Master and Servant — Action for Injuries — Negligence—Assumed Risk — Instructions to Jury.

    1. In an action by a servant against his employer for damages on account of injuries received in the course of his employment, it is not sufficient under the Norman case [49 O. S., 598] to allege that having discovered that the work as it was then being prosecuted was dangerous, he made complaint to his superior, but thereafter proceeded with the work upon being commanded so to do. The petition should further allege that the servant understood and believed from the command and the circumstances that if he did not proceed with the work he would be discharged.
    2. When a servant goes forward in the discharge of a dangerous task, under such circumstances that in law he assumes the risk, the question whether he acted with care, or negligently, ceases to be important from, that time on, so far as the liability of the master is concerned.
    3. A master is not negligent in requiring a servant to proceed with work in accordance with the customary method of doing it, unless some peculiar danger became apparent to the servant and was communicated to the master, which laid the basis for a new demand for appliances for safety. A mere error of judgment on the part of the master as to whether a given method is safe does not render him liable, and where a servant complained that he was in danger of slipping and was told to go on, and upon complaining a second time was told to be careful and he would not get hurt, and thereafter he did slip and was hurt, there is not sufficient ground for recovery.
    4. It would be for a jury to determine the cause of an accident to a servant who, having complained of his slippery footing, attempted to do work with a wrench for which a mallet is ordinarily used, and by the breaking of the wrench sustained a fall.
    5. A special charge which is irrelevant is bad, but if pertinent should be given, unless in a fair exercise of discretion by the trial judge the subject has already been sufficiently covered.
    Sibley, J. (orally); Cherrington, J., and Russell, J., concur.

       This case was heard by the Judges of the Fourth Circuit sitting in Cincinnati in place of the Judges of the' First Circuit.

   This case comes here by petition in error seeking to reverse the judgment of the trial court.

The primary ground averred is the overruling of the demurrer to the amended petition. Beyond that, error is alleged in respect to interrogatories submitted, but this went out on the hearing, in view of the circumstance that' they were not so submitted so as to enable the company to avail itself of what was done with regard to them.

Errors are alleged in respect to charges given and refused; and finally, that the verdict is not sustained by the evidence.

I take the matters we deem it necessary to consider somewhat in the'order stated, at least so far as the first averment is concerned. The case on its facts and circumstances, out of which all the alleged wrong-doing came, relates to a sternwheel steamboat owned by this packet' company, and upon which the defendant in error, plaintiff below, was a fireman. It became part of his duty in that capacity to aid in tightening the stirrups which bound the paddies to the arms of the wheel. The carpenter of the boat was his immediate superior, under whose control such work was done. At the date alleged in the petition he was directed and commanded (it so puts it, although I don’t think that makes any material difference), to proceed in the discharge of his duty. The bo'at was lying at the wharf. The wheel was held rigid by proper management of the machinery, and he was ordered to go upon it and tighten up the stirrups. That could be done standing on the p'addles with some of the stirrups, by reaching to, and simply turning the nuts with a wrench. When it came to the top paddles, as the wheel stood, it was necessary for Britton to stand in on the braces and do the tightening. He proceeded to do this work, and in the course of it fell and met with serious injury. The cause of action set out in the petition is predicated upon what was thus done.

The first question-is in regard to the mode of setting out the matter in the petition. The facts I have stated about the nature of the employment — the carpenter as his superior; that he commanded him to proceed to this work; that Britton did so, and found the wheel in a condition in which he wished additional support an order to render him more safe, are averred. I will read an allegation at this point:

“Said paddles were slippery and covered with green moss, and it was dangerous for a man to stand thereon and work, and of this danger said Reasington (the carpenter, Britton’s immediate superior) knew.” It also alleged that it was his duty to furnish a certain plank called a foot board to be placed on the frame of the wheel for workmen to stand upon, and that he negligently, carelessly, and regardless of the safety of Britton failed to furnish such plank, paid no attention to his remonstrances, and commanded him to go on- with the work.

Now, this is sufficient to show that Britton had become aware of the danger of his situation. Hence, under the Norman case, in 49 Ohio St'., he was put in a position where, if he advanced with the work without a promise on the part of the master to supply what was demanded for his security, he assumed the risks and would be barred of any recovery, it appearing, I say, that he himself saw the danger and understood what' it was. Counsel have pleaded with a view to that case undoubtedly, and they have sought to bring themselves within another category. If making the law, as courts of last resort seem to be doing at times, I would declare it to be this: When a master is apprised of the fact that his servant is placed in a dangerous situation in the course of his-employment, and he directs him to proceed, thereby the master should be held to assume the risk, unless it be shown under the circumstances in which he worked, the servant had been guilty of actual negligence contributing to the injury. But this is not the law in Ohio. We are not inclined to hold, however, that the Norman -ease excludes the doctrine that where a servant finds himself in a perilous condition in view of some defect just discovered or peculiar danger suddenly apparent' to him, and the master, after notice thereof, -commands him to go on under such circumstances that he reasonably may and does understand he must forego his employment or proceed in its execution, the servant is then under coercion; in which event the master assumes the responsibility for ill consequences that may result to the servant from a faithful discharge of his duty. Now, it is with a view to this class of cases that the averment, as to Britton’s being commanded to proceed, was made. But the difficulty with the petition, in our estimation, is that it does not go far enough. It fails to allege what the evidence tends to show, and but for another reason possibly might be regarded as curing; that is, Britton’s understanding from this command and the circumstances, that if he did not proceed he would' be discharged. The petition simply says that he proceeded becausé he was commanded. When he did that, so far as respects the dangers apparent to him, he fell within the rules of the Norman case.

There is this difference between assumption of risk and the ordinary case of contributory negligence. When a servant goes forward-in the discharge of dangerous duties, under such circumstances, that in law he assumes the risk, then no matter what his' care, he is working at his own peril. The question of carelessness ceases to be important from that time on, so far as the liability of the master is concerned. ' Whether the servant becomes negligent is wholly immaterial to the result, because with the utmost care, if he gets hurt, he alone suffers the consequences.' On the other hand, in ‘the ordinary case of contributory negligence it must be shown that there was want of care directly contributing to the evil result.' We think, then, in view of the fact alleged in the amended petition, that the plaintiff when commanded to go forward, did so; and it not being stated that this was on the understanding and belief, that if he did not so proceed he would be discharged, the averment simply of a command, in other words, does not distinguish this from the Norman case. The court below therefore erred in not sustaining the demurrer to it. That view, is not, however necessarily decisive here. On the evidence, circumstances appear that would authorize the submission of the question of coercion to the jury if the pleadings had properly presented it; and-if there was nothing else in the record upon which to predicate error, we would allow an amendment to be made in conformity with wh'at we presume to have been the finding of the jury in that regard. But as said already, the direction, or command, as it is stated here, to proceed, if obeyed, is not sufficient in itself to place the servant under the protection of the coercion doctrine. It must be shown by the circumstances, and what was said, that unless he went forward he reasonably believed he would lose his place. When that appears, with notice of the defects in the machinery, or of the special dangers of the situation, the servant may proceed in reliance upon the proposition that the master has assumed the risk; and if in the exercise of proper care, under the circumstances of danger in which he is working, it won’t lie in the mouth of the master when the servant is hurt/ to say that he assumed the risk. But there is another fact in the case which bars us, from relieving the defendant in error, in the view suggested. , The proof, is .overwhelming that the customary mode of doing such work on a boat of this kind, a sternwheel boat, was to .do it without the .use. of a foot board; that this had been the custom of-Britton himself in the employ of this boat, and elsewhere .perhaps, during years of river service; and if not universal, it was, to say the least, the general custom in .doing that kind of work, standing on.- the paddles when the work permitted, and on the braces if working at .the top paddles, as was being done .when this accident, occurred..: The proof shows, I say, not only that this was the general custom- — it Was the custom which plaintiff below had followed, the custom this boat had always observed, the mode in, which he had done such work.previously on the boat; and therefore, as we conceive, in the absence of anything to show that some peculiar and unusually dangerous -condition had arisen at the time this work was done, which was brought to the attention of the superior, it charged him with no .negligence in directing the servant to proceed, in that way. He might have furnished the foot plank as requested, ■ but it seems to be, very clear, -that if he was proceeding according to the well known and customary mode of doing .the work, he.was not negligent in refusing it. In .that case the servant assumed the risks by entering upon the service. The master was not negligent in requiring him to proceed in accordance with the custom, for the very good reason, that the .test of prudence and. care, in conducting work, making machinery, or furnishing appliances, is what people generally do who are engaged in such business. That fs proof of a prudent and reasonable mode of transacting it, and if the master went no further than to require this of -the servant, although accident befell the latter while in the discharge of his duty, equally would it.be true that the master was not in fault. Hence injury would be misfortune to the servant for which no-one is responsible. So, I-say, this being the state of fact,- unless it also appears .that there was some peculiar danger which became apparent t.o the servant, and was communicated to the master that laid the basis of a new demand for appliance to insure-safety,-the servant would be under the operation of the other doctrine as to the customary -mode of doing the work, and could not charge the master with responsibility. Now, we don’t think this evidence discloses any such condition. It does not show anything communicated to the superior that was not apparently an ordinary incident of employment upon a wheel that had been used — which has on it a little moss and the slime that accumulates from use. This work was clone soon after the landing of the boat,- when the braces upon which they would usually stand were slippery, and therefore excited apprehension in the mind of Britton that he might fall. He called attention to the fact that it was slippery, and asked for a plank. He was directed to go on. The evidence shows that on second call he was informed if he would be careful he would not get hurt. On the facts disclosed then, there was nothing to take this case out of the customary mode of doing the work, and therefore nothing-upon-which negligence of the master can be predicated.

At that point the verdict is not sustained by the evidence.

It is alleged further, that the plaintiff was guilty of contributory negligence. We don’t pass on this as a matter of law. There was enough shown to go to the jury on as to that.

When Britton got to his top place of the wheel, where it was the ordinary mode to put an arm over the paddle and work with, one hand — and here is the pity of it1 — his whole action evinced a purpose to ,do his .utmost — he found a nut that had become rusted, which could not be turned by one hand. Evidence is in the record tending to show that in such case the usual mode was to call for a mallet and loosen the nut by striking it, so that it could be turned with the wrench. Instead of this, however, Britton let go with the arm he should have used apparently for his protection, and with both hands on the wrench, used so much force as to break it. With the breaking'he slipped and fell, the petition avers, in consequence of not having a proper appliance in the way of a safety plank. There is enough in this for a debatable contention at any rate, that the breaking of the wrench, when using it as a substitute for a mallet', and therefore in an extraordinary way, is the cause of the whole trouble. We don’t say this is so as a matter of law— it is a question for the jury.

Charges were given at the request of plaintiff and defendant, and they asked a good many that' were not given.

It is always proper for counsel on both sides to cover their case in every possible -aspect by instruction. The court may not give them, and is not always bound to do so.

The general charge goes pretty well over the case, and it is supplemented by special instructions which were actually given.

The first instruction by the plaintiff’s counsel we think is rather misleading. Even if the jury should find that the defendant did follow the usual and ordinary practice of others in doing the kind of work which was being done in this case, it is not conclusive that it was the proper way to do it, and such custom or practice, if any existed, is proper to be considered by the jury; yet the defendant was bound to supply the plaintiff with such materials to do the work, as an ordinary prudent man under such circumstances would use.

Now', if the first clause had been requested alone, there would have been no objection to it. The second clause has no relevancy to this case. It was not a question of supply in view of the indisputable evidence in regard to the custom. The latter clause that the defendant was bound to supply plaintiff with such material to do the work, as an ordinarily prudent man under suoh circumstances would use, therefore renders it bad.

The third is as follows:

“It is the duty of the master to provide tools and appliances fit for the purpose of the work which he directs the servant to do,' and if he could have avoided the injury to the servant -by the exercise of ordinary care in providing appliances to do the work, and there is no contributory negligence on t'he part of the plaintiff, then the defendant is responsible for any injury which occurs to the plaintiff by reason of his failing to provide safe -appliances.

This is open to the same objection. It has no relevancy when the real rub of the case is taken into account, as it discloses itself, not in the record merely, but on the evidence. Often the turning points of a case, and it is so here — are not merely in what, is put in issue by the record, but on questions that arise upon the testimony in connection with the law which applies; and it is with reference to them that the court should instruct the jury. '

As stated, special charges first and third, given on behalf of the plaintiff, are bad. We find no ground of exception in anything else, except two charges that we think ought to have been given on behalf of the defendant.

Charge 22:

“If the -jury find from the evidence that the general rule or custom has been not to use the foot board when tightening the buckets on the wheel of a sternwheel steamboat, such finding should be fairly considered by the jury as indicative of the general sentiment or opinion of those engaged in the business, that such foot boards are not essential or necessary, and that' the omission to use them would not be deemed or understood as negligent.”

Now, that was 'a pertinent charge on the testimony introduced by the defense in this case. It should have been given, and it was error, we think, to refuse it.

Number 24:

“If the jury find that the carpenter was an experienced and competent person for the position he occupied under defendant, and that when his attention was called to the matter of furnishing foot boards, he duly and fairly considered the matter, and came to the conclusion that in his opinion or judgment foot boards were not necessary, the defendant is not liable for the mistake or error, if one there was, in his opinion or judgment, as to the necessity of such foot boards.”

That simply brings into view the question of a fair exercise of judgment under the circumstances in one aspect of the case, and we think the defendant was entitled to it. When the master has furnished 'a competent man, and lie is 'conducting business in the fair exercise of a capable judgment, where the question is ’one of opinion, for instance, as to whéther.it would be prudent, to go on here without foot boards, the master does not become responsible because there was a simple error of judgment in that regard, as we understand the law.

We don’t take time to go into detail about the other charges refused. The general charge with those that were properly given on both sides pretty fully cover the case. Counsel are not allowed to make up a volume and expect it to be read to the jury, by simply varying the statement of law in application to essentially the same matter. When it is once given in a pertinent and adequate form, the duty of the court in that regard is ended. It may refuse further charges that substantially cover the ground already properly instructed upon. That' is the practice as we understand it.

Johnson & Levy and William H. Jones, for plaintiff in error.

William Littleford, for defendant in error.

Were it otherwise, where counsel were able on both sides, as they appear to have been in this case, and somewhat prolific in the production of literature in the way of legal instruction, they might compel a court to read to the jury a volume, the end of which would be to confuse rather than instruct it. There is reasonable discretion at this point left to the trial judge, with the exercise of which courts of review will not ordinarily interfere.

On the record as it now stands, then, we hold, first, that there was material error in this case to the prejudice of the plaintiff in error in the fact that the court overruled instead of sustaining the demurrer to the-amended petition; secondly, that there was material error in the two charges given on the special request of the plaintiff below to which I have referred, and to which exception was made at' the time by the defendant below; thirdly, that there is material error in refusing to give the two charges to which I have referred, specially requested by the defendant below, and which was refused; 'and fourthly, that on the record as it now stands, the verdict is not sustained by the evidence.