text:
    WAREHOUSEMEN.
    [Hamilton (1st) Court of Appeals,
    December 28, 1915.]
    Jones, Jones and Gorman, JJ.
    Baltimore & O. S. W. Ry. v. Wuest et al.
    1. Warehouseman Liable for Damage Done by Unprecedented Flood When His Negligence Co-operates to Loss.
    A warehouseman is liable for damage done by an unprecedented flood to goods stored in his warehouse where his own negligence commingling with the act of God as an active and cooperative element resulted in damage to the goods.
    2. Failure to Exercise Ordinary Care Excused Only When Act of God Produces Same Damage Independently.
    A negligent warehouseman can be excused for failure to exercise ordinary care only in cases where the superior force of the act of God would have produced the same damage whether the warehouseman had been negligent or not.
    Error.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.
    ■ Frank J. Dorger and Robert S. Alcorn, for defendants in error.
   JONES (E. H.), J.

This action was brought in the superior court of Cincinnati by the defendants in error, Mary and Adam Wuest, doing business as Adam Wuest, against the Baltimore & 0. S. W. Ry. to recover damages sustained during the flood of March, 1913, by plaintiffs below on bales of cotton and linters stored at the storage warehouse of the railroad company a,t the southwest corner of Front and Mill streets in the city of Cincinnati.

The railroad company, as a part of its business, had three different warehouses in Cincinnati, where it did a storage business for the benefit of the public desiring such accommodations. One was a large, five-story, brick warehouse, extending from the west side of Smith street westwardly to Mill street. In addition to this large warehouse for the storage of general merchandise, the railroad company had a one-story frame building on the southwest corner of Second and Mill streets, and one on the east side of Mill street. The plaintiffs had stored, at the time of the flood, 324 bales of cotton and linters, all but a small portion of which were stored in what was known as the old Southern Railway building on the southwest corner of Mill and Second streets. A few of the bales were stored in what was called the Fruit House, on the opposite corner. The plaintiffs had been storing cotton in those warehouses for seven or eight years prior to the flood of March, 1913.

Defendant claimed that the damage to plaintiffs’ cotton was due to the flood of March, 1913, and was the result of an act of God. The defendant further claimed that in the exercise of ordinary care, in view of all the circumstances and conditions, it did all that could be reasonably expected of it for the protection of the cotton, and that it is therefore not responsible for the damage sustained by plaintiffs on account of said flood.

The trial resulted in a verdict in favor of the plaintiffs below for $3,631.50, and to reverse the judgment upon this verdict this proceeding in error is prosecuted. The last paragraph of the statement above made accurately states the respective claims of the parties in this case, and tersely states the issue which the jury was called upon to decide, which issue is exclusively one of fact for the jury.

The judgment of the court below, based as it is upon the verdict of the jury, cannot be disturbed by this reviewing court unless it is found that there was some prejudicial error either in the admission or rejection of evidence or in the charge of the court. Recognizing this situation, counsel for plaintiff in error rely for a reversal of this judgment upon alleged errors of the trial judge in the general charge and in the refusal to give certain special charges requested by them, together with the giving of certain special charges requested by plaintiffs below.

The examination of the bill of exceptions, with a view to ascertaining the action of the court in giving the law of the case to the jury, shows that counsel for plaintiff in error in their carefully prepared brief have made complaints of error which are not borne out by the bill of exceptions. For example, we quote from page 36 of said brief as follows:

‘ ‘ The essential and important fact in this ease was that the damage to plaintiffs’ property was caused by ‘an act of God’, to wit, the flood in the Ohio river, and that being the ease the defendant’s negligence, if there were any, which we deny and will discuss at a later stage of this brief, did not make the defendant liable for the damage to plaintiff’s property.”

Continuing, on page 37, counsel quote from the opinion of our supreme court, in Assur v. Cincinnati, 88 Ohio St. 181, 187 [102 N. E. 702], language which they construe as a finding of that court to the effect that the flood of 1913 throughout the state of Ohio was “an act of God,” and counsel then say, on page 37 of the brief:

‘ ‘ If this court does not know already that the flood of 1913 was ‘ an act of God, ’ certainly the decision of the Supreme Court that it was, is binding upon and will govern this court. ’ ’

One would think from reading this portion of the brief that there was some ground of complaint against the charge upon this subject, but upon examination of the charge we find that the court, upon page 383 of the bill of exceptions, used this language in its charge to the jury:

‘ ‘ The flood of March, 1913, in some of its aspects may properly be considered by you as such an act of God.”

From a reading of the entire brief, however, it fairly appears that the thing complained of by counsel in this connection is that the court refused to charge that the damage to the cotton was an “act of God.” Such a charge would have been erroneous under the evidence in this case, pages of the record being devoted to testimony adduced by plaintiffs tending to show that notwithstanding the unusual and almost unprecedented flood in the Ohio river, the railroad company, as the custodian of these goods, had ample time and opportunity to protect them from the ravages of the flood and to remove them to a place of safety. It was shown that after warnings had been received through the weather bureau, and other sources, of an unexpected rise in the Ohio river, 409 tons of freight had been received and stored by the company through its regular employes in the large warehouse near by. The purpose of this and other evidence was to place fully before the jury the facts and conditions existing, in order that it might be determined whether or not the claim of the railroad company, that it did all that could reasonably • be expected of it for the protection of the cotton, in view of all the circumstances and conditions, was true. All this evidence So offered was relevant and material under the law, as well stated in the case of Backus & Sons v. Start, 13 Fed. 69, the syllabus of which reads:

“3. Warehousemen are not required' to provide against an unprecedented emergency; but if they have reason to expect such an emergency, they are bound to take such precautionary measures to prevent loss as prudent and skillful men in the like business and under like circumstances might be expected to use.
"4. They are not bound to have or keep on hand special facilities to meet and overcome possible but unexpected and unprecedented emergencies, which are included in what is called the ‘act of God;’ but if imminent danger presents itself, to use such appliances and means as the ordinary and safe conduct of their business requires them to possess, and such as are at hand, and to use them with such promptness as would" be expected of ordinarily careful and prudent men in regard to their own, or property entrusted to their care under like circumstances.”

Section 8459 G. 0. thus defines in part the duties of a warehouseman :

“A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not:
“1. Be contrary to the provisions of this chapter.
“2. In any wise impair his obligation to exercise that degree of care in the safekeeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.”

And in Johnson & Co. v. Springfield Ice & Refrig. Co. 143 Wo. App. 441 [127 S. W. 692], it is held:

“A warehouseman cannot escape liability for damage from an unprecedented flood to goods stored in his warehouse where it appears that his own negligence, commingling with the act of' God as an active and co-operative element, resulted in damages to the goods. The warehouseman wuuld be excused for failure to exercise ordinary care only in cases where the superior force of the act of God would have produced the same damage whether the warehouseman had been negligent or not.”

From Memphis & C. Ry. v. Reeves, 77 U. S. (10 Wall.) 176, 179 [19 L. Ed. 909], we'quote the following language from the charge of the trial court in that case, which was held by the reviewing court to be a correct charge:

“When the damage is shown to have resulted from the immediate act of God, such as a sudden and extraordinary flood, the carrier would be exempt from liability, unless the plaintiff shall prove that the defendant wás guilty of some negligence in not providing for the safety of the goods. That he could do so must be proven by the plaintiff, or must appear in the facts of the ease.”

These excerpts correctly state what we conceive to be the law applicable to this case. We now quote from the charge of the trial court in the instant case, at pages 383-4-5 of the bill of exceptions:

“An extraordinary flood of such volume and height and coming with such rapidity as to be almost if not quite unprecedented, is sometimes referred to as an act of God. By this term is meant an occurrence directly and entirely due to natural causes operating without human intervention and such that because of its magnitude or the suddenness of its coming, it could not have been foreseen in the light of ordinary knowledge.
“The flood of March, 1913, in some of its aspects may properly be considered by you as such an act of God.
“The question, however, in this case remains for your determination, whether the defendant under the circumstances existing for the period shortly prior to the stage of flood which reached plaintiffs’ goods, and with the knowledge of conditions, which defendant had or should have had at that time, exercised ordinary care for these goods stored in the so-called .trait house and old southern depot warehouses.
“If the defendant had or should have had knowlegde of, or reasonable ground to anticipate a stage of water in excess of sixty-two feet, at about which height plaintiffs’ cotton was originally stored, and after such knowledge was had or should have been had, failed to use facilities reasonably available and such as -would have been employed by ordinary prudence to protect the cotton from such stage of food as was reasonably to have been anticipated, then defendant was negligent. Defendant, however, was not bound to keep on hand and immediately available facilities to meet an emergency not reasonably to have been anticipated, but only to take such precautionary measures to prevent loss as prudent and skillful men in a like business and under like circumstances would ordinarily take.
“The standard of ordinary care is in law an unvarying standard, but manifestly that action or inaction which will amount to ordinary care depends on the fact and circumstances of each particular case. Ordinary care is a course of ordinary prudence, commensurate with the danger reasonably to be anticipated.
“Accordingly, if you shouid find that at the time in question the defendant was wanting in the duty of care incumbent upon it with respect, to plaintiff’s goods, the defendant would not be excused by the mere fact of the occurrence at that time of an act of God, manifested in the flood. In such event you must determine further whether such negligence on the part of the defendant if the defendant was negligent, or such act of God or other cause was the operative or proximate cause of the damage. If defendant was negligent and such negligence operated proximately and directly to cause damage to plaintiff’s cotton, the defendant is responsible for such damage.
“If, however, you should find that the flood in the extent, rate of increase and height was such as was not reasonably to have been anticipated by defendant in time to provide against damage to plaintiff’s goods by measures of ordinary prudence in view of facilities reasonably accessible, and if as the flood increased the defendant took such precautions as were called for by ordinary prudence, then the damage which actually resulted is chargeable to what has been termed an act of God and not to negligence on the part of defendant and defendant cannot be held to answer therefor.”

This, we think, is a clear and complete statement of the law considered both as an abstract proposition and as touching the issues in this case.

There were a great many special charges requested by each of the parties in the trial below, and most of the argument of counsel for plaintiff in error, both orally and by brief, was addressed to alleged errors of the court in ruling upon these special requests. We have found that the rulings of the learned judge upon each and all of these requests were consistent with the correct view of the law entertained by him and as expressed to the jury in the portion of the general charge above set out.

As before stated, it was the contention of counsel for plaintiff in error, both in this court and in the court below, that under the evidence in this case a verdict should have been instructed for the defendant at the close of all the evidence, on the theory that the flood in the Ohio river in the year 1913, which caused this damage, was an “act of God.” We have already made clear our views that such an act on the part of the trial court would have been erroneous and wholly unjustified by the facts in this ease. Gases are cited in which it has been held by eminent authorities that the evidence not only justified but required such action by the trial court. Other actions for damages by flood have been cited where the judgments of the nisi prius courts have been reversed for the refusal of the trial judge to charge that the damage caused by the flood was an “act of God.” Some of these cases grew out of the great flood at Kansas City on May 31, 1903. The damage at that time and place was caused by joint floods in the Missouri and Kaw rivers, which unite at or near Kansas City. The weather reports predicted the rise in the Missouri river, but the rise in the Kaw river was not only wholly unexpected but was unprecedented. The weather bureau had received no advices as to the water in the Kaw river. There was nothing in the telegraphic reports to indicate an unprecedented volume of water in the Missouri river.

In Wertheimer, Swartz Shoe Co. v. Missouri Pac. Ry. 147 Mo. App. 489 [126 S. W. 793], which is one of these flood cases, the court in its opinion, describing this flood, says at page 494:

‘ ‘ This rise had been gradual for several days and was due to heavy rains over the States of Missouri and Kansas having swollen the Missouri and Kansas rivers. But similar overflows had occurred before in the river bottom at Kansas City without damaging property, and similar warnings had been given by the weather office. On May 31 an overwhelming flood occurred there in consequence of a vast volume of water pouring from the Kaw river in a torrent strong enough to turn back the current of the Missouri river and cause that stream to flow for a few miles towards its source. This flood was unexpected even by the official in charge of the government weather office in Kansas City, as he testified. The witness said he had sent out bulletins and warnings to railroad companies and others from day to day as the waters rose, giving notice of danger, but the flood stage of thirty-five feet was unexpected.”

The court held in that case “that’the loss was due to the flood, and not to the railroad’s failure to remove the goods to a place of safety.”

Another case cited, where it was held as a matter of law that the flood damage was caused by an “act of God,” was Herritt Creamery Co. v. Atchison, T. & S. F. Ry. 139 Mo. App. 149 [122 S. W. 322], This action arose out of the same Kansas City flood, and the court found that the flood on May 30 and 31, 1903, at the junction of the Kaw and Missouri rivers, Kansas City, Missouri, was an “act of God,” and that a carrier was not liable for loss of freight by such flood. And in its opinion the court said, at page 152:

“Plaintiff's entire case turns on a mere question of fact: that is, did defendant know or could it have known of the coming flood? * * * The Kaw suddenly rose, at Topeka and above, — miles from Kansas City, in addition to its already overflowed banks, and much stress is put upon the knowledge which defendant’s officers had obtained by telegraph of the coming of these waters. But it was shown that the amount of rise which these additional waters would have caused at Kansas City would have left plaintiff’s b i.tter unharmed in the position in which defendant had placed it. The cause of the great destruction and the overwhelming nature of the flood arose, in great part, from the unexpected volume of water added to the already flooded Missouri. .• The result of the floods of both rivers joining at Kansas City caused the great destruction of property which that catastrophe broght about in such short time that few escaped its fury.”

We cite only these two eases to show that where courts have decided as a matter of law that flood damage was an “act of God, ’ ’ the uncontroverted Pacts- would admit of no other conclusion.

Such is not true in this case, the facts of which differ very materially from those just narrated from the Kansas City case. This flood’ was neither unprecedented nor unexpected. The evidence does show, we think, that some two or three days after the first warnings were received by the railroad company and others the rise was very rapid, — unexpectedly so, — but the evidence also shows that during all this time the railroad company, the warehouseman, in this ease, was anticipating danger to the storage-shed and its contents and was directing its efforts along the line of preparing Por the expected flood, although what was done did not inure in any way to the benefit of Mr. Wuest in saving his cotton. The case presented to us is not similar in a legal aspect to the eases growing out of the Kansas City flood. .

The flood which reached this cotton and linters and caused this damage was neither unexpected nor unprecedented. The damage was caused many hours after repeated warnings had been given by the weather bureau and had been brought to the knowledge of the railroad company. Such being the ease, the question as to whether the railroad company, in the exercise of ordinary care, did all that could be reasonably expected of it for the protection of the cotton, was one for the jury. This question was submitted to the jury under a clear and correct charge by the court.

Finding no errors in the proceedings of the court below, its judgment will be affirmed.

Jones (0. B.) and Gorman, JJ., concur.


source: Caselaw Access Project

author: DUNLAP, J.

license: Public Domain

text:
    ASSESSMENTS — MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Court of Appeals,
    March 4, 1918.]
    Grant, Leighley and Duncan, JJ.
    Guardian Savings & Tr. Co. v. Cleveland (City) et al.
    1. Certification of Street Improvement Ordinances Not Prerequisite to Validity.
    The validity of an assessment ordinance for a street improvement of a municipality is not affected by its certification or lack of certification to the county auditor.
    2. Requirement of Certification of Assessment Ordinance Invalid.
    Section 3893 G. C. providing that such certification shall be made on or before the' second Monday in September each year is directory merely.
    3. Charter Provision Fixing Date of Passage of Assessment Ordinance Earlier Than Passed.
    ■Where a city charter provides that forty days must elapse after the passage of ordinances in order to allow a referendum upon the same, before they become effective, and an assessment ordinance is passed fixing a date for the payment of the assessment earlier than the date at which such ordinance becomes effective, such defect or inconsistency is cured both by the taking effect of the ordinance, and by the provisions of Sec. 3911 G. C. providing that such proceedings shall be liberally construed and formal objections disregarded.
    Error.

      Maurer, Bolton <& Wilson, for plaintiffs in error.

      Wm. B. Woods, for defendants in error.
   DUNLAP, J.

Plaintiff’s petition recites that plaintiff is the owner as trustee of certain real estate described in the petition located in part on East 140th street, in part on East 141st street and in part on East 143d street; also the passage of three ordinances by the city of Cleveland, one of the defendants herein, to wit: “An ordinance determining to proceed with the improvement of East 140th street,” “An ordinance determining to proceed with the improvement of east 141st street,” and “An ordinance determining to proceed with the improvement of east 143d street,” copies of which containing their respective dates of passage are fully set out; said ordinances respectively fixing October 1, 1916, November 1, 1916, and November 1, 1916, as the date for the. payment of the assessment for said improvements, and reciting that bonds or notes of the city of Cleveland shall be issued in anticipation of the collection of assessments by installments. .The petition recites that said ordinances were approved by the mayor on the following dates respectively: September 4,' 1916, October 19, 1916, and October 19, 1916, and that they became effective respectively, October 22, 1916, November 26, 1916, and November 26, 1916. It then cites the amount .of the assessments levied on each lot by virtue of these different ordinances, and that bonds or notes of the city of Cleveland have been issued in anticipation of the collection of said assessments and that after the second Monday in September of the year 1916, the city of Cleveland by its clerk of council caused to be certified to the auditor of the county said assessments, stating the times of payment and the amounts thereof as fixed, by said ordinances, including five per cent, increased interest charges. The petition then charges that all of said ordinances are unconstitutional, illegal and void, in that they authorize a taking of property without due process of law, because each provides that interest at the rate of five per cent, payable annually in advance should be added and collected, unless the total amount of each assessment be paid on or before the date fixed for said payment in said ordinances which date by the ordinances is earlier than the date at which the ordinances become effective, thereby as it is claimed attempting to require the plaintiff either to pay an assessment not then lawfully imposed, or in default of such payment to suffer a penalty of five per cent, interest payable annually in advance after such default. Claim is then made that the action of the city of Cleveland in certifying and of the defendant Zangerle as auditor in accepting certification placing the assessment upon the county tax list was illegal and void, in that the same was not done prior to the second Monday of September of the year 1916; that in spite of such illegality the said auditor has placed all of said assessments as certified upon the tax list of the county; that the first half of the first installment thereof was due and payable January 20, 1917; and is now delinquent, and that the second half thereof will become due and payable July 20, 1917, after which it will be delinquent, and that the defendant O’Brien as treasurer will, unless restrained, collect said assessments which are now due and add penalties, etc.; that all of said assessments constitute a lien and incumbrance on plaintiffs’ property to his irreparable injury and that he has no adequate remedy at law. An injunction is prayed for and an order requiring the cancellation of said assessments upon the tax records. An amended and supplemental petition is also filed which, while not changing the allegations of the first petition, adds to it the allegation that the plaintiff in its capacity as trustee deeded many lots during the year 1916 to various grantees, covenanting that said properties were free and clear of all incumbrances except taxes and assessments for the year 3916, which taxes and assessments the plaintiff agreed to pay, and that it will be required to pay some $23,000 which it had not contemplated paying unless the defendants are restrained and the taxes canceled, etc.

The city of Cleveland being the only real party in interest alone answers, admitting many of the allegations' of the petition but denying the unconstitutionality and illegality of any of its acts and alleging that all of the proceedings were in accordance with the charter of the city of Cleveland and the laws of the state of Ohio, setting out the sections of the charter deemed appropriate and the proceedings had thereunder.

The case was tried upon an agreed statement of facts, fully sustaining all the allegations of both of the petitions and the, answer, which we regard as material in the determination of this ease, and also the following statement not contained in any of the pleadings:

“That the custom and practice is and has been in Cuyahoga county that assessments levied and certified to by officials of the city of Cleveland have been and are received each year for collection by the auditor after the second Monday in September, until such time as it is no longer possible because of bookkeeping necessities to include such assessments in the tax duplicate as made up for each year, and that in placing the assessment in this ease on the tax duplicate- for 1916 the city and county officials acted in accordance with such established custom. ’ ’

The plaintiff contends for a judgment on its behalf upon two main grounds or reasons, first, “that the certification not being made on the date required by statute failed to charge the properties with any lien such as could be enforced by the county treasurer by proceedings for the collection of taxes or assessments,” and, second, “that the ordinances themselves are invalid because they impose a penalty for failure to pay on or before a date when payments could lawfully be demanded.”

The case is important both on account of the amount involved and for the reason that future bond issues for the improvement of city streets must be largely controlled by a correct decision of this case.

The first question to be considered is whether in the certification of the clerk of the council to the county auditor he must follow the provisions of Sec. 3892 6. C. as contended for by plaintiffs' counsel, which provides:

“When any special assessment is made, has been confirmed' by council, and bonds, notes or certificates of indebtedness are issued in anticipation of the collection thereof the clerk of council on or before the second Monday in September, each year, shall certify such assessment to the county auditor stating the amounts, and the time of payment. The county auditor shall place the assessment upon the tax list in accordancé therewith, and the county treasurer shall collect it in the same manner as other taxes are collected. ” * * *

Or is it proper for him to certify as provided for in See. 3905 G. C. as contended for by defendants’ counsel, which section is as follows i

“The council may order the clerk or other proper officer of the corporation to certify any unpaid assessment or tax to the auditor of the county in which the corporation is situated, and the amount of such assessment or tax so certified, shall be placed upon the tax-list by the county auditor, and shall, with ten per cent, penalty to cover interest and cost of collection, be collected with and in the same manner as state and county taxes, and credited to the .corporation. Such ten per cent, penalty shall in no case be added unless at least thirty days intervene between the date of the publication of the ordinance making the levy and the time of certifying it to the county auditor for collection.”

Or is it essential that either of these two sections be strictly complied with? The plaintiff prays to be relieved of the payment of the first installment of this assessment not for any illegality or informality in the levying of the same (except as we shall hereinafter note) but because of irregularity in the certification of the same to the county auditor.- Our statutes relating to this subject of certification .are somewhat confusing and perhaps inconsistent, and if the validity of assessments depended upon the actual compliance with the law relating to the certification we doubt if many valid assessments of property could be found. Indeed, the certification is not necessary at all. Municipalities are very much a law unto themselves. They have the power to levy an assessment and the power to collect the same wholly independent of the county auditor and county treasurer’s offices. From the very nature of things their action with regard to certification is a sort of private matter. It does not concern us much as to just what agencies the city uses to collect a valid assessment, but the legislature of the state did see fit to legislate upon this subject. In a way it tendered to the cities of the state the services of the county auditor and treasurer. Some municipalities accept these services fully as is apparently done by the city of Cleveland; some do not. We are informed that Cincinnati, for instance, collects its own assessments through the city treasurer, and only certifies to the county auditor such installments of the assessments as are delinquent. There is no doubt but that it does not need to certify even these delinquent installments for the same may be collected by suit at law just the same as any other debt.

With this simple understanding of the matter in our minds it becomes apparent that the statutes with regard to certification are permissive merely. At most only directory. Of course if they are to be used they should be followed but the failure to observe them to the letter does not give the property owner whose property has.been assessed the opportunity to destroy the assessments. Such a procedure would not be the direct attack which the law requires in such matters, but would be at best a collateral attack to which the law is most unfavorable. The proper method to make officials perform their duties according to statutes is by the action in mandamus. We are not therefore deeply concerned as to which one of the two Secs. 3892 and 3905 G. C. furnish the proper rule for certification. A contention of this kind can only becloud the real issue and tends to make us lose sight of the real questions in our zealous adherence to the merits of the one or the other section. Through all the fog thus raised we must keep in view the main question, “Can cities levy assessments? They can. How do they do it? By the proper action of their councils. When are these assessments payable ? At the time mentioned in the ordinance. Where are .they payable? To the city treasurer. What is the function of the auditor and treasurer of the county in such cases ? They are at most simply the agencies afforded by the legislature to municipalities for the speedy, effectual collection of these assessments. The answers to these questions clear away the fog. There is no longer any mystery. We see the process clearly; a lawful ordinance is passed levying an assessment; the amount of this assessment becomes a lien; a time is fixed for the payment; that time is in the instant case under one ordinance October 1, 1916, and under the other two ordinances November 1, 1916. The obligations on the part of the defendant property holders concerned to pay at that , time is complete and binding. Even if we took a narrow view of the situation and enjoined the county treasurer from collecting on the ground of faulty certification .there would remain the binding obligation to pay the city treasurer. The supplemental petition states that the plaintiff is largely interested because it has sold lots assessed by this ordinance with the agreement that it would pay any installment of any assessment falling due in 1916. For its information with regard to the assessments it was its duty to look to the proper authorities of the city of Cleveland. The law is plain and-clear that such assessments are payable at the time fixed by the ordinance levying the same.

It is complained of in tlie petition, though not strongly insisted upon in the brief, that the ordinances are invalid because the due date or date when the assessment was payable was fixed at a date prior to the date at which the ordinance became effective. Under the eitjr charter ordinances do not go into effect until forty days after their passage. Until the forty days are up they are subject to a referendum. In the absence of such a thing they immediately become effective. Strictly speaking this means that the whole ordinance as written goes into effect which of necessity includes the effectiveness of said due date. Such an ordinance while revealing an apparent inconsistency is not rendered thereby void. If it is an irregularity, we think it plainly falls within the provisions of Sec. 3911 G-. C. which provides that:

“Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment,. and merely formal objections shall be disregarded, but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured; as to the limitations on assessment of private property, and compensation for damages sustained. ’ ’

And in this view we are upheld by the decision in the case of Bolton v. Cleveland, 35 Ohio St. 319, the second paragraph or the syllabus of which is as follows:

“By an assessing ordinance, passed by the city council of the city of Cleveland, on the 31st day of July, 1866, under authority of the act of May 3, 1852, the abutting lot owners were required to pay the assessment on the 28th day of the same month: Held: that the defect in the ordinance was within the curative provisions of Sec. 31 of said act. ’

In that case the curative provision was not as strong as we read it as the present curative section of the code quoted above.

This consideration practically disposes of all the claims of counsel in the case.

The additional claim that the ordinance is invalid because a penalty of five per cent, is imposed from the due date we regard as not well taken, because the five per cent, is not a penalty but is a provision of the ordinance providing the rate of interest such assessment shall bear after the time that it is due or payable. It is an essential part of such ordinances. Without it the fund raised by the assessment would be insufficient to meet the bonds as they fall due. There being then no penalty there is no ground for the claim “that the ordinances are invalid because they impose a penalty for failure to pay on or before a date when payments could lawfully be demanded.”

The plaintiff in this case had every facility for complete knowledge of the probable action of the city council long before that action was taken. After the passage of the preliminary resolutions, but early in the year 1916, certain notices required by law to be served on the property owners interested were served upon it. These notices were to the effect that objections to the improvement would be heard by the proper authorities. The plaintiff remained silent, thus tacitly consenting to the improvement. It had ample means of thus knowing that an assessment would probably be levied payable before the end of the year. If with this information it saw fit to warrant in its deeds to purchasers of lots in the manner set out above, we think it has no ground to complain. It took its chance, and we are of the opinion that this court can grant no relief.

Judgment is entered for the defendants and the petition is dismissed at plaintiff’s cost.

Grant, J., concurs.

Leighley, J., concurs in judgment.


author: POWELL, J.

text:
    ACTION — CORPORATIONS—NEGLIGENCE.
    [Stark (5th) Court of Appeals,
    March 24, 1916.]
    Powell, Shields and Houck, JJ.
    William J. Wasmer v. Massillon Iron & Steel Co. et al.
    1. Corporation Has Primary Right to Maintain Action for Negligence of Directors.
    The right to maintain an action for the recovery of a loss resulting from the negligence of directors of a corporation is primarily in the corporation itself, either upon its own initiative, or on the demand of a creditor, when a creditor is interested, or of a stockholder.
    2. Stockholder Has Secondary Right to Prosecute Action for Negligence of Directors.
    A secondary right to maintain the action accrues to a stockholder after demand made upon the corporation to institute such suit and a failure on its part to comply with such demand or to prosecute the action in good faith to a final termination.
    3. Action for Negligence of Directors Prosecuted Originally by Stockholder.
    Such suit can also be maintained originally by the stockholder where the facts alleged and proved show that the suit would not be prosecuted in good faith for the benefit of the corporation and its shareholders.
    4. Suit Brought in Good Faith at Request of Stockholder Binding as Election of Remedies.
    A suit brought in good faith, upon demand made by a stockholder, is in the nature of an election of remedies and such stockholder is bound by it.
    Ebror.

      Ammerman & Mills and J. Buchanan, for plaintiff in error.

      Lynch, Day, Fimple & Lynch; J. Ralph Dangler, Jr.; M. B. & H. H. Johnson and Henry, Fauver, McGraw & Thomsen, for defendants in error.
   POWELL, J.

The judgment of the court of common pleas in this case is affirmed on the ground that the plaintiff, William J. Wasmer, is without any legal right to maintain the action.

If recovery can be bad upon the facts stated in the petition, it would be a recovery not in favor of the plaintiff directly but in favor of the defendant, Massillon Iron & Steel Co., for the benefit, of its creditors and stockholders. Plaintiff’s interest in such recovery is as a stockholder of the Massillon Iron & Steel Co. The ground of recovery is the alleged negligence of the defendants as directors of said Massillon Iron & Steel Co., whereby the loss of a large sum of money accrued to said defendant Iron & Steel Co. and its stockholders. Such action can be maintained, and recovery had, in a proper case. Primarily the right to maintain, it is in the corporation itself; either upon its own initiative, or on the demand of a creditor, when a creditor is interested, or of a stockholder. A secondary right to maintain the action accrues to a stockholder after demand made upon the corporation to institute such suit and a failure on its part to comply with such demand or to prosecute the action in good faith to a final termination. Such suit can also be maintained originally by the stockholder where the facts alleged and proved show that the suit would not be prosecuted in good faith for the benefit of the corporation and its shareholders. In the present case plaintiff, who was a shareholder, made demand upon the corporation to institute suit against its alleged delinquent directors to recover from them the losses claimed to have been sustained by the corporation by reason of their negligence. This demand was made August 26, 1912, and suit was brought pursuant to such demand in October, 1912, which suit is still pending. This action was commenced December 3, 1912.

We hold that in such eases a suit brought in good faith, upon demand made by stockholder, is in the nature of an election of remedies and that such stockholder is bound by it. Plaintiff’s amended petition states several reasons why he should be allowed to maintain this action. These reasons if sufficient for that purpose would also have been sufficient to have allowed him to maintain an original action, without first making demand on the corporation. His remedy, if one were necessary by1 reason of bad faith or fraud in the prosecution of the original suit, was to have intervened in that suit by answer and cross-petition. By analogy to the doctrine of election of remedies, be is bound by bis own act in making demand upon the corporation to bring the suit it did bring.

Judgment affirmed.

Shields and Houck, JJ., concur.


author: By the Court.

text:
    SUNDAY LAWS.
    [Hamilton (1st) Court of Appeals,
    March 27, 1918.]
    Jones, Gorman and Hamilton, JJ.

      Charles Derrick v. State of Ohio.
    Keeping Butcher Shops Open on Sunday not Work of Necessity.
    The keeping open of a place for the sale of meat on Sunday, In a thickly populated district where the people are of the tenement class and not financially able to provide themselves with ice boxes or other means for preserving meats, where such opening occurs during that part of the year when the weather is sufficiently cold to preserve meat and other vegetables, is not a work of necessity and, therefore, does not fall within the exception provided in Sec. 12045 G. C.

      Miller & Foster, for plaintiff in error.

      H. J. S'iebenthaler and E. S. Morrissey, Asst. Pros., for defendant in error.

      Motion to certify overruled by the Supreme Court July 16, 1918.

   By the Court.

The case here presented involves a charge of the violation of Sec. 13044 G. C. providing against the keeping open of a place for the transaction of business, upon the first day of the week commonly called Sunday.

The specific charge is that the defendant unlawfully and knowingly caused to be open for the transaction of business, to-wit, the sale of meats, a certain place in the city of Cincinnati, Hamilton, county, Ohio.

Defendant was tried and convicted in the municipal court erf Cincinnati, without the intervention of a jury.

The defendant contends that the keeping open of the place for the sale of meats was a work of necessity, and came within the exception provided in Sec. 13045 6. C. and that it was made such a work of necessity by the fact that the place was located in a thickly populated tenement district of the city where the inhabitants were not able financially to maintain ice-boxes or other methods of preserving meats.

The evidence discloses that the transaction took place in January, and the court is of the opinion that at that season of the year it can not be considered such a work of necessity, as the nature of the weather is such that it is not a difficult matter to preserve meats — the court taking judicial notice of the fact that at that time of the year the weather is sufficiently cold to preserve meat and other food stuffs. We therefore hold that under the evidence this was not such a work of necessity as would avoid liability under the statute.

Finding no error in the record, the judgment will be affirmed.

Jones, Gorman, and Hamilton, JJ., concur.


author: GRANT, J.

text:
    ADULTERY.
    [Summit (StH) Court of Appeals,
    November, 1918.]
    Grant, Dunlap and Lawrence, JJ.
    Marc F. Charrier v. State of Ohio.
    Valid Marriage Relation in Ohio not Adulterous Because Accused Shown Previously To Have Lived ¡llega! Marriage Relation in Foreign Country.
    One having entered the marriage relation in due form in Ohio is not amenable to a charge of adultery, based on a showing of previous relations with a woman in Prance, meretricious in that country, notwithstanding such relations in Ohio, might be treated as a common law marriage.
    Error.

      Smoyer & CUnedinst and W. H. Webb, for plaintiff in error.

      W. A. Spencer, Pros. Atty., for defendant in error.
   GRANT, J.

The plaintiff in error — hereinafter to be designated as the accused — is a native and citizen of France.

He was arrested, prosecuted and convicted in the probate court of this county for cohabiting with a woman not his wife— constituting, if the charge was made out, the offense, under our statute, of adultery. He was tried, with his consent, by the court without a jury. His motion for a new trial having been overruled and sentence passed upon him, he prosecuted error proceedings in the court of common pleas, which thereupon affirmed the judgment. To reverse that affirmance is the prayer of this petition in error.

The accused offered no evidence at the trial, his claim being that the state had not proved its case sufficiently to work his conviction under law. And such is still his contention here.

The facts material to the present question, as disclosed by the record before us, are these, for substance:

The accused has been domiciled in the United States for some two years. In 1917, in Ohio, in due form of its law, he contracted a marriage with the woman charged in the information as being his paramour in the alleged adulterous commerce.

It is the claim of the state that this relation, although entered into under the forms of lawful wedlock, is in fact meretricious, because the accused had before cohabited in France with another woman, under such circumstances and holdings out as would constitute a so-called common law marriage, as that term is understood and allowed in the courts of many states of our union, including Ohio.

The other woman was the prosecuting witness at the trial of this case. Her name of origin was Valentine Biguet. She seems to have first crossed the path of the accused in Paris, in April of 1905. Their meretricious relations appear to have commenced at once, but Charrier — so she says — then told her “lie wouldn’t marry her right away,” for reasons he gave; his words of promise at that time were not verba in presentí, but related wholly to the future. In July of the same year she testifies that he said to her: “You are my wife non), and your daughter Collette is my daughter.” It seems that Collette, although so denominated, really had a decollete origin. The facts disclosed show that the prosecutrix was at the time she “took up” with the accused already the derelict mistress of the Baron de Cool, according to her story. This man turned out to be a misnomer at both ends of his name. He was not barren, for she says he begat Collette, and by the same token he could not at that time have been cool, although later he appears to have cooled off.

The statement that Charrier made to the effect that the girl was his daughter, had regard, as is said, to his intention to adopt her — she being then as to status only one of what, as “the divine Sara” Bernhardt said in her own case, are “the accidents of love.” As to patronymic, Collette went, and for aught that appears, still goes, by the name of her mother — Biguet.

In July, 1905, the claimant says, when Charrier began to call her his wife, she accepted th'e title by beginning to call him husband; and thenceforth she says he and she by mutual consent were held out to the world in which they moved as sustaining that relation. A child was born to them. The Baron, during several years, appears to have been a sort of meal-ticket for the two. He contributed sums of money at intervals, at the instance of the woman, who was undoubtedly instigated in this respect by the accused; as late as 1911, he sent her a thousand francs at one time and this appears to have been a wind-up of that illicit commerce. The woman says that at no time did she expect the baron would marry her; he “was too inch,” she explains.

The money so contributed by the unbarren baron was used, as the woman claims, in the common family fund in part, and a part went to pay. Charrier’s debts — he being in a state of chronic impecuniosity, according to her.

In 1913, the pair emigrated to Canada, settling upon a farm in New Brunswick. On the ship they occupied the same cabin and on shore the hotel bills were rendered to, and paid by the accused, the woman being named in them as his wife and the children as his children. In all these years she says he was promising her to have the marriage solemnized according to the rites of-the faith to which they adhered, but put off the fulfillment upon the excuse of financial impotence. In 1915 he abandoned her, or at least came to the United States, where in 3917 he contracted the formal marriage already related.

. The claim of the prosecuting witness that during her cohabitation with the accused she considered herself as his lawful wife, or that such a "thing as a common-law marriage existed between them, is somewhat shaken by her own admissions. It appears that upon the birth of the second child the certificate issued from the mayor’s office at Paris was to the effect that the child had been given the mother’s maiden name and that the father was unknown.

This, she explains, was because of illness she was unable to attend to the matter herself, and that the data upon which the certificate as made were furnished by her mother and sister; they evidently did not understand that she was a married woman.

It is in evidence also, that she took leases, paid taxes and gave receipts in her name of origin: At one time she effected an insurance on 6000 francs’ worth of furniture and other chattels, which the not infertile baron had furnished, in the same name of Biguet.

She accounts for these signatures by saying that Charrier had gotten into trouble by biting a door-man and they were fearing a damage suit, or a fine, thereupon — just which, is uncertain.

Such are the controlling facts disclosed by the record before us. The question thence arising is — did the trial court apply to them the law in its judgment of conviction ?

Measured by the probable intent of the parties at the time when the claimed common-law marriage is said to have been contracted, it is, in our view, extremely doubtful whether that relation is made out by the evidence; the fact that there was such a thing as a common-law marriage, or even a common law, probably was not known to either of them prior to their coming to the United States; the claim is clearly an afterthought.

From this it may be argued that, in an accusation of crime, the accused is entitled to the benefit of the doubt and so should go acquit.

But we are not inclined to acquiesce in that conclusion. If, wittingly or ignoravtly, the parties by life and conduct brought themselves within the rule whereby a common-law marriage is established, or is necessarily to be inferred, we think the marriage status may be said to be the result. Favoring the judgment attacked, we hold that there is sufficient evidence in this record to justify the inference of a .marriage at common law, as that relation is recognized by the courts of Ohio, so far as the form is concerned.

We reach this conclusion upon the following considerations: Marriage, in contemplation of present time law is a civil contract — nothing more. It is a peculiar contract and has elements not shared by.ordinary contracts. It gives rise to an annexed social status. In theory at least, it is an irrevocable, a perpetual contract. It can be entered into only between persons of opposite sexes and it can not be entered into by persons within certain prohibited degrees of consanguinity.

But these are only incidents, imposed by considerations of necessity or public morals or policy. Aside from them, the contract of marriage involves only a meeting of the minds — which may be inferred from the conduct and acts of the contracting parties — and the execution of the agreement by cohabitation. Unless others are imposed by positive law, these are the sufficient ingredients to constitute the relation. And where others are so imposed, the want of them will not exclude the common law form, in countries where that law prevails, unless the statute in terms takes away the common law right. The presumption always is that the legislature had no such intent. The statute regulates the mode of entering into the contract; it does not confer the right to make it.

From very ancient times — in fact from the introduction of Christianity in England, in the year 605 of our era — the canon law which was brought in with Christianity was adopted and practiced, universally — so universally that it became a part of the common law of England and was probably as venerable as any other part of that law. In Crump v. Morgan, 38 N. C. 91 [40 Am. Dec. 447], the court said:

“It is a mistake to say, that the canon and civil laws, as administered in the ecclesiastical courts of England, are not parts of the common law. Judge Blaekstone, following Lord Hale, classes them as among the unwritten laws of England and as parts of the common law, which by custom, has been adopted and has its own peculiar jurisdiction.” 1 Blacks. Com., 79; Hale’s History of Laws, 27-32.

The canon law, thus grafted upon the common law, was evidenced by various decrees of the popes and ecclesiastical councils. It never required any validation of marriage by way of ceremony or religious sacrament, from the time it became the common law till the Council of Trent, in 1563.

"Whether in England or on the continent, by the canon law clandestine marriages, without ceremony, while they might subject the delinquents to the censures of the church, were nevertheless regarded as valid and were pronounced by the Council of Trent to be “vera matrimonia.” But that famous council, by its decree of November 11, 1563, changed the canon law and made null every marriage not celebrated before the parish or other priest, or by license of the ordinary, and before two or three witnesses. Pursuing this line of inquiry, the court, in Hallett v. Collins, 51 U. S. (10 How.) 174 [13 L. Ed. 376], said:

‘ ‘ But it was not within the power of an ecclesiastical decree, proprio vigore, to affect the status or civil relations of persons. These could only be affected by the supreme civil power. The church might punish by her censures those who disregarded her ordinances; but, until the decree of the council was adopted and confirmed by the civil power, the offspring of a clandestine marriage, which was ecclesiastically void, would be held as canonically legitimate. ’ ’

In England, of course, this decree was never ‘‘adopted and confirmed by the civil power.” Before that time Henry the Eighth of England, in his many efforts to be re-wived, had found it convenient to east off, for his Kingdom, the authority of the See of Rome, and Elizabeth, the fruit of one of his re-wivals, had no appetite to recognize the decrees of a church which had denounced herself as a bastard and both her father and herself as heretics, so it may safely be said that neither “ ’Andsome ’Arry” nor ‘‘redheaded Liz.” as certain uncharitable people have called them, allowed any Council of Trent to interfere with the institution of English marriage as then by English law established. The common law marriage continued to be allowed and recognized in that country until, at the time of our own separation from it, it became our common law instead of that of England. In England it so continued until the house of Lords, by a tie vote in 1843, in Queen v. Millis, 10 Cl. and F. 534, the validity of a common law marriage was denied by reason of the marriage act. The judgment in that case, however, was never drawn in precedent in this country, and its doctrine has been expressly rejected by the courts of Canada; in fact the marriage disallowed by the judgment in that ease, was not an English marriage at all, but an Irish marriage. In England the common law doctrine had already been abrogated by Lord Hardwicke’s Act — 36 Geo. II, and 4 Geo. IY — which required publication of banns or an obtained license, as the conditions of a valid marriage in England. But Lord Hardwicke’s act never applied to the English colonies and we never inherited that, and before the time of the Fourth Geoi’ge we were an independent nation.

It follows that the common law marriage institution, brought from England by our ancestors, has full standing in the courts of such of the United States today as have not denied it by statute.

We are next to consider whether that law is to be allowed to fix the status of the accused and the prosecuting witness, or not. Otherwise stated, the inquiry is as to whether the common law, as it exists here in this respect, obtained in France, where the marriage was contracted, if at all, or in New Brunswick, where the status established in France, if at all, continued or was resumed. Marriage being a civil contract, is to be governed by ihe law of the place where it was made; this, we suppose, is not a matter of dispute.

Shall we, then indulge the presumption that the law of the domicile is also the law of the place of the making of the con tract — the record being silent on the point ?

Kitzman v. Kitzman, 162 Wis. 253, was an action to avoid a marriage with an epileptic, the marriage having been celebrated in Minnesota, where it was voidable, and the parties having returned to their former residence in Wisconsin. The court say:

“The general proposition that a marriage valid where the contract is made, is valid everywhere, carries with it as a necessary eouollary the further proposition that such a marriage comes into a sister jurisdiction with all its inherent infirmities as well as strength. It can acquire no greater sanctity or impregnability by such removal than where solemnized. "When properly challenged here, it can have acquired by reason of the parties returning to this state to live, no more immunity from attack than it would have had if they, from the time of the ceremony and thereafter, had lived in Minnesota and the action was there instituted. We shall give it no higher value than it had there”—

the Minnesota prohibition of marriage of epileptics not being contrary to any declared public policy of Wisconsin.

In Thompson v. Thompson, 202 S. W. 175 (Tex. Civ. App.), it is said that—

“The law of the state where a marriage was celebrated generally affords the criterion for testing its validity.”

Gordon v. Gordon, 283 Ill. 182 [119 N. E. 312, 313], is authority for holding that proof that the relation between a man and woman, meretricious in its inception and prior to any claim of marriage, raises the presumption that it continues meretricious and easts upon the marriage claimant the burden of showing that the cohabitation has become lawful.

It is proper now to observe upon the state of the law of France upon the subject. We have already noticed the decree of the Council of Trent in 1563, changing the Canon law so as to require a ceremonial marriage or by license of the ordinary, and declaring void all marriages not so celebrated, and that England did not accept the change, but continues its recognition of the common law as then established on the subject. France, however, in common with the rest of Catholic Europe, acknowledged the binding force of the decree. That canon law obtained among the French to the time of the revolution succeeding 1789, and later was revived under the modus vivendi between Napoleon and the Pope in form of the concordat of that interregnum period. It was finally superseded, but not much changed by the Code Napoleon, which became the paramount law of France in the last year of the Consulate 1804. The latter did not, as is commonly supposed, introduce much new law. It was a composite work, made up of a compromise between the theretofore customary law of the north of France, which was essentially German, and that of the eastern and southern provinces, which was mainly of Roman origin. It was impossible that it should lay the common-law of England under contribution at all; both because of its elementary habitat, just stated, and especially because Bonaparte manifestly would borrow nothing from a people which, as the severest expression of hatred, he stigmatized as “a nation of shopkeepers.”

That code, articles 144-226, lays down the conditions of marriage. It requires a publication of banns and a civil ceremony in the presence of witnesses. It still remains, in substance, the law of France, on the subject, and was so while the parties involved in this cause cohabited in that country. In international law it is settled that the lex loci governs. If the marriage is valid by the law of the country where it is celebrated, its validity is recognized everywhere. The converse is true; if invalid there, it is invalid everywhere. Commenting on this rule, in both aspects, Judge Story said it “has received the most deliberate sanction of the English and American courts and of foreign jurists.” The important exceptions are incestuous and polygamous marriages.

Westlake — Private International Law Chap. 4 — says that an indispensable condition of a valid marriage is that the lex loci must be satisfied in respect of forms, consent of parents or guardians and capacity of the parties.

In regard to the claimed common law marriage in New Brunswick, our belief is that the claim is without importance. It rests upon alleged promises and announced expectations by Charrier while in that province, to go through the forms of a church marriage, depending on better times for himself financially — the Baron having by that time become really so, so far as paying anything more while his successor in madame’s affections was enjoying what the late Samuel J. Tilden called the “usufruct.” But the words were always in the future tense, while the cohabitation and the holdings out, relied on to establish the marriage, had already produced whatever consequences in the way of fixing the marriage status of the parties could flow from them; their daily repetition could add to that result no new force. At most, they could only ratify a contract already existent and pretty well executed, if it had ever become operative. We are not advised whether the common-law marriage was ever allowed in New Brunswick or not. If the question were material, the strong probability, historically, is that it never was recognized. Lord Hardwicke’s act was in force in England before the conquest of Canada by that power, and what is now New Brunswick — then a part of Nova Scotia — inherited no more than that law permitted. If this were not so, still by the Quebec act of 1774, which covered the territory now New Brunswick, guaranteed to the inhabitants the administration of French law in all matters of civil controversy, reserving to the British crown only the right to apply its own jurisprudence on the criminal side. And this guaranty was peculiarly tender of ecclesiastical rights and laws. A like policy is believed to have there prevailed in substance, operation and effect, down to the time of the British North America Act of 1867, which is the present constitution of the Dominion of Canada, including the maritime provinces.

But, as we have intimated already, in our view no marriage at common law can be predicated on this record, except such as is claimed to have been contracted and to have become effectual while the parties were yet in Paris.

We have then, this state of things: A relation in France which when first established offended the received notions of morality and so was meretricious. From this arises the presumption that the connection continued to be meretricious until proof is forthcoming that the cohabitation became lawful, the burden of repelling this presumption by proof removing it being cast upon the claimant of a legal relation. We have, further, the fact of history that the common law of England, or its equivalent in jurisprudential value, never was the law of France.

And we have the legal corollary that the relation of this man and this woman, established in Paris, in Ohio stands loaded with whatever legal shortcomings and infirmities existed by virtue of the laws of France at the time it was entered into. If that relation continued to be meretricious up to the time when it was ended, and was not at any time a lawful cohabitation, then a lawful marriage of one of the parties to a third party, with its physical consummation, could not be the source of the adulterous intercourse denounced by the statute under which the accused is here prosecuted.

If this were the last word upon the subject, if no more were to be said, then indeed the conclusion of the insufficiency in law of the judgment under review would follow, surely.

But there is a difficulty lurking in the situation. All that we have stated in regard to the laws and their history discussed, rests in assumption. The record before us is silent in regard to them all. They are indeed universally well known, but proof of none of them was offered at the trial below.

The inquiry at once arises, was such proof necessary on the part of the accused to work exoneration for him from the charges of the information ? So far as the law of common-law marriages is concerned, no such proof was necessary, as tending to support the conviction here challenged. As a part of our inherited law, allowed and recognized by the courts of Ohio, judicial notice is taken of it, without more.

The difficulty resides in the question whether the negation of the common law as we have it, or its nonexistence, in France, with the historical basis of its absence from that country, without testimony pro forma produced, can be used to overcome the legal inference that a marriage valid where it was contracted, is valid everywhere, or in aid of the legal presumption that a connection meretricious in origin continues to be so until a lawful relation is shown to have succeeded to it. May we take notice, judicially, of what we know and what the world long has known, at a time when all the witnesses to the matter of fact noticed have long beén dead, and who, were they living and in court, could tell us nothing which we did not already know as well as they could know it ?

The following propositions are stated in 15 Ruling Case Law 1088 et seq., and rest upon undisputed authority:

“The general rule is that matters of history, if sufficiently notorious to be subject to general knowledge, will be judicially noticed. The reason for this recognition has been said to be that the facts of history enter into the construction of the laws, and so must be in the knowledge of the court whose duty it is to construe them. * * * But the knowledge of the courts in this country is not limited to events in the history of the United States, or of the several states, but extends also to other historical events which because of their connection with the history of this country, or because of their general notoriety, may be assumed to be matters of general knowledge.”

As to the last proposition, see Neely v. Henkel, 180 U. S. 109 [45 L. Ed. 448; 21 Sup. Ct. 302],

In Banco De Sonora v. Bankers Mut. Casualty Co. 119 Iowa 450 [95 N. W. 232], it is said:

“As to whether the civil law is the foundation of Mexican jurisprudence, the histories are quite as accessible to the court as to the witnesses. Probably judicial notice should be taken of the fact as a matter of history. * * *
“We know that Mexico was a Spanish province for about three hundred years, and then became, and still is, a republic. At no period of its history has it been under British sovereignty. Its institutions are Latin and not Anglo Saxon, and the common law is not presumed to be in force in any state or country where English institutions have not been established.”

See, also Savage v. O’Neil, 44 N. Y. 298; Norris v. Harris, 15 Cal. 226, 252; Flato v. Mulhall, 72 Mo. 522; Brown v. Wright, 58 Ark. 20 [22 S. W. 1022; 21 L. R. A. 467]; Davis v. Gibson, 56 Fed. 443.

Wigmore, Evi., Sec. 1597, says:

“The principle of necessity, allowing this class of evidence, is the same as that already examined (1582), namely, the matter as to which the history or other treatise is offered must be an ancient one, or one as to which it would be unlikely that a living witness could be obtained.”

The headline of the next section of the same work is:

“Matter must be of General Interest.”

In Morris v. Harmer’s Heirs Lessees 32 U. S. (7 Pet.) 554 [8 L. Ed. 781], Judge Story observes:

“Historical facts of general and public-interest may indeed be proved by reputation, and that reputation may be established by historical works of known character and accuracy. But evidence of this sort is confined * * * to cases where from the nature of the transaction, or the remoteness of the period, or the public and general reception of the facts, a just foundation is laid for the reception of general confidence.”

In Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 724, it is said:

‘ ‘ The statements of historians of established merit * * * are from necessity received as evidence of facts to which they relate, * * * restricted to facts of a public and general nature.”

In McKinnon v. Bliss, 21 N. Y. 206, 216, Selden, J., observes:

‘‘Such evidence is only admissible to prove facts of a general and public nature, and not those which concern individuals and mere local communities. * * * History is admissible only to prove history, that is, such facts as being of interest to a state or nation. ’ ’

Lord Campbell in the Sussex Peerage Case, 11 C. L. and F. 113, said:

“You ask the witness what the law is. He may from his recollection, or on producing or referring to books, say what it is, or that it is correctly stated in such a book.”

In Pickton’s Trial, 30 Howell, St. Tr. 492, Lord Ellenborough’s language was: (

“The text-writers furnish us with their statements of (foreign) law, and that would be good evidence upon the same principle which renders histories admissible. * * # I shall, therefore, receive any book that purports to be a history of the common law of Spain.”

I am now to observe upon what may seem, from these authorities, to be an inferable necessity to have this historical knowledge brought physically before the court in the shape of the book itself or some expert who derives his expertness from having read the book, instead of letting the judge or judges spin the same knowledge out of their own inner-consciousness, where it is known to exist in full vigor and accuracy. For my own part, I must say that I do not, as I conceive, need to be bound in calf or the covers of buckram, in order to tell myself what is contained within books so bound or imparted to me by other calves, who at most can be only messenger-boys, bringing me information which I long before had. A court, I suppose, may take judicial notice of what itself knows, if of the character and quality to make it competent evidence, no matter how eonveyed to him or brought to his attention. In the trial of Spencer Cowper, 13 Howell, St. Tr., 1163, the following dialogue was had — Dr. Crell being on the stand:

“Now, my lord, I will give you the opinion of several ancient authors.
“Baron Hatzell: Pray, doctor, tell us your own observations.
“Dr. Crell: My lord, it must be reading, as well as a man’s own experience, that will make any one a physician; for without the reading of books of that art, the art itself can not be attained to; besides, my lord, I humbly conceive, that in such a difficult case as this, we ought to have a great deference for the reports and opinions of learned men. Neither do I see any reason why I should not quote the fathers of my profession in this case, as well as you gentlemen of the long robe quote Coke upon Littleton and others. But I shall not trouble the court long: I shall only insist on what Ambrose Parey relates in his chapter of Renunciations. ’ ’

"Wigmore — Sec. 1697 — punctures the fallacy of the distinction, thus:

“But the fiction may well be abandoned. The daily use by judges of foreign law books in our libraries, exposes its untruth. Goldsmith’s Chinese Traveler would smile to see the judge refuse to listen to a foreign treatise while on the bench, and then retire to his chambers and take down the same book from the shelves to refresh his judicial memory.”

In closing our perhaps over-long discussion of the law appertaining to this case, we desire to acknowledge our indebtedness to counsel for the able brief which has materially aided our research.

We feel that there are no moral considerations in favor of the accusing witness, or sympathy to be mawkishly bestowed in the ease. She ought to accept the consequences of vagrant amours, nor ask the state to aid in her revenge, however natural to her the pursuit of it may be.

“Heaven has no rage like love to hatred turned,
Nor hell a fury like a woman scorned.”

She did not pursue the baron — except for purposes of revenue, notwithstanding that she was impartial in her sufferings for the two — having borne a child to each of them. It is a plain case of “fifty-fifty.” She seems to have applied the wholesome maxim — “Equality is equity.” What the state is seeking by this prosecution, is not the redress of injured innocence, but the vindication of a really adulterous course of living by punishing one which in the eye of the law is not so.

Our conclusion is that, within judicial knowledge, as a fact of history, the relations and conduct of the parties in France relied on by the state to establish a marriage at common law, were insufficient to operate that effect, in contemplation of the law of that country, by which the validity of the claimed marriage is alone to be measured and tested. To the benefit of this conclusion the accused was, and is entitled.

Some errors are alleged in respect of admission of testimony. We have examined the questions. Probably they were competent as tending to show “state of mind,” which seems to be the drag-net to sweep in much matter that otherwise would clearly be inadmissible. Even if they were not proper, we can not say that they were prejudicial to any substantial right of the accused.

His conviction is not supported by sufficient evidence and the judgment complained of is contrary to law.

It follows that the judgment of the court of common pleas, affirming that of the probate court, should have been one of reversal instead of affirmance, and should itself be reversed for that reason, which is accordingly done.

It follows, further, that — the facts being undisputed and the law being with the accused — this court should proceed to render the judgment in the ease which the probate court should have rendered but did not, namely — a judgment of acquittal, which n now does accordingly.

Dunlap and Lawrence, JJ., concar.


author: SHIELDS, J.

text:
    CRIMINAL LAW — JURY.
    [Stark (6th) Court of Appeals,
    September Term, 1917.]
    Shields, Powell and Houck, JJ.
    Charles Burtnett v. State of Ohio.
    Examination by State of Venireman on Voir Dire as to Recommending Mercy in First Degree Murder Trial Proper.
    Inquiry by counsel for the state on voir dire examination of veniremen as to the views entertained by them on the question of recommending mercy if the evidence and law require a verdict of guilty of murder in the first degree is not erroneous, especially since counsel for accused had previously raised the question on cross examination.
    [Syllabus approved by the court.]

      Braucher & Sterling, for plaintiff in error.

      Frank N. Swettzer, Pros. Atty., and Thos. B. Leahy, Asst. Pros., for defendant in error.
   SHIELDS, J.

At the May (1917) term of the court of common pleas of said Stark county, the grand jury of said county returned an indictment against the plaintiff in error for murder in the first degree. Upon a plea of not guilty being entered, the plaintiff in error was tried upon said indictment and found guilty by a jury. Upon a motion for a new trial being overruled, the plaintiff in error was sentenced by said court to be electrocuted according to law. Error is alleged to have intervened in the selection of the jury for the trial of said cause, and for other alleged errors, for which a petition in error was filed to reverse said judgment of conviction and sentence.

"While said petition in error contains numerous assignments of error, the principal ground of alleged error relied upon and argued was that contained in the fourth ground stated in said petition in error and which is as follows:

“4. Said court erred in permitting the defendant in error to inquire of the jurors at the time the jury was impanelled of their views and opinions on the question of recommending mercy, and to which the plaintiff in error at the time excepted.”

In the exercise of a power conferred upon it by the constitution guaranteeing and preserving to every person charged with crime the right of trial by jury, the legislature of this state with a jealous regard for such right in capital cases has provided a scheme of legislation outlining various modes of procedure to be observed at each successive step taken in such cases from the time of the indictment of the accused to the close of the trial — all such legislation being enacted to secure to the accused a fair and impartial trial. In short, the law aims to afford to one thus charged its full measure of protection. Along the line of such procedure, it is provided that care and circumspection shall be observed in the selection of veniremen and to this end it is provided in the General Code as follows:

Section 13653. The following shall be good cause for challenging a person called as a juror on an indictment:

First. That he was a member of the grand jury which found such indictment;

Second. That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed such opinion, the court shall thereupon examine such juror on oath as to the grounds thereof, and if such juror says that he believes he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror in such case;

Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death.”

The remaining portions of said section are omitted for the reason that they have no application to the case before ns.

It is further provided in Sec. 13654 G. C.:

‘‘Challenges for cause shall be tried by the court on the oath of the person challenged, or other evidence, and shall be made before the jury is sworn.”

It will thus be seen that the selection of the jury is largely confided to the judgment of counsel for the accused and the state, under the direction of the trial court, who by express provision of the statute shall determine the qualification and eligibility of veniremen in a capital ease.

The question made on the record before us is not that any such veniremen were challenged on the ground of a previously expressed opinion or preconceived notions of capital punishment, or on the suspicion of any prejudice against or partiality for either the accused or the state, or for any other known cause rendering such veniremen incapable or unfit to serve, except it is contended that said court erred in permitting counsel for the defendant in error to inquire of at least some of the veniremen on their voir dire as to the views entertained by them on the question of recommending mercy where the evidence and law required a verdict of guilty of murder in the first degree. The section of the code on which said indictment was predicated is as follows:

Sec. 12400. 'Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, Mils another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

The constitutionality of this statute having been passed on we are not here called upon to discuss that feature of it, whatever our views may be concerning the provision therein giving to the jury the right to recommend mercy in a first degree murder case, under a verdict of guilty, and especially since the jury in the case under consideration did not make any such recommendation. Referring to the record, it appears on page 6 thereof that one Albert Hurraw when called as a venireman into the jury box and after being interrogated by the state on the usual preliminary questions, including the question as to whether or not he was opposed to capital punishment, in a proper case, was cross-examined by counsel for the accused who asked him among others the following questions:

“Q. Have you any convictions or settled opinions on the question as to whether or not a jury if the evidence would warrant returning a first degree verdict, should or should not recommend mercy?
A. Well, that all depends on the jury.
Q. Well, I say have you any settled convictions to oppose or argue in favor of either one of those propositions?
A. No, I think not.
Q. You would then, as I understand you, take into consideration the evidence in the case upon that point?
A. Yes, sir.
Q. And you haven’t any feeling or prejudice upon that point, one way or the other?
A. No, sir; the evidence is all I go by in the case.
Q. I think that is all.”
“There being no challenge for cause the juror is directed to take his seat in the jury box and does take his seat in the jury box. ’ ’

It will be noticed that no inquiry whatever, either before or after the cross-examination of the venireman, was made on behalf of the state.

It appears that the next venireman called into the jury box was F. M. Frederick (Kecord, p. 7), who was asked practically the same question by counsel for the accused, on cross-examination, as asked by him of the preceding venireman and who answered that he had no opinion on the question of recommending mercy, and who in re-direct examination in substance reiterated such opinion. The question pertaining to a recommendation of mercy having been brought out and having been gone into on cross-examination by the accused, we know of ho reason under the rules of evidence why the state should not be allowed to cross examine on the new matter thus brought out by the aeeused. Clearly we think the state had such right. The record further shows that this venireman, F. M. Frederick, was afterward challenged peremptorily by the accused. The answers of these veniremen, we think, furnish a full and complete answer to the contention made here on behalf of the plaintiff in error. As if appreciating the purpose of the inquiry made on behalf of the accused, it appears that they frankly and fairly, and no doubt truthfully, answered that in reaching a final conclusion in the case they would be guided solely by the evidence and the law, each reserving to himself in the end the right to take counsel of his conscience and then under his obligation as a sworn juror decide whether under all the evidence in the case these should or should not be a recommendation of mercy. Just how one in favor of the death penalty, in a proper ease, could safely say at the outset of a trial what his mental attitude would be on the subject of favoring a recommendation of mercy at the end of such trial, under a finding of guilty, we will not stop to discuss, except to say there may be cases wherein at the conclusion of the deliberations of a jury it might be thought that the extenuating circumstances appearing justify a recommendation of mercy. Here we think it clearly appears of record that the examination of the veniremen mentioned on their voir dire shows an entire absence of partiality in favor of or against a recommendation of mercy. But supposing such examination had disclosed a partiality in favor of such recommendation, would it not then have been claimed that it furnished a sufficient ground for challenge for cause? It may be that it would, but whatever its effect, it appears that the answers to such inquiries were not made the subject of challenge for cause here by the accused and therefore it could not avail him after trial. Mangano v. State, 39 O. A. & C. 000 (17 N. S. 595).

And it further appears here that while one of the veniremen thus inquired of as to his vews of recommending mercy was peremptorily excused, as already stated, the other (Hur-raw) was not so excused by the aeeused, although his right to further peremptory challenges under the statute was not exhausted before the jury was sworn.

As stated, the section of the statute cited provides that the trial judge shall be the trier of challenges for cause. All questions arising out of such challenges are to be passed upon and decided by such judge. He is clothed with the discretionary power to decide, and deciding, such decision is final, unless such exercise of discretion is manifestly abused. In Serviss v. Stockstill, 30 Ohio St. 418, it is held that: .

“Where a party to an action challenges a juror on suspicion of partiality for the opposite party, the validity of such challenge must be determined by the sound discretion of the court. And where such challenge is ■ sustained, the judgment rendered in the case will not, for that reason, be reversed, unless an abuse of such discretion is clearly shown.”

True, the foregoing was a civil action, but in Sub. 9 of said Sec. 13653 it is provided that “Like challenges shall be allowed in criminal prosecutions as are allowed in civil eases.”

Of the purpose of said Sec. 13653 it is not necessary to discuss. As already stated, it aims to give one charged with crime a fair and impartial jury. As applied to this case, one of the challenges for cause to a venireman (Sub. 2) is “that his opinions preclude him from finding the accused guilty of an offense punishable with death.” The statute (Sec. 12400) upon which the indictment is predicated reads “Whoever * * * kills another is guilty of murder in the first degree, and shall be punished by death unless the jury trying the accused recommend mercy * * * .” Here it appears that the infliction of the death penalty and the recommendation of mercy are so closely related in said section that inquiry as to one would readily authorize inquiry as to the other. Of course, if the result of such inquiry should afford a ground of challenge for cause, as already indicated, that would end the matter. The section referred to reads — “The court shall thereupon examine such juror as to the grounds thereof.” Under this section regulating the selection of jurors in a capital ease, neither the accused nor the state is restricted in any prescribed forms of questions to be asked as furnishing challenges for cause, as in other jurisdictions, hence a wide range of inquiry is permissible for the purpose of ascertaining the extent to which the mind of a venireman is affected for or against either party. Keeping in mind, then, that the object of said section is to permit an examination of the venireman that will elicit his mental attitude bearing upon his qualifications to serve as a juror, what reasonable objection could be urged against inquiry being made as to the views of such venireman in respect to one of the provisions of said section upon which the crime charged is based, in view of the statutory duty imposed upon the trial judge as indicated ? Not unlike the accused, the state is entitled to know in advance of the trial whether the jury being selected is to be composed of men who are fair and impartial and who having no conscientious scruples against the infliction of the death penalty will return a verdict in accordance with the evidence and 1he law, or whether it shall enter upon the trial with a prejudged verdict. Our judgment is that the rights of both the state and the accused in this respect are equal. While it is evident that the answers made to the questions put to said veniremen did not affect the legal rights of the accused one way or the other, and hence no prejudice resulted to the accused, there still remains an additional reason, in our judgment, why the questions asked on re-direct examination of the venireman, were proper, that is, in testing his qualifications, it was proper to thus inquire to ascertain whether or not such inquiry developed any bent of mind on the part of the venireman which might be deemed of sufficient importance to be taken advantage of in the subsequent peremptory challenges liable to be exercised. A discussion of this subject may be found in 1 Thompson, Trials, 2 ed. Secs. 101, 102 and 103 and wherein it is laid down that—

“Within reasonable limits, each party has a right to put pertinent questions to show not only that there exist proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will exercise his right of peremptory challenge.”

For the foregoing reasons we hold that this ground of alleged error is not well taken.

Among other errors assigned is that the court below erred in admitting in evidence the alleged confession of the plaintiff in error. An examination of the bill of exceptions shows that every reasonable precaution was taken by the trial court, preliminarily, to ascertain its competency befoi’e admitting the same. That it was made voluntarily, without threats or promises and not induced by hope or fear excited in the mind of the accused, is fumishedln the record that the same confession is to be found in the testimony of the accused himself when upon the witness stand as á witness in his own behalf. Spears v. State, 2 Ohio St. 584; Rufer v. State, 25 Ohio St. 464, 470; State v. Knapp, 70 Ohio St. 380 [71 N. E. 705; 1 Ann. Cas. 819].

We have examined the remaining assignments of error in said petition in error and find no substantial or prejudicial error to the plaintiff in error in the entire record. There is but one alternative left this court, therefore, and that is to affirm the judgment of the court below, however much we would prefer, if we could see our duty to do otherwise. We are moved to say this not because we believe that life would be rendered secure by a lax administration of the criminal law by condoning in any degree a crime like this, if committed under the influence of a long continued drunken debauch, but because the evidence upon the trial, furnished largely by the accused himself, tends to show either a selfassumed display of mawkish bravado, or a mind lacking in criminal responsibility. Of the former we are not concerned; of the latter, it is only necessary to say that it is apparent- from an examination of the charge of the trial court that the jury were instructed at no little length on the resultant effect of the excessive use of intoxicants by the accused as affecting his legal responsibility as a free agent, but under this charge in its application to the evidence introduced upon the trial it appears the obligation of duty resting upon the jury required the rendition of an undivided and unqualified verdict of guilty. As a reviewing court, we cannot do otherwise than approve the verdict.

The judgment of the court of common pleas will be affirmed, and said cause is remanded for execution.

Powell and Houck, JJ., concur.


author: HENRY, J.

text:
    BANKS AND BANKING.
    [Cuyahoga (8th) Circuit Court,
    November 4, 1908.]
    Henry, Marvin and Winch, JJ.
    Dorr E. Warner, Assignee v. John Urfer.
    Creditor Denied Preference in Funds Collected by Bank Wrongfully Commingling His Funds with Its Own.
    Where a bank has made a collection for one, and without his knowledge or consent, opened an account in his name, crediting him with the amount collected and commingling the money with its own, and thereafter becomes insolvent with less money on hand than the amount so collected and commingled, no trust exists in favor of the creditor as he cannot follow the trust res, nor is his claim as a creditor preferred to that of other creditors.

      Dorr E. Warner, for plaintiff.

      A. L. Brewster, for defendant.
   HENRY, J.

The finding of facts in this case shows that the bank, before its failure, made a collection for John Urfer; credited the proceeds to a new account which it opened in his name without his knowledge or consent; mingled the same with the other funds of the bank so that they can not be traced either in their original or in a substituted form, and finally made an assignment with but $200 cash on hand. Whether this was the minimum amount of cash which the bank had on hand during the entire interval between the mingling of funds and the assignment does not appear.

On this state of facts Urfer would, of course, be entitled to the return of his money in preference to the claims of the bank’s general creditors if he could identify or trace it, Jones v. Kilbreth, 49 Ohio St. 401 [31 N. E. 346]. But since it has been inextricably commingled with the other funds of the bank so that it can not any longer be identified or traced, either in its original or in a substituted form, the preference can not operate, for want of any specific property capable of being. in>pressed with the trust which Urfer asserts. Reeves, Stephens & Co. v. State Bank of Ohio, 8 Ohio St. 465.

It is no doubt true that after commingling Urfer’s money with its own, the bank’s minimum cash balance thereafter on hand, would be deemed to consist, in whole or in part as the case might require, of his money; because as between the rightful paying out of its own money and the wrongful paying out of Urfer’s money to other persons, the former, is presumed, Crawford Co. (Convrs.) v. Strawn, 6 O. L. R. 309. But as already stated, there is nothing to show here that the $200 on hand when the bank failed was in fact its minimum ^amount of cash on hand during that interval.

The argument that the entire assets of the bank at the time of its failure must be deemed to be augmented by the amount of Urfer’s money previously added thereto, is plainly malicious and fallacious. The ultimate insolvency of the bank implies that the diminution of its assets overbalanced all augmentation thereof. If there is any occasion for preferring Urfer, it is due to the fact that the bank’s assets have so diminished that they are insufficient to meet its liabilities. Some of the assets which the bank had when it was solvent are now gone. The moneys having been commingled, Urfer’s money is, for aught we know, among the assets which were lost while the bank was becoming insolvent.

Inasmuch as Urfer's claim can not be preferred, but must take its place among the claims of the bank’s general creditors, the judgment below in his favor is reversed and final judgment for the assignee entered here.

Marvin J., concurs.