author: LEIGHLEY, J.

text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Court of Appeals,
    July 1, 1917.]
    Leighley, Grant and Carpenter, JJ.

      East Cleveland (City) v. Frisbie Co.
    Contract for Waterworks Extensions Paying for Pipe when Rentals Reach Ten Per Cent of Cost Invalid for Failure to Advertise for Bids.
    A contract based on resolutions of municipal water works trustees for the installation water pipe on certain streets, same to be paid for when water rentals shall equal ten per cent of cost of construction, cannot be enforced against the municipality when it appears that no bids therefor were solicited by advertisement, competitive bidding cannot be avoided by the fact that the streets on which such pipes were' laid were not dedicated to the municipality; neither is liability created by a custom or usage of the municipality securing extensions to its waterworks system by such plans, nor impliedly by quantum meruit, nor upon the principle of conversion of the pipe by the municipality.
    ERROR.

      E. A. Bin yon, for plaintiff: in error.

      Chan & Marty, for defendant in error.

       Affirmed, Frisbie Co. v. East Cleveland, 98 Ohio St. 000; 63 Bull. 173.

   LEIGHLEY, J.

The parties were in reverse order in the eourt below, and for convenience will be so mentioned herein.

The plaintiff, the Frisbie Co., filed its petition in the court of common pleas, declaring in three causes of action that in three different allotments it installed water pipes under contract with the defendant to repay when the water rentals on each particular street should amount to ten per cent of the cost of installation in any one year. The amount claimed in the three causes of action is $19,815.78. It bases its express contract upon resolution passed by the water board of East Cleveland to the effect that proposal on the part of plaintiff to install water pipe on the several streets by the plaintiff be accepted, provided the cost does not exceed the village engineer’s estimate and the work is done subject to the approval of the engineer and inspectors of East Cleveland village. It was further provided by resolution that when the water rentals of any line of pipe on any street thus constructed shall equal ten per cent of the cost of construction, the board will, if in funds, repay the Frisbie Co. the cost of construction; that in pursuance of these resolutions and permission granted, pipes were laid on a number of streets in the years 1902 and 1903 at a cost in amount above stated; that in the year ending March 1, 1915, the water rentals received by the city from each of the separate systems aggregated a sum in excess of ten per cent of the cost of installation; that the plaintiff duly tendered to the defendant a deed conveying to the city all its interest in the said water systems so installed by it and requested payment as per resolutions of 1901 and 1902; that the city council refused to pay them.

In the fourth cause of action it is claimed that the city has converted to its own use the water system above referred to, installed by plaintiff on various streets in said city, and claims the right of recovery on the ground of conversion.

Trial was had below, a jury waived and the trial resulted in judgment for plaintiff for the amount above stated, from which judgment error is prosecuted to this court to reverse the same.

The first three causes of action are predicated upon an express contract with the city, as claimed, to pay for the installation of said water system when the rentals should amount to ten per cent of the cost.

The powers of the board of trustees of the water works of villages are derived from and limited by Sees. 2407 to 2435 Rev. Stat. of 1900 (Secs. 3955 G-. C. et seq.) inclusive. The defendant was a village at all times covered by the series of the transactions involved in this lawsuit. Section 2415 R. S. (Sec. 3961 Gr. C.), provides and grants power to the board of trustees to make contracts, and reads as follows:

“The trustees or board shall be authorized to make contracts for the building of machinery, waterworks, buildings, reservoirs, and the enlargement and repair thereof, and the manufacture and laying down of pipe,' and the furnishing and supplying with connections all necessary fire hydrants for fire department purposes, and keeping the same in repair, and for all other necessary purposes to the full and efficient management and construction of waterworks. ”

Section 2419 It. S. (Sec. 3965 G. C.) provides the rules and the manner and method whereby the trustees may enter into contracts, which reads as follows:

“The trustees or board, before entering into any contract for work to be done, the. estimated cost of which exceeds five hundred dollars, shall cause at least two weeks’ notice to be given, in one or more daily newspapers of general circulation in the corporation, that proposals will be received by the trustees, for the performing of the work specified in such notice; and the trustees shall contract with the lowest bidder, if in their opinion he can be depended on to do the work with ability,, promptness and fidelity; and if such be not the case, the trustees may award the contract to the next lowest bidder, or decline to contract, and advertise again.”

As we understand it, the board of trustees has only such power to make and enter into contracts, and may only enter into contracts in such manner, as the statute gives and provides.

Quoting from Ravenna v. Pennsylvania Co. 45 Ohio St. 118 [12 N. E. 445]:

“Municipal corporations in their public capacity possess such powers, and only such as are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted.”

To the same effect is State Board of Health v. Greenville, 86 Ohio St. 1, 24 [98 N. E. 1019; 1913D Ann. Cas. 52].

At the time the resolution were passed by the village the streets through which and into which the plaintiff sought permission to extend water pipes had not’ yet been dedicated to the village and were at the time the property of the plaintiff. It is claimed that, therefore, Sec. 2419 did not apply, for the reason that said section has reference only to cases in which the municipality is doing the work. It is urged that the streets being the property of plaintiff at the time avoided the necessity of competitive bidding. A number of eases are cited by counsel in which the necessity of competitive bidding was obviated, but an examination of these authorities will disclose the fact that the reasons assigned therefor were either that the subject-matter of the work was such that competitive bidding was im: possible, or impracticable because of its artistic nature, or was monopolistic, or rested upon the use of some exclusive patent or franchise or sole source of supply. We do not think this doctrine has any application to the situation in the ease at bar, for the laying of water pipes is not included within either of the actions referred to.

We are of the opinion that express contracts for the doing of work and the payment therefor under such circumstances as are claimed in this ease, can only be accomplished to make the same binding upon both parties by a strict compliance with the statutes; particularly the two sections above quoted. Newton v. Toledo, 8 Circ. Dec. 607 (18 R. 756), affirmed, no op., Toledo v. Newton, 52 Ohio St. 649. Quoting from the syllabus, paragraphs 1 and 3:

“Section 2419 R. S. defining the powers of waterworks trustees, which by the act of January 22, 1889, is made applicable to the trustees of the natural gas works of Toledo, provides that ‘the trustees of the board, before entering into any eontract for work to be done, the estimated cost of which exceeds live hundred dollars ($500), shall cause at least two weeks notice to be given in one or more daily newspapers of general circula* tion in the corporation.’ Held: that the word ‘work’ in this statute includes material to be furnished; that a contract for the purchase by the Toledo gas trustees of pipe already manufactured and on hand, without advertising for bids therefor, was not in conformity with the requirements of Sec. 2419 R. S., and can not be enforced against the city.
“Although under Sec. 2415 R. S., the gas trustees of Toledo, the same as waterworks trustees, are empowered to make contracts, such power must be taken with the limitations prescribed by Secs. 17 and 2702 R. S. and they can not enter into a contract without a fund applicable for the pui’pose provided for by tax assessment or otherwise, nor until a certificate of the city clerk is furnished that the money is in the treasury, and the eity is not bound by contracts made in disregard of these provisions of the statutes.”

Something is said in the petition to the effect that the village had established a custom of securing extensions to its waterworks system in accordance with the method set forth in the petition in this case, and some reliance was placed upon this custom in the argument before us. However, we do not understand that custom can create a right or liability where none otherwise exists. Quoting from the syllabus of Thomas v. Guarantee Title & Trust Co. 81 Ohio St. 432 [91 N. E. 183] :

“Usage or custom can not create a contract or liability where none otherwise exists. A usage or custom can only be used to explain or aid in the interpretation of the contract or liability existing independently of it. It can not be permitted to contradict or vary express terms of a contract, nor to vary the legal import thereof.”

It was further urged that the resolutions of the board of trustees were not contracts, yet in the petition those same resolutions are relied on as creating the contract sued on. The resolutions constitute the acts and only acts of the village upon which the right of recovery rests. In this manner the failure to observe the requirements imposed by statute upon the letting of a contract for work is evaded. If the board of trustees did in this case, by the proceedings had, impose upon the village, now city, of East Cleveland, the obligation to pay for the installation of these water systems, then a clever scheme and plan has been conceived whereby the requirements of the statute may be omitted. The board of trustees might very well provide in this manner for the extension of water pipes throughout the entire territory within the village limits and have the same constructed without competitive bidding, and a decade or more later the inhabitants be obligated to pay without the obligation of any of the statutory safeguards having been applied at the time the obligation was incurred. We do not think that the board of trustees should be or can be permitted to do indirectly what the statute would forbid its doing directly.

It was said in argument that the plaintiff was never paid for the pipe installed. A deed in evidence discloses a provision therein to the effect that the plaintiff would cause water to be supplied to the residents on said street. It may be true that the cost of installation was not figured into the selling price of the lot, but it is equally true that each purchaser undoubtedly thought he was buying and paying for water pipes when he bought the lot, and undoubtedly thought that the cost thereof was included in the price paid.

The fourth cause of action is based upon conversion. It is admitted that the pipes were installed and attached by the plaintiff to the waterworks system of defendant. It did so with the permission of the defendant, and did so upon the condition that the same should be installed subject to the approval of the engineer and inspectors of the village. The pipes so laid became a part of the waterworks system of the village, under the circumstances of this case. Upon what theory conversion thereof may be claimed we are unable to understand. When the plaintiff installed the pipes and dedicated the streets of the village, with the pipes made a part of the village water system, plaintiff must recover upon an express contract the cost of installation, or has no cause of action at all. If the plaintiff has no valid contract as a basis for recovery, it has no claim to the pipes and no recovery can be had against the village for the value of the pipes. Courts will leave the parties where they placed themselves. Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. 372].

There can be no recovery from the village upon a basis of an implied contract or on quantum meruit. Welleston v. Morgan, 65 Ohio St. 219 [62 N. E. 127]; McCormick v. Niles, 81 Ohio St. 246 [90 N. E. 803].

We are of the opinion under the facts of this case that the plaintiff did not have a legal, binding contract made according to law with the defendant; that in order to make a binding contract of the character herein claimed, the sections of the statutes quoted must be complied with, and a failure to comply therewith, which is admitted in this case, causes the transactions to fall far short of a legal contract. We understand that these sections must be complied with in all matters involving the construction or extension of a water system, and the only exceptions thereto are, perhaps, items of cost of operation. These statutes are the safeguards imposed by the legislature for the protection of the taxpayers and citizens of a municipality. Lancaster v. Miller, 58 Ohio St. 558, 575 [51 N. E. 52].

But the claim is made that these pipes were to be paid for by water rentals, the earnings of the water system. For the board to undertake to do so would be a mere subterfuge. One • of two things would necessarily occur to do so: either the water rentals would have been maintained at a special and excessive figure to produce the sum required, thereby indirectly taxing all the water users of the village, or the water rentals would not have to be so raised as to amount to an excessive rental for the sole object and purpose of paying the amount due under this alleged contract. The eitizens would foot the bills by permitting the trustees to dó indirectly thereby what they are not permitted to do directly. The citizens of the village were entitled to have all the beneficial results of competitive bidding, if any, in the creation of an obligation imposed upon them for the construction or extension of their waterworks system.

We hold that the plaintiff has no express contract which is binding upon the village, now the city of East Cleveland; that the judgment below is contrary to law, and the same is reversed, with costs assessed against the defendant in error.

Grant and Carpenter, JJ., concur.


source: Caselaw Access Project

author: GRANT, J.

license: Public Domain

text:
    DAMAGES — INFANTS—VERDICTS.
    [Cuyahoga (8th) Court of Appeals,
    November 22, 1916.]
    Grant, Meals and Carpenter, JJ.
    Cleveland Worsted Mills Co. v. Daniel C. Coates, Grdn.
    1. Burden on Employer to Show Deception in Matter of Age of Children of Nonage.
    The employment of children of nonage, Innocently or with knowledge, is a question for the jury, with the burden on the employer to show affirmatively that he has been misled and deceived in the matter of age.
    2. Remittitur of Excessive Verdict without Consent Invasion of Jury Right.
    When an excessive verdict has been returned through passion or prejudice,,it is the right of the defendant to have it set aside, and the reduction of such a verdict, except when done by consent, to an amount determined by the independent judgment of the court, rather than that of a jury, is an Invasion of the right of trial by jury.
    3. Facts Applied.
    A verdict of $25,900 for the loss of his right hand by a factory boy is so large as to Justify the conclusion it was reached through passion or prejudice, and the action of the trial court in reducing the amount $10,000, instead of granting a new trial, constitutes error which requires a reversal of the judgment; this result may be reached without weighing the evidence in detail, but from the verdict itself in its relation to the evidence as a totality, under the circumstances of the whole case.
    ERROR.

      II. H. McKeehan and Price, Album, Crum c6 Album, for plaintiff in error.

      Anderson & Lamb, for defendant in error.
   GRANT, J.

In the view we have taken of this ease and of the question upon which our conclusion is made t'o turn, we have felt justified in giving it an unusual consideration, at least in point of time, since it was argued at the bar, a result that has been aided by the wish of counsel to prepare an additional brief, which was1 late in coming in.

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

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

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

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

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

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

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

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

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

By the next the maintenance of certain machinery regarded as dangerous is forbidden, unless it is provided with the named safeguards. The age of the persons sought to he protected by this provision is not material. Section 1027, by its quoted parts, supplements and re-enforces the inhibitions and muni-ments of those which precede it, by enjoining on the employer 1he observance of certain duties to that end. function and duty of a jury to sift it, weigh it, accept it, reject it. We can not interfere to mould the evidence to a different conclusion than the jury reached, except upon considerations as to weight, whieh in this ease we do not feel justified in taking upon ourselves.

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

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

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

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

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

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

That it was so exceptionally and enormously flagitious, in quality or in output, as in its totality to have acted 'em the jury injuriously to the defeated party, or that the court refused to act, or failed to act, at any point where it was called upon to act, or where it became its duty to act without call, in assertion

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

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

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

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

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

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

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

The evidence in the ease was voluminous. It- covered all controverted points and searched every question to which it eould be addressed. It related to matters of fact, pre-eminently so. It was in fierce dispute throughout. It was peculiarly tire

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

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

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

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

of its own dignity or observance of tbe rules of common decency, we are not prepared to say.

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

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

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

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

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

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

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

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

‘ ‘ 2. But in the class of actions -in which the opinion of the jury, unaided by any known standard of valuation, determines the magnitude of the recovery, the power of the court over an excessive’finding is, in some-instances, controlled by statutory conditions. Although the verdict, if purged of any supposed excess, might, in the opinion of the court, be well sustained as to the residue by the facts disclosed, yet the presence and influence of passion or prejudice, in producing the excess, vitiates the verdict in toto. and excludes the power of the court to validate, or save, any part of it against the concurrence of either party. Without a consent of both, to a remittitur and judgment, the verdict, in such ease, must be vacated.
“The terms of the statute are unambiguous and peremptory. For damages materially excessive, appearing to have been given under the influence of passion or prejudice, the verdict ‘shall be vacated and a new trial granted.’
‘ ‘ This statute merely enacts the pre-existing rule of the common law. Its theory undoubtedly is that individual opinions, which depend on, and vary with mental and moral constitution, are extremely eccentric and uncertain; that the money value of personal wrongs, which can have no certain standard of measurement, and hence must of necessity be determined by this, shall not, however, be committed to the arbitrament of a single mind, but shall be measured by the average of impartial opinion, of which the concurrence of twelve minds, uninfluenced by passion, resentm'ent, or corruption, is supposed to be a fair expression. When, therefore, a verdict is attained by the presence of these statutory infirmities, the law will hot, against the consent of either party, substitute the opinion of the court for that of the twelve triers provided by the Constitution. For if recklessness has controlled in measuring the extent, it is not improbable that it may have controlled in determining the right of recovery; which another panel, unbiased by improper influences, may greatly modify, or wholly reverse. Lambert v. Craig, 29 Mass. (12 Pick, 199); Long v. Hopkins, 10 Geo., 37; Howlet v. Cruchley, 5 Taunt., 277. But the rule of common law ivas not inflexible, as many cases are reported in which the doctrine of remittitur was applied in actions of this class.”

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

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

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

Consider for a moment the pecuniary possibilities wrapped up in this $25,950 verdict. At six per cent., the yearly interest upon it is $1,557, or in the close neighborhood of $130 a month. 4t five per cent., it amounts to more than $100 a month. This is in effect a pension at that rate, for the lifetime of the pensioner, with the advantage over the strict pension that at death the principal sum is passed on, intact, in the line of succession to the pensioner’s heirs. Now let us make a single comparison. “Any person who was wounded in battle or in the line of duty in the Civil War, and is now unfit for manual labor by reason thereof, or who from disease or other causes incurred in line of duty resulting in his disability, is now unable to perform manual labor, is entitled to $30 per month,” from the United States. No man who served in the Civil War can he loss than about seventy years of age, so that none of the advantages inhering- in youth, are open to him; he is wholly dependent' on the bounty of his generous government, which at the utmost is less than a third of what this verdict will bring at five per cent. And it is- the highest pension allowed for disability by United States general Ia^vs, whatever the rank of the pensioner was in the military service of his country. As to pensions for disability incurred later than the Civil War, the rating is $8 a month for a; private soldier; $20 for a captain; $25 for a major, and $30 for all grades from a lieutenant-colonel up to and including a major-general.

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

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

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

The inquiry next to be made is what was the duty of the trial court, if to his apprehension the verdict was returned under the improper influence denounced by our statute as an integral ground for a new trial? Our Supreme Court have answered it, not only in Pendleton Street Ry. v. Rahmann, supra, but in the much later case of Toledo Rys. & L. Co. v. Paulin, 93 Ohio St. 396 [113 N. E. 269]. The court there say:

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

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

But the judgment entered on the verdict differs from the verdict in amount, materially differs. It is less by just $10,000. "Why it should be less by exactly that round figure, does not appear. That the plaintiff:, “Poor Joe,” with a $25,000 and odd dollars verdict safely in his pocket, or that of his attorney, should denote to a soulless corporation a lump $10,000 of his ascertained right, unless under stress or comjpulsion, is a most) unlikely thing, quite out of his class, as appears to us.

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

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

The only inferable reason vouchsafed for the overruling of the motion, or that we can discover from the recitation of the entry, is the remission of $10,000. But for that, it is to be concluded, the new trial would have been allowed. As the plaintiff, for aught that appears, voluntarily gave up a part of Ms good luck to help on its sMning way the corporation of wMeh his counsel had spoken at the trial in highly disrespectful terms and as not being a proper object of charity .at Polish hands, this being so, we say, of course he is in no shape to complain or to treat his liberal donation to the flood, or war-sufferer as an Indian’s gift, and he should be held to whatever arrangement was made, if indeed the gift wasi an arranged matter and not the offspring of mere intuition of altruism1 on the part of the victor, to whom it seems did not belong* the spoils, or not all of them, in his own estimation.

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

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

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

But it may be said that the defendant is in no situation to reject this bonus of the “gift-bearing Greeks,” or Polacks, or whatever, and that it should not be heard to object to being done good to. The argument is not good in point of Ohio law, as has just been shown. And we think it equally unsound when measured by the-yardstick of reason and principle. A renunciation of $10,000 from $25,000 and up, of course is no substitute for an absolute right to a new trial, to which our Supreme Court, iu the ease cited, seems to say the defendant was entitled. And, if it were not so entitled, even so the remission might still be no adequate substitute. Non constat a new trial might have exonerated the defendant from liability altogether; any liability was denied and vigorously contested throughout the trial.

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

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

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

“Now, it would seem to he quite clear that if a trial or appellate court compels a defendant to submit, at the plaintiff’s option, to a judgment for less than that named in a verdict, held to be fatally excessive, thus enabling the plaintiff to succeed without a new trial, and fails to guard against all reasonable danger of impairment of the former’s right, as for example, if it does so on the basis of allowing a Mb eral, or full, or, from the judge’s standpoint, merely a fair compensation to the plaintiff, it invades the rights of the defendant. It does,1 just what all courts have declared can not he legitimately done.
“Further, to allow a verdict which is fatally excessive to stand upon condition of plaintiff remitting the excess, or as. it is sometimes said as indicated, consents to a reduction thereof to the proper amount, is likewise an invasion of such right, unless the amount of the excess, or the proper amount of the verdict is determined upon some basis-which fairly takes the judgment of a jury for the guide instead of the independent judgment of the court. It is not logical to so vigorously defend the right of jury trial in civil actions by mere words and accompany it by substituting therefor, in fact, the judgment of the court. The right of jury trial is as sacred to the defendant as to the plaintiff.”

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

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

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

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

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

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

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

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

And we have no inclination to weigh evidence to reach such a conclusion. Speaking for myself alone, I say that if the time ever comes when I am compelled to sift a few grains from a slippery mass of chaff and sort out minute facts from an irrelevant volume, and balance down to the last poor scruple disputed particles of testimony, to no other or higher end than to enable me to fix a tariff on maimed human frames, or a price current for mutilated hands and feet — when, 1 say, that becomes any duty of mine — which Heaven forbid! — I will doff my badge of servitude and honor and respect the bench by leaving it; the process would imbruto a judge and dehumanize a man.

We say this, let it once more be remembered, lest hereafter, litigants, mistaking altogether our process in coming to the conclusion we have reached, shall ask us to weigh the evidence in a record to find in it a verdict inspired by the unworthy motives of passion and prejudice, culminating in perverseness which in a proper case it is the duty of courts to correct. We disclaim the right or duty to do this. What we mean to say, and all that we mean to say, is that in this case, considered in its totality and under all its circumstances, bulbed and in mass, the verdict can be accounted, for rationally only as having been returned under the obnoxious motives mentioned, however mistakenly these may have been entertained by the jury, or however or by wha,t; persuasion they may have been induced in the jury’s minds. It is not the mere amount of the verdict that makes us overturn it; we have upheld larger ones in proper cases. In Moore v. Wallis, 26 Dec. 250 (18 N. S. 473), the judgment sustained was for $4.0,000; but the earning capacity of Wallis was shown to have been $15,000 yearly, and he was left a helpless and stranded wreck, physically and mentally, to drag out a miserable existence oi constant pain. Viewing this case with the forward look and assuming for the advantage of the plaintiff all that the future is likely to hold in its hands for him, we can justify the verdict upon no rational theory of compensation.

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

Meals and Carpenter, JJ., concur.


author: GORMAN, J.

text:
    HOMICIDE.
    [Hamilton (1st) Court of Appeals,
    December 13, 1915.]
    Jones, Jones and Gorman, JJ.
    Leonard Goings v. State of Ohio.
    1. Instruction as to Threats in Second Degree Murder Prosecution, no Evidence of Threats Being Offered, Held Prejudicial Error.
    In a prosecution for second degree murder an instruction, to the effect that threats made by the deceased against the accused would not justify the latter in killing the deceased, constitutes prejudicial error when there is no evidence that any threats were made.
    . 2. Plea of Not Guilty Does not Admit Charge on Self-Defense.
    A plea of self-defense admits the killing by accused but seeks to avoid the legal consequences by pleading and showing justification. Hence, when accused does not admit the killing, but stands on his plea of not guilty and challenges the state to prove beyond a reasonable doubt that the killing was committed by him, an instruction imputing that there was some evidence that the killing was by accused, but that he claimed he was justified under the doctrine of self-defense, is highly prejudicial since it leaves the jury no option but to find that the killing was the act of accused, their task being only to, determine whether it was in self-defense, which shifts the burden of proof and compels him to prove his innocence by a preponderance of the evidence.
    3. Misconduct of Prosecutor In Compelling Jury to Infer Killing Was Done by Accused or Prosecuting Witness Acquitted of Crime.
    If the circumstances seem to indicate that the crime was committed by either the prosecuting witness or the accused, the use by the prosecuting attorney of language in his argument to the jury which leaves in their minds the impression that the prosecuting witness had been tried and acquitted of the crime and had no motive to testify otherwise than the truth, leaving them to conclude that the accused must be the guilty one, is misconduct of a prejudicial character.
    ERROR.

      Ed. F. Alexander and J as. B. O’Donnell, for plaintiff in error.

      John Y. Campbell, Pros. Atty., and Walker M. Loche, Asst. Pros. Atty., for defendant in error.
   GORMAN, J.

The plaintiff in error on July 20, 1915, was indieted for murder in the second degree by the grand jury of Hamilton county, charged with “unlawfully, purposely and maliciously” killing one James Garner by shooting him with a pistol on May 1, 1914, at 554 George street, in the city of Cincinnati. On July 24, 1915, after trial, he was by a jury found guilty of manslaughter, and on July 26, 1915, was sentenced to the Ohio penitentiary. He has prosecuted error to this court and asks for a reversal of the judgment.

Briefly, the salient facts adduced at the trial, as shown by the record, are as follows: F'or about three years prior to May 4, 1914, Leonard Goings cohabited with one Violet Anderson, alias Gertrude Thomas, an open and notorious prostitute, in several parts of Cincinnati, and elsewhere. He had left her and gone to Indianapolis about a month or two prior to May 4, 1914, and while he was there she took up her abode in the tenderloin district of Cincinnati at 554 George street. Both Goings and the Anderson woman are colored.

On May 4, 1914, Goings returned to Cincinnati from. Indianapolis, and on the same day the Anderson woman heard of his return and sent one of her friends to. request Goings to visit her at her room on the second floor of the building No. 5,54 George street. Pie went to her room about four o’clock in the afternoon of that day, with Violet’s messenger, and after a few minutes the messenger departed, having the Anderson woman and Goings alone in the room. These two are the only witnesses as to what occurred V'ith reference to the killing of Garner.

Shortly after Goings arrived at the Anderson woman’s room Garner, a large, strong young colored m'an, appeared at the bouse and asked two of the inmates on the first! floor front of the house bow he could get upstairs. He was directed to go to the rear of the house, which faced south on the north side of George street, and he would find the stairway. He walked back perhaps twenty or thirty feet, entered a side door and mounted the stairs which lead to a hallway running north and south on the second floor. He walked south through this hallway, which was dark and unlighted, to the door of the Anderson woman. He knocked, and she came to the door, opened it, and asked Garner what he wanted. He asked if she did not know him. She said she did not, and ordered him away. He began to curse her and call her rile names and said something about his money. He went downstairs and into the side yard, where he continued to curse the Anderson woman, and she from the window talked back to him. She told him he had better stay down there, but if he must come up, then to come up. This is her statement before the coroner, but on the trial sbe says Goings told Garner that “if he must come up, to come up.” Goings denies having spoken to Gamer while in the yard. Gamer came up into the hall, and while there was shot by either Goings or the Anderson woman. She admits having thrown two drinking glasses out into the hall at Gamer. On the trial she' testified that while she was at the door of her room' trying to drive Garner away and throwing the glasses at him, Goings passed by 'her into, the hall, saying, “Let me get down to him, ’ ’ and that when Goings got out into the hall she heard something like a slap, followed by a shot. Goings came back into the room and she says she asked him who shot, and he said “I did.” She asked if he had shot him (Gamer), and Goings said “No.” She says sjhe saw Gamer come around the house and lean up against the wall, and she then said to Goings “Yes you did.” ’He said, “Hid I? What must I do?” arid She told him to go to his home in Virginia. She says he told her be would throw the pistol into the vault in the back yalrd. She did not see Goings have a revolver nor did sbe see him shoot Garner. Gamer died without making any statement.

Goings entered a plea of “Not guilty,” and on the witness stand in bis own behalf denied that be shot Garner, denied that be bad or owned a revolver, and denied most of the Anderson woman’s statements. He testified that sbe shot Gamer from her door in the hall while be, Goings was out in the ball trying to get Gamer to go away; that sbe was very-close to Garner wben sbe shot him, and that Gamer bad struck him, Goings, with a dinner pail and knocked him down, and while be was down, she shot Garner ; that sbe told him, Goings, to go away home so that be could not testify against ber.

Goings went away that evening to Virginia, and was not arrested until more than a year afterwards at Dayton, Ohio. After the shooting, the deceased was taken to the city hospital, where be died that night. The police officers that evening searched the vault and fished up a thirty-two caliber revolver with one empty shell and two unexploded cartridges. Goings testified that the revolver belonged to the Anderson woman and was the one with which she shot Gamer; that he had often seen it in her bureau drawer. Two other witnesses testified that she told them she had a revolver and would shoot. She was arrested after the shooting, and when questioned by the officers said a man named "Walter” did it. After being confined for qnite a while and, as she said, cross-examined by the police and pnt Through either the second or third degree, she said Goings did it.

There appears to ho a direct conflict between her testimony and that of Goings, the only two who know what person fired the shot that killed Gamer. The circumstances and probabilities appear to us to point as strongly to Violet Anderson as to Goings, as the slayer of Gamer. Indeed, we think the probabilities are stronger in favor of the theory that the woman, rather than the man, fired the shot. Each, it is true, was equally interested in throwing the blame on the other; both were persons of bad repute, and each had strong motives for testifying against the other as they did, but a careful consideration of the evidence and circumstances will lead a reasonable person to the conclusion that the state failed to establish the guilt of Goings beyond a reasonable doubt. Assuming that Violet Anderson was entitled to equal credibility with Goings, nevertheless the attend-iiig circumstances, if carefully weighed and considered by twelve unbiased and disinterested men, were such that there must have existed in the minds of such a jury a reasonable doubt of Goings’ guilt, and if that reasonable doubt had been resolved in his favor the verdict should have been “not guilty.”

There are several errors claimed, by counsel for Goings, to have been committed by the court in the charge. In speaking of that provocation which would warrant the jury in finding the accused guilty of manslaughter rather than murder in the second degree, the court said:

11 The provocation to have the effect of alleviating the killing from second degree murder down into manslaughter must have consisted in this qase of personal violence done, or attempted to be done by James Gamer, nor can tire threats which were alleged to have been made by Garner against the .defendant he considered as reasonable provocation to reduce the killing' from second degree to manslaughter. ’ ’

This portion of the charge assumes, as we read it, that, threats were allegad to have been made against Goings by Garner, and assumes that Goings would not be justified in killing Gamer on that account, whereas there is no evidence of Garner having threatened Goings. In this part of the eharge we think the court erred to the prejudice of the accused.

In several places in the charge the court assumed that Goings did the shooting, whereas Goings strenuously denied that he did, and there was no witness who testified that he did shoot the deceased. Violet Anderson only testified that 'Goings told her he shot, hut did not hit Garner.

The trial court further charged the jury on the plea of self-defense, and while that part of the charge relating t’o self-defense appears to state correctly the rule of law applicable to self-defense, there was no claim or plea of self-defense made by Goings, nor was there any evidence, to our minds, tending to show a case of self-defense. The plea of self-defense in murder cases admits the killing by the defendant, but seeks to avoid the legal consequences by pleading and showing a justification. There can not properly he a case of self-defense unless the accused admits the killing. This plea is in the nature of a confession and avoidance and, when interposed, the burden of establishing it by a preponderance of the evidence is upon, the accused.

In the ease under consideration doings did not admit the killing, but on the contrary was standing upon Ms plea of not guilty, and challenging the state to prove beyond a reasonable doubt that he fired the shot wMch killed Garner. Therefore, when the (jourt charged the jury, as he did, that there was some evidence .tending to show that Goings shot Gamer as a matter of self-defense, and then proceeded to charge the law of self-defense, it was in substance saying to the jury that Goings admitted the killing of Garner hut claimed that he was justified under the doctrine of self-defense, which must he proved by Goings by a preponderance of the evidence. This in effect took from the consideration of the jury the question of whether or not Goings killed Gamer, and left no option to the jury hut to find as a matter of fact that he did kill Gamer. They were, under this charge, required only to find whether or not this killing of Garner was done in self-defense, and on this issue they were told that the burden of proof rested not on the state, hut on the defense. Under the evidence it was impossible for the jury to find that Goings killed Gamer'in self-defense, and, therefore, assuming the killing of Garner to he admitted by Goings by this plea of self-defense, and Goings having adduced no evidence to establish self-defense, the jury were bound to bring in a verdict of either manslaughter- or murder in the second degree. Thus, this part of the charge was highly prejudicial to the, accused, Goings, as it practically put upon Mm, in the eyes of the jury the burden of proving his innocence by a preponderance of the evidence.

In the argument to the jury the prosecuting attorney referred' to the prosecuting witness, Violet Anderson, and commenting upon her and her testimony, said, among other things:

' “Violet Anderson is free; she is dear of this trouble. * * * But, gentlemen, as their first counsel told you this morning, she is out breatMng the free air — you can: draw, your own conclusion as to what has happened to Violet Anderson.”

Counsel for defendant objected to this language, and asked the court to interpose, but tihe cour,ti overruled the objection. The language, we think, was ealeulated to leave the impression on the jury’s minds that the prosecuting witness, Yiolet Anderson, had been tried and acquitted of the crime for which Goings was undergoing trial, and that she therefore had no motive in testifying to anything but the truth, whereas there was no evidence tending to show that Violet Anderson had been tried or acquitted or that she was not under indictment charged with this crime or complicity in its commission. The jury seeking a victim might well have concluded that if the Anderson woman had been acquitted then Goings must be guilty, inasmiueh as the killing of Garner was by either Goings or the wom'an. If she did not kill Garner, then of necessity Goings did kill Mm. We .think this was prejudicial misconduct on the part of the prosecutor.

There are other errors in the record, but those pointed out are sufficient to require us to reverse the judgment, which is accordingly done.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: JONES (O. R), J.

text:
    CHARGE TO JURY — VERDICT.
    [Hamilton (1st) Court of Appeals,
    February, 1914.]
    Swing, Jones and Jones, JJ.
    Spear & Co. v. Jennie Fulton.
    1. Charge in Emphatic Language Condemning Flagrant Acts of Installment House Agents not Prejudicial.
    The evidence having clearly disclosed that a flagrant outrage was committed upon the plaintiff by agents and employees oí the .defendant, a judgment in favor of the plaintiff, will not be disturbed because of emphatic language in the charge to the jury with reference to the wrong committed, there being no error of law in the charge as given.
    2. Reviewing Court Will not Supply Finding of Passion and Prejudice in Case of Remittitur.
    The trial judge having declined to make a finding to the effect that his reason for granting a remittitur was a belief that the jury were influenced by passion and prejudice in fixing tbe amount of damages to be recovered, a reviewing court will not supply sucb a finding and bring it into tbe record. .

      Jolmson & Levy and Philip & 8. O. Boettinger, for plaintiff in error.

      H. G. Bolsinger and Louis Pimk, contra.
   JONES (O. R), J.

Plaintiff in error, who was tbe defendant below, is a corporation selling furniture on tbe installment plan in Cincinnati. Tbe defendant in error, Jennie Fulton, was at tbe time of tbe damage complained of living witb ber daughter, a young girl, in two rooms at No. 718 West Fifth street. She was then employed as a domestic at tbe Indiana Hotel, and generally left1 for ber work at 6:30 a. m., returning about 9:30 p. m. She bad never bad any business dealings witb Spear & Company, but it appears that tbe rooms she then occupied bad.formerly been tbe borne of a Mrs. Stevens, who bad bought furniture from Spear & Company, and owed that company money on account of same. It appears that a card or cards bad been placed under tbe door of Mrs. Fulton’s rooms asking Mrs. Stevens to call at the office of Spear & Company and pay for ber furniture, and there is evidence tending to show that Mrs. Fulton telephoned to Spear & Company asking them to desist sending such notices and stating that Mrs. Stevens was no longer there. There is also evidence tending to show that agents of tbe company made inquiries of neighbors in the building and were fold that Mrs. Stevens no longer lived there.

It appears that agents of tbe company, on November 22, called at Mrs. Fulton’s room, while she was lying sick in bed, knocked at tbe door and made efforts to push open or break in ber door and effect an entrance, using violent and abusive language, but being unable to do so left; and that on November 23, 1910, two of tbe company’s employees again ealled at Mrs. Fulton’s residence about 7:30 a. m., and after some objections were permitted to enter in order to look at the furniture to show them that it bad ñot come from Spear & Company; that they did look at it and discovered that none of it bore tbe marks of Sipear & Co., but that it was marked with the names of other dealers, satisfying them that it was not the property of Spear & Co. After this investigation the men left for the purpose of reporting to the office of Spear & Co. and asking for instructions; later they returned stating that they had telephoned Spear & Co., and'had been instructed to bring in the goods. Thereupon over the protest of Mrs. Fulton, the goods were taken from her home and conveyed to the warehouse of Spear & Co.; clothing wais taken out of the dresser and thrown upon the floor, and Mrs. Fulton was compelled to get up out of the bed and dress and go out into the rain to the office of Spear & Co. to demand the return of her goods. After being satisfied of their mistake Spear* & Co. returned the goods, which consisted of bedroom furniture and which were returned wet and damaged by exposure. At the time of this occurrence, Mrs. Fulton was suffering with tuberculosis and was confined to her rooms. Her experience and the exposure of her trip aggravated her case, confining her to lier bed for a period of eleven weeks; and she claims that she suffered humiliation in the eyes and estimation of her neighbors.

On submission to the jury a verdict of $3,500 was rendered. The court found this to be excessive, and with the consent of plaintiff a remittitur of $1,500 was entered and a judgment given for $2,000.

Proceedings in error are prosecuted here. The points of error chiefly relied upon are: first, that the court erred in its charge to the jury; second, that the court erred in entering a judgment in favor of the plaintiff for the amount of the verdict as reduced by the remittitur.

"While some of the language of the eharge used by the court in defining the right of plaintiff in regard to the privacy and security of her home and her household property therein and its freedom from intrusion and molestation of defendant might be deemed somewhat oratorical in form, her legal rights are clearly and correctly stated, and at the same time defendant lias not been prejudiced by anything unwarranted, and its rights duly guarded. The flagrant nature of tire outrage perpetrated upon the plaintiff in taking away her bedroom furniture, notwithstanding her protest, after defendant’s agents had found the stencil marks of other dealers thereon and thus satisfied themselves that the company had no claims upon it, justified the use of emphatic language.

It is claimed that the court below found that an excessive verdict had been reached by the jury under the influence of passion or prejudice and that therefore it was erroneous for the court to enter a judgment after ordering a remittitur, and that the whole verdict was vitiated by this finding of passion and prejudice and should have been set aside and a new trial ordered. A copy of the opinion of the court in overruling the motion for a new trial is printed with the brief of the plaintiff in error to justify this claim. Counsel however expressly set out on page 20 of their brief that the trial court was1 most urgently requested by them to insert in the judgment entry as the reason why he granted the remittitur, that the jury was swayed by passion or prejudice, but that he absolutely refused to do so. The court below having declined, on defendant’s request, to make such finding, we cannot now supply it and bring it into the record merely because of the language used by the court in its opinion and not carried into the judgment.

The remittitur made by the court below with plaintiff's consent was properly made and was within the power of the court. Carl v. Pierce, 10 Circ. Dec. 711 (20 R. 68); Wabash Ry. v. Fox, 11 Circ. Dec. 148 (20 R. 440); American Contracting Co. v. Sammon, 27 O. C. C. 337 (6 N. S. 130); Pendleton St. Ry. v. Rahmann, 22 Ohio St. 446, 450.

Other errors are complained of, hut a careful review of the record fails to show any prejudicial errors as against the plaintiff in error and the judgment is therefore affirmed.

Swing and Jones, JJ., concur.


author: HOUCK, • J.

text:
    WILLS.
    [Knox (5th) Court of Appeals,
    May 20, 1916.]
    Shields, Houck and Powell, JJ.
    Florence E. Miller v. William I. Cline et al.
    Construction of an Illiterate Will.
    The illiterate will involved in the instant case is construed by the court in the manner which gives to the words and sentences used the meaning which it seems most probable the testator . intended to convey.

      L. C. Stillwell, for plaintiff in error.

      Columbus Email, for defendant in error.
   HOUCK, • J.

This is an action praying the direction of the court in’ regard to the construction of the last will and testament of Hugh A. Miller, deceased.

On December 20, 1907, Hugh A. Miller, then a resident of Clay township, Knox county, Ohio, made and executed a paper’ writing which he intended as and for his last will and testament. On March 20, 1908, the said Hugh A. Miller departed this "life, leaving no issue or other legal representatives, but leaving his widow, Florence E. Miller, surviving him. On April 6th, 1908, said will was duly admitted to probate and recorded in the probate court of Knox county, Ohio, the same being in the words and figures following:

“First. I desire that all my just debts and funeral -expenses be paid as soon as practicable after my decease.
■ ‘ ‘ Second. I give and bequeath to my beloved wife all of my property both real and personal consisting of the farm on which we now reside situated in clay Township Knox county, Ohio being eighty Six acres, and one farm containing one hundred and Sixty Six acres in Harrison Township Knox county Ohio during her natural life and all the Stock house hold goods furniture provisions and other goods and chattels which m)ay be thereon and all moneys If any at the time of my decease without making any appraisement or Sale of Such property only as my wile deems best either public or private I make a request of my wife at the time Albert. Summit, a foster boy that we are raising if he still continues of being a good boy to both of us until he is twenty one years old for my wife, Florence E. Mailer, to give him Two thousand dollars in money If my wife Should marry again I want all of Said property to be and to be kept in my wifes name during her life and aft’er my -wifes death, I want the property If there Should be any, I give to Albert Summit one half of what is left and the other half to be given to the Trustees of the Baptist Church of Martinsburg Ohio, for the benefit of Said Church as they think best.
“I nominate and appoint Florence, E Miller to be the executrix of this Will, without bond.”

We are required to construe this will in- order to determine the nature and extent of the estate^ of Florence E. Miller, the surviving widow, the Baptist Church, of Martinsburg, Ohio, and Albert Summit, the foster son of testator. It will be observed from the language and punctuation used in said will that the scrivener was not skilled in the drawing of wills, and in all such oases the aim and object of the interpreting court is and must be, if possible, to dispel the effect of some careless, incorrect or ignorant use of language or improper punctuation on the part of the testator or his scrivener, and make the will interpret what the testator evidently meant and 'intended, just as though his ideas had been clearly and correctly stated and expressed therein'.

The natural and literal import of the words and phrases used is presumed t’o have been intended, and each word is to have its effect and its usual meaning given to it, if the general intent be not thwarted thereby. Indeed, it is the duty of an interpreting court to deal lightly with errors of syntax and punctuation, where the testator did not unite his. own will, as in the instant case. The sole purpose of making a will is to express in written language the wishes of the testator and thereby carry out his intentions, and the only object of construction is to ascertain that intent, which must be obtained from the words used in the will. The inquiry is not, what thought did the testator wish to express by the language used, but what thought has bo expressed by the words aud sentences used in his will ? The judicial expositor must interpret the language as it appeal’s in the will, and therefore if the scrivener did not, by reason of lack of knowledge, inadvertence or carelessness on his part, use the language that would properly carry out the intentions of the testator in the disposition of his property, the responsibility is with the testator and not with the court, for its interpretation is based solely on the language as found in the instrument. The rale for the construction of a will in Ohio is well established, being as follows:

First. In the construction of a will the sole purpose of the court should he to ascertain and carry out the intention of the testator.

Second. Such intention must be warranted from the words contained in the will.

Third'. The words contained in the will, if technical, must be taken in their technical sense, unless it appears from the context that they were used by the testator in some secondary sense.

Fourth. All parts of the will must be construed together, and effect, if possible, given to every word contained in it.

Fifth. In construing a will grammatical accuracy need not be obtained, but it should be read with a view to the situation and circumstances of the testator in reference to the subjects of his disposition and the objects of Ms bounty.

Sixth. With these collateral aids to a correct interpretation the will must speak for itself, and the intention of the testator be gathered from what appears on its face.

While these rules are used in the interpretation of wills, yet to lay down any positive and definite rules of universal application in the interpretation of wills is impossible, for every will must stand or fall upon the language used therein and the test that is applied to it, and therefore courts are not inclined to follow rules of construction blindly, but interpret reasonably in each particular case. We feel that our theory as to the rule of construction- applicable to the ease at bar is fully borne out by our Supreme Court in the case of Moon v. Stewart, 87 Ohio St. 349, 357-358 [101 N. E. 344], where Judge Johnson, speaking for the court, says:

“It may be safely remarked that in the report of cases involving the construction of wills it is no longer necessary or profitable to discuss the various general rules which control the inquiry. They are well established, simple and familiar. Buies for construing wills are less rigid than those for construing other instruments. Where a will bears the earmarks, as in this case, of having been drawn by a layman, and not by a lawyer, the court in the endeavor to arrive at the intent of the testator will not view the language technically, but liberally, and with reference to its popular meaning. It is very rare that any two wills present precisely the same question, and therefore in construing doubtful clauses the court will ascertain the intention of the testator, as the language of such clauses may reasonably be interpreted in the particular ease. It has been well said that eases on wills may well guide as to general rules of construction, but unless a case be directly in point in its essential circumstances and data, it should have little weight with the court. ’ ’

Giving to the language of the will under consideration that plain meaning that the words and sentences therein must certainly convey, and applying thereto the rules of interpretation as herein laid down, we can arrive at but one conclusion, and that is that the testator intended to dispose of his property as follows:

First. To Florence E. Miller, his surviving widow, a life . estate in all of the real estate described in his will.

Second. To Florence E. Miller, his surviving widow, all of his personal property, including moneys, absolutely; subject, however, to the payment of his funeral expenses and just debts, if any.

Third. Under the terms and provisions of said will, Albert Summit is entitled to a legacy of two thousand dollars, providing he complies with the conditions imposed upon him in said will, the same to be a lien on the real estate described in the will, subject, however, to the life estate of Florence E. Miller, surviving widow of Hugh A. Miller, the testator.

Fourth. After th.e death of the widow, Florence E. Miller, and the payment of the legacy of two thousand dollars to Albert Summit, provided he complies with the conditions imposed upon him with reference to the said legacy, the one-half of said real estate described in said will shall go to and vest in the said Albert Summit, and one-half shall go to and vest in the Baptist Church, located at Martinsburg, Ohio.

Judgment and decree accordingly.

Shields and Powell,' JJ., concur.