author: ALLREAD, J.

text:
    RAILROADS.
    [Franklin (2nd) Circuit Court,
    May, 1910.]
    Sullivan, Winch, and Allread, JJ.
    (Judge Winch of the eighth circuit, sitting in place of Judge Dustin.)
    State ex rel. Atty. Gen. v. Cleveland & Pittsburg Ry.
    Purchase by a Competing Company oe an Uncompleted Railway Invalid.
    Gen. Code 8807, providing when one railroad may aid, lease or purchase another and Gen. Code 9054 providing when a railroad company may sell its roadbed, when read and construed together prohibit the acquiring by a railway company of a parallel and naturally competing line which is under construction but not yet completed.
    Quo Warranto.

      U. G. Denman, Atty. Gen., Freeman T. Eagleson and Henry Gregg, for plaintiff.

      Henderson, Livesay & Burr, for defendant.
   ALLREAD, J.

Upon demurrer to the amended petition the question is, as to the authority of the Cleveland & Pittsburg Railroad Company to purchase and acquire the right of; way, roadbed and other property of the Steubenville & Toronto Railway Company.

The defendant has a completed railroad in operation and extending as part of its route, from Steubenville to Toronto and Empire. The Steubenville & Toronto Railway Company was chartered to build, acquire and operate a railroad having Steubenville and Empire as termini. In pursuance to the charter the latter company acquired the right of way for said railroad, made surveys and estimates and did other work toward the completion thereof, when the purchase was made by the defendant company.

It is charged that the line of railway proposed and in process of construction by the Steubenville & Toronto Company passes through a populous country and manufacturing district, and mil be, if completed, a parallel and naturally competing road to that of the defendant.

The contention of the attorney-general is that because of the parallelism and naturally .competing character of the two railways, the defendant has no right to acquire the roadway and property of the other.

This contention is founded upon Gen. Code 8807, which provides among other things, that “any company may lease or purchase any part or all of a railroad constructed, or in course of construction by another company, if the lines of their roads are continuous or connected, and not competing,” etc.

The defendant contends that Gen. Code 9054, containing no exception as to competing lines, applies. This section, among other things, provides that, “a company, owning in whole or part a roadbed and right of way for a railroad within this state, * * * which, from lack of means, or other cause is unable to complete the construction of the proposed line of road thereon, may sell, assign, and transfer it or part thereof, to any other company incorporated under the laws of Ohio, with authority to construct and operate a railroad over the same route, or any part thereof,” etc. *

Gen. Code 8807, may, we think, be harmonized and read together. The rule of strict construction of corporate charters having been established in this state, it follows naturally that the general assembly have been called upon from time to time to grant certain specific powers. Gen. Code 8817 confers the power of sale upon a railroad company unable to finish am uncompleted railway. The various steps taken are definitely fixed. No attempt is made in this section to confer power upon the purchasing company. It is purely an enabling act as to the selling company. It has, however, this restriction, that the grantee or acquiring company must be incorporated under the laws of this state, and with authority to construct and operate a railroad over the route proposed to be acquired. This limitation is one upon the grantor company as to the grantee with which it may deal, and clearly the inference that Gen. Code 8817 is to be carried out in harmony with the section granting powers to the purchasing company. The defendant, the purchasing company, can only justify its acquisition of the uncompleted roadway by force of Gen. Code 8807, and it is therefore held to the public policy, therein, clearly established.

By the express terms of Gen. Code 8807 the defendant;, company had no right to acquire the roadbed and right of way of a parallel and naturally competing railway company. The limitation of Gen. Code 9054, that the purchasing company shall be one authorized to construct and operate a line over the route to be acquired, justifies the court in looking to the statutes conferring power upon the purchasing company and in reading-all the sections together. They should, if possible, be so read as to maintain the established policy of the siate against combining by purchase, or otherwise, competing lines of railway.

This is declared in the case of State v. Vanderbilt, 37 Ohio St. 590, 643, in reference to the statute of consolidations, as follows:

“And where companies situated as these are, being parallel and competing, - claim that authority to consolidate has been granted to them, they must be able to point to words in the statute which admit of no other reasonable construction, for it will not be assumed that the law-making power has authorized the creation of a monopoly so detrimental to the public interest. ’ ’

It is argued that the rule of public policy does not apply to an unfinished and abandoned roadway. The fact of abandonment of the roadway does not appear in the amended petition. Besides the “Toroñto” company accepted a charter to build this railway and is acting under its charter in attempting to sell it. It can not in one breath claim its charter in attempting to sell and in another breath say that it has abandoned its charter duty to construct a competing line of railway. Nor does the fact of the abandonment of the construction of the railway afford a reason for excepting its transfer .from establishing rules of public policy. Such recognition of an exception would open up a very convenient loophole for evasion of the various restrictions against acquisition of competing lines of railway.

Objection is made to the prayer for relief and the case of State v. Railway, 50 Ohio St. 239 [33 N. E. Rep. 1051], is cited. The ease cited involved a private right, while the case here in-wolves a public right, viz., the right to exercise certain powers under a charter. The public right involved in the attempt to exceed the charter powers by a corporation is a familiar subject of jurisdiction in actions in quo warranto.

Demurrer overruled.

Sullivan and Winch, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    ACTIONS — COUNTIES—OFFICE AND OFFICER.
    [Hamilton (1st) Circuit Court,
    January 15, 1910.]
    Giffeñ, Smith .and Swing, JJ.

      Walter B. Weaver v. State ex rel. Rulison, Pros. Atty.
    Fees Illegally Paid to County Officer Recoverable.
    An action will lie on hehalf of the state under Gen. Code 2921 for recovery from a county officer of moneys paid to him as fees for which there was no authority of law. State v. Fronizer, 77 Ohio St., 7V distinguished.

      Robert G. Pugh, for plaintiff in error.

      Hunt, Bettman & Merrell, for defendant in error.

      Affirmed, no op., Weaver v. State, 83 O S. 508.

   SMITH, J.

The court is of the opinion that the trial court properly sustained the demurrer to the answer of plaintiff in error. The recovery asked in this ease is for a sum of money retained by plaintiff in error when coroner of this county, in excess of foes legally coming to him under the fee law.

. It is claimed by plaintiff in error that the claim of the state against him for this excess had been adjusted between him and the county commissioners, and that he had paid into the county treasury the sum of $18 to balance the county, and therefore, this adjustment having been made, the state cannot demand under Gen. Code 2921 the return of this excess.

The adjustment as had was simply a payment to the county of salary which he had theretofore drawn, and for which there was no authority of law, and the payment back to him on the part of the county commissioners the amount in excess of the statutory fees to which he was legally entitled. This being so, we do not think the case of State v. Fronizer, 77 Ohio St. 7 [82 N. E. Rep. 518], applies, as the basis of that case was a certain contract entered into between the county commissioners and Fronizer for the construction of a bridge.

The basis of the ease at bar for recovery is the payment to a- county officer by the county commissioners of fees in eon-ducting his office for which there is no statutory provision. The payment was contrary to law. The county commissioners, therefore, could not authorize such a payment, and if consummated and the money paid, the amount so paid can be recovered back. We think the case of Lewis v. State, 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], is decisive of the case at bar. In that case it was held that the board of county commissioners, represents the county in respect to its financial affairs only so far as authority is given to it by statute. While it may pass, upon and adjudicate claims against the 'county for services in a matter which under the statutes may be the subject of a legal claim against the county, yet it is without jurisdiction to-adjudicate claims which in themselves are illegal and of such a nature as not to form a subject i of a valid claim for any amount.

For the above reasons the judgment of the court below will be affirmed.

Qiffen and Swing, JJ., concur.


author: KINKADE, J.

text:
    ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    March 25, 1910.]
    Parker, Wildman and Kinkade, JJ.

      Edward A. Kirk et al. v. Toledo (City) et al.
    Property Provided with Local Drainage Facilities by Construction. or One Sewer is Not Subject to Assessment por Second Sewer.
    Where a sewer has been constructed which provides certain property with facilities for local drainage and the property has. been assessed therefor, the fact that the property owner has-not availed himself of the benefit of the sewer by connecting his property therewith, vdoes not warrant the levying of a second assessment against the same property for a second sewer, so located that the property might be connected with it also for purposes of local drainage.
    Injunction.

      Averrill & Dodd, for plaintiffs:
    Cited and commented upon the following , authorities :• Wewell v. Cincinnati, 45 Ohio St. 407 [15 N. E. Bep. 196];
      Toledo v. Railway, 2 Circ. Dec: 450 (4 R. 113); Toledo v. Potter, 10 Circ. Dec. 748 (19 R. 661); Miller v. Toledo, 5 Dec. 162 (7 N. P.477).

      Cornell Schreiber and B. A. Hayes, for defendants.

      Affirmed, no op., Barfield v. Kirk, 83 O. S. 509.

   KINKADE, J.

This is an action brought to restrain the collection of a sewer assessment placed upon certain property to cover the benefits of local drainage. Two sewers were constructed, sub-main sewers, one known as No. 999 and the other known as 1018, constructed very nearly at the same time. No. 999 runs in Parkwood avenue and in front of some of the property, two' pieces being on one side of the street and the other two on the other side, so that all four lots abut upon sewer 999. The property has been assessed its proper assessment for the construction of this sub-main sewer, and in addition to that all these four pieces have been assessed for local drainage. Since then the other sewer that was constructed at practically the same time and across Parkwood avenue at right angles between two of the-lots and with a branch running back of two of the other lots, and the cost of this other sewer, so far as the benefits arising from local drainage are concerned, has been assessed upon this, same property.

This is an action' brought to restrain the collection of the assessment for local drainage of sewer 1018 on two grounds: first, that the property does not need it, and second, that it is already provided with local drainage. The position taken is that being already provided with local drainage, of course it does not need additional local drainage.

The case is here upon the pleadings and upon an agreed statement of facts, and by the agreed statement of facts it is. shown that if connections were permitted to be made and were made to sewer 999 those connections from this property to that sewer would afford this property, all of it, complete local drainage. It is said by the city that the property is not provided with local draináge so long as the man who owns the property has not' made the connection and availed himself of the local drainage that he has been provided with • and ' assessed to pay and that so long as he does not connect with it and take advantage of this benefit that has been extended to him, the city has a right to construct another sewer and find that that is a benefit to him as local drainage; and the same reason would continue if they went around the four sides of his property and put a sewer on every side, and answered his complaint that he had local drainage by saying the property is not provided with local drainage; it is simply so circumstanced as that you might provide it with local drainage if you connected it, but you haven’t connected it, and therefore you haven’t been provided with local drainage, and consequently we may find that the last of the four sewers surrounding the property affords you benefits for local drainage and assess you accordingly.

We think this position can not be maintained at all. If the first sewer constructed for which a man is assessed for local drainage is so located that the man may connect with it and thereby secure local drainage, we think so soon as it is constructed that he is provided with local drainage, and certainly his property thereafter does not need any additional provision except what he shall put in himself to furnish him such local drainage. We think that the position taken by the city in this matter is entirely untenable, and that the position taken by the plaintiffs here, Kirk and Heffelbauer, should be sustained, and that the city should be restrained from collecting the assessment on sewer 1018 for local drainage for the property described in the petition.

Parker and Wildman, JJ., concur.


author: WILDMAN, J.

text:
    EVIDENCE — NEGLIGENCE—PLEADINGS—WITNESSES.
    [Lucas (6th) Circuit Court,
    June 26, 1909.]
    Wildman and Kinkade, JJ.
    (Parker, J., not sitting.)
    Lake Shore Electric Ry. v. Earl M. Hobart.
    1. Negligence Need not be Charged in Terms when Facts are Alleged which Show Prima Facie Negligence.
    A petition which alleges specific facts making a prima facie case of negligence is not demurrable because negligence is not in terms alleged.

      2. Derailment of Passenger Car under Res Ipsa Loquitur Held Presumption of Negligence.
    The derailment of a passenger car directly resulting in injury to a passenger on such oar, under the principle of res ipsa loquitur, raises a presumption of negligence.
    3. An Alleged Permanent Scar Cannot be Proven to be of a Cancerous Nature.
    Under mention in a petition of an injury as a permanent scar it is error to allow proof that such scar might be of a cancerous and malignant nature; the petition should set out specifically the nature of the injuries relied upon as damage.
    4. Amendment of Petition after Evidence against Objection by Inserting Additional Elements of Damage, is Abuse of Discretion.
    After close of all the evidence and while instructions are being given, it is an abuse of the trial court’s discretion to grant leave to amend the petition so as to insert additional elements of damage to conform to proof which had been admitted against objection.
    5. Facts Assumed in Hypothetical Questions Must First be Established in Case.
    Hypothetical questions addressed to experts are improper when they assume facts as to which there is no evidence.
    6. X-Ray Skiographs Must be Identified before Admissible as Evidence.
    An X-Ray skiograph claimed to be that of plaintiff should be identified as such before it can properly be admitted as evidence.
    7. Testimony of Doctor as to Statements of Subjective Conditions, Pain, etc., Incompetent.
    The testimony of expert witnesses as to statements made by plaintiff during examination of plaintiff to qualify such experts to testify of subjective conditions, pain, etc., which would not be disclosed by usual observations or some other objective that a doctor might make is incompetent.
    [Syllabus, approved by the court.]
    Error to Lucas common pleas court.
   WILDMAN, J.

Hobart brought suit in the court below for an alleged personal injury and obtained a verdict and judgment against the Lake Shore Electric Railway Company in the sum of $9,750. The proceeding here is instituted to reverse that judgment, and numerous errors are assigned as occurring upon the trial below.

I will not attempt to recite specifically all of them, but will pay attention to those deemed by us of the most importance.

It was claimed in the trial court and is very earnestly urged to us, that the petition of the plaintiff demurrable on the ground that it does not state facts constituting a cause of action against the defendant. The petition is a peculiar one. It alleges that the plaintiff was a passenger upon a car of the defendant; that the car was derailed, or left the track, at some point along the line of the defendant’s road, and that by reason of this derailment the plaintiff received serious injuries recited in his petition and upon which he claims damages. It is not in terms alleged that the defendant company was negligent. In other words, it does not appear anywhere by any expressions in the petition that the fact that the ear left the track was due to any negligence of the defendant company, and because of this omission it is insisted that the petition is insufficient. Numerous authorities are cited which tend to sustain this contention, but we feel compelled by the conclusion reached and expressed by the Supreme Court in the Baltimore & O. Ry. v. Kreager, 61 Ohio St. 312 [56 N. E. Rep. 203], to overrule the contention and to hold that the demurrer to the petition was not well taken. That was a case in which the Supreme Court was called upon to construe the statute relative to fires occurring, either upon a railway company’s right of way or lands adjacent thereto. The Supreme Court held that where averments were made in the petition of facts which under the statute would constitute a prima facie case of negligence, it was unnecessary directly to allege that the railway company was negligent.

.There has been some question, and we have very carefully considered it, as to whether this principle so announced by the Supreme Court and made controlling ifi the Kreager case would apply to a case of derailment, or whether it would apply to any case where instead of facts being made prima facie evidence by any statute they are so simply by the course of adjudication and practice in the courts; where, in other words, the doctrine of res ipsa loquitur applies. One of the circuit courts has applied the doctrine to the derailment of a car; another case applies it to the colliding of a car with some obstruction, not another train or car, along the line of the road. Without reciting the language of any of these decisions, I will content myself with simply referring to them so that they may be found in this opinion in ease it should be reported. Baltimore & O. Ry. v. Kreager, supra; Cincinnati St. Ry. v. Kelsey, 6 Circ. Dec. 209 (9 R. 170), and Cincinnati, H. & D. Ry. v. Brown, 6 Circ. Dec. 225, 226 (9 R. 198), a case which was affirmed by the Supreme Court, without report, Railway v. Brown, 55 Ohio St. 665, are Ohio eases which bear closely upon the question. Cases outside of Ohio which will throw great light upon the question, and in which numerous authorities are collated, are the cases of Spellman v. Transit Co. 36 Neb. 890 [55 N. W. Rep. 270; 20 L. R. A. 316; 38 Am. St. Rep. 753], and Barnowski v. Helson, [50 N. W. Rep. 989; 89 Mich. 523; 15 L. R. A. 33], in which a note will be found on page 36, citing numerous authorities upon the general question as to what kinds of accidents occurring to railway trains or ears and bringing injury to a passenger will be deemed prima facie negligence without further evidence. Judge Cooley, in his work on Torts, second edition, top paging 795 or star paging 662, discusses the question, and in his usual clear and forceful manner gives reasons for the conclusions arrived at. Our view is that under the Ohio authorities, supported as they are by some authorities outside of our state, this petition was not demurrable, and that the court did not err in overruling the demurrer to it.

The petition, as I have said, alleged numerous injuries complained of by the plaintiff and made the basis of his petition for a verdict. On the trial the court allowed evidence of injuries, as we look at this evidence, of a character not described in the petition. We think that the petition, in other words, is not broad enough to cover all the elements of damage which were permitted by the court to be considered by the jury. As an illustration, the petition mentioned a certain sear upon the back of the neck of the plaintiff, alleging to be permanent, but with regard to which nothing was indicated in the petition other than that it might be a disfigurement. But upon the trial, out of the mouths of several witnesses, medical experts, evidence was given that this sear may be of a cancerous and malignant nature, and we conceive that it may have been deemed by the jury highly important in their estimate of the amount of damage sustained by the plaintiff. There was evidence of other diseases or troubles, ailments, which were not mentioned in the petition, and the court permitted this, although the introduction of this class of evidence where there were no express averments in the petition, was strenuously objected to by counsel for the defendant. After the introduction of the evidence had closed and some instructions had been given by the court to the jury a request was made by the plaintiff through his counsel for leave to amend the petition so as to insert additional elements of damage, some of these matters to which objections had been interposed and in regard to which evidence had been introduced over such objection. The court permitted this amendment, but even then there was no amendment of the allegation with regard to the scar; and the evidence of its malignant nature and the possibility that it may be of serious injury to the man, as of a cancerous nature, was permitted to stand over the objection of the defendant. We think that the court erred; that it was an abuse of discretion to permit the amendment as to the other matters at that stage of the case, and to conform the pleading to facts shown against' objection. It is true that our statute provides that in furtherance of justice a trial judge may allow an amendment to conform the plaintiff’s pleadings to the facts proved, but it has been held by the courts that this will not be permitted, that it is not in furtherance of justice, where the evidence has been introduced to support claims not disclosed by the pleading and where the introduction is objected to by counsel and its admission is nowhere waived. As I stated to counsel during the argument, I had a case at one time, the case of Roe v. Railway, 13 Dec. 260, when I was a trial judge, in which I did permit such an amendment at the close of plaintiff’s evidence and I was subsequently convinced by an examination of the authorities that I was in error in so doing. The evidence had gone in under objection, and for that reason I granted a new trial of the case. I have no reason since to depart from the conclusion at which I then arrived on the hearing of the motion for a new trial.

We think also that the trial court erred in the admission of certain questions of a hypothetical nature addressed to experts in which some facts were assumed that do not appear in the bill of exceptions as evidence. We are in doubt whether the introduction of this evidence as to some of these questions operated particularly to the prejudice of the plaintiff, or at least so substantially so that we would be inclined to reverse the judgment upon that ground. There was one item in one of the hypothetical questions that to our minds was of a very serious character, and if the objection to the question had been based upon the incorporation in the question of that item we should have little doubt that the court erred, to the great prejudice of the plaintiff in error in permitting the question to be answered. The question recited certain facts including among them the facts of the accident, the derailment of the car, and the plaintiff’s injury, and mentioned that others were hurt and killed at the time of the accident, when it does not appear that any others were killed, and we think that the jury may very 'well have had their feelings to some extent aroused, or their indignation, against the railway company, and have been led to render a verdict more readily against the defendant, or for a greater amount than they otherwise would have rendered. But the objection to that particular question was not that certain things were incorporated in the hypothetical question which ought not to be, but only that the hypothetical question ought to disclose something else, to wit, the manner in which the plaintiff had been treated by the physician, and the court having its attention directed to that particular complaint as to the form of the question, overruled the objection. Hypothetical questions sometimes are quite long, not so very long in this case, but still somewhat longer than ordinary questions, and a trial judge may very well be excused for not remembering at the close of the question every item of it when an objection is made as to some alleged particular defect, and we think that the court can hardly be said to have erred as to that particular question.

We think that the court did err in admitting an x-ray skiograph or radiograph marked PH, which was not sufficiently identified 'by the evidence as a skiograph of'the spine of the plaintiff in this case. We think that the court erred also in permitting testimony of expert witnesses, as to statements made by the plaintiff of subjective conditions, pain and perhaps other symptoms, which would not be disclosed by visual observation, or any other objective test which the doctor might make. Indeed one of these physicians, in speaking of the opinion which he formed, said that it was based as to one point entirely upon the statement made to him by the plaintiff, and it appears that the plaintiff at the time when he was having the examination made was not under treatment by the physician who made it, but that he was having it made for the purpose of using the physician as a witness upon the trial of this case.

Now, the verdict here is a large one. We do not know that it is so large, as under all the circumstances of the case to justify a holding that it was influenced by passion or prejudice on the part of the jury. Evidence had been erroneously introduced or permitted by the court to be introduced to the jury, and being before the jury it was the duty of the jury to consider it. Considering it all, including all these ailments described by the plaintiff and his experts, and especially the one as to the cancerous character of the so-called scar on the back of the neck, the jury may have been justified in rendering the large verdict. But for the prejudicial errors which have been pointed out, the judgment of the court below will be reversed and the case remanded for a new trial.

Kinkade, J., concurs.


text:
    CRIMINAL LAW — SUNDAY LAWS.
    [Hamilton (1st) Circuit Court,
    June 4, 1910.]
    Giffen, Smith and Swing, JJ.
    Nathan Goldsmith v. State of Ohio. And 9 other cases. State of Ohio v. Kate Magrish. And 3 other cases.
    1. Engaging in Common Labor and Causing Store to be Opened on Sunday Constitute Two Offenses.
    Engaging in common labor on Sunday and causing a place to be opened for the transaction of business on such day, proscribed by Gen. Code 13044, are distinct offenses; to charge both in the affidavit and warrant as one offense is bad for duplicity.

      2. Warrant for Violation of Sunday Statute, Required to Set Out Negative. , ,
    A warrant charging common labor on Sunday is Insufficient, if it does not set out the negative averments that the labor performed was not a work of necessity or charity and that it did not come within the other saving clauses of Gen. Code 13045.
    3. Failure of Warrant to Charge Knowledge or Criminal Interest Insufficient-for Sunday Violation Prosecution.
    An affidavit and warrant do- not charge a violation of the Sun- ■ day closing law or the performance of common labor on Sunday, if there is a failure to charge knowledge and criminal intent on the part of the accused.
    4. Warrant Required to State Substance of Accusation, or Contain Affidavit.
    A warrant, neither setting forth the substance charged as required by Gen. Code 13500; nor, incorporating the affidavit therein; nor attaching to nor referring to the affidavit; ncr containing averments as to the county in which the offense is alleged to have occurred, insufficiently lays venue of the offense charged. <
    Error to Hamilton common pleas court.

      Pogue & Pogue, for plaintiffs in error.

      Bates & Meyer,- for defendants in error.
   SMITH, J.

In the first ten cases and last four above named, the plaintiffs in error and defendants in error respectively were arrested, tried and convicted before the mayor of the village of Delhi for an alleged violation of Gen. Code 13044, which prohibits performance of common labor on Sunday.

Upon the hearing of petitions in error to the court of common pleas, the judgments of the mayor in the first five cases were affirmed; in the next five -cases the judgments were affirmed in part and reversed in part, and in the remaining four cases the judgments of the trial court were reversed on the ground that the same were not sustained by the evidence.

From the record it appears that each of the parties was arrested upon affidavits and warrants issued by the mayor of the village of Delhi in the following language, except as to the name of the respective defendants.

“State of Ohio, Hamilton County, ss:
Before me, a notary public in and for said county, came Anthony Fiehtl, who being 'duly sworn according to law, deposeth and saith, that on or about the 15th day of September, 1907, at the county aforesaid, Nathan Goldsmith, being over fourteen years of age, engaged in common labor on the first day of the week, commonly called Sunday, by engaging in the business of selling dry-goods, not being a work of necessity or charity, and also caused to be opened in the county aforesaid and on said day a place for the transaction of business, to-wit, selling dry-goods, not being a work of necessity or charity, and and provided, and further this deponent saith not. ’ ’

(Duly signed by affiant and authenticated by a notary public.)

The warrant reads as follows:

State of Ohio, Hamilton County.
“'Marshal of the Village of Delhi, Greeting.
“Whereas, complainant has been before me, mayor of the village of Delhi, Hamilton county, aforesaid, upon the oath of Anthony Fiehtl, that Nathan Goldsmith being over fourteen years, did, on or about the 15th day of September, 1907, at the county aforesaid, engage in common labor on the first day of the week, commonly called Sunday, by engaging in the business of selling dry-goods, not being a work of necessity or charity, and also caused to be opened in the county aforesaid and on said day a place for the transaction of business, to-wit: selling dry-goods.
“These are therefore to command you to take the said Nathan Goldsmith, if he be found in your county, or if he shall have fled, that you pursue after him into any other county in the state and him take and safely keep, so that you have his body forthwith, before me to answer the said complaint and be further dealt with according to law.
“Given under my hand this 17th day of September, A. D. 1907. “E. E. Kruthoffer,
“Mayor of the Village of Delhi ”

At the trial, motions to quash the information, demurrers to the same and motions to discharge were made in each case, but they were overruled by the trial court j each defendant being adjudged guilty and fined by the mayor.

Objections are made to the judgments rendered 'against the various parties by the trial court for the following reasons:.

First. A venue of the offense can not be ascertained from, the affidavits and warrants.

Second. That the return of the service is defective.

Third. That the affidavits and warrants fail to allege a crime. ' % -

Fourth. That the affidavits and warrants are 'bad for duplicity.

Fifth. That the necessary negative averments ,are not contained in the affidavits and warrants.

Sixth. That- the affidavits and warrants are defective int that they fail to allege criminal intent.

Seventh. The affidavits and warrants are defective in that the second charge is not complete in omitting the necessary exceptions, that the causing to be opened a building or place for the transaction of business was not a work of necessity or charity.

As to the first objection, we are of the opinion that it is well taken. The warrant was based upon the affidavit and should show a copy of it inserted therein, or annexed and referred to, or recite the substance of -the aecusátion. (Gen. Code-13500.) Nowhere therein does it contain an allegation as to the county in which the alleged misdemeanor is claimed to have-occurred, either in the affidavit or in the warrant, both of which* simply refer to the caption which merely sets forth the county-in which the affidavit is taken and the warrant issued. Knight v. State, 54 Ohio St. 365 [43 N. E. Rep. 995].

Second. We find no objection to the return of the service-made upon the various individuals of the affidavit or of the warrant. /

Third. The affidavit and warrant do not, we think, contain words sufficient to charge a crime, for they nowhere charge knowledge and criminal intent on the part of the various individuals arrested. “An affidavit charging the accused with violation of a Sunday closing ordinance is insufficient unless it charges knowledge and criminal intent.” Daugherty v. Dennison, 12 Circ. Dec. 776 (11 N. S. 13), affirmed, no op., Dennison v. Daugherty, 59 Ohio St. 593.

Fourth. In a number, of the affidavits and warrants issued against certain of the individuals, two- alleged misdemeanors are iset out in the same affidavit and warrant, one of performing labor on Sunday and another causing to be opened a place for the transaction of business. These are two distinct offenses, and for this reason the affidavit and warrant relating thereto are bad for duplicity. Duplicity is the joinder of two or more distinct offenses in one count. Bishop, Crim. Proced. Sec. 432. In the cases where the defendants are charged with two offenses in one count and tried on both, the affidavit and warrant were defective for this duplicity. Barnhouse v. State, 31 Ohio St. 39.

Fifth. Under Gen. Code 13045, it was necessary to have set out the negative averments contained in the statute: first, that the performance of the common labor complained of was not a work of necessity or charity, or that, the work did not come within the other saving clauses of the statute. Hirn v. State, 1 Ohio St. 15; Canton v. Nist, 9 Ohio St. 439.

The sixth objection as to not alleging criminal intent is included in and covered by the third objection.

The seventh objection raised by counsel to the affidavits and warrants, we think is fully covered by what the court has heretofore said relating to the omission in the same of the necessary exceptions in the statute.

For the above reasons the judgments in the first ten cases will be reversed and in the last four will be affirmed.

Giffen and Swing, JJ., concur.


author:
WILDMAN, J.
      KINKADE, J.,

text:
    BOYCOTT BY LABOR UNIONS — INJUNCTION TO PRE= VENT.
    [Lucas (6th) Circuit Court,
    January, 1911.]
    Parker, Wildman and Kinkade, JJ.
    McCormick & Fisher v. Local Unions 216 et al.
    1. Peaceable Argument and Persuasion to Divert Trade from Business not Unlawful Boycott.
    Peaceable persuasion and argument, oral, printed or written, by members not officers of labor unions to divert patronage from, a hotel claimed by them to be “unfair to labor” will not be enjoined as an unlawful boycott.
    2. Coercive Measures by Labor Union to Maintain Boycott Enjoin-able.
    Injunction will lie to restrain coercive measures by labor unions in the maintenance of a boycott against a hotel claimed to be “unfair to labor.” Whether or not such claim is well-founded is immaterial.
    3. Restraint by Equity of Coercive Measures, or Violence to Maintain Boycott, no Violation of Right to Jury Trial or Freedom of the Press.
    Coercive measures to enforce a boycott may consist of violence or any form of intimidation such as threats, oral, printed or written. The. restraint of such unlawful acts. by a court of equity does not violate any right of trial by jury or any constitutional provisions as to the freedom of speech or the press.
    4. Passing of Cards Threatening to Publish Names of Patrons of Boycotted Hotel May be Enjoined.
    The distribution by pickets in a labor union boycott, of card3 warning patrons of a hotel and saloon not to patronize the place as unfair, and threatening to publish the names of any who do so may be enjoined.
    [Syllabus by the court.]
    Appeal.

      Sala & Carabin, for plaintiffs:
    Cited and commented upon the following authorities: Martin, Labor Unions Sees. 30, 35, 40, 55, -28, 29, 69, 72, 74, 75, 76, 82, 84, 85, 86, 88, 89, 90, 95, 96, 100-102, 106 ;• Plant v. Woods, 176 Mass. 492 [57 N. E. Rep. 1011; 51 L. R. A. 339; 79 Am. St. Rep. 330]; Berry v. Donovan, 188 Mass. 353 [74 N. E. Rep. 603; 5 L. R. A. (N. S.) 899; 108 Am. St. Rep. 499]; Gray v. Trades Council, 91 Minn. 171 [97 N. W. Rep. 663; 63 L. R. A. 753; 103 Am. St. Rep. 477; 1 Ann. Cas. 172]; Booth v. Bur

      gess, 72 N., J. Eq. 181 [65 Atl. Rep. 226]; Jonas Glass Co. v.' Glass Bottle Blowers’ Assn. 72 N. J. Eq. 653 [66 Atl. Rep. 953]; Barnes v. Berry, 156 Fed. Rep. 72; Curran v. Galen, 152 N. Y. 33 [46 N. E. Rep. 297; 37 L. R. A. 802; 57 Am. St. Rep. 496] ; Purvis v. United Brotherhood {Local), 214 Pa. St. 348 [63 Atl. Rep. 585; 12 L. R. A. (N. S.) 642; 112 Am. St. Rep. 757; 6 Ann. Cas. 275]; American Fed. of Labor v. Stove & Range Co. 33 Dist. Col. 83; Perkins v. Pendleton, 90 Me. 166 [38 Atl. Rep. 96; 60 Am. St. Rep. 252]; State v. Dyer, 67 Vt. 690 [32 Atl. Rep. 814] ; Hopkins v. Stave Co. 83 Fed. Rep. 912 [28 C. C. A. 99; 49 U. S. App. 709]; Crump v. Commonwealth, 84 Ya. 927 [6 S. E. Rep. • 620; 10 Am. St. Rep. 895]; Reynolds v. Davis, 198 Mass. 294 [84 N. E. Rep. 457; 17 L. R. A. (N. S.) 162]; Beck v. Teamsters’ Pro. Union, 118 Mich. 498 [77 N. W. Rep. 13; 42 L. R. A. 407; 74 Am. St. Rep. 421]; Loewe v. Lawlor, 208 U. S. 274 [28 Sup. Ct. Rep. 301; 52 L. Ed. 488]; State v. Glidden, 55 Conn. 46 [8 Atl. Rep. 890; 3 Am. St. Rep. 23]; Luche v: Cutters’ & Trimmers’ Assembly, 77 Md. 396 [26 Atl. Rep. 505; 39 L. R. A. 408; 39 Am. St. Rep. 421]; Punch v. Elevator Co. 142 Iowa 621 [121 N. W. Rep. 53; 24 L. R. A. (N. S.) 108]; Jackson v. Stanfield, 137 Ind. 592 [36 N. E. Rep. 345; 37 N. E. Rep. 14; 23 L. R. A.'588]; Walker v. Cronin, 107 Mass. 555, 567; Graham v. Railway, 47 La. Ann. 214 [16 So. Rep. 806; 27 L. R. A. 416; 49 Am. St. Rep. 366]; Delz v. Winfree, 80 Tex. 400 [16 S. W. Rep. Ill; 26 Am. St. Rep. 755] ; Gatzow v. Buening, 106 YTis. 1 [81 N. W. Rep. 1003; 49 L. R. A. 475; 80 Am. St. Rep. 17] ; Jersey City Ptg. Co. v. Cassidy, 63 N. J. Eq. 759 [53 Atl. Rep. 230]; Jones v. Gin & Machine Whs. 131 Ga. 336 [62 S. E. Rep. 236; 17 L. R. A. (N. S.) 848; 127 Am. St. Rep. 235]; Doremus v. Hennessy, 176 111. 608 [52 N. E. Rep. 924; 54 N. E. Rep. 524; 43 L. R. A. 797; 68 Am. St. Rep. 203]; Moores v. Bricklayers’ Union, 10 Dec. Re. 665 (23 Bull. 48), affirmed, no op., Bricklayers’ Union v. Moores, 51 Ohio St. 605; Packer v. Bricklayers’ Union, 10 Dee. Re. 458 (21 Bull. 223), affirmed, no op., Bricklayers’ Union v. Parker, 51 Ohio St. 603; Humphryes Mfg.- Co. v. Matthias, 12 Dec. 517; Brunsman v. Atherton, 12 Dec. 547; Dayton Mfg. Co. v. Polishers Union, 11 Dec. 643 (8 N. P. 574); Hillenbrand v. Building Trades Council, 14 Dec.
      628; Eureka Foundry Co. v, Leliker, 13 Dec. 398; Martin v. Mo-Fall, 65 N. J. Eq. 91 [55 Atl. Rep. 465]; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421 [114 S. W. Rep. 997; 22 L. R. A. (N. S.) 607; 128 Am. St. Rep. 492]; Wilson v. Hey, 232 111. 389 [83 N. E. Rep. 928; 122 Am. St. Rep. 119]; Jensen v. Cooks’ and Waiters’ Union, 39 Wash. 531 [81 Pac. Rep. 1069; 4 L. R. A. (N. S.) 302]; Casey v. Typographical Union, 6 O. F. D. 698 145 Fed. Rep. 135] ; Goldberg v. Stableman’s Union, 149 Cal. 429 [86 Pac. Rep. 806; 8 L. R. A. (N. S.) 460; 117 Am. St. Rep. 145; 9 Ann. Cas. 1219]; Mulholland v. Waiters’ Local Union, 13 Dec. 342, 343; Loewe v. Federation of Labor, 139 Fed. Rep. 71; Gray v. Building Trades Council, 91 Minn. 171 [97 N. W. Rep. 663; 63 L. R. A. 753; 103 Am. St. Rep. 477; 1 Ann. Cas. 172]; Ertz v. Produce Exchange, 79 Minni 140 [81 N. W. Rep. 737; 48 L. R. A. 90; 79 Am. St. Rep. 433]; Barr v. Essex Trades Council, 53 N. J. Eq. 10Í [30 Atl. Rep. 881]; Barnes v. Typographical Union, 232 111. 424 [83 N. W. Rep. 940; 14 L. R. A. (N. S.) 1018; 13 Ann. Cas. 54]; Vegelahn v. Gunter, 167 Mass. 92 [44 N. E. Rep. 1077; 35 L. R. A. 722; 57 Am. St. 443] ; Maryland Lodge v. Ádt, 100 Md. 238 [59 Atl. Rep. 721; 68 L. R. A. 752]; Seattle Breiu. Malt. Co. v. Hansen, 144 Fed. Rep. 1011; Parkinson v. Building Trades Council, 154 Cal. 581 [98 Pac. Rep. 1027; 21 L. R. A. (N. S.) 550; 16 Ann. Cas. 1165]; Lindsay v. Federation of Labor, 37 Mont. 264 [96 Pac. Rep. 127; 18 L. R. A. (N. S.) 707; 127 Am. St. Rep. 722]; Marx & Haas Jeans Cloth. Co. v. Watson, 168 Mo. 133 [67 S. W. Rep. 391; 56 L. R. A. 951; 90 Am. St. Rep. 440] ; Buck Stove & Range Co. v. Federation of Labor, 35 Wash. L. Rep. 797; Sherry v. Perkins, 147 Mass. 212 [17 N. E. Rep. 307; 9 Am. St. Rep. 689]; Coeur D A’lene -Con. Min. Co. v. Miners’ Union, 51 Fed. Rep. 260; Wilson v. Hey, 232 111. 389 [83 N. E. Rep. 928; 16 L. R. A. (N. S.) 85; 122 Am. St. Rep, 119 ; 13 Ann. Cas. 82]; Judson v. Zurhorst, 30 O. C. C. 9 (10 N. S. 289), affirmed, no op., Judson v. Zurhorst, 78 Ohio St. 446; National Protective Assn. v. Cumming, 170 N. Y. 315 [63 N. E. Rep. 369; 58 L. R. A. 135; 88 Am. St. Rep, 648]; Jacobs v. Cohen. 183 N. Y. 207 [76 N. E. Rep. 5; 2 L. R. A. (N. S.) 292; 111 Am. St. Rep. 730; 5 Ann. Cas. 280]; Pierce v. Stablemen’s

      Union, 103 Pac. Eep. 324 (Cal.); Marlin Firearms Co. v. Shields, 171 N. T. 384 [64 N. E. Eep. 163; 59 L. E. A. 310]; Emach v. Kane, 34 Fed. Eep. 46; 2 Story, Eq. Jurisp. Sec. 948a; 6 Pomeroy, Eq. Jurisp. Sec. 629; Farquhar v. National Harrow Co. 102 Fed. Eep. 714 [42 C. C. A. 600; 49 L. E. A. 755]; Prudential Ins. Co. v. Knott, 10 Ch. App. Cas. 142; Springhead Spinning Co. v. Riley, L. E. 6 Eq.; Consolidated Steel & Wire Co. v. Murray, 10 O. F. D. 205 [80 Fed. Eep. 811]; Debs, In re, 158 U. S. 564 [15 Sup. Ct. Eep. 900; 39 L. Ed. 1092].

      Charles Lawton, for defendants:
    Cited and commented upon by the following authorities: Ulery v. Livestock Exchange, 54 111. App. 233; Riggs v. Waiter Alliance Local 58, 8 Dec. 565 (5 N. P. 386); Richter v. Tailors Union, 11 Dec. Ee. 45 (24 Bull. 189); Judson v. Zurhorst, 30 O. C. C. 9 (10 N. S. 289); Parkinson Co. v. Building Trades Council, 154 Cal. 581 [98 Pac. Eep. 1027; 21 L. E. A. (N. S.) 550; 16 Ann. Cas. 1165] ; Lindsay v. Federation of Labor, 37 Mont. 264 [96 Pac. Eep. 127; 18 L. E. A. (N. S.) 707; Marx & Hass Jean Cloth. Co. v. Watson, 168 Mo. 133 [67 S. W. Eep. 391; 56 It. E. A. 951; 90 Am. St. Eep. 440]; Ricard Boiler & Engine Co. v. Benner, 14 Dec. 357; People v. Radt, 71 N. T. Supp. 846; State v. Jacobs, 10 Dec. 252 (7 N. P. 261).
   WILDMAN, J.

The plaintiffs, owning and operating as partners the Grand Hotel on Adams street in this city, and in connection therewith a saloon and restaurant, in May, 1910, became involved in a dispute with the defendant associations named in the title of the case, which are voluntary unincorporated labor organizations, and officers of the same. The trouble arose over the retention in the service of the plaintiffs of certain bartenders, members of the defendant unions, after request of those organizations that they be discharged from the plaintiffs’ employment because they were in default for their dues as such members and were therefore not in good standing.

As an outcome of the dispute, on or about May 12, 1910, a boycott was organized and pickets were posted on the sidewalks in front of said hotel, saloon and restaurant, to distribute printed cards containing notices or information that said hotel was “unfair” to labor, and requesting friends of labor not to patronize it. The cards prepared for this purpose and distributed by said pickets varied somewhat in their phraseology, but were all designed to divert patronage from the hotel named. They were all persuasive in character, rather than mandatory or threatening, except that on the backs of some of them, the precise time of the distribution of which is not made clear by the evidence, was printed a warning notice as follows “Names of Business Men patronizing the Unfair Hotel Grand will be published. ’ ’

The- boycott so inaugurated has continued to the present time, to the heavy financial loss of the plaintiffs, as they assert.

August 12, 1910, the plaintiffs filed their petition in the court of common pleas, asking an injunction to restrain all said acts and all interference with their employes and patrons. The action having come into our court by appeal, two of its members, Judge Parker and myself, on October 14, 1910, allowed a temporary injunction in the following terms.

“This 14th day of October, 1910, this cause came on to be heard before the Hons. R. S. Parker, R. R. Kinkade and S. A. Wildman, judges of the circuit court in and for Lucas county, Ohio, at chambers in Toledo, Ohio, on the motion of the plaintiffs for a temporary injunction as prayed for in their petition and the evidence and was argued by counsel; on consideration whereof it is hereby ordered by the undersigned the said judges R. S. Parker, and S. A. Wildman that the defendants and each of them be and they are hereby enjoined until otherwise ordered herein from interfering with said plaintiffs, or their patrons or persons going to or from their said premises, by threats, oral, printed or written of injury to their persons, property or .business, or by insults, personal violence, or other forms of intimidation, or from entering in and upon the premises of the plaintiffs, against the will of the latter, or in any manner keeping or endeavoring to keep any person or persons against the will of .such person or persons from becoming or remaining patrons of the plaintiff; and to this extent said motion is sustained;

But in so far as said motion seeks to restrain the defendants from standing or walking on the sidewalk, or street, on which plaintiffs’ said premises abut, and there or elsewhere, without insults, threats, violence or other intimidation, persuading or attempting to persuade persons not to patronize plaintiffs, said motion is hereby overruled. ’ ’

I have quoted this order as journalized, in full, because of some misunderstanding which seems to have arisen immediately after its rendition as to its terms.

It is not apparent, however, from any of the supplementary evidence which has been submitted to us, that, since the entering of this order, it has been in any manner disobeyed. Picketing in the vicinity of the hotel has been continued and printed cards have been distributed, but no intimidation or coercion has apparently been resorted to to divert patronage.

Unless the mere maintenance of a peaceable boycott is sufficient to justify an exercise of the restraining power of a court of equity, we should not in any final decree enlarge the scope of the interlocutory order already made as I have quoted it. That order was directed at coercion, not persuasion.

After an earnest consideration of the facts disclosed by all the evidence and numerous expressions of views entertained by courts and text writers, it is a matter of regret that the members of our court find themselves not wholly in accord. To a majority of us, however, it seems not only just, but abundantly sustained by the authority of eminent jurists, that any combination of persons to effect a diversion of trade or patronage from another person, firm or corporation by violence, threats, intimidation or other form of coercion, must be deemed unlawful, and that to prevent such acts a court of equity should not withhold its protection when its powers are invoked.

On the other hand, for myself at least, I cannot accept the doctrine expressed by some writers and judges, that while an individual may lawfully withdraw his patronage from any person or concern, a labor union or other combination of persons may not lawfully do the same thing; or that while an individual may lawfully ask his friends to withdraw their patronage from any institution which he deems unfair to him or unfriendly to his interests, numerous individuals may not, severally or in combination, likewise do so.

While the numerous and rapidly multiplying authorities treating the troublesome question arising in disputes between capital and labor cannot be harmonized, the view which seems to me just, that acts which are lawful to individuals are equally so to combinations of individuals where not prohibited by statute, finds some support in the language of Judge Taft in the case of Moores v. Bricklayers’ Union, 10 Dec. Re. 665, 668 (23 Bull. 48), affirmed, no op., Bricklayers’ Union v. Moores, 51 Ohio St. 605.

The same ease, so affirmed, is authority for the position taken by us in the interlocutory order, that coercive means, although for an end not unlawful, will be restrained by a court of equity.

A majority of the court is disposed to adhere to this position. I will not attempt the citation of authorities to sustain it, but will content myself with two brief quotations from the recently published treatise of Martin, Law of Labor Unions Secs. 75, 76, p. 115:

"A combination of workmen formed for the purpose of coercing the customers or prospective customers of one against Whom it is directed to withhold their patronage from him is almost universally held to be an unlawful conspiracy.”
"According to the great weight of authority it is an unlawful conspiracy for a combination of workmen to combine to coerce one’s customers or prospective customers to withhold their patronage from him by threats that in case they fail or refuse to do so, the combination will in turn cause injury to their business by causing loss of patronage. ’ ’

The author of this treatise is also reviewing editor of the Cyc. Law & Proced., and seems to have collated the numerous adjudications on the subject.

Our examination of the evidence before us leads to the conclusion that in at least the earlier stages of the boycott against the Grand Hotel the distinction between lawful, peaceable persuasion and unlawful' coercion was not sufficiently regarded by the members and agents of the unions by whose authority printed tickets were procured and distributed in front of the hotel. Not all the officers of the unions or their agents are shown to have used other then legitimate means for the accomplishment of the concerted purpose, but some, over-zealous, seem to.have forcibly interfered to prevent patronage of the hotel.

It is too familiar a rule to require citation of authority that the acts of one member of a combination in furtherance of a common end must be deemed the acts of all.

We are also inclined to the view that the cards circulated at some stage of the proceedings bearing words of warning to patrons of the hotel that their names would be published, carried, an implied threat that the result would be injurious to them. Otherwise, the notice would have had no deterrent effect and would" have been futile as a means of furthering the boycott.

That the result of all these acts, persuasive and coercive, has-been a heavy loss of patronage to the plaintiffs, .and that it is-utterly impracticable to measure in damages the extent to which such loss has been or may be enhanced by such of them as we have described as overstepping legal bounds, is clearly disclosed by the evidence, so that, even without the admission made in, the record that the defendants are insolvent, no legal remedy is apparent, and the plaintiffs were justified in the institution of the action.

It is the judgment of a majority of the court that the temporary injunction heretofore allowed against the defendants should be made perpetual, and such will be the decree. We do> not feel called upon to discuss the question urged in argument by counsel, whether the boycott was or was not justified by any unfair attitude of the plaintiffs toward labor, or whether the distributed cards were true or libelous. Even if they were all libelous, the court, as we held in Judson v. Zurhorst, 30 O. C. C. 9 (10 N. S. 289), would not enjoin their circulation for that reason.

Authority for injunction against voluntary unincorporated associations, their officers, and members, is found in the case of Hillenbrand v. Building Trades Council, 14 Dec. 628, 629 and the numerous decisions cited in the opinion.

Parker, J., concurs.

KINKADE, J.,

dissenting.

In this ease the defendants are charged with soliciting persons not to patronize the Grand Hotel owned by the plaintiffs, for the reason, as stated by defendants in making sneh requests, that the hotel was unfair to union labor. These requests were courteously made on the public street of persons going to and coming from the hotel, and of the public generally in passing by the hotel, by means of personal requests on the street and by the use of printed cards handed to various persons on the street by the defendants. Different statements were made, and several different forms of printed cards were used, but all, with one exception (hereafter mentioned), were of the same general tenor and effect, that is to say, they were requests to the friends of union labor not to patronize the hotel for the reason above stated. One card, used for a very short time and then abandoned, gave notice that the names of persons patronizing the hotel would be published. Certain acts of violence are’ charged against the defendants, which I think the evidence fails to establish. During the time of the alleged boycott, the plain- ' tiffs, aided by the Citizens’ Industrial Alliance, an antilabor union organization, caused to be printed and circulated generally throughout the city, cards stating that a boycott was on against their hotel, and requesting the public to disregard the boycott and continue its patronage of the hotel, and thereby rebuke the methods of the labor unions. The plaintiffs also had painted and hung in the front window of the hotel a large banner, giving notice to all who- passed that that was the place that was boycotted.

A great deal of the evidence found in the record appears to have been offered by both sides as bearing upon the question whether the hotel proprietors, plaintiffs here, were in fact unfair to union labor, whether the defendants were or were not justified in determining, as they did, that the hotel was unfair to union labor. We aré unanimous in the opinion that practically all of this evidence is quite immaterial in considering the real questions here involved. No more need be said of this feature of the case than that the proprietors of the hotel thought the defendants had no just complaint against them, and that the defendants were equally sure that they had. We deem it wholly unnecessary to pass upon the relative merits of these claims in order to determine the real questions arising here.

The question of the liberty of speech and of the press is. squarely made in this case, and the parties are entitled to have the question squarely passed upon by the court. The chief counsel for the plaintiffs, in the opening of his argument, with commendable frankness stated that while that which had taken place was of serious consequence to the plaintiffs, yet the principles involved in the ease were of far greater importance to the public generally.

The plaintiffs ask that all of the individual defendants named, as well as all other members (though not named individually) of the two local unions, defendants in this action, and also the two local unions as well, be perpetually enjoined from soliciting persons not to patronize the Grand Hotel, and from giving out to the public any statement that the Grand Hotel is unfair to union labor. A majority of the court are of the opinion that an injunction should be granted on behalf of the plaintiffs, as indicated by the opinion just delivered.

I cannot concur in the decision of the majority of this court.

In my opinion, no court in Ohio has the power to restrain, by injunction, the liberty of speech or of the press. The whole subject is fully covered by Art. 1, Sec. 11 Const, of Ohio, which, reads as follows:

“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions ¡ for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous, is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.”

There is no uncertainty in this provision of the constitution. The language is simple, plain and very broad in its scope, and if this provision does not insure the citizens of Ohio against, censorship of speech and of the press, by injunction, it may well be doubted whether anything could be written which would. No one doubts but what the abuse of the right of free speech can be and ought to be punished. The section of the constitution quoted clearly contemplates this, and the legislature has full power to enact all necessary laws in this regard. But there can be no abuse of the right until there is an exercise of the right. I think the question whether there has been an abuse of the right in any ease should be determined by a jury under proper instructions from the court, and not by a judge. With 'all due respect for the opinions of others who entertain views at variance with my own on this subject, I feel obliged to say that I regard the restraining of the freedom of speech or of the press, by injunction, as the exercise of a power plainly prohibited by the constitution. It is my firm conviction that no court should ever be clothed with any such power. Punishing the abuse of the right of free speech is one thing (and is entirely proper), but the muzzling of the citizen or the press, with an injunction, so there can be no exercise of the right of free speech, is a very different thing, and in my opinion is a very dangerous thing.

The constitution does not direct the legislature or the courts to determine to what extent we shall have free speech or a free press, but, on the contrary, the constitution itself grants to “every citizen” the right to “freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right” and then adds “and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

The legislature has never attempted to pass any law narrowing this provision of the constitution, or in any way denying the rights therein granted, and were it to do so, . the courts would very promptly, and very properly, declare such a law unconstitutional.

The language of the constitution is so very plain, it needs only to be read to be fully understood by any one. Unless something be read into the section that is no.t there, or a portion of what is there be disregarded, I am unable to see how an injunction restraining the freedom of speech or of the press can possibly be in accord with the constitution.

It is a fact that practically all of the encroachments upon the right of free speech and a free press, up to date, have been made by the courts themselves, the sworn defenders of the constitution. Doubtless they have regarded the urgency of the ends sought as a justification of the extraordinary means employed, even to the extent of denying the right of trial by a jury; but to these extremes I must respectfully decline to go.

No greater mistake’can be made than to underestimate the importance of free speech and of a free press. These rights are among the strongest bulwarks of liberty. It is our duty to guard them with jealous care, and this duty should appeal with peculiar force to the courts. They should never lend their assent or assistance to the weakening or paralyzing of those constitutional rights, -without which liberty cannot long exist.

The Supreme Court of the United States, in a case involving the boundary line of states where marked by rivers, discussed the question of the shifting of the boundary line by reason' of the bank of the river slowly wearing away on one side and accumulating on the other. They held that land thus accumulated, by accretion, upon one'side of a river, belonged to the state upon that side, and that the boundary line between the states shifted accordingly (not so where the river changed ''its course suddenly, as by a freshet. In such case the boundary line is not altered). In that ease the Supreme Court defined the word “accretion” as meaning, “something which you can see has taken place, but which you cannot see take place.”

If some of the courts which have issued injunctions in labor troubles were inquired of as to the source of their power, to go to the lengths they have gone in some cases in restraining, by injunction, breaches of the peace and violations of the criminal law generally, they might be compelled to answer “we got it by accretion, by the gradual wearing away of the power of the executive branch of the government as aided by the regular criminal courts, and a corresponding increase in power, by accretion, on the part of courts of equity, to substitute the injunction for the neglect of duty on the part of executive officers and in the place of jury trials in- the regular criminal courts.” They might add “Of course no one saw us get this power, but all now know that the ancient boundary lines have shifted and that we are now exercising the power.”

We may admit the existence of a power, and still deny the wisdom of exercising it except in extraordinary eases, and then only with very great caution. It is very easy to issue an injunction, and it is a very ready and summary method for the court to determine, without the aid of a jury, whether there has been a violation of the order. No one doubts the simplicity or efficiency of injunction procedure; these are the qualities that render it attractive to people who prefer, when it better suits their own purposes, to omit the limitations and restraints incident to jury trials. Were these same people themselves on trial for a violation of the criminal law, they would stand aghast if any one suggested that the jury be dispensed with and that they be tried by the court, they would be amazed, and justly so, at both the ignorance and the effrontery of any one who would thus seek to deny them their constitutional rights.

I want to say, with all the seriousness and emphasis at my command, that in my humble opinion the reckless use of the writ of injunction is itself producing an injury that may well be described as irreparable. I refer to the impairing of the confidence of the people generally in the courts. We have certainly reached the danger line.

I wish to say, concerning this ease, that in my opinion the evidence here fails to show that the plaintiffs are entitled to the relief asked for. I have read every word of the evidence in this record, including the exhibits attached, and without taking time to review it in detail, will say that I think we should dismiss the petition of the plaintiffs at the plaintiffs’ costs.


author: GIFFEN, P. J.

text:
    MUNICIPAL CORPORATIONS — NUISANCES. v
    [Hamilton (1st) Circuit Court,
    June 18, 1910.]
    Giffen, Swing and Smith, JJ.

      Charles Brown v. St. Bernard (Vil.). Andrew Schueler v. St. Bernard (Vil.).
    Suppression of Nuisance by Municipal Ordinance is Effective.
    Relief from nuisance may be effected under a general prohibitory,, municipal ordinance, enacted pursuant to Gen. Code 3650, “to prevent injury or annoyance” to the public; it is not restricted to the criminal prosecution prescribed by Gen. Code 12646.

      D. S. Oliver, for plaintiff in error:
    Cited and commented upon the following authorities:

      Townsend v. Circleville, 78 Ohio St. 122 [84 N. E. Rep. 792; 16 L. R. A. (N. S.) 914] ; Eller v. Koehler, 68 Ohio St. 51 [67 N. E. Rep. 89] ; Commonwealth v. Miller, 139 Pa. 77 [21 Atl. Rep. 138; 23 Am. St. Rep. 170]; Hamilton v. State, 78'Ohio St. 76 [84 N. E. Rep. 601] ; Wiggins v. Henderson, 22 Nev. 103 [36 Pac. Rep. 459].

      Affirming Brown v. St. Bernard, 20 Dec. 422.

   GIFFEN, P. J.

The plaintiff in error was charged with violation of an ordinance of ihe village of St. Bernard, tried, convicted and sentenced to pay a fine of $100. Section 2 of the ordinance, being the one under which the affidavit was made, is as follows:

“That it shall be unlawful for any person, whether he be owner, manager, superintendent, foreman or employe, within the limits of said village to manufacture, or produce, or assist in the manufacture or production of any fertilizer, or other product from which in the process qf manufacture, or production, offensive or unwholesome odors arise or are given off.”

It is claimed that the village council had no power to pass the ordinance, because the acts prohibited were made unlawful by Gen. Code 12646 which furnished the exclusive remedy.

It is evident, however, that the legislature did not intend to limit the remedy to this section only, as it conferred general power upon municipal corporations by Gen. Code 3650 of the municipal code, ‘ to prevent injury or annoyance from anything dangerous, offensive, or unwholesome; to cause any nuisance to be abated,” and it was under authority of this section that the ordinance was passed.

The objection that the ordinance is not legislation against a public nuisance, is apparently though not really sound, the argument being that the statute empowers municipal corporations “to prevent injury or annoyance” presumably to the public, and not to prevent the creation or maintenance of “anything dangerous, offensive or unwholesome” regardless of its effect upon the public.

It being conceded by counsel for both parties that a municipality can legislate against a public nuisance only, the ordinance should be construed with this limitation of power in view, and thereby avoid the absurd consequence of a literal construction. It is not reasonable to suppose that the village council intended to punish by fine every person who manufactured or assisted in manufacturing an article that gave off an offensive odor in the factory but in nowise affected the public.

In the case of Clark v. Fry, 8 Ohio St. 358 [72 Am. Dec. 590], a similar ordinance was before the court, and it held in the third proposition of the syllabus:

“A city ordinance, imposing, in general terms, a penalty-on any person for incumbering or obstructing any part of any street, lane or alley, etc., rationally construed, has manifest reference to nuisances — in other words, to incumbrances, or obstructions, which, but for some special license, would be unlawful.”

The same reasoning applied to the ordinance before us leads to the conclusion that it was intended to make unlawful sucht offensive odors as would cause injury or annoyance to the public. The affidavit upon which the warrant issued contained the statement “to the annoyance of the public,” so that the plaintiff in error was fully advised of the nature of the charge. It would no doubt have been better, in framing the ordinance, to conclude with the words “to the injury or annoyance of the public,”' or other words of like import as in Gen. Code 12646; but the omission seems not fatal.

The ordinance is not restricted in its application to the business of manufacturing fertilizer, but was intended to prevent offensive or unwholesome odors in the manufacture of any product, and hence the rule stated in the case of Schultz v. Cambridge, 38 Ohio St. 659, does not apply.

In excepting to the exclusion of evidence offered in chief, counsel for the defendant failed to state what the expected proof would be, and hence it can not now be said that the ruling of the court was prejudicial. No* such statement is required on cross-examination; but the evidence thus excluded was either inadmissible or without prejudice.

The report of the committee of the state board of health tended to prove the charge made in the affidavit and the exclusion therefore was not prejudicial to the defendant.

There being no substantial error in the record the judgment will be affirmed.

Swing and Smith, JJ., concur.


author: WILDMAN, J. KINKADE, J., PARKER, J.,

text:
    CONSTITUTIONAL LAW — FISH AND GAME.
    [Sandusky (6th) Circuit Court,
    October 13, 1910.]
    Parker, Wildman and Kinkade, JJ.

      Richard Jackson v. State.
    1. Gen. Code 1453, Authorizing Commissioners of Pish and Game to • Issue Permits to Catch Carp in a Net, is Constitutional.
    issue permits to catch carp in a net is constitutional, but such commissioners have- no power to place any limits on the place where such permit shall be used other than that provided, in said section, and any attempted limitation will be disregarded.
    2. Waters of A Creek Which Plow Into Lake Erie and are on A Level With the Lake are Within Meaning of Gen. Code 1453.
    A place in a creek which flows into Sandusky Bay the waters of which are on a level with the bay and Lake Erie and subject to rise and fall under the same influences as affect the surface of the lake, is a water within the meaning of Gen. Code 1453 authorizing the catching of carp in nets therein when permission to do so has been obtained from the commissioners of fish and game.
    [Syllabus approved by the court.]
    Error to Sandusky common pleas court.

      George A. True and Buel H. Crawford, for plaintiff in error.

      U. G. Denman, Atty. Gen., and E. H. Froehlich,, for defendant in error.
    Cited and commented upon the following authorities: Bodi v. Shooting Club, 57 Ohio St. 226 [48 N. E. Rep. 944]; modifying, Winous Point Shooting Chib v. Bodi, 10 Circ. Dec. 544 (20 R. 637) ; French v. Shirley, 9 Dee. 181 (7 N. P. 26) ; Angelí, Tide Waters (2 ed.) p. 73; Peyroux v. Howard, 32 U. S. (7 Pet.) 324 [8 L. Ed. 701]; Sloan v. Biemiller, 34 Ohio St. 492; Winous Point Shooting Club v. Caspersen, 66 Ohio St. 687. affirming, Winous Point Shooting Club v. Caspersen, 14 O. F. D. 319 [193 ITS. 189],

      Affirmed, no op., State v. Jackson, 84 O. S. 498.

   WILDMAN, J.

This case is an exceedingly interesting one, in which there is a temptation to render a somewhat more elaborate opinion, in stating the conclusions which we have reached, than our time will allow.

Mr. Jackson was convicted before a magistrate of a violation of Sec. 9 of the Fish and Game law, which has now been embodied in Gen. Code 1426. It is the section which prohibits fishing with certain nets and in a certain manner in the inland fishing district of this state. It was charged in the first count of the affidavit, in substance, “that he did knowingly, wilfully and unlawfully draw, set, pláce, locate and maintain a certain seine in the Inland Fishing District of said state, to wit, in the waters of Mud Creek.”

There is a second count in the affidavit, but inasmuch as the magistrate found him not guilty as charged in that, it is not .necessary to read or discuss it.

The defendant concedes that he had spread his net in the waters of Mud Creek, so-called, but he says that Mud Creek is .an estuary, inlet, creek or marsh along the border or near the .border of Lake Erie; that he was up the stream, if we may -call it such, some little distance from Horseshoe Island. His iclaim is that Horseshoe Island is at the mouth of the creek; that the creek substantially ends at Horseshoe Island. He says he was fishing for carp by virtue of his rights under the law, fortified by a permit from the commissioners of Fish and Game of this state.

The statute providing for such a permit is found in Gen. Code 1453. After various provisions prohibiting in some instances, the fishing in certain waters, and in others restricting the manner in which fishing shall be done, we have this provision in the section so numbered:

“German carp may be taken or caught at any time in the bays, marshes, estuaries or inlets bordering upon, flowing into or in any manner connected with Lake Erie, with any seine, having meshes not less than four inches, stretched mesh. Other nets or devices may be used if authorized by the commissioners of fish and game. Written permission to catch carp in such waters shall be granted to any person making application to the commissioners for such privilege who satisfies the commissioners •.that he will not violate a law for the protection of fish. Such permission may be revoked by tbe commissioners upon conviction of the holder thereof for taking fish contrary to law.”

Under the former statute providing for permits from the fish and game commission to fish for carp, a question was raised before me, at that time on the common pleas bench, as to the constitutionality of the enactment; and construing the act as it then stood, as giving an arbitrary power to the fish and game commissioners to grant permits according to their own caprice, without any qualification as to the grounds upon which such permits should be issued, I deemed and held the law unconstitutional. Since then the statute has taken its present form, and there is now this qualification to the granting of the permits; that the applicant shall satisfy the commissioners that he will not violate the law. And where he has so satisfied them the granting of the permit is now made a mandatpry duty of the fish and game commissioners.

The first question to which we are invited is whether the amendment to the legislation has cured it of the invalidity of the original act; and we are inclined to think that it has. "We think that it is now more like enactments providing for licenses for various occupations or acts, and that it is no longer left to the capricious will of the commissioners, so that they may no longer exercise favoritism, but in all cases, the act being universal in its operation, any. person who can satisfy the-commissioners that he will 'not violate the law is entitled to the permit which the statute specifies.

It then becomes an interesting question, assuming the validity of the law, as to what sort of a permit the commission is required to issue, and it is very forcibly urged on the part of counsel for the plaintiff in error that if he is entitled to a permit at all, that permission must be as broad as the law. In other words, that if they cannot discriminate among persons, neither can they discriminate among waters; that is, they cannot say: “You may fish here, but you must not fish there”; but that the law contemplates that if he satisfies the commissioners that he will not violate the law, he may fish in all marshes, estuaries, inlets or bays which are in any manner connected with Lake Erie.

Speaking for myself, I am inclined to adopt this view, and I do not know that my associates are out of harmony with me in it. It is, perhaps, not essential that we should make this holding. It is entirely possible that these commissioners intended, íd this permit, to include in their description of the waters to which it applied, all the waters which are contemplated by the statute, They have enumerated in the permit before me, various waters, “From the Maumee Bay to a point not above the east end of Presque Isle,” below Toledo; and “Sandusky Bay at a point not above or west of a line drawn from the south point of Eagle Island, including Mud Creek to Horseshoe Island,” etc. They have enumerated these various places in which they attempt to grant permission to fish for carp, and it is possible that they intend to include therein all .the waters which they consider in any manner connected with Lake Erie. But whether that is so or not, it seems to me that having defined Mud Creek as far as, or to, Horseshoe Island, they included the particular water in which the defendant below, plaintiff in error here, was found fishing, or where his nets were found spread, as stated in the agreed statement of facts, and upon the basis of which agreed statement of facts he was convicted.

But it is said, upon the other side, that the waters in which his seine was placed were not embraced in these defined limits of the statute, so that even if the fish and game commissioners attempted to give him a permit to fish there, they had no power so to dq, and he would be a violator of the law, unprotected by the written permit in his hands; and this brings us directly to the question whether the waters, as described in this agreed statement of facts, were such as come within the purview of this statute.

In a very full brief furnished us by counsel for plaintiff in error we are given definitions from different lexicons and other authorities of the terms “estuary,” “inlet,” “bay,” and “creek.” At the point where this seine was spread, the so-called Mud Creek was some 600 feet wide, and some six feet deep. The agreed statement of facts says that the waters at this point were on a level with Sandusky Bay, and with Lake Erie. It is agreed that the waters of the so-called Mud Creek rise and fall as the waters of the lake rise and fall under the influence of winds from one direction or another; that a continued wind from the northeast will raise the waters of the creek as they rise in the marsh and along the shore of the lake; that winds more southerly would have a tendency to lower the waters as they lower them in the lake; and it has seemed to us, from a consideration of the entire water at this point, and its surroundings, its environment and its proximity to the lake, that it is just such water as the legislature had in mind in the somewhat sweeping terms of this, enactment. The purpose of this legislation was, of course, to destroy carp; carp being deemed not especially of value, and in some respects pernicious because of their destructiveness to other fish, and perhaps otherwise; and for this reason they were not deemed entitled to the protection of the law like fish of value. The legislature, having this in mind, and knowing the extent to which carp were beginning to frequent the waters adjacent to Lake Erie, and connected therewith, passed this law excepting from the prohibitive operation of the law the fishing for this class of fish; and they made the law pretty broad. It looks a little as if the legislature used all the terms that occurred to them at the time of the enactment to describe waters which would be so contiguous to Lake Erie that carp would readily go into Lake Erie from such waters, or from Lake Erie into them. I am satisfied that the waters described in the agreed statement of facts are such as were contemplated by the legislature when it passed this section; that the fish and game commissioners could not limit the waters within which an applicant for permission to fish might set his seines, and that, having a permit to fish for carp, he was violating no law when he spread his nets where he did.

We think the justice of the peace, in convicting the defendant, committed an error, and the court of common pleas, in affirming the judgment did likewise; and our conclusion is that both judgments should be reversed and that the plaintiff in error is entitled to his discharge.

My associates now tell me that they are inclined to put their concurrence in this judgment upon the broad ground that whether or not the permit sought to limit the fishing to waters above Horseshoe Island, or to waters below it, still, as I have suggested, as my own view, the defendant had a right, if he was entitled to a permit at all, to fish anywhere in waters connected with the lake as described by the statute, and that Mud Creek, so-called, was a water so connected with the lake.

KINKADE, J.,

concurring:

He has a broad right, under the statute, to fish in the places designated in the statute; and these places embrace this place, and his right is supplemented by the permit. I merely don’t want to say that I thought the commission that issued the permit was endeavoring to give him a permit at the point where he was fishing.

PARKER, J.,

concurring:

I am not quite certain of this, but I think that in all instances where they undertake to define the waters where the fishing may be done, they begin at the lower end or outlet near the lake, and say how far up you may .go; and so, I think in this case they undertook to begin toward Lake Bine and say he might go up to Horseshoe Island, but not above it. I think that is the intention of the permit. We think that limitation may be disregarded ; fhey had no right to circumscribe his permit.


text:
    BANKRUPTCY — PAYMENTS.
    [Hamilton (1st) Circuit Court,
    April 9, 1910.]
    Giffen, Smith, and Swing, JJ.
    W. L. Mersfelder, Tr. v. Peters Cartridge Co.
    Payments by Debtor to Bankrupt after Piling of Petition, are Valid.
    Bona fide payments made by a debtor to a bankrupt after petition in bankruptcy filed but before adjudication thereon, payments made for services rendered after the filing the petition, and payments made subsequent to the adjudication if based upon an uncompleted contract for personal services involving the exercise of skill upon which reliance was had, are not recoverable by the trustee in bankruptcy from the debtors by whom such payments were made.
    Error to Hamilton common pleas court.

      Kelley & Hauck, for plaintiff in error.

      Morse, Tuttle & Harper, for defendant in error.
   GIFFEN, P. J.

The first payment made by defendant in error to Anton Mill, a bankrupt, and which the trustee in bankruptcy seeks to recover, was made the day after the petition in bankruptcy was filed, and long before adjudication. The payment having been made in good faith, the trustee in bankruptcy under the law of 1898 cannot recover it from the defendant in error, the debtor.

The second payment, made subsequent to adjudication, was for services rendered after the petition in bankruptcy was filed, and hence not the proceeds of property transferable or seizable at the time of filing, and did not vest in the trustee.

The third, payment, although made after adjudication, was based upon an uncompleted contract for personal service, involving the exercise of skill, upon which reliance was had. Such contract did not pass to the trustee. 1 Remington, Bankruptcy Sees. 994, 1132 and 1134.

The judgment will be affirmed.

Smith and Swing, JJ., concur.


author: PER CURIAM.

text:
    CHATTEL MORTGAGES.
    [Hamilton (1st) Circuit Court,
    January 15, 1910.]
    Giffen, Smith and Swing, JJ.
    Stephen J. Burke v. L. C. Linkmyer.
    Indefinite Description in Chattel Mortgage Invalidates It.
    A chattel mortgage covering “one registered Jersey bull” is void for uncertainty, where it appears that at the time the instrument was executed the mortgagor was the owner of three registered Jersey bulls.
    Error to Hamilton common pleas court.

      Charles W. Hoffman, for plaintiff in error.

      J. C. Smith, for defendant in error.
   PER CURIAM.

The judgment in this case should be reversed and judgment rendered for the plaintiff in error, for the reason that the property mortgaged to wit, “one registered Jersey bull,” is too indefinite, the mortgagor at the time having three registered Jersey bulls.

The mortgage itself should have contained some words of description which would have enabled one to have ascertained which of the fhree Jersey registered bulls was intended to be mortgaged, there being on the farm of the mortgagor three registered Jersey bulls, each one answering the description contained in the mortgage. No one is described in particular, and the description is void for uncertainty. Stonebraker v. Ford, 81 Mo. 532; Kelly v. Reid, 57 Miss. 89; Fordyce v. Neal, 40 Mich. 705; Parker v. Chase, 62 Vt. 206 [20 Atl. Rep. 198; 22 Am. St. Rep. 99]; Jones, Chat. Mort. Sec. 56a; Cobby, Chat. Mort. Secs. 15, 19.


author: <jIFFEN, P. J.

text:
    DEATH — RAILROADS.
    [Hamilton (1st) Circuit Court,
    April 23, 1910.]
    ,GifCen, Smith and Swing, JJ.

      Pittsburgh, C. C. & St. L. Ry. v. Gussie Francis, Admrx.
    1. Testimony by Wife That She is Administratrix not Proof op her Capacity to Sue.
    Testimony by wife that she is the administratrix of her hijisband is not proof that she was duly qualified and acting as such at the filing of the petition in an action for his death by wrongful act; but if there were no evidence of her legal capacity to sue, the defendant knowing or having good reason to believe that she had that capacity, judgment will not be reversed on that ground only.
    2. Provisions of Act Qualifying Liability of Railways for Employes’ Injuries Applies to Action for Wrongful Death.
    In an action for damages, brought under Gen. Code 10770 for the wrongful death of a locomotive engineer, alleged to have been due to a defective engine and a defective track upon which to operate it, it is proper to apply the provision of Gen. ■Code 9017, paragraph 2, qualifying the liability of railway companies for injuries to their employes.
    Error to common pleas court. .

      Maxwell & Ramsey, for. plaintiff in error.

      'Sherman T. McPherson and Wm. M. Cojjin, for defendant in error.
    A judgment for $5,000 was recovered below on account •of the wrongful death of a locomotive engineer.

      Affirmed, no op., Pittsburgh, C. C. & St. L. Ry. v. Francis, 83 O. S. 520.

   <jIFFEN, P. J.

The testimony of the plaintiff that she is the administra^ trix of her husband, is not proof that she was duly qualified and acting as such administratrix at the time the petition was filed; but if there was no evidence at all of her legal capacity to sue, we would hesitate before reversing the judgment- on that ground only, when the defendant knew, or had good reason to believe, that she had such capacity. Memphis & C. P. Co. v. Fogarty, 6 Circ. Dec. 375 (9 R. 418).

It appears from the evidence that- the defendant company was negligent in furnishing the deceased a defective locomotive engine, and a defective track upon which to operate it, and that by reason thereof he lost his life.

The court did not err in charging the jury in substance that the provisions of Gen. Code 9017, paragraph 2, “To qualify the liability of railroad companies for injuries to their employes,” passed February 28, 1908 (99 O. L. 25), applied.

Whatever doubt may exist as to the application of Section 1 of the act to a cause of action under Gen. Code 10770, there can be no doubt that the clear and broad terms of paragraph 2 of the act apply to such a cause of action.

We find no prejudicial error in the record and judgment will be affirmed.

Swing and Smith, JJ., concur.