author: MOONEY, J.

text:
    BILLS AND NOTES —ATTACHMENT AND GARNISHMENT — NOTICE.
    [Logan (3rd) Circuit Court,
    February Term, 1904.]
    Day, Mooney and Norris, JJ.
    Etta H. Milligan et al. v. Plymouth State Bank.
    1. Assignment of Chose in Action Without Notice Passes Perfect Title, When.
    Except as between the debtor and the assignee (and then only to the extent that notice of assignment is required to be given the debtor in order that he may not act to his prejudice upon the assumption that the claim continues, to be held by the original creditor) a dona fide assignment of a chose in action without notice to the debtor passes a perfect title to the assignee, and the debtor can urge the want of notice only when, and to the extent that,' he has acted to his prejudice in the absence of notice. As against an attaching creditor of the assignor, the failure of the assignee to' give- , notice of'the assignment is immaterial.
    2. Assignment of Debt Available as Defense by'Garnishee.
    In an action for attachment the garnishee is not a proper party under the-practice of this state, and a personal judgment in that action cannot be recovered against him, but, on the contrary, he sustains the relation of witness,-and while an order to pay may be based upon his answer, yet as he may interpose any defense he may have against the action notwithstanding the order of the justice, an amended answer, stating the prior assignment of the chose in action upon which the payment is due, the-want of notice of its assignment and the consequent mistake in the original answer in admitting that the debt was due the attachee, interposes a complete valid defense.

      3. Payment by Gabnishee After Notice of Assignment of Debt no Defense.
    Where, in an action before a justice of the peace to attach money supposed to he due from the maker of a non-negotiable note secured by mortgage to the payee thereof, the garnishee answers, admitting the debt, without knowledge that the note and mortgage had been assigned before the commencement of the action, and was ordered by the justice to pay the debt due the payee into court, but before complying with the order and before he had been prejudiced in any right or had assumed any liability, he received notice of the assignment and, notwithstanding this, voluntarily paid into court the amount so ordered, the fact of such payment will not, constitute a valid defense as payment pro tanto in an action brought against him upon the note and mortgage by the assignee thereof.
    Error to tbe court of common pleas of Logan county.
    Hamilton Bros, and J. A. Price, for plaintiffs.
    E. P. Chamberlin, for defendant.
   MOONEY, J.

In tbe original action defendant in error was plaintiff and plaintiffs in error were defendants. Their action was upon a note and mortgage. The note was dated July 5, 1902, for $588 with five per cent, interest from date due on or before July 5, 1902, executed by plaintiffs in error to Ellen and Christopher G-. Bollman. On October 25, 1902, the note was assigned for value to defendant in error by the payees. The prayer of the petition was to recover personal judgment on the note for the principal thereof with the interest and to foreclose the real estate mortgage securing the same.

The makers of the note answered and alleged that on July 3, 1903, one Jerome Hollopeter duly commenced an action against Ellen and Christopher Bollman, the payees of said note,! before one Bobert Dow, a justice of peace of this county, and in said action an affidavit for attach'ment was duly filed and the Milligans were made garnishees, and such proceedings were had in said action that on February 20, 1903, the plaintiff therein recovered judgment against defendants therein for $100 and costs, and on the same day said justice of peace ordered said garnishees to pay into court the sum of $112.50 to be applied on said judgment and costs, and, afterward, on June 23, 1903, said justice of peace made another order in said action, ordering and requiring said garnishees to pay into court $115.75 to be applied on the aforesaid judgment and costs, and, afterward, on July 18, 1903, in pursuance of said • order of said justice of peace said garnishees did pay to said justice of >3 peace the sum of $115.75. It is further stated that at the time of the commencement of the Hollopeter action and at all times thereafter until after the said payment, the said garnishees, were not indebted to the said Bollmans in any manner whatever except upon the note in the petition described.

“At the time of the said judgment before said justice of peace and of the,order of said justice as aforesaid, for them to pay said money into court to apply on the claim and judgment of said Hollopeter, the defendants (the Milligans), nor either of them, had no notice or knowledge that the said note had been assigned by the payees thereof,” and that the assignment of the said note and mortgage was never recorded in the recorder’s office of Logan county, Ohio, where the mortgage lands are situated. Wherefore said defendants aver that the payment of $115.75 in the Hollopeter action is a valid part payment of the debt in the petition described and that in consequence there is due upon said mortgage debt $502.87 and no more, which last-named sum defendants tendered to plaintiff before the commencement of this action, which tender was refused, and which amounts defendants at all times since said tender have been ready and willing to pay. To this answer a general demurrer was sustained and defendants not desiring to plead further, judgment was rendered for plaintiff as prayed in the petition. To reverse this judgment this proceeding in error is now prosecuted.

In support of the judgment of the common pleas it is argued, first, that the jurisdiction of the said justice of peace in the Hollopeter action was exhausted by the order made on the garnishees to pay of date February 20, 1903, and that the order of date June 23, 1903, is therefore invalid; second, that even if the justice of peace had jurisdiction to make the order still the order is not sustained by the facts in the case and compliance with it does not amount to part payment of the note sued upon. We do not find it necessary to determine whether the justice of peace had jurisdiction to make the order upon garnishees to pay of date June 23, 1903. It must be conceded that as a matter of mere jurisdiction the justice of peace had power to make one order. It is not denied that on February 20, 1903, that officer had jurisdiction to order payment, if the facts in the case warranted such an order. If now the second order is invalid for the reason that the first order exhausted any jurisdiction in that behalf then the first order was one that the justice of peace had jurisdiction to make. This must be so because an ineffectual attempt to exercise a conceded jurisdiction cannot exhaust jurisdiction.

It seems necessarily to follow that as matter of jurisdiction the' justice of peace had power to make the one order or the other. If he| had power to make the first order and not the second, the garnishees' merely paid more than they were or could be required by the justice of peace to pay. If the second order was made in the exercise of jurisdiction the amount paid is proper as to amount. In either case the justice of peace had jurisdiction to order some amount to be paid and as an amount was paid, the question is whether such payment was to any extent a part payment of the note.

The answer states a defense whether the amount paid shall be held to be. a credit on the, note for $110.50 as well as if it be held to be a credit for $115.75. Hence the correctness of the ruling on the demurrer does not depend upon the mere validity of the second order but does depend upon the validity of either order, and the effect of the compliance by the garnishees with the one that is valid, if either be valid, would be part payment, the extent of the validity in such case as to amount being the measure of the protection to defendant below.

Defendants’ answer states in legal effect that at the commencement of the Hollopeter action against the Bollmans the latter did not in fact own any claim against the Milligans; the Milligans were made garnishees in the action and for want of any notice to the contrary they believed that they were indebted to the Bollmans upon the note described in the petition. It seems, although it is not directly stated in the answer, that the garnishees appeared before the justice of peace and made answer that they were so indebted to the Bollmans at the time of service of notice, and the justice of peacé acting upon this answer of the garnishees ordered them to make payment as heretofore stated. After both the orders to make payment were entered and before any compliance therewith by the Milligans they received notice and acquired knowledge that at the time they were served with notice as garnishees in the action they were not in fact indebted to the Bollmans but by 'reason of an assignment of the note by the payees the same was owned and held by the Plymouth bank.

Having such knowledge and notice the garnishees nevertheless complied with the order of the justice of peace and made payment in the Hollopeter action of $115.75 a part of the indebtedness evidenced by the note then owned and held by the bank. Were the Milligans under the circumstances, authorized to obey the order of the justice of peace, and did payment in obedience to such order discharge pro tanto the claim against them owned in fact by the bank, are the questions in the case. These questions have not been decided expressly by our Supreme Court and the side lights supplied by our own cases and the eases decided in other jurisdictions in which similar itutes to our own are in force must disclose the proper rule here.

The property sought to be attached was the property of the Boll-mans. This property was a debt alleged to be due or owing to the Boll-mans by the Milligans. To secure this property and hold it to be applied in satisfaction of any judgment that might be recovered by Hollopeter in bis action against tbe Bollmans notice was served upon the Milligans. The service of this notice did not confer upon the Milligans any right of property in the debt, nor any power of control of the debt, except insofar as their own protection should require it, that they did not have before the service of notice upon them. The Milligans could not have' waived the service of notice and entered their appearance as garnishees, and by such action have given the justice of peace jurisdiction of the-debt they owed. Hebel v. Insurance Co. 33 Mich. 400; Blake v. Hubbard, 45 Mich. 1 [7 N. W. Rep. 204] ; State v. Duncan, 37 Neb. 631 [56 N. W. Rep. 214].

/‘Garnishment is a compulsory novation which the law alone can initiate by the intervention of its own substantial appointments.
“If the garnishees had knowledge of the assignment of the debt and failed to make answer of the fact such failure would not have affected the title of the assignee.
“The rights of an assignee cannot be forfeited by action of a garnishee in the assignee’s wrong.” Johnson v. Dexter, 38 Mich. 695, per Cooley, J. Nor by the inaction of the garnishee. Tabor v. Van Vranken, 39 Mich. 793, per Campbell, C. J.

It seems that the failure of the garnishees to give notice to the justice of peace of the fact of assignment Can have no different effect in the attachment proceedings so far as the assignee in concerned when such failure is caused by want of knowledge on the part of the garnishee than when the failure is due to the negligence of the garnishee having-knowledge, unless indeed notice to the debtor of the fact of assignment is necessary to perfect the title of the assignee.

The note described in the petition is nonnegotiable and the-claim arising thereon is a mere chose of action. The claim however is property and the ordinary incidents of property attached to it. Among these incidents is the right of the owner to sell it and give title to the purchaser “without waiting for the consent of any- other” person. The nature of the property is such however that notice of an assignment is required to be given the debtor in order that he may not act to his prejudice upon the presumption that the claim- continues to> be held by the original creditor. This notice is required only for the protection of the debtor and one consequence of it is the protection of the assignee against the equitable results of the action of the debtor without notice. Except as between the debtor and the assignee, and then only to the extent indicated, a tona fide assignment of a chose in action without notice to the debtor passes a perfect title to the assignee. As against one claiming the assignor as creditor the failure of the as-signee to give notice of an assignment is immaterial for tbe right of the creditor does not rise higher than that of his debtor, the assignee. Thayer v. Daniels, 113 Mass. 129; Williams v. Ingersoll, 89 N. Y. 508; Noble v. Oil Co. 79 Pa. St. 354 [21 Am. Rep. 66].

In Dix v. Cobb, 4 Mass. 508, 512, Parsons, C. J., says:

“ An attachment creditor cannot stand on a better footing than his debtor (if the assignment be not fraudulent as to creditors), and if he attaches any property of his debtor, it must be attached subject to all lawfully existing liens created by his debtor. And consequently if his debtor have no equitable interest in a chose in action, the creditor cannot acquire any by his attachment. Therefore the want of notice in the trustee (garnishee) will not defeat the assignee’s interest in this debt in favor of an attaching creditor.”

It follows, therefore, that defendants below can urge the want of notice to them of the assignment only if and to the extent that they have acted to their prejudice in the absence of notice.

They appeared and made answer as garnishees without notice of the assignment; and they were ordered to make payment before they received notice; they did not comply with the order until after notice of the assignment was given them.

In Secor v. Witter, 39 Ohio St. 218, it is said:

“The order of a justice is not a judgment charging the garnishee. It does not determine the ultimate rights of the parties. It can only be enforced by action as in other cases. In legal effect it is an assignment of defendant’s right in the claim to the plaintiff, and authorizes him to sue thereon in his own name. * * *
“In such an action the garnishee may interpose any offset or defense he may have against the action, notwithstanding the order of the justice, and no judgment should be rendered against him that will not be a protection against the rights of third persons.”

It is not doubted that in many states the statutes make the garnishee a party in the attachment suit and the practice in such jurisdictions is to proceed against the garnishee in the original action and in a proper ■ease recover personal judgment against him in that action. Such is not the practice in. Ohio. To the attachment action the garnishee sustains the relation of a witness (Secs. 6500 and 6502 Rev. Stat.); while an order to pay may be based upon his answer (See. 6503 Rev. Stat.) ; yet his liability to the plaintiff in attachment may be enforced against him in the absence of, or contrary to, his answer (See. 6504 Rev. Stat.).

The fact or the substance of the answer of the garnishee is therefore not of controlling effect upon any right or remedy of the plaintiff in attachment and we have seen that the action or inaction of the garnishee cannot of itself effect any right or impair any interest of the. assignee. When Hollopeter commenced his action he sought to attach, a debt due the Bollmans. There was in fact no such debt. Hollopeter thought there was but he was simply mistaken.' The Milligans thought there was; they also were mistaken. The justice of peace upon consideration of the garnishee’s answer made” an order to pay the debt due the Bollmans into court. The justice of peace was mistaken. The effect of the order would be to transfer the property in any such debt if it had existence. The order was without effect; there was no debt to transfer.

At this juncture knowledge of the mistake reached the Milligans. The Milligans had then incurred no personal liability nor sustained any loss or prejudice by acting upon reliance of their mistaken belief. The assertion by the assignee of his real title to the debt would visit no-loss, impose no liability, or in any manner prejudice any right of the Mil-ligans. Hollopeter had in fact taken nothing by his attachment action and while he would be benefited by carrying out the mistaken order, he has no legal right to insist that the mistake should not then be corrected. If when informed of the assignment, the Milligans had refused to obey the order of the justice of peace and if the plaintiff in attachment had brought suit to enforce it the garnishees might “interpose any defense they may have against the action notwithstanding the order of the justice.” Can it be doubted that an answer stating the prior assignment, the want of notice, and the consequent mistake in the answer before the justice would be a defense to the action? We think not.

With knowledge of this former mistake defendants below voluntarily paid to Hollopeter a fund which at the time of payment they knew belonged-to the bank and to which they must have known Hollopeter had no right or title. If loss results from this payment the loss in morals and in law should fall upon the Milligans and not upon the bank.

The court of common pleas so held and its judgment must be affirmed.

Day and Norris, JJ., concur.


source: Caselaw Access Project

author: BENTLEY, J.

license: Public Domain

text:
    NEGLIGENCE — RAILROADS.
    [Lucas (6th) Circuit Court,
    January Term, 1893.]
    Scribner, Haynes and Bentley, JJ.

      Lake Shore & M. S. Ry. Co. v. George Fisher.
    1. Switch Staff Located Near Railroad Tracks, Negligence, When.
    It is actionable negligence for a railroad company to maintain along its right of way a switch staff so constructed and arranged that when the iron flange is turned to stand perpendicular to passing cars the edge thereof will come within such close proximity to such cars as to endanger the lives and limbs of employes in getting on and off the cars at places along their sides which have been provided for such purpose and where they are expected to get on and off, where such employes have no knowledge of its location or danger and have not been warned to look out for it.
    2. Inexperienced Brakeman not Charged With Dangerous Obstructions Along Track.
    A brakeman on a railroad train inexperienced in railroading, who is making his first trip over the road has no actual knowledge of the location of switch staffs along the right of way which would endanger the lives and limbs of employes getting on and off cars at the places provided for such purposes, and who has not been warned by the company of the dangerous situation or of other obstructions along the track except a general instruction to look out for overhead bridges, switch standards, etc., when making couplings, cannot be charged with the duty of knowing of dangerous obstructions along the line, nor does he assume the risks of being struck and injured by the iron flange on a switch'staff located along the track and so close thereto as to strike an employe of a passing train getting on a car at the place provided for such purpose.
    3. No Absolute Duty on Brakeman to Look for Danger at all Times.
    While it is the duty of a railroad brakeman to be cautious and careful while engaged in the performance of his duties, yet no.absolute duty is enjoined upon him to look in any particular direction under all circumstances, or to watch for a particular danger, but whether he must do so or not depends upon all the circumstances of the particular case, his knowledge of the existing danger, the warning given him in reference thereto, and the particular situation in which he may be placed at the time. ■
    Error to court of common pleas of Lucas county.
    Emory D.. Potter, Jr., for plaintiff in error.
    Hurd & Scribner, for defendant in error.

       Affirmed without report, Railway Co. v. Fisher, 51 Ohio St. 574.

   BENTLEY, J.

This cause is in this court upon a petition in error to reverse the judgment of the court' of common pleas upon a verdict rendered in favor of Mr. Fisher and against the railroad company, for personal injuries received by Mr. Fisher while in the employ of the railroad company as a brakeman, at Rockport, near Cleveland.

Mr. Fisher was a young man of thirty-one years of age, residing in Ottawa county, and was a farmer. He never had been in the employ of any railroad company before, nor done any railroad business until January If, 1890. At that time for some reason he seems to hav'e left his farming occupations, and applied to the Lake Shore company for employment as a brakeman. He was employed by the company, and went to a place rejoicing in the name of “Whiskey Island,” near Cleveland,- to begin his employment for the railroad company — perhaps to get a good start. He got there, I believe, on January 18.

In doing some work his train passed through this town of Rockport; that seems to have been in the evening when he was there; and leaving Rockport in the night, or evening, he came west with his train on that day, 'the train being bound for Toledo. For some reason he left the train at LaCarne, and the train pulled out and left him there.

The circumstances are not detailed as to how that happened, only as it may be gathered from various statements in the record as to how it might have happened. Fie went home from LaCarne, and on January 20 started back to Cleveland on a freight train, and arrived at Rock-port in the evening of January 20.

In the train upon which he w¡as acting as head brakeman were a half dozen cars qf stone, which were to be left at Rockport, or at least switched there; and the engine, after the cars had been properly uncoupled, backed these cars of stone upon the side track, and while it is not exceedingly <jlear from the testimony, it would seem that this young man rode the cars on that switch and the brakeman stopped them.

He says it was dark, and he did not know whether there were any other cars on the switch or not, but fearing there might have been he had to be very cautious lest it might collide and knock him off and injure him. But he performed his duties upon these cars, and by the time he was ready to get off of them his train started to pull out of the station, or the place where it then was; and one of the employes upon the train, seeing him upon the ground and his train starting, told him to hurry up and get on or he would be left again.

Thereupon he ran to the train, came up to a box car at the side of which was an iron stirrup projecting below the car, as is usual, and, having his lantern upon his arm, he grabbed at the armhold and put his right foot in the stirrup. The train was bound for the east, and he was upon the north side of the train, and he approached one of-the corners of the box car. The manner in which he attempted to get on, with his foot in that stirrup, would afford some light on the degree of experience and sense he had in getting onto the freight car. The iron ladder of the car provided for brakemen to mount to the roof, was .adjusted around the corner on the hind end of the box car, in the usual manner, and instead of putting his left foot in the stirrup, with his hand hold of the handhold, and springing around to the ladder, either from excitement or greenness, or in some way, it seems he caught or put his right foot there. The cars at that time were pulling out and were going perhaps three or four miles an hour at that time, and it being a down grade their speed was constantly and noticeably increasing.

At the place where he attempted to board this car m the manner indicated — or rather ahead of this place from 100 to 150 feet — there was a switch sfaff standing between the double tracks. Upon this upright switch staff was an iron flange, and above that and sitting upon the top of the staff was a lantern provided with green lights. The flange and the staff and the lantern came up higher than the lower corner of the 'box car. The switch staff was so arranged and placed there that when the flange was turned so that it should stand perpendicular to the cars that were passing along there, the edge of the flange would come somewhere from fifteen to twenty inches from the side of a box 'car.

Some persons saw Mr. Fisher as he caught onto the side of the car in that way. And instead of swinging immediately around to get upon the ladder at the rear of the car, he seems to have hung there at the side of the car, almost at arm’s length, for some reasons, with his lantern upon his arm. In the meantime his car was rapidly approaching this switch light, and" two or three persons, appreciating his danger, hollered at him and warned him of the danger which they saw .he was .approaching. Mr. Fisher either did not hear the warnings given, or seems not to have understood them; at least he did not change his position until after the car had arrived at this switch staff and he was struck and knocked off the car, and run over, and injured.

Under circumstances of that kind the jury awarded him a verdict against the defendant railway company. It being charged that the company was negligent in thus placing the switch staff so near the passage of these cars as to endanger their employes, and that from that negli.gence.the plaintiff below was injured.

It was claimed upon the part of the company that it was proper .and necessary to place a switch staff in that position, and that it was usual along the line of the road; that the young man was warned when he entered the employment of the company to look out for switch staffs, among other things, and to generally look out for danger; that if he had looked ahead when he mounted this' car he could have seen this ..green light and the switch staff, and would have escaped the • danger, either by dropping off the car, not mounting it at all, or getting on at the other side; and that he was negligent in not paying any attention to the warning that he received, and that therefore he ought not to be allowed to recover damages against the company.

The testimony, as I have indicated, shows that this young man Fisher had no prior experience in railroading prior to this experience beginning on January 17. We should gather from the record and alt the testimony that he was perhaps what is ordinarily termed “green,’” perhaps more so than usual.

The defendant in error in the hearing before us, cited to us a great number of cases showing that courts in other states had sustained verdicts against a railroad company under similar circumstances; cases that hold that it was negligence for the railroad company to allow a structure to be placed so near the passage of the cars as to endanger their employes in getting on or off the cars at places provided for their getting on and off, and where it was expected they would get on and off — many cases that hold that it is not necessarily one of the perils which the employe of a railroad company assumes when he enters the employment of the railroad company.

On the other hand, counsel for the railroad company cited quite a large number of cases where it has been held that under the circumstances, presented in those cases the employe could not lawfully recover.

We have taken the pains to look up and consider all the cases; thus cited by counsel for the railroad company, to see whether the cases therein considered were such as the one here at bar. I will very briefly indicate what we found the nature of those cases thus presented, to be. DeForest v. Jewett, 88 N. Y. 264, was a case where there were open ditches, plain and easily to be seen, along the railroad so that the employe could see them, and he had been employed some time; the court found that they were such structures and dangers that he either actually knew of them or were such as he was bound to know from the employment that he had had around them.

In 99 Pa. St. is a case where there existed a coke bridge for wheeling over coke, and was made to extend over the railroad; and the employe in that case was riding on the top of a car and was struck by this bridge and injured. The court found in that case that from the number of times that he had passed there in his employment upon the train, he must be chargeable with knowledge or at least with notice of the bridge, and that he could not pass it in safety.

In 50 Mo. is a case which was also in regard to an overhead bridge. The court found from the record that the employe had worked there before, and under such circumstances he was chargeable with knowledge of the situation- of the bridge and of its dangerous character.

Gibson v. Railway Co. 63 N. Y. 449 [20 Am. Rep. 552], is a case of the depot extending over so that a brakeman could not stand upright upon the top of a freight car, in the middle of it, and not be injured. And the court found from the situation there, and the knowledge of the employe, that he himself was negligent in assuming the position he did at the time the car passed under the roof, or so near the roof of the depot.

Wells v. Railway Co. 56 Iowa 520 [9 N. W. Rep. 364], is also a case of an overhead bridge, and this had been known to the plaintiff for many years prior to the accident of which he complained.

Smith v. Richards, 155 Mass. 79 [28 N. E. Rep. 1132], is a case of an engineer leaning far out from his engine for the purpose of observing the track or watching for signals, and there was a signal post so near that as the engine passed it, it struck him and injured him. The court in that case recite the fact, however, that along the line of his run there were quite a number of such obstructions so near the track, and that while perhaps it was not certain that he had actual personal knowledge of this particular post, yet he had knowledge of many such obstructions, presenting such dangers, and from his experience with those he was chargeable with notice that he might expect it from this post, and therefore he was negligent in not providing for his own safety in passing it.

Rains v. Railway Co. 71 Mo. 164 [36 Am. Rep. 459], is also a case of an overhead bridge, and the court recites that the record shows that the person had passed under it, to and fro, a great many times, and that under such circumstances he must have known about it.

Clark v. Railway Co. 28 Minn. 128 [9 N. W. Rep. 581], is a case where an elevator roof projecting in such a way as to hit a person riding along upon the cars of a railroad company. There it appeared that the plaintiff knew it would strike any person standing upon a car as he was standing, and that although the railroad company might have been negligent in building or allowing the elevator roof to be used in such a manner, yet in the particular case the man himself who was injured was chargeable with negligence.

In 39 Iowa, also cited, was a case where a brakeman coupled cars when they were going too fast. He was warned just before that, of the danger in so doing. He had knowledge of the situation of certain bumpers on the cars, and in spite of the warning given him then and there, and in spite of his knowledge of the situation of the bumpers and that they might not hit each other sufficiently to stop the cars coming together, he undertook to couple them; and the court held that he was chargeable with notice, under such circumstances, that the one might override the other and be dangerous for him to attempt to couple them under such circumstances.

In fact all these cases cited by counsel for the railroad company are cases where the court-found that the injured employe either had actual knowledge or was chargeable with actual knowledge of the situation of these obstructions and of the danger attending the passing of them. It appears that the mere fact that such dangers are along the line of the road does not necessarily impose the risk upon the employe who takes employment from the company under such circumstances; that is, that, the dangers arising from these things are not necessarily such dangers attending the employment generally as he assumes the risk of incumbering. It becomes in each individual case a matter of knowledge, or such circumstances as charge notice upon the injured employe.

So in this case we think the inquiry is narrowed down to this; whether this young man Fisher, under the circumstances in which he was placed (his experience and all that) had knowledge of such an obstruction, or whether he had knowledge of such facts .and circumstances as would charge him with notice, and to forbid his recovering.

Now it is said that at the time he mounted this freight car he might have seen this switch light — he might have seen the switch light if he had looked ahead. But we think it does not clearly appear that if he had seen the switch light ahead that he would have instant knowledge of the distance between it and the car, when the car should reach it.

Consideration is also to be had of the situation under which he mounted the car. He was iñexperienced; perhaps somewhat excited. He was told to hurry; he saw 'his train leaving, although he had been engaged in braking and switching the cars, as was his duty;. and had completed that as soon as he could and started to take his train again; and yet in the meantime, without any reference to him, the train had started on- and had already obtained a -velocity of some four miles an hour. Under these circumstances his superior told him to hurry up, and get onto his train or he would be left again. He did hurry up, and grabbed this car handhold. He says that almost instantly, it seemed to him, he was struck by this switch staff and knocked off the car.

The testimony on that feature of the case shows that he might have been 100 to 150 feet away from it when he first took hold; and the train was going'somewhat rapidly, and increasing in speed. It is not certain that he did not have in his mind the danger, to which he was exposed, and that while he might have heard some one shouting, it conveyed no distinct and definite warning to him as to what it was necessary for him to do in order to escape any injury. In this respect we think the case was fairly left to the jury to determine whether or not he was chargeable with knowledge and notice of the danger, and whether he was himself negligent, under the circumstances, in mounting the car and. remaining where he was.

The manner in which he put his foot into the iron stirrup would necessarily have caused some delay, even if he knew the next movement he should make, and even if he knew the danger to which he would be exposed if he did not get around on the back end of the car; that is, by changing or swinging around and getting upon the ladder. The time that elapsed from the time he placed himself in that position till this switch staff was reached was very short at least, although the train may have run even 130 or 150 feet. It is a comparatively short time that would be required for it to reach the switch staff.

Now this being the first time that he had passed along there, as is shown by the evidence, and his inexperience and want of knowledge, we think the jury were fairly warranted in finding that he really did not know the position of that switch staff, and that it would be going too far to say that he knew such facts and circumstances as absolutely charge him with the duty of knowing it was there and was dangerous.

He says he had seen switch staffs between the tracks at Elyria, hut so far as he had observed they were much lower than this one and did not present the same dangers.

In view of the record in the case, we would not feel at all justified in setting aside the verdict of the jury upon this ground — that they should have found that it was the duty of this young man to have known the situation there and should not have placed himself in a position of danger. It is said by the railroad company that it could not be charged with negligence in placing the switch staff there — that it was necessary to have it there. But however that might be in fact, the testimony in this record would not indicate that it was absolutely necessary that it (should be so situated. We are unable to say from the testimony here, although the fact may be true, that it would not be entirely practicable for the tracks to be placed wider apart a,t that place, so that the switch staff could be placed further away from the cars. It is said that if it is placed at a different place it will necessitate a longer rod to work it, and therefore, additional danger to employes and persons passing there. This is the statement of one of the witnesses for the railroad company, while there is no explanation of how he arrives at that, or why it would necessarily be dangerous to place the switch staff a little further from the track. If the rod was longer, it would seem that the jury might have come to the conclusion that it could be made a little heavier, and thus eiiable the switch staff to be operated to advantage a little farther off.

There is some testimony attempted to be produced on the part of the railrpad company, that there were other switch staffs along the line of this road 'substantially like this one, and that therefore this young man was chargeable with notice that he might expect to find them anywhere along the line. Now this record does not indicate that this young man had passed any such switch staffs. There was some general statement that they used switch staffs somewhat of the general plan of this along the run of particular witnesses, who so testified, but there was no pointing out of any particular places where such a switch staff was placed, or that it occurred in or along the line where this young man had passed.

We do not mean to say, or hold, that as a matter of fact it is and must be dangerous for a railroad company to maintain a switch staff -of this character this near to the track, or between two tracks, so that they come this near to passing cars. But from the record and the testimony presented in this particular, we fail to find that it was the duty of the jury to conclude that that was a necessary and proper place to maintain such a switch staff.

As to the warning the 'company claim the young man had at the time he took the employment, it is shown by a written statement introduced in evidence by agreement, as to what Mr. Fisher was told when he entered the employment of the company, the statement being substantially this; that he was a new man and was warned to look out for overhead bridges, switch standards, etc., in making couplings.

Now suppose a young man, without any knowledge in railroad matters, fresh from the farm where he had passed thirty-one years of life, and hiring out to the railroad company is told to look out for switch staffs. To him it would be scarcely any warning at all. If it were shown that he had been told, or knew the line of railroad where he had to run, and that- there were switch staffs coming so near that if he should hang on the side of a car it would be apt to hit him, it would be a different matter; but the warning referred-to would convey no adequate idea of the dangers to the young man.

As to the objection made to the charge of the court, and its refusal to charge, the railway company presented two requests to the court, the first being as follows:

“The plaintiff was in the defendant’s employ as a brakeman on his freight trains, and as such “was engaged in the performance of a service -that was hazardous and perilous; and while so engaged in the performance of his duties as such, it was his duty to be careful and cautious himself, and on the watch and lookout for dangers; and if whilst so engaged he was negligent in the performance of his duties, and such negligence contributed to produce the injury, he cannot recover.”

When the court came to consider this request this was said: “We have charged, as we think, the first request: If the plaintiff himself was negligent in the performance of his duty he cannot recover.”

The only material difference, if it be material, between what the court did say and this request, is, that the court only said that it was his duty to be cautious, and that if the plaintiff himself was negligent in the performance of his duty he cannot recover; while the additional statement is made in the request, that he must be on the watch and lookout for dangers.

This matter was not specially argued before us, but it is presented in the record. We think that for all the substantial purposes of the case, the material part of this request was given. If there was any particular stress to be placed upon this, to look out for dangers, it would amount to nothing in this case except that the jury should understand that he was to look out for this particular danger. Whether he was to look out for this particular danger would depend upon his knowledge of the warning given him, and all the circumstances of the case and the other matters to which his attention must be directed; and was a matter for the jury to consider.

The second request is:

“If whilst engaged in his duties as a brakeman it became necessary for him as a part of his service to go upon the side of a car of a moving train, it was his duty to look ahead in the direction the car was moving, to see if there was any obstruction or danger ahead which might imperil him, and if he neglected so to do, and was injured in consequence of such neglect, he cannot recover.”

Now it appears plain and direct in this record that he did not look ahead when he got onto this freight car, and if the court should have given this request it would have been equivalent to saying that the plaintiff below could not recover in this particular action, because he did not look ahead.

We think it cannot be said, as an absolute rule of law, that the plaintiff must look ahead, under all circumstances. It is his duty to be cautious and careful; but whether he must look ahead or behind, or to one side, or down or up, depends upon the particular situation in. which he may be placed at the time. And when he was riding upon that car in the position he then was, and perhaps a little “green,” as I say,, holding onto the outside of the freight car when the train was in rapid motion and gaining headway every minute, and he being somewhat perturbed, he could not exactly understand how he wa§ going to get out of his peril, and before he could gather his wits to determine whether he should look at his feet, or around him and ahead of him, he may have been struck by this switch staff.

We think under such circumstances it would have been going too far for this court to say to the jury that it was absolutely his duty before he got upon the car to look ahead for danger.

With that view of the case we will not disturb the judgment below, and affirm the same, with a certificate that reasonable cause for these proceedings in error existed and no penalty will attach.

Scribner and Haynes, JJ., concur.


author: NORRIS, J.

text:
    OFFICE - AND OFFICERS — AUDITOR—COUNTY—MANDAMUS.
    [Mercer (3rd) Circuit Court,
    November Term, 1903.]
    Day, Mooney and Norris, JJ.
    Chas. A. Kloeb (Aud.) v. Mercer Co. (Comrs.)
    1. County Auditor a Public Officer — Responsible to Public for Neglect of-Duty.
    A county auditor is a public officer having official duties of paramount importance which he cannot wilfully neglect to perform, and for the" faithful discharge of which he is directly responsible to the people; he is. not a mere clerk to the hoard of county commissioners, although under Sec. 1021 Rev. Stat. he is secretary to the board, must aid them when requested, keep an accurate record of their proceedings, etc.
    2. County Auditor Must Act Faithfully, Prudently, and Exercise Judgment in Drawing Warrants on Treasury.
    The county auditor is not the disbursing officer of the county in the-sense of paying out public money, but is the auditor of the county treasury whose official duty it is to certify all money (except that, arising from the tax duplicate) into the treasury, credit the amounts to their respective funds, keep an account current with the county treasurer of all money paid into and out of the treasury, and to what fund paid (except money due the state which is paid on warrant of the state auditor); he must, in- the discharge of these duties, act faithfully and prudently, and exercise judgment to a degree commensurate with his responsibility to the public,. and failing so to act he “wilfully fails to perform any duty required of him by law” within the meaning of Sec. 1031 Rev. Stat., the penalty of which is forfeiture of office and. criminal prosecution.

      3. AUDITOR. MAY PROTEST AGAINST AND OBJECT TO DRAWING WARRANTS WlIICII He Deems Unlawful.
    Although, the drawing ol a warrant by a county auditor upon the county treasurer, upon direction of the county commissioners, is a mere subservient and ministerial act, yet it is the official duty of the auditor, as a public officer and agent of the people, to protest against and object to drawing any warrant which he in good faith, and in the exercise of his judgment as a prudent and honest agent of the people, deems to be an unlawful expenditure of the public money. The order of the county commissioners does not have the effect of a judgment at law or estop the auditor from questioning, in good faith, its validity,
    4. Auditor Entitled to be Reimbursed His Costs in Resisting Mandamus Proceedings to Compel Issuance oe Warrant, When.
    A county auditor is entitled to be reimbursed by the county for expenses incurred in resisting a mandamus proceeding against him to compel him to draw his warrant upon the county treasury in payment of a claim approved by the county commissioners, and for which a voucher was presented, where, in refusing to draw the warrant and in resisting the mandamus proceeding, he acted in good faith and in the exercise of his judgment as an honest agent or guardian of the public; the fact that he was mistaken, and was ordered in the mandamus proceeding to draw the warrant, non obstante.

    Ebeoe to court of common pleas of Mercer county.
    John W. Loree, for plaintiff in error:
    Nothing is asked by plaintiff as extra compensation or fees for services performed by him as auditor.
    The commissioners were without jurisdiction to allow anything in excess of legal claims against the county. Jones v. Lucas Co. (Co.mrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710]. The claims, referred to in Sec. 894 Rev. Stat., are those based on statute or otherwise authorized; a claim not supported, by law cannot be considered at all.
    A county auditor is something more than a mere ministerial officer; when public revenues are about to be wrongfully paid out, it is his duty to refuse to aid in the wrongful depletion of the public funds. State v. Duerr, 5 Circ. Dec. 400 (11 R. 303, 308); State v. Ratterman, 2 Circ. Dec. 364 (3 R. 626).
    While an auditor may be justified and protected by issuing orders in obedience to the orders of the commissioners, yet it is his duty, as a faithful guardian of the public treasury, when a claim is presented which cannot be made the basis of a lawful claim against the county, to refuse to honor their order, and in this respect he is something more-than a mere ministerial officer. State v. McConnell, 28 Ohio St. 589; State v. Merry, 34 Ohio St. 137; State v. Darke Co. (Aud.) 43 Ohio St. 311 [1 N. E. Rep. 209],
    Every corporation or county that exercises quasi corporate powers i has inherent right to indemnify its officers and agents against liabilities incurred by them in the tona fide discharge of their duties, even though the ultimate result may show that they exceeded their powers. Ramsay v. Gardner, 11 Johns. 439; Powell v. Newburgh (Tr.)', 19 Johns. 284.
    C. E. Marsh, for defendant in error.
   NORRIS, J.

This case is submitted in this court on petition in error to the common pleas of this county together with the finding of facts and conclusions of law of that court. The action was an appeal to the.common pleas court from the board of county commissioners of Mercer county. In substance these are the facts:

On January 16, 1903, Chas. A. Kloeb, as auditor of Mercer county, presented to the board of county commissioners at a regular session of said board his account for expenditure by him, made in resisting certain mandamus proceedings brought against him as such auditor. _ He resisted these cases up to and in the Supreme Court of Ohio. One case so brought against him was on relation of A. P. J. Snyder. The other was on relation of Gilburg and Chapman. His account is for money expended and the employment of attorneys and court costs including the making and printing of the record. The bill in the aggregate amounts to $486.65. Snyder was,the editor of the democratic newspaper and Gilburg and Chapman were the editors and publishers of the republican newspapers. Both papers were of general circulation in Mercer county, and at the request of the county treasurer of Mercer county each' printed for six consecutive weeks the rate of taxation in Mercer county for the year 1898. About November 4, 1898, at a special session of the county commissioners each paper presented to the board of commissioners a bill for the publication of said tax rates. Each of said bills was for more than $388.

The bills were taken under advisement by the board of commissioners and passed to the regular session. The bills were referred by the board to Kloeb, as auditor, for his examination and he was directed to measure the printed matter and ascertain the number of squares of straight printed matter and the number of squares of tabular or ruled work necessary to advertise said notice, and report the result of his examination to the board. Upon that examination he ascertained that said printed matter, for which said bill aggregated $776, had been presented at the rate fixed by Sec. 4366 Rev. Stat., and if set up in compact form as directed by law would not amount to exceed, but would amount to less than $165 for each paper, aggregating the total sum of $330, and the auditor so reported to said board.

Afterwards on November 7, 1898, the commissioners allowed on each of said bills the sum of $300, aggregating $600, and directed said Kloeb as such auditor to issue warrants on the treasurer of Mercer county for the sum of $300 to each, payable out of the county fund. This finding of the board was accepted by said publishers and no appeal by them or either of them was taken frpm this allowance.-

At said date, November 7, 1898, each of said publishers presented to said auditor this order of the board of commissioners, and demanded each, a warrant for $300 on the treasurer-of Mercer county. And plaintiff in error Nas such auditor refused to draw said warrants.

Kloeb, at the time he refused to draw the warrants, in good faith believed that there was no authority of law for said board to issue an order in payment for the unnecessary space charged in the said bills, for the publishing of said rates, and believed in good faith that all that the commissioners were required to do was to measure and estimate the size of the printed matter, and that when so measured and estimated and computed by the rate fixed by Sec. 4366 Kev. Stat., all else and over was illegal, excessive and void. On November 7, 1898, no certificate was filed disclosing that there was any money in the treasury to the credit of the county fund; nor was there a certificate filed that there b.ad been a levy made to the credit of said' fund, and placed upon the -duplicate in anticipation of collection and not appropriated for other purposes. Such levy, however, had been made in sufficient amount and was on the duplicate for collection for the year 1898 to pay all the expenses of the county including said bills; but at said date, November 7, 1898, there was no money in the treasury to the credit of the county fund.

Said auditor in good faith believed that from all this he had no right to issue a warrant on the treasurer and charge the same to the county fund. And being of such opinion he resisted the issuing of said warrants in the court of common pleas of said Mercer county and in the circuit and Supreme Courts. In doing so, he was put to the expense of $486.65. It is conceded that these charges as to amount are reasonable, and that in so resisting the payment of said orders, and in the incurring of this expense, he was acting in good faith and as he understood it, in the honest discharge of his duties as such auditor, and believed he was protecting the interest of Mercer county.

Upon these facts the common pleas court found for the defendant in error, the county commissioners of Mercer county, Ohio, that:

“The said board did not err in refusing to allow said claim for said expenses in resisting the payment of said orders by refusing to issue said warrant; that there is no authority of law authorizing the county auditor to resist the issuing of an order on the county treasurer, when so ordered by the county commissioners. ’ ’

The action of plaintiff in error was dismissed and the costs were adjudged against him. And upon overruling his motion for new trial the court entered its judgment on said finding.

The plaintiff in error assigns as reason for the reversal of this finding and judgment of the common pleas as follows:

First, that the court erred in overruling his motion for a new trial; second, the judgment was for defendants in error when it ought to have been for plaintiff in error; third, the finding and judgment are contrary to law; fourth, the court erred in the judgment rendered upon the facts found; fifth, the facts found do not warrant the judgment; sixth, the judgment is inconsistent with the facts found by the court; seventh, from the facts found the judgment should have been for plaintiff for the amount of his account; eighth, and other errors apparent on the face of the record.

While a county auditor “by virtue of his office, shall be the secretary of the county commissioners, except as otherwise provided by law, he shall aid them, when requested, in the performance of their duties; he shall keep an accurate record of all their proceedings; and shall carefully preserve all documents, books, records, maps, and paper» required to be deposited and kept in his office.” Sec. 1021 Rev. Stat. Yet a county auditor is a public officer, and an agent of the people, and in this sense he is in nowise the mere clerk of the board of county commissioners. Independent of the commissioners and aside from that board and its powers and its duties, the auditor has official duties of paramount importance that he may not wilfully neglect to perform, for the faithful discharge of which he stands directly responsible to the people, and for the willful neglect of which he must atone by forfeiture of office and punishment at the hands of the criminal law.

The county auditor is not the disbursing officer of the' county, that is to say, he is not the payer out of the public moneys of the county; but he is the auditor of the county treasury. Except money arising from the tax duplicate he certifies all moneys into the county treasury and credits the amounts to their respective funds. He keeps an account current with county treasurer, showing all money paid into the treasury, when paid, to what account, and to what fund paid; and of all moneys paid out, and from what fund paid out. Except money due the state, which is paid on the warrant of the state auditor, every dollar paid out of the county treasury is paid upon the warrant of the. county auditor. In performing these duties he is performing official duties— public obligations — for the faithful discharge of which his official bond, and his body standing for his oath of office, must respond. ' He does not act as a mere machine, without consciousness, duty, or responsibility, only to place his signature to warrants which will cause public moneys to leave the public treasury; he is not a mere automaton, there for the purpose of writing his signature to warrants on the public treasury when the button is touched. But concerning all these duties he has the right to act, and is required to act faithfully. It is his duty to exercise his judgment, concerning the official act which he is called upon to perform-, to a degree commensurate with the responsibility. And it is his duty to act in good faith and with the prudence and integrity which an honest man of ordinary prudence would exercise under like circumstances ; and if he wilfully fails in this, then he wilfully fails to perform a duty required of him by law, the penalty of which is forfeiture of office and criminal prosecution and punishment.

The very words of Sec. 1031 Bev. Stat., if he “wilfully fails to perform any duty required of him by law, he shall, in addition to criminal prosecution therefor, forfeit his office,” imply the exercise of judgment guarded by that prudence as a public officer which confirms good faith — “If he wilfully fails,” says the law.

It is the official duty of the county auditor to draw his warrants on the county treasurer for the payment of any claims against the county allowed by the board of county commissioners, when the proper order or voucher is presented therefor. It was the duty of this auditor to issue the warrants in question in the mandamus proceedings. The court has so decided.

It was his duty to issue the warrants so far as the issuing of the warrants was a mere executive act, performed as an official duty in obedience to the mandate of legal authority. In this respect his duty was a duty subservient and ministerial. But it is going very far to declare that a public officer, who is the agent of the people, placed at the door of the public treasury, may not legally, and with effect as an official duty, lift his voice in protest and objection, to that which he in good faith, and in the exercise of his judgment as a prudent and honest agent of the people, deems to be an unlawful depletion of the public treasury; and it is going just as far to say that an order of a board of commissioners upon the auditor, to draw his warrants on the treasurer in favor of a party who is more than satisfied (and from which no appeal is taken or can be taken, because there is nobody to take the appeal), has the effect of a judgment at law, and cannot be questioned at any place along the line, from the hands of the board to the vaults of the treasury.

It is true as said in State v. Darke Co. (Aud.) 43 Ohio St. 311, 312 [1 N. E. Rep. 209] :

“The performance of an official act by a public officer depends, upon his legal duty and not upon his doubts; and where his duty is. clear, its performance will not be excused by his doubts * * *, however strong or honest they may be. ’ ’

This announcement, that the performance of clear official duty does not rest and is not dependent upon the doubt of the officer as to. the propriety of its performance, is not new, and' thus the doubts of an officer, as mere doubts, however strong or honest they may be, avail nothing. But that case falls far short of declaring that conditions may not present themselves which would justify a county auditor, and compel him, in discharge of duty required of him by law, to give ear to his prudence, judgment, and integrity as an agent of the people, as distinguished from subservient performance in blind obedience to authority in its nature judicial.

Not pertinent to the facts at bar but pertinent to the principle urged and pertinent to its application in this case, would it not be wilful failure of a duty required of him by law if a dishonest county auditor conspired with a dishonest board of county commissioners to loot the county treasury of the public money; and in obedience to orders of the board in that behalf, tor the payment of pretended claims which he knew were false and fraudulent, he drew his warrants as fast as the orders-were made, and thus, under.the guise of official duty, plundered the-people? Yet it is said that things akin to’this have been done. But if the auditor was not a beneficiary of the fraud, and simply had acknowledged that the claims were a pretense, and the orders were the act of a conspiring board, made for the purpose of placing money from the public treasury, into the hands of a false claimant, would not the auditor who knew this, and issued his warrant with such knowledge, wilfully fail to perform a duty required of him by law ? Surely no court would declare that he made breach of duty if he refused.

It may be said that the right of the claimant relator to the writ of mandamus must be clear, and in that behalf would be involved the honesty or the vice of his claim. But against whom would the action lie unless the official, the auditor, refused to perform the act which A urged to be to that degree ministerial, that it precludes any exercise bv him of his judgment, prudence, good faith and integrity as a publie servant.

In the ease of Ryan v. Hoffman, 26 Ohio St. 109, in the opinion at page 123, the court does and did recognize, and take into account, the sufficiency or insufficiency of the objection made by an officer to the performance of a clear ministerial duty, as an element in determining, whether or not the duty should be -performed.

And in the case of State v. Yeatman, 22 Ohio St. 546, it is held that an auditor may defend against an application for a writ of mandamus to compel him to issue a warrant on the treasury upon an allowance and order of the commissioners, by showing that the order was unauthorized and that the commissioners had no authority to make it.

So it would seem that though his duty be not dependent upon his doubts, however honest and strong they may be, yet he has the right to doubt, to exercise his judgment, guarded by that prudence, good faith and official integrity, which would warrant a prudent man in his official position under like circumstances, in the conclusion that his objection and reason for refusal to issue the warrant were justified by law and would be ratified by the courts.

In the ease at bar this auditor was required by the board of commissioners to measure the claims of the publishers by the rules fixed by law and to compute the space by the rate fixed by Sec. 4366 Rev. Stat. He did so, and found the amounts of each bill as thus measured to be less than $165, in the aggregate $330. He so reported to the board. In the face of this report, which is found to be true, the board allowed each claim in the amount of $300, aggregating the sum of $600, $270 in excess of the true measurement as appears in the finding of facts by the common pleas court. For those sums he refuses, as auditor, to-draw the warrants on the treasury. It is also found that he acted in all regards with the utmost good faith and in the belief that all that the commissioners were required to do, to determine the amount of such claims, was to estimate the size of the printed matter and compute by the rate fixed by See. 4366 Rev. Stat.; and that all the amounts allowed in excess of the sums so resulting were excessive, illegal and void. With this belief, and so acting, in good faith upon it, he refused to draw the-warrants for the sums aggregating $600 and made contest in the actions for mandamus, brought to compel him to issue the warrants; and in this action, upon the finding of facts, the court defeats his claim for the expenses of that litigation, because, and upon the conclusions of law,, “that there is no warrant or authority of law authorizing the comity auditor to resist the issuing of an order on the county treasury when so ordered by the county commissioners.”

Courts have held that public officers, not idly and stubbornly and in bad faith, but where reasons actually exist, or when to a,prudent man, acting in good faith, and with that degree of circumspection and discretion that a prudent man under like circumstances would exercise, reasons appear to exist which are grounds for refusal to 'perform .a ministerial act that otherwise would be a clear official duty, such public officers may make contest in the courts against the writ of mandamus to compel him to perform. It was so held in the cases which give rise to plaintiff’s claims in this action, or else those cases would have never been.

Though the refusal of the officer to act may be in violation of official duty, which requires him to perform a ministerial obligation, the contest — the appeal to the courts — the submission of the reasons for refusal, to the law — is not of itself and in itself a transgression. It is the exercise of a right, and its exercise when in good faith, and based upon the honest judgment of a prudent man, properly discharging as seem to him, under the circumstances, the functions of his office and his duties, is not, and ought not draw upon him mulctary penalty, by imposing upon the individual the expense of the litigation.

If this were true, and the payment of the expenses, and whether reimbursement was to be made, followed and was dependent upon the event of the controversy, how timid would be those whose duties it is to guard the interest of the public, and to look after the honest expenditure of the public money! If the rule were thus, the people would be disarmed and nonresistent. "What officer, however strong might be his convictions that the public was being wronged, and however strong were his reasons for that conclusion, would fight the battles of the public if he knew that a mistake meant the expenditure of hundreds of dollars out of his own pocket ? To enforce such proposition would seem to be against public policy. If it were the law, how would these defendants in error fare in the case here and now being decided by this court adversely to them, for presuming to exercise their honest judgment, as prudent officers and honest men. The interest of the public and good government require that it be not the law, and it is not the law.

A public officer is the agent of the public and he is governed, as to expenses made, with the good faith I have so often defined in this opinion, by the same rule that would be applicable to like acts of a, private agent or of á guardian or an administrator, and is entitled to reimbursement therefor. . j

The judgment of the common pleas is therefore reversed, and giving ‘ the judgment which the court of coihmon pleas ought to have given, the court here "enters judgment for the plaintiff for the amount claimed, $486.65 and costs, and the' case is remanded to the common pleas for execution.

Mooney, J., concurs; Day, J., dissents.


author: HULL, J.

text:
    NEGLIGENCE — CHARGE TO JURY — EVIDENCE.
    [Huron (6th) Circuit Court,
    November 13, 1903.]
    Parker, Hull and Haynes, JJ.
    Jennie Peat v. Norwalk (City).
    1. Jury Must Find From Preponderance op Evidence That Plaintiff was Without Fault, When.
    Where, in an action for negligence, there was evidence tending to show that plaintiff was guilty of contributory negligence it was not error to charge the jury that to entitle the plaintiff to a verdict the jury must find from a preponderance of the evidence that the plaintiff was without fault.
    2. Charge to Jury Should be Considered, as a Whole.
    A charge should he considered as a whole and not in fragments.
    3. Burden Upon Plaintiff to Exercise Ordinary Care in Going Upon Defective Sidewalk.
    Where it appeared that plaintiff was injured while walking in the daytime upon a sidewalk, claimed to be out of repair, the court properly charged the jury as follows: “ If you find from the .evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe or dangerous and so appeared td persons of ordinary intelligence passing along or over the same, it was the duty of the plaintiff to exercise ordinary care, and in that case the burden of proof is upon her to show by a preponderance of the evidence that she exercised such care.”
    ERROR to court of common pleas of Huron county.
    Sherman Culp and C. P. & L. W. Wickham, for plaintiff in error.
    E. G. Martin, city solicitor, and McKnight & Thomas, for defendant in error.
   HULL, J.

This case comes into this court on petition in error, to reverse the judgment of the court of common pleas. No complete transcript of the evidence is brought into this court, but it is asked that the judgment be reversed because of error committed by the court in the charge to the jury.

The plaintiff brought her action against the city of Norwalk to recover for personal' injuries she sustained, as she claims, on account of a defective sidewalk. She avers in her petition that the sidewalk led out to the cemetery and was out of repair in that the stringers were rotten and the nails thereby had become loosened, and that as she was walking upon it one afternoon with another lady, her companion stepped upon the end of one of the loose planks and it tipped up and the plaintiff was thrown down and fell upon the sidewalk and was injured,

The jury returned a verdict in favor of the city. The bill of exceptions recites that on the trial of the cause, the plaintiff and defendant having each offered evidence to the jury tending to prove all the-issues on their respective parts to be maintained but not sufficient to-authorize the court to determine that the evidence raised a presumption of the plaintiff’s contributory negligence, the plaintiff, in writing, asked the court before argument to give to the jury certain instructions, etc., and this is ail we have as to the evidence.

The plaintiff alleges in her petition that she was ignorant of the-fact that this walk was out of repair when she walked upon it, that she had no knowledge of its being out of repair.

The defendant averred in its answer, among other things, that the plaintiff was guilty of contributory negligence which caused her injury; and according to the bill of exceptions, there was evidence tending to sustain this claim on the part of the city, as the bill recites that each party offered evidence tending to prove all the issues on their respective parts to be maintained, but not sufficient evidence to warrant the court in holding, as a matter of law, that there was a presumption raised that plaintiff was guilty of contributory negligence.

The court charged the jury as follows, which it is claimed was error: “To entitle the plaintiff to a verdict, you must find from a preponderance of the evidence that the injury received by her was caused by some negligence, that is, some lack of ordinary care on the part of some of the city’s officers or agents whose duty it was to care for the sidewalk in question in this case and that such lack of ordinary care was the proximate cause of the plaintiff’s injury and that the plaintiff herself was without fault.” The case was not argued very fully, but we understand it is claimed that by this instruction the jury were instructed that the burden was on the plaintiff to show by a preponderance of the evidence that she was not negligent. We do not think that this instruction should be so construed.

It starts out by saying, “To entitle the plaintiff to a verdict, you must find from a preponderance of the evidence that the injury was received on account of some negligence on the part of the city,” etc., and then it closes with the expression, “and that the plaintiff herself was without fault.” That is, you must find “from a preponderance of the evidence that the plaintiff was without fault.”

There had been evidence introduced on both sides on this issue and it was to be determined by a preponderance of the evidence like any other issue in the case, and the court said in another part of the charge that the burden was on the city, unless plaintiff came -within the exception, to show that plaintiff was guilty of contributory negligence.

The court said to the jury:

“The burden is upon the plaintiff in the first instance to show the. defendant’s negligence in the respect and with the result alleged in the-petition. To show the plaintiff’s contributory negligence the burden; is on the defendant, unless from the evidence of the plaintiff, a presumption of her negligence arises, in which event the burden is on the-plaintiff to remove that presumption.”

This is according to the rule laid down by the Supreme Court of' this state, and considering that in connection with the instruction complained of, we are of the opinion that there was no error in the charge-■of the court as far as this point is concerned to the prejudice of the-plaintiff below. A charge must be considered as a whole and not in,fragments.

This instruction is also complained of:

“If you find from the evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe or dangerous and so appeared to persons of ordinary intelligence in passing along or over the same, it was the duty of the plaintiff to exercise ordinary care to avoid injury, and in that casé the burden of proof is upon her to show by a preponderance of the evidence that she exercised such care. ’ ’

It is complained that this imposed upon the plaintiff the burden of showing that she exercised ordinary care, or the burden of showing that she was not guilty of contributory negligence.

It is claimed by counsel for the defendant that under the petition the presumption arises that she was guilty of contributory negligence because she alleged that she was walking upon this walk and that it was out of repair.

We do not think, however, that the petition, as drawn, raises the presumption that she was guilty of contributory negligence. She was not bound to allege that she was without fault or negligence as stated by the Supreme Court. Brumbaugh v. Chapman, 45 Ohio St. 368, 376 [13 N. E. Rep. 584],

We are of the opinion however that this instruction was not erroneous.

The plaintiff averred in her petition that she was walking upon this sidewalk, that it was out of repair, and that a board flew up as the other lady stepped upon it and she was tripped and fell down. According to this allegation she must of course have been walking upon the walk when injured.

The court said to the jury, that it was the duty of the plaintiff' to exercise ordinary care to avoid injury. There can be no objection taken to that. The court further said: “If you find from the evidence that the sidewalk at the place where the plaintiff claims to have fallen .was out of repair and unsafe or dangerous and so appeared to persons of ordinary intelligence passing along or over the same, it was the duty of the plaintiff to exercise ordinary care to avoid injury, and in that case the burden of proof is upon her to show by a preponderance of the evidence that she exercise such care.” In our judgment this was correct.

We think that if plaintiff went upon a walk that was plainly out of repair and dangerous, and appeared so to persons of ordinary intelligence, which would be presumed to include her, if she went deliberately upon a walk that was so out of repair and dangerous, that then the burden was upon her to show that she exercised ordinary care not only while she was walking upon such a sidewalk where she had put herself, but that she exercised ordinary care in going upon such a walk in the first place.

If the circumstances and the surroundings were such as mentioned in Schaefler v. Sandusky, 33 Ohio St. 246, so that she might have easily avoided this piece of dangerous walk, it was her duty to go around it and not go upon the walk, and if a person walking upon a street in the daytime, as in this case, deliberately goes upon a piece of walk that is palpably and apparently dangerous and out of repair, the burden is upon him to show that in so doing, he exercised ordinary care.

In Schaefler v. Sandusky, supra, the Supreme Court say:

“A person who voluntarily attempts to- pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it which he might easily avoid, cannot be regarded as exercising ordinary prudence, and, therefore, cannot maintain an action against the city, to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.”

We think that the charge of the court was as favorable to the plaintiff as she was entitled to, and finding no error in the record the judgment will be affirmed.

Parker and Haynes, JJ., concur.


author: WINCH, J.

text:
    PRINCIPAL AND AGENT — CUSTOM.
    [Cuyahoga (8th) Circuit Court,
    February 29, 1904.]
    Hale, Marvin and Winch, JX
    Mahler-Wolf Produce Co. v. Feed Meyer.
    Principal not Bound by Agent’s Guaranty, When.
    A produce commission firm sent out a traveling agent to solicit the consignment of peaches on a strictly commission basis; being unable to obtain fruit at a certain town without guaranteeing it should net the shipper a - certain price, he gave such guaranty and fruit was shipped thereunder, hut without potiee thereof to the consignee and without inquiry on the part of the shipper as to the agent’s authority to make the guaranty; in the absence of any evidence showing a usage or custom of the produce commission business to make- such guaranty: Held,- that the guaranty was not within the scope of the agent’s authority, and his principal was not hound by it.
    ERROR to the court of common pleas of Cuyahoga county.
    Horr & Lewenthal, for plaintiff in error.
    Johnson & Dunlap, for defendant in error.
   WINCH, J.

This case involves the application of the law of agency.

It appears that in 1897 plaintiff in error was engaged in the produce commission business in the city of Cleveland and sent one Sidney Kirton to Mifflin, Pa., to solicit shipment of peaches to be sold by plaintiff in error on commission in Cleveland. Kirton found he could get no peaches shipped from Mifflin without a guaranty that they would bring a certain price; he thereupon procured Ferd Meyers, defendant in error, to ship two car loads of peaches to the firm in Cleveland, guaranteeing that Meyers should net at least eighty cents a crate for the first ear load and sixty cents a crate for the second car load.

The peaches were sold in Cleveland and, after deducting freight and commissions, the balance was paid Meyers, but this balance- was some $400 less than the amount guaranteed by Kirton, and in 1900 Meyers brought suit in the common pleas court of Cuyahoga county, Ohio, against the Mahler-Wolf Produce Company, and recovered a-verdict for the amount he claimed, and judgment was rendered on the verdict. On the trial it was shown that the produce company had never authorized Kirton to make the guaranty claimed and had no knowledge that he had made such guaranty until the suit-was brought.

It was further shown that Kirton was employed as a traveling agent, his express authority being to solicit consignments of fruit on a commission basis only; that his firm had never purchased fruit or given any guaranty, and no evidence was introduced as to the custom or usage of the business.

Plaintiff in error claims the judgment should be reversed because the verdict is not sustained by sufficient evidence; that is, the agent was without express authority to guarantee what the peaches would bring; he had no authority to so guarantee, implied from the nature of the business, and therefore Kirton exceeded his authority and the produce company is not bound by his guaranty. .

Defendant in error says that Kirton 'could not have bought peaches at Mifflin without the guaranty, and therefore the power to guarantee must be considered incident to and implied from his employment.

Both parties quote the law of agency as applicable to this case, from 1 Am. & Eng. Ene. Law (2 ed.) 985 to 997.

“A principal is bound by the acts of the agent, whether general or special, within the authority he has actually given him, which includes not only the precise act which he expressly authorizes him to do, but also whatever usually belongs to the doing of it, or is necessary to its' performance.,
“Beyond that, he is bound by the acts of the agent within the apparent authority which the principal himself knowingly permits the agent to assume, or which he holds the agent out to the public as possess--ing.” 1 Am. & Eng. Ene. Law (2 ed.) 988.
“Parties in entering into contracts are presumed to have in view the established usages and customs of the particular trade or business with reference to which they are contracting. Third persons, in dealing with an agent have a right, therefore, to presume that he has been clothed with all the powers with which, according to the custom of that particular business, similar agents are clothed. * * *
“"The principle is elementary and uniform that a power given an agent in a transaction carries with it the authority to do whatever is usual and necessary to carry into effect the principal power.” 1 Am. & Eng. Enc. Law (2 ed.) 996, 997.
“The authority of a general agent is not unlimited, but must necessarily be restricted to the transactions and concerns within the scope of the business of the principal; and if he exceeds the authority, the principal is not bound.” 1 Am. & Eng. Enc. Law (2 ed.) 990.
“It is the duty of all parties dealing with an agent to inquire into the nature and extent of his authority and deal with him accordingly.” 1 Am. & Eng. Enc. Law (2 ed.) 994.

Let us apply the above principles of law to the facts of this case:

The agent bad no express authority to make the guaranty; it •cannot be said to be within his apparent authority, for such guaranties are not usual or necessary in the carrying on of a commission business. Had the proof shown that plaintiffs in error, in addition to their business as factors, sometimes made purchases on their own account, by themselves or through agents, or even that such .purchases were made or guaranties given by commission merchants, there would, perhaps, be some ground upon which to hold the plaintiff in error for the unauthorized guaranty of its agent.

But counsel for defendant in error calls attention to the fact that the agent could procure no peaches in Mifflin without the guaranty. From this it is argued that the guaranty was necessary to doing any business in that town, and that the agent’s mission there would have been fruitless and his employer’s time and money wasted, if the guaranty had not been made; hence the authority to guarantee became necessary to the accomplishment of the duties of the agent.

The proposition is not sound. The agent was hired to procure goods to be sold upon commission; the sol^ business of plaintiff in error was to sell goods on commission. Adopting the contention of counsel for defendant in error makes the transaction practically one of s^-le and purchase; indeed the petition is framed on that theory, suit being for balance due on an account for peaches at eighty cents .and sixty cents a crate. In no sense can the guaranty be held necessary to the carrying on of a commission business,, however necessary it might be in the sale and purchase of goods.

Further, it was not shown that the produce company knew of the conditions on which alone peaches would be shipped from Mifflin. It was shown that defendant in error made no inquiries into the nature -and extent of the agent’s authority, although it knew the business his principal was engaged in.

“Third parties dealing with an agent are put upon their guard by the very fact, and do so at their own risk.” 1 Am. & Eng. Enc. Law (2 ed.) 987.

If Ferd Meyers, before shipping the peaches, had telegraphed his consignee, he would not have been deceived by the guaranty which he claims the agent made him. The plaintiff in error should not be prejudiced by this neglect of Ferd Meyers.

We hold that the agent had no authority, express or implied, to make the guaranty relied upon by defendant in error, and that it was not binding upon the plaintiff in error, it never having ratified the same.

The conclusion bere reached is the same as was reached in the case of Quinn v. Carr, 4 Hun (N. Y.) 259 (6 Thompson & Cook 402), where it appears that a commission house sent its agents into the-country . to solicit consignments of produce on commission, and the agent guaranteed a shipper that his butter would bring a certain price. The court held that such guaranty was not within the scope of his authority.

Defendant in error having failed to prove the agent’s authority, the verdict should have been for the defendant below, and for error in overruling the motion to direct a verdict for defendant and in overruling the motion for a new trial, on the ground that the verdict was against the weight of the evidence, the judgment is reversed.

Hale and Marvin, JJ., concur.