author: Shields, J.

text:
    PROSECUTOR MAY DECLARE BELIEF IN GUILT OF THE ACCUSED.
    Court of Appeals for Stark County.
    Charles C. Jones v. The State of Ohio.
    Decided, February Term, 1919.

      Misconduct of Prosecuting Attorney — May not be Based on Declarations to the Jury of Belief in Quilt of the Accused, When — Sow Question of Misconduct may be Raised on Review — Weight of Evidence —Charge of Court.

    1. A reviewing court will not undertake to determine whether or not remarks made by counsel in argument to the jury constituted misconduct, unless the statements complained of are brought into the record as made and not “in substance” only; and the record must further show that the attention of the trial court was challenged by an objection made at the time and an exception entered with the action of the trial court wih reference thereto.
    2. While a prosecuting attorney should protect the innocent as well as seek the punishment of the guilty, he is not thereby barred from properly expressing in argument to the jury his honest conviction as to the conclusion which should be drawn from the evidence, but on the contrary it is his duty to be vigilant in urging an orderly administration of justice.
    3. Use by a prosecuting attorney in his argument to the jury of the words, “I say to you that the defendant is guilty, and I believe we have proven him guilty, and I am willing to bear my part of the responsibility whatever the verdict may be,” does not constitute misconduct, but is in effect an expression of opinion that the prosecutor believes, subject to the action of the jury, that the defendant is guilty as shown by the testimony.
    4. A verdict returned by a jury in a criminal case containing a recommendation of mercy, except in a first degree murder case, is to be treated as surplusage when such verdict is .responsive to the charge in the indictment.

      Amerman & Mills, Webber <& Turner and S. F. Bowman, for plaintiff in error.

      W. S. Ruff, Prosecuting Attorney and T. H. Leahy contra.
   Shields, J.

At the May (1918) term of the court of common pleas of said Stark county the plaintiff in error was indicted for procuring a miscarriage upon the body of Maybelle Henderson, a pregnant woman, in violation of Section 12412, General Code. A motion to quash the indictment being overruled, trial was had resulting in the conviction of the plaintiff in error who was sentenced according to law. A petition in error was filed in thns court, alleging numerous grounds of error for the reversal of said judgment of conviction and sentence. In considering said grounds of error we will take them up in the order in which they appear in said petition in error.

1. The first ground alleged was that the court erred in overruling the motion to quash the indictment. The motion to quash was based upon the ground that “said indictment is uncertain and repugnant and defective in the following to-wit: ‘that the said Maybelle Henderson on or about the 17th day of April in the year of our Lord one thousand nine hundred and eighteen, in said county, miscarried and. was prematurely delivered. ’ ” It clearly appears that the language here quoted from said indictment is to be read in connection with what immediately precedes it, and when so read it is apparent that the objection made is, without merit and is therefore not well taken.

2. The second ground alleged is that “the court erred in over ruling the demurrer.” We find no demurrer among the files in this case, nor does the transcript as prepared and filed by the clerk show that any demurrer was passed on by the court below, nor does it show that a demurrer was filed.

3. The third ground alleged is that “the court erred in not declaring a mistrial on account of the misconduct of the prosecut- or.” On page 289 of the bill of exception it appears that objection was made on behalf of the defendant below to a certain statement alleged to have been made by Mr. Leahy, assistant prosecuting attorney, in his argument to the jury on behalf of the state, and which it was claimed was improper and amounted to misconduct on the part of said counsel. Said statement was, in substance: “that in fact the defendant Charles C. Jones was implicated in the Yerroun ease which said case was tried some time ago in the common pleas court of Stark county.” It appears that counsel for the defendant called the attention of the trial court to the remarks of counsel so made and requested the court to instruct the jury to disregard them, whereupon the court cautioned the jury that “Dr. Jones is not on trial for anything that transpired in the Yerroun case” and, in substance, that they should not be influenced by remarks of counsel based upon anything outside of the testimony. It likewise appears that the court stenographer was absent from the court room at the time said remark is alleged to have been made, and while counsel for the state denied it was made, as stated, the record recites that it was “in substance” so made. Remarks of counsel as made must be brought into the record to enable the court to correctly judge whether or not they constitute misconduct. But aside from this, the record fails to show that any exception was taken to the statement alleged to have been made by the assistant prosecuting attorney in his argument to the jury, and it further fails to show that any exception was taken to the action of the trial judge, to lay the foundation for a review by an appellate court. The attention of the trial court should be challenged by an objection and exception taken at the time. Davis v. State, 20 C. C. 430.

It is also argued on behalf of the plaintiff in error that the prosecuting attorney in his final argument to the jury was guilty of misconduct prejudicial to the rights of the plaintiff in error. On page 290 of the record the following appears:

“Defendant objects to statement of prosecuting attorney in argument to the effect:
“I say to you that the defendant is guilty and I believe we have proven him guilty. Then I am willing to bear my part of the responsibility whatever the verdict may be.”
Objection overruled.
Defendant excepts.
Mr. Amerman asks the court to instruct the jury to disregard it.
Court — Go ahead.
Defendant excepts.”

Legitimate argument is at all times permissible when based on the evidence in a case, and counsel are not precluded from properly urging their conclusions, deducible from the evidence, to the jury who are the final judges of the facts. Of course this does not mean that counsel are privileged to reinforce their arguments to the jury by their own unsupported personal statements, or in urging their personal belief upon the jury without reference to proven facts or other matters extraneous to the inquiry before the jury, but fair and reasonable argument is and always has been regarded as being within the constitutional right of counsel.

As was said by Judge Davis in Hayes v. Smith, 62 O. S., 161, 186, “a generous latitude should be allowed to counsel; but the argument should always be decorous and should not impair the impartial administration of justice.” The question then arises, Was the language used by the prosecuting attorney in argument to the jury such misconduct as that it violated the rights of the defendant below and deprived him of a fair trial ? If so, then it is reversible error and a new trial should be awarded on this ground, otherwise it should be denied. It is to be borne in mind that a special obligation is laid upon the prosecuting attorney to “faithfully discharge all the duties enjoined upon him by law, among which is that he make diligent inquiry into all offenses committed within the county and to use every reasonable effort to bring offenders against the law to justice,” and in this connection it may not be too much to say it is the con-' mon observation of courts and others as well that in some classes of cases at least this requirement of public duty is beset with difficulties that render the administration of said trust not an easy one under all circumstances. However this may be, every person accused of crime is guaranteed a fair trial under the Constitution and the law, and it should be the common aim of all concerned in the administration of the law to observe this humane provision. Quoting from the opinion of Judge Spear in Miller v. State, 73 O. S., 195, 205, respecting the duty of a prosecuting attorney, he says:

“It is incumbent upon a prosecuting attorney to aid the administration of justice, and not to so conduct himself during a trial as to defeat the purpose of the law which accords to every person accused of crime a fair and impartial trial. And this is no less a duty where the prosecutor believes the offender guilty. ’ ’

While the prosecuting attorney is a semi-judicial officer, presumed to be interested alike in the punishment of the guilty and the protection of the innocent, we do not understand it therefore follows that he is deprived of the privilege of properly expressing his honest convictions in argument upon the effect of evidence laid before a jury. He is not required to remain sphinx-like and witness the cause he officially represents to be lost through his failure to assert the rights of the state, but he owes it to the state to be vigilant to the end that in the orderly administration of justice the interests of the state may not be neglected but properly looked after.

He may not always find the jury agreeing with him, but the same instrument and the same law which afford the humane and charitable presumption of innocence of one charged with the crime, is the same instrument and the same law which afford to counsel generally the right to be heard before the courts, and especially is this the privilege of the prosecuting attorney who is specially charged by the law and by his oath to faithfully represent the interests and welfare of the public. Coming nearer to the question under discussion, it is the opinion of this court that the prosecuting attorney has a public duty to perform, and in its proper and faithful performance lies the only hope of security of the people in the enjoyment of their rights. In the history of criminal trials it may be, and it is doubtless true, that there are instances wherein the comments of the prosecuting officer of a county are so flagrantly violative of propriety and decorum as to require a verdict secured for the state through such means to be set aside on a motion for a new trial because the accused was thereby deprived of a fair trial, where a new trial was granted and properly so, but let us inquire of the conditions met with here. It does not clearly appear from the bill of exceptions in the light of the preceding exception taken to the remarks alleged to have been made in argument by the assistant prosecuting attorney that the stenographer was present in court and took a note of the remarks made by the prosecuting attorney in his argument at the time they are alleged to have been made, as- appears on page 290 of the record, but assuming that they were made as claimed on behalf of the plaintiff in error, what was their effect? Was the effect prejudicial? Although a civil case wherein misconduct of counsel, among other things, was charged during the trial, it was said by the court in Dock v. Trapnell, 88 O. S., 516, 521, when referring to side-remarks of counsel in the hearing of the jury,

“Remarks of this kind are wholly improper in the trial of a case and it is the duty of the trial court to see that they are not made, or at least not persisted in, but something must be left to the discretion of the trial court, otherwise we would never reach an end to litigation, and a reviewing court ought never to reverse unless it clearly appears that such misconduct was of such character and so persistent as to prevent a fair trial of the case. While this court will sustain a trial court in compelling counsel to properly conduct their cause and to refrain from all side-remarks and unprofessional conduct either by directions to the jury to disregard these remarks and the punishment of counsel if they persist in offending, or by granting a new trial therefor, yet it will not reverse the judgment until it clearly appears that such conduct was prejudicial to the losing party. ’ ’

Again on page 520 the court in said case say:

“While this court agrees with counsel for plaintiff in error that this was misconduct on the part of counsel for the defendant in error, and that the same was reprehensible and wholly inexcusable, yet that fact does not necessarily make it prejudicial to defendant. Counsel in the trial of a case may be guilty of many acts of misconduct that would subject him to reprimand by tin. court or even to punish for contempt of court, and yet the act may not be prejudicial to the rights of either party to' the court or even to punishment' for contempt of court, and yet the act may not be prejudicial to the rights of either party to the cause, and in such ease it would be highly improper to reverse for such reason. ’ ’

It’thus appears that the controlling question is, Did the remark imputed to the prosecuting attorney have an effect prejudicial to the legal rights of the plaintiff in error by way of depriving him of a fair trial? Counsel for plaintiff in error claim that it did, for which he is entitled to another trial, and in support of said claim, we are cited to numerous authorities, among them, the case of Broznak v. State, 109 Georgia, 154, which was a criminal case for cheating and swindling. One of the grounds complained of during the trial was that counsel employed to assist in the prosecution of the accused said in his argument to the jury:

“I would not appear in this case, if I did not believe the defendant to be as guilty as any man that was ever tried in the court house.”

The trial court held this was “legitimate argument.” Upon error it was reversed for reasons that are most obvious. Yet in this case the court, quoting from counsel’s brief, say:

“Yet one may well argue, and he should, that the testimony has established his client’s cause.”

Jackson v. State, 166 Indiana, 464, cited on behalf of the plaintiff in error, was an indictment for adultery wherein the prosecuting attorney in his closing address to the jury used the following language:

“Washington Jackson’s wife is heart-broken over his conduct with this woman. I know what I am talking about. I have been to Greenfield, and heard the evidence before the grand jury, and I know what those people think about this case.”

That this language was grossly improper for the prosecuting attorney to go outside” of the record and make said statement no one will dispute. It was an expression of opinion founded on alleged information wholly outside of the record.

Howard v. Commonwealth, 110 Kentucky, 356, also cited on behalf of the plaintiff in error, was a first degree homicide case where the regular attorney for the commonwealth did not appear, but was represented by another who in his closing address to the jury used the following language:

“I am commissioned by Robert Franklin (the commonwealth’s attorney) to say to the jury that he is in thorough accord and sympathy with the prosecution, and that he thinks the defendant, guilty, and hopes the jury will hang him higher than Haman.”

It is unnecessary to say that the mere statement of this bravado declaration furnishes its own comment.

People v. John Dane, 59 Michigan, 550, also cited on behalf of the plaintiff in error, was a prosecution for larceny and in his closing address to the jury, it is apparent that the prosecuting attorney urged his own personal statement to the jury without any qualifiaeation whatever, going so far as to state that he knew that the defendant was guilty of taking the money, yet quoting from counsel’s brief we find that the court in this case say:

“It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as it is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an act of zeal is commendable. Yet his methods to procure conviction must be such as accord with the fair and impartial administration of justice; and it is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence under the sanction of an oath, relating to the material "issues in the ease.”

Goings v. State, 24 C.C.(N.S.), 145, was also cited on behalf of the plaintiff in error. This was a homicide case wherein the prosecuting attorney in his argument to the jury gave to the jury a false impression of the real status of the principal witness for the defense, intimating that said witness had been tried and acquitted of the crime for which Goings was then undergoing trial, all of which was untrue. This was considered by the reviewing court equivalent to a deliberate mis-statement of a material matter in the ease, and on this account the court set aside the verdict.

We think it will appear that the foregoing cases are not parallel cases with the case at bar, but wholly different.

While we have already indicated the general trend of opinion on this question by the Supreme Court of this, state, the same question has received the attention of courts in other jurisdictions, cases being cited in the brief of counsel for the defendant in error, among them, Fertig v. State, 100 Wis., 301, which was a first degree homicide case wherein it was held that,

“It does not transcend the bounds of legitimate argument in a criminal case for the district attorney, reasoning from the evidence in the case, to say that the accused is guilty of the offense charged. Within the record, the field of legitimate argument is broad enough to permit the prosecuting attorney to say, with the utmost freedom, what the evidence tends to prove, and that it con-' vinees him, and should convince the jurors, of the fact in issue. ’ ’
“Where evidence strongly tends to prove the fact of guilt, it is not reversible error for the prosecuting attorney to assume the truth of such evidence, and say from it that the accused is what such evidence tends to establish in regard to guilt. ’ ’

In People v. Hass, 85 Michigan, 128, it was held that:

“It is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty as his belief is not evidence in the case; but he has the right to argue .from the testimony the fact of his guilt and to state to the jury what evidence before them convinces him, and should convince them, of such guilt.”

In State of Iowa v. Beasley, 81 Iowa, 83, it was held that the statement of the county attorney in his argument to the jury in a criminal cause that he was convinced beyond a reasonable doubt that the defendant was guilty will not entitle the defendant to a new trial.

In 12 Cyc. p. 580 it is laid down that.

“It is reversible error for the prosecuting attorney in his argument to the jury to declare his individual opinion or belief not expressly stated to be on the evidence that the accused is guilty, or to state that defendant’s counsel advised him to plead guilty. He may, however, argue to the jury that the evidence in his opinion shows guilt, or that it convinces him of the guilt of the accused. Such argument will not necessitate the granting of a new trial. ’ ’

From these authorities we think the recognized rule is that the prosecuting officer may dráw his own conclusions based upon the evidence, and in argument he may in a proper way state them to the jury and argue' from that standpoint. Now if we have correctly stated the rule, applying such rule, what have we in the case before us ? Analyzing what was said, we think it appears that the prosecuting attorney was convinced of the defendant’s guilt by the testimony in the case, and that he so stated to the jury. “I say to you that the defendant is guilty, and I believe we have proven him guilty, and I am willing to bear my part of the responsibility whatever the verdict may be!” Is’nt the opinion here expressed, in effect, that, subject to the action of the jury, the prosecutor believed that the defendant was guilty as shown by the testimony? We think it was. The belief expressed was not personal but based upon the testimony in the ease, and without extending this discussion further, we hold that the exception is not well taken.

4 and 5. The fourth and fifth grounds alleged are that the court erred in the admission and rejection of testimony offeree^ upon the trial. On account of the importance of the case both to the plaintiff in error 'and the state, we have read and examined the entire bill of exceptions with considerable care, including the rulings of the trial judge arising upon testimony offered during the trial, and we find no substantial ground for complaint by the plaintiff in error, upon either of the grounds alleged. The trial was a lengthy one and it is apparent that the expert testimony, which embraces the larger part of the voluminous bill of exceptions, was allowed to be given by the professional witnesses at great length. No error is found upon either of these grounds.

6. The sixth ground alleged has already been treated and disposed of under the third ground herein.

7. The seventh ground alleged is “that the verdict was for the state of Ohio when it should have been for the defendant.” As already stated, we have read this entire record, and while there appears to be a sharp conflict in the testimony of the prosecutrix and that of the accused as to the operation in question having been performed by the latter upon the body of the former, as well as a conflict in the testimony of the numerous professional witnesses who testified, it is to be remembered that facts are the property of the jury to determine, and when so determined under proper instructions of the trial court, the verdict of the jury should be upheld, unless the same is not sustained by the evidence, or is clearly against the weight of the evidence. Here there was testimony before the jury supporting the contention of both the state and the defense, and the credibility of the witnesses and the weight to be given to their testimony was for the jury. Commenting on the conflict of evidence in a criminal case, Judge Peck in Breece v. State, 12 O. S., 146, 156, said:

“The jury who try a cause and the court before which it is tried, have much better opportunities to determine the credibility and effect of the testimony, and we ought, therefore, to hesitate before disturbing a verdict rendered by a jury and confirmed by a court, possessing such advantages, merely because there is an apparent conflict in the testimony.”

And the court in that case held that:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

Applying the rule of law above stated to the evidence presented in this case, we find no sufficient ground to warrant us interfering with the verdict rendered.

8. The eighth ground alleged is that “the court erred in refusing to grant a new trial to the defendant below.” This covers the several grounds already disposed of, including exception No. 9, as well as the exception to the action of the court below in giving the state’s request No. 1 (p. 283 of the record) in charge to the jury before argument and which was as follows:

‘ ‘ Though you are not to convict the defendant upon the uncorroborated testimony of Maybelle Henderson, it is not necessary that the crime charged be proved independently of the testimony of said Maybelle Henderson, or that the testimony of Maybelle Henderson be corroborated in every particular; but it is only necessary that there be circumstantial or direct testimony in addition to the testimony of Maybelle Henderson tending to connect the defendant with the crime charged and to prove some of the material facts testified to by Maybelle Henderson.”

Written requests to be submitted to the jury by the court before argument in a civil ease are specially authorized under Section 11447, subdivision 5, General Code, and which is as follows:

“When the evidence is concluded, either party may present written instructions to the court on matters of law and request them to be given to the jury, which insructions shall be given or refused by the court before the argument to the jury is commenced. ’ ’

And Section 13675, subdivision 5, General Code, which relates to criminal procedure, provides:

“When the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court; such instructions shall be reduced to writing if either party requests it.”

The only difference we see in these two Sections is that under the first Section referred to requests may 'be submitted in writing while in the second Section referred to if requests are submitted, they shall be submitted in writing only on request. Here it appears that the requests both for the state and defense were submitted at the conclusion of the evidence and that no reqxiest was made that sueh requests so submitted be in writing, nor does it appear that the charge of the court to the jury be in writing.

That the instruction given on behalf of the state contains the law as announced by our Supreme Court in the case of State v. Robinson, 83 O. S., 136, and State v. Lehr, 97 O. S., 280), and the law applicable to the case before us, admits of no question in our judgment.

9.' The ninth ground alleged is that “the court erred in its charge to the jury.” Without here reviewing said charge at any length, suffice it to say that we have examined it, and in our judgment it contains a correct and impartial statement of the law as applied to the case presented. After treating of the general nature of the charge, it takes up and describes an accomplice under said section of the statute, cautioning the jury as it does against conviction in this class of cases without corroboration of the testimony of the prosecutrix as to some or all of the material facts necessary to establish the crime charged. Commenting on the necessity of either direct or circumstantial evidence being clearly shown before the jury are authorized to convict, the learned trial judge says, on page 298 of the record:

“Before you can convict the defendant in this case the evidence, whether direct or circumstantial, or both, must be so clear and convincing as to exclude from the minds of the jury all reasonable doubt of the defendant’s guilt: Each and every circumstance and fact from which an inference is sought to be drawn against the defendant must be proved beyond the existence of a reasonable doubt before sueh inference can be legitimately drawn. ’ ’

Taken all in all, we regard said charge as unexceptionable and free from prejudicial error.

The claim made on behalf of the plaintiff in error that said charge on page 297 of the record is open to criticism where said court instructed the jury that they must find that the testimony of the prosecutrix is corroborated as showing the truth of her statement, we can not assent to. Such charge is in harmony with the rule laid down in both the Robinson and Lehr cases already cited, and we think the proposition stated, and as stated, is sound law. In this connection it was argued that the testimony of the prosecutrix was lacking of corroboration, even assuming that the jury had been poperly instructed in the respect mentioned. As was said by Judge Summers, speaking for the court in the Robinson case cited, on page 143 of said ease.

“It is not necessary that the crime charged be proven independently of the testimony of the accomplice, or that the testimony of the accomplice be corroborated in every particular in order that it may be said to be corroborated, but only that there be circumstantial evidence, or testimony of some witness other than the accomplice, tending to connect the defendant with the crime charged and to prove some of the material facts testified to by the accomplice. ’ ’

Here the testimony of Charlotte Henderson (pp. 12-13 of the record) was that after she saw the plaintiff in error at her home on Tuesday, April 16th, 1918, the day of his first call at the Henderson home, her sister Maybelle was up and about and in health when she (Charlotte) left the house to go to the laundry, and about a half hour afterward and after her return to her home she found her sister upstairs in bed and the plaintiff in error still in the house, and that her sister remained in bed the following day and off and on for several days thereafter. The witnesses, Mrs. Creighton, who was living in the Henderson home, and Mrs. Schauer, a neighbor, also testified (pp. 58-66 of the record) that Maybelle had been about the house and in health until Tuesday, April 16th, when she was taken ill and went to bed. And the witnes P. D. Howell testified (pp. 93-96 of the record) that the plaintiff in error stated to him at the sheriff’s office that Charlotte Henderson on the occasion of his first call at the Henderson home was about to leave the house and go down street and did so leave, and that he was at the house when she returned, as Charlotte also testified. It was the province of the jury to consider and analyze the testimony of these witnesses as to whether or not said witnesses in any manner corroborated the testimony of Maybelle Henderson. It is sufficient to say that this court finds that the testimony of said witnesses affords corroboration of her testimony..

Nor are we of the opinion that said charge is open to the objection made with reference to the question of venue. The indictment charged that the act was committed in Stark county, Ohio, which was read to and thereby formed a part of said court’s charge to the jury, and which fact was testified to upon the trial by both Maybelle and Charlotte Henderson. We fail to discover how any prejudicial error could possibly result from this fact.

And it was also claimed that there was a fatal variance between the name of Maybelle Henderson as averred in the indictment, and her true name as shown during the trial, and that said court erred in not calling attention to the fact in its said charge.- Maybelle Henderson testified that her name was May-belle Henderson, that she is and was known and recognized by that name and by none other, and that Charlotte Henderson was her sister. Under the liberal provisions of the Code, we find no legal justification for the court below in departing in this instance from what has become a well settled rule in the administration of criminal law.

10. Under the tenth ground of error it was urged on behalf of the plaintiff in error that the verdict as returned by the jury was irregular in form and should not have been received because it contained a recommendation of mercy. The issue tendered by the indictment was whether or not the plaintiff in .error was or was not guilty of the offense therein charged, and the verdict was as follows.

“We the jury impaneled and sworn to well and truly try and trae deliverance make between the State of Ohio and the prisoner at the bar, Charles C. Jones, do find the defendant guilty as he stands charged in the indictment and recommend the mercy of the court.”

Was said verdict responsive to the issue? True it contained a recommendation to mercy as stated, but the verdict was guilty as charged. Did the recommendations to mercy in any wise affect the validity of the verdict? Was it not a valid verdict without the recommendation made which was not included in the instructions of the trial court? We think it was, and the recommendation made was surplusage only and is to be treated as such. Perhaps the best and most satisfactory statement of the law on this subject is to be found in 38 Cyc., pp. 1890-1891, where it is laid down that

“Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and somethng more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the necessary matter, there being nothing to show that the jury reasoned falsely. And a verdict will not be invalidated merely because the jury, through their foreman, immediately after the rendition of the verdict expressed their opinion as to the merits of the case, such opinion not being at variance with the verdict, or made an award concerning costs, or, the cause being submitted to the jury on special issues alone, they return a general verdict therewith, and so much of the verdict as relates to facts admitted by the pleadings may be stricken out. All these matters will be treated as surplusage, and judgment rendered on a valid part of the verdict, axxd it is not fatal that the verdict is xiot technically accurate if the court can see how it should be corrected.”

Under the xnxle herein cited, we hold that the verdict was -re¿ sponsive to the indictmexxt axxd that the recommendation to mercy is to be treated as mere surplusage.

Upon the whole case we are of the opinion that the plaintiff in error had a fair trial, that his rights were properly safeguarded by the rulings of the trial court upon all questions arising during the trial, and by said court in its charge to the jury, and that the verdict of the jury is sustained by the evidence and the law.

The judgment of the Court of Common Pleas will be affirmed and said cause will he remanded to said court for execution of sentence. Exceptions.

Houck and Patterson, JJ., concur.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 13, 1919.


source: Caselaw Access Project

author: Ferneding, J.

license: Public Domain

text:
    CLAIM FOR EXCESS FARE NOT ENFORCEABLE WHERE DUE TO MISROUTING.
    Court of Appeals for Franklin County.
    Columbus Tent & Awning Co. v. Cleveland, C. C. & St. L. Ry.
    Decided, March 27, 1919.

      Railways — Additional Fare for a Party Not Collectable — Where Full Fare was Paid — But There was a Violation of Traffic Rules Due to Misrouting.

    A railway company, whose ticket agent sold at full regular tariff rates two tickets for two parties of sixteen and nineteen men respectively, and agreed to furnish a special baggage car free, can not recover further compensation in excess of the service actually rendered for the transportation of one of such parties because of a transportation rule that a special baggage can be furnished free, only for a party of not less than twenty-five' adults, holding tickets at regular tariff rates, where the issuing of the tickets and the division of the party was determined by the ticket agent and no misquotation of fare rates was made.

      Thomas M. Sherman, for plaintiff in error.

      Wilson & Hector, for defendant in error.
   Ferneding, J.

In the municipal court in the city of Columbus an action was brought by the Cleveland, C. C. & St. L. Ry. against the Columbus Tent & Awning Co. to recover the sum of $15.75 representing the tariff rate for three passenger tickets from Columbus, Ohio, to Erie, Pennsylvania. The municipal court rendered judgment for the defendant.

Upon petition in error to .the court of common pleas this judgment was reversed and a final judgment was rendered in favor of the railway company for the amount of the claim. The case is now brought to this court upon petition in error.

The facts upon which the claim is made are substantially agreed upon and are as follows:

On or about September 11, 1916, the Columbus Tent & Awning Co. desired to transport thirty-five men from Columbus, Ohio, to Erie, Pennsylvania, and to obtain for their use from the railway company free of charge, a special baggage car for the transportation of the baggage. The tent and awning company wanted to ship the men in two parties of sixteen and nineteen respectively, provided it could be done without a violation of the rules of the railway company so as to secure said special baggage car free of charge. At the time of the purchasing of the tickets the manager of the tent and awning company stated that while he would prefer to send sixteen on one ticket and nineteen on another ticket this preference would be subordinated to the rules of the company and he would so divide the number as to comply in all particulars with the requirements of the 'railway company, insuring a special baggage car free of charge and left to the agent of the railway company the issuance of the tickets for the party of thirty-five in compliance with the regulations. The agent of the railway company before issuing the tickets in the ratio set forth consulted with the company’s general officers at Cincinnati as to the company’s requirements in the premises with the result that he assured the manager of the tent and awning company that the parties represented by the tickets would be entitled to transportation and the use of a special baggage car without cost or additional charge and could be divided into parties of sixteen and nineteen. These negotiations resulted in the purchase by the plaintiff in error of two tickets, one calling for sixteen passengers and the other for nineteen passengers with a special baggage car to transport the baggage. The sixteen men were transported on September 11; the remaining nineteen on September 17. The fare paid for each passenger was $5.25, which was the regular tariff rate. The record is not absolutely clear whether the special baggage car was furnished at the time of the transportation of the party of sixteen or of the nineteen.

■ The recognized rule of the railway company, as embodied in the published tariff schedule, is to the effect that a special baggage car will be furnished free in connection with the transportation of a party of not less than twenty-five adults holding tickets at the regular tariff rate, provided the aggregate amount of such fares is not less than $25.00. The tariff schedule also provides that where it is found not to be convehient to transport the baggage car on the same train as the passengers the arrangements may be made for not to exceed three employes to accompany the baggage car, and a separate ticket may be.issued therefor at the same per capita fare as charged the other members of the party.

The railway company now contends that it was incumbent upon the tent and awning company to purchase at least twenty-two adult tickets in one party in order to obtain the concession of a free baggage car, and that having obtained the use of a free baggage car on a transportation of only nineteen adults in one party, the railway company was and is entitled to charge the tent and awning company for an additional three passenger tickets which would represent a total of twenty-five, less the three permitted by the rules of the company to travel on another train. In support of this contention counsel for the railway company rely largely on two decisions of the Supreme Court of the United States, to-wit: Texas & Pacific Ry. v. Mugg, 202 U. S., 242; Louisville & N. Ry. v. Maxwell, 237 U. S., 94. In the Mugg ease there was an undercharge for services actually rendered and we do not think that applies to this case.

Preliminary to a eonsideraliqn of the Maxwell case, let it be said that the Supreme Court of the United States has, according to its own dictum in said opinion, announced the establishment of a very vigorous rule in order to uphold the policy of the Interstate Commerce Act so as to prevent discrimination between railway companies in the transportation of passengers and freight.

Not infrequently has it been held that a shipper is bound to pay the published tariff rate for a given shipment notwithstanding that such shipper may have been ignorant of such rate and relied upon the agent of the railway company who inadvertently and unintentionally gave such shipper a lower rate.

In the Maxwell case, supra, the agent of the railway company gave Maxwell the same rate over several lines. Maxwell chose an indirect route. The agent informed Maxwell that the fare upon either route was the same. Later it was discovered that the published tariff rate for the transportation previously secured by Maxwell exceeded in amount that charged by the agent of the railway company to Maxwell at the initial point, and Maxwell was required to pay the difference. It is important to observe at this point that Maxwell actually secured a service at less cost for which the higher rate was fixed by the published tariff schedule. In other words, Maxwell secured certain transportation at a cost less than authorized by the interstate commerce act.

Mr. Justice Hughes, in speaking for the court, said:

“Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by.Congress in the regulation of interstate commerce in order to prevent unjust discrimination.”

It seems clear that there is a marked distinction between the Maxwell case and the case at bar. In the former, Maxwell was merely required to pay for the service actually obtained and at the regular tariff rate. In the ease at bar the railway company is asking the tent and awning company to pay for three passenger tickets in excess of the service actually furnished. The tent and awning company paid not only for tWenty-two adult fares, but, as a matter of fact, for thirty-five adult passengers actually transported.

We are unable to comprehend, even under a most rigid construction of the interstate commerce act as defined in the opinion of Mr. Justice Hughes, how the railway company could legally maintain an action for the recovery of the price of three additional passenger tickets when no such passenger service had been furnished.

If the tent and awning company had secured a baggage service to which they were not entitled, the railway company’s only remedy would be to recover for such excess baggage service.

We are of the opinion that the tent and awning company did not obtain any service which they were not entitled to under the record in this case. There is no element of doubt that if the tickets had been properly issued and the parties to be transported properly divided as to numbers, no claim would have been made of an undercharge. The issuing of the tickets and the division of the party as to numbers was left to the agent of the railway company. The controversy as to the charges in the case at bar arises not out of any misquotation of rate, but solely because of error of the agent in routing the party as to number. This feature finds some support by Mr. Justice Hughes in the following comment:

“A misstatement or misquotation of the rate over a given route is one thing, misrouting is a different matter. We do not think that it can be said that there is a misroutting, in any proper sense, when the route given by the company is that requested by the shipper or passenger. ’ ’

The turning point in the Maxwell case was that the passenger requested and obtained particular service, for which he was required to pay the full tariff rate.

In the case here under discussion we think the shipper paid the full tariff rate for the service he actually requested; whatever error was made was due to the mistake of the agent of the railway company in issuing the tickets, and not by the tent and awning company in accepting the transportation, for which it paid the full tariff rate.

The rule announced in the Maxwell ease was stated to be a harsh one. Of course the infringement of a settled and fixed policy, while beneficial and wise in a general application, may, in the ease of some individual operate unfairly, yet under all the facts and circumstances of the present case we think it is not one requiring such general policy of the act to be invoked in the case at bar.

It therefore follows that the judgment of the court of common pleas should be reversed, and that of the municipal court affirmed.

Allread and Kunkle, JJ., concur.


author: Lieghley, J.

text:
    INJURY TO A WAITING PASSENGER.
    Court of Appeals for Cuyahoga County.
    Keifer v. The Cleveland Railway Co.
    Decided, October 22, 1917.

      Negligence — Causes May Blend into a Single Proximate Cause — Waiting Passenger Injured t>y Having Another Thrown Against Him.

    1. There may be more than one proximate cause of an injury.
    2. Where concurrent causes are the immediate and efficient cause of an injury, it is not competent to take one of them away from the other, and say that it and not the other was the proximate cause of the accident.
    3.. Where two men are standing near a street car track, in a space used by passengers waiting to board cars, and the end of a street car being operated on a curve at a prohibited rate of speed strikes one of the men and hurls him against the other, injuring the latter, it is error in an action for damages by the injured man against the street car company, to direct a verdict for defendant at the close of plaintiff’s evidence disclosing such facts, the case being one • that should have been submitted to the jury.

      T. 8. Dunlap and F. F. Klingmcm, for plaintiff in error.

      Squire, Sanders & Dempsey and William L. Day, contra.
   Lieghley, J.

Error to Common Pleas Court of Cuyahoga County.

The parties stood in the same order below.

It is a matter of common knowledge that the Public Square in Cleveland, Ohio, is divided into four sections by intersecting streets; that cars of the defendant serving the west and southwest parts of the city loop around the northwest section of the Public Square; that on the westerly side of the northwest section of the square there are two southbound tracks with a devil strip between them of approximately ten feet in width; that passengers or prospective passengers take position on this .devil strip waiting to board cars that use the easterly southbound track; and that at or near Superior avenue these two southbound tracks converge and lead into and upon Superior avenue and said cars proceed westerly on the northmost track on Superior avenue. For the most part, and so far as necessary, the facts above stated are disclosed by the proof in this case.

As was his practice, the plaintiff, Jacob Keifer, on the 18th day of August, 1914, boarded a St. Clair avenue car near his home in the east end, purchased a transfer to a West 14th street car, and proceeded to the Public Square where he alighted and walked over to the said devil strip on the west side of the northwest section of the square above described. He took position on said devil strip with the purpose in mind of boarding a West 14th street car, then using this loop by reason of the damaged condition of the Central Viaduct. While he was so standing there an Italian approached him and excitedly inquired about a car, repeating his inquiry and gesticulating for some little time. While the two were so standing there, a city street car passed by them, which was followed by an interurban car operated at the time and place in question by the defendant. The rear end of said interurban car extending far over the rail in making the curve, and proceeding at the rate of ten miles per hour around the curve into and upon Superior avenue, struck the said Italian, hurling him against plaintiff, who .was then and there severely injured by being hurled to the pavement by the force of the said Italian striking him.

It is disclosed by the proof that the said street car was operated in violation of a, traffic ordinance of the city which provides that street cars shall travel at no greater rate of speed than four miles per hour in turning a corner of a street, and it is urged that this is negligence per se on the part of defendant, upon the authority of Schell v. DuBois, Admr., 94 Ohio St., 93.

It is further urged by the plaintiff that, by reason of the fact that the body of an interurban car extends farther beyond ■^he rear trucks than does the body of the ordinary street car, the sweep of the rear end of an interurban ear in making a curve is much greater than that of a city car; that the motorman saw or should have seen the perilous position of the Italian, whose name is unknown, as he approached and passed the place where the plaintiff and the Italian were standing; and that the motorman should have known that the rear end of this car, in making the curve, would strike the Italian.

The plaintiff rested his ease in the court below upon the testimony of the plaintiff himself and the ordinance above referred to admitted in the proof.

The court directed a verdict for the defendant, and from this judgment error is prosecuted to this court to reverse.

The testimony of the plaintiff tends to establish contributory negligence of the Italian in facing eastward with his back to the westerly southbound track and not using his senses for his own safety at the time.

Undisputed testimony of the plaintiff establishes the negligence of the defendant in operating its ear in violation of said traffic ordinance.'

The question presented to us for decision, under the claimed admitted facts in this case, is, What was the proximate cause of the injuries which the plaintiff sustained, or, should this question have been submitted to the jury for answer?

Apparently it was the judgment of the court below that the negligence of the Italian proximately caused the injury, and, assuming the facts to be admitted, a decision of this question was for the court, under authority of L. S. & M. S. Ry. Co. v. Liidtke, 69 Ohio St., 384.

It is claimed by the plaintiff that at the time he was injured he was a passenger and that the defendant owed to him the duty of exercising more than ordinary care for his safety. We do not feel that in a decision of the principal question before us it is absolutely necessary to determine whether or not the plaintiff was then a passenger. However, at the time plaintiff was injured he was standing in a place of safety on the devil strip and at a place where the company is accustomed to take on passengers. And it is evident that he would not have been injured if the rear end of the interurban car had not struck the Italian, hurling him against the body of the plaintiff, or if the Italian had not negligently placed himself in the path of the rapidly turning street car. At the time, the plaintiff was in the process of transferring from the St. Clair car to the Fourteenth street ear, and had in his possession a transfer. The greater weight of authority is to the effect that the plaintiff was then, in fact, a passenger. Cincinnati Traction Co. v. Holzenkamp, 3 N. P. (N.S.), 537, 540; affirmed, 74 Ohio St., 379, and 1 Nellis on Street Railways (2 ed.), Section 254.

Something was said in argument to the effect that the cases in which the intervening object caused the injury was inanimate are to be distinguished from the case at bar for the reason that in this case the intervening object was a rational human being. If there be any distinction, it seems to us that to negligently injure a human being, thereby resulting in injury to another, without fault on his part, would 'be more culpable than to injure in the first instance an inanimate or irrational object. We do not think that the authorities are in accord with this suggestion.

Attention is called to the case of McCormack, Admx., v. Nassau Elec. Rd. Co., 16 App. Div., 24 (44 N. Y. Supp., 684), in the syllabus of which the facts are sufficiently stated, in conjunction with the law of the case. The syllabus reads as follows:

“The aet of a motorman in starting up an electric car at a time when the driver of an ice wagon, which is distant from the car about 133 feet, and is in plain sight of the motorman, is beginning to turn his wagon preparatory to crossing the street, and in so operating the car that it collides with the wagon, inflicting injuries upon a person employed thereon as a helper, who has jumped upon the rear step of the wagon as it was turning, constitutes negligence on the part of the railway corporation.
“A refusal by the court to charge the jury, in such a case, that if they find that the accident was occasioned in part by the negligence of the defendant, and in part by the negligence of the driver of the ice wagon, the plaintiff (the helper) can not recover, does not constitute an error requiring the reversal of a judgment in favor of the plaintiff, where the defendant, although it bases such request upon a claim that the driver of the wagon and his helper were engaged in a joint venture of their own in the ice business, makes no request to have the question of the existence of sueh a joint venture between the parties submitted to the jury.”

See also Pullman Palace Car Co. v. Laack, 143 Ill., 242, 261, and authorities hereinafter cited.

If it be claimed that a showing to the effect that the Italian was negligent and that his negligence directly contributed to cause the injury of the plaintiff, to such an extent that the Italian could not recover from the railway company for his injuries, precludes the plaintiff from recovering from the defendant, we are unable to concur in that claim. We are unable to concur for the reason that there may bé more than one proximate cause of an injury.

Quoting from the syllabus in the ease of Geary v. Metropolitan St. Ry. Co., 82 N. Y. Supp., 1016 (84 App. Div., 514; affirmed 177 N. Y., 535):

“A requested instruction in an action for death of a fireman occasioned by collision of the fire truck on which he was riding and a street car, that, if the proximate cause of the collision was the negligence of the driver of the truck, and the collision would not have occurred had he exercised reasonable care, plaintiff could not recover, is bad — any contributory negligence of the driver not being imputable to deceased — because there may be more than one proximate cause of an accident.” See also Phillips v. N. Y. C. & H. R. Rd. Co., 127 N. Y., 657.

In the case at bar, was it the negligence of the Italian alone that caused the injury to plaintiff? Or, was it the negligence of the defendant alone that caused it? Or, was it the combined and concurrent negligence of both that caused the injury?

In the case of Zeihr v. The Maumee Paper Co., 7 C. C. (N.S.), 144, the facts are briefly as follows:

Zeihr was employed by the defendant to operate a certain “beater” machine, which machine was used for the purpose of beating paper soaked with water preparatory to remanufacture of the same. In the construction of said machine there were two cogwheels exposed and unguarded on the outside of the machine. Water was spilled from various machines that were on the floor, so that the floor was at all times slippery. The plaintiff slipped on the floor, fell forward, and his hand was caught in the cogwheels and injured. He filed a petition in the common pleas court, charging the defendant with negligence in permitting said machine to become defective, in that it could not at the time be thrown out of gear, and in not guarding the same. The trial court directed a verdict on the ground that it was the slipping of the plaintiff on the floor that was the proximate cause of his injury and not the alleged negligence of the defendant. This judgment was reversed.

The second paragraph of the syllabus reads as follows:

“Where concurrent causes, as in this case, are the immediate and efficient cause of an injury, it is not competent to take one of them awa'y from the other, and say that it and not the other was the proximate cause of the accident.”

Quoting from the opinion at page 148, the court, says:

“Now it seems to us that the true rule is, as we gather it from the authorities, that where, in case of master and servant, like this ease, the negligence of the master is one of the causes of the servant’s injury, is one of the causes without which he could not have been injured as he was, that the fact that the negligence of a third person is also a cause of his injury, or the fact that some inevitable or unavoidable accident occurring at the same time was the cause of his injury, or some inanimate object, that, nevertheless, if the master’s negligence may be said to be one of the proximate causes of the man’s injury, that the master is not excused, because the negligence of some one else has contributed, as well as his own negligence, or because some accident, some unavoidable accident, happening- has also contributed to the servant’s injury, if it appears that without the negligence of the master the accident could not have happened. Now it seems to us that this rule laid down in many of the authorities is a just and reasonable rule. Many accidents are caused by two or more concurrent causes.”

In the opinion will be found many authorities supporting this language of the court.

Quoting from the syllabus in the case of John R. Gray et ux. v. Washington Water Power Co., 27 Wash., 713:

“Where plaintiff was injured as a result of her horse running away and dashing the wheels of her buggy against the projecting rails of a street railway, the action of the court in setting aside a verdict in her favor and granting a new trial, on the ground that the running away of the horse and the loss of its control was the proximate cause of the accident, was erroneous. ’ ’

The question is: Was the negligence of the Italian, the street car company, or both, the proximate cause of the injuries which plaintiff sustained? Under the circumstances of this case, we are not at all certain that reasonably prudent persons would answer this question in the same way. This being true, we conclude that this case should have been submitted to the jury.

It may be claimed that the same result would have obtained if the street- car had been propelled at a legal rate. Of course, if the same result would have followed the operation of the car at four miles'per hour as did result by operating it at ten miles per hour, then speed did not have anything to do with the results and the negligence of the railway company could not be the proximate eause of the injury; but, in the determination of this question, we are of the opinion that reasonably prudent minds may reach different conclusions, and, therefore, that it is a question for the jury.

See cases above cited; also C., C. & C. Rd. Co. v. Crawford, Admr., 24 Ohio St., 631; M. & C. Rd. Co. v. Picksley, Id., 654, and Steubenville & Wheeling Traction Co. v. Brandon, 87 Ohio St., 187, 194.

For error in directing a verdict for defendant at the close of the plaintiff’s evidence, the judgment of the court below is reversed and the cause remanded, with costs assessed against the defendant in error.

Judgment reversed, and eause remanded.

Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    WHAT CONSTITUTES INTEREST IN AN ESTATE.
    Court of Appeals for Hamilton County.
    DuBrul v. DuBrul et al.
    Decided, July 9, 1917.

      Wills — One Son Given No Interest in His Father’s Estate — But May Receive Advancements from the Trustees — May Not Examine Boohs With Reference to the Distribution.

    Where under the terms of a will general authority is given to the trustees of the estate to make such advancements to any of the sons of testator as may seem wise to said trustees, and one of the five sons is given no interest in the estate of his father and is not entitled to share in its distribution, such son can not compel the executors to give him a- statement of the advancements made to him and to his brothers by his father or permit an examination of decedent’s boohs to obtain such statement.

      Charles F. Folie, for plaintiff in error.

      Anthony B. Funlap, contra.
   Jones, P. J.

Error to Common Pleas Court of Hamilton County.

The will of Napoleon DuBrul appoints his widow and his son Ernest as executors, and directs the payment of his debts as soon as convenient after his decease. All the rest and residue of the estate is given to his wife and four of his sons in trust, to manage and control during the lifetime of his wife, and out of same to provide for her support.

The third item is as follows:

“Item III. I authorize and empower my said Trustees to make such advancements to my sons, or any of them, as may seem to said Trustees to be wise, and as the condition of my estate shall justify; and I hereby direct my Trustees to charge each of such sons with the amounts so advanced as part of their several distributive shares of my estate.”

The fourth item directs the trustees upon the death of his wife to divide his estate into five equal parts, four of which parts are devised and bequeathed to his four sons, Ernest, Davilla, Clarence and Telford, one part to each, “subject however to such advancements as may have been made to them by my trustees as herein provided, or by me.” It also makes provision for the care of the wddow or of the issue of any of said four sons, in the event of the death of a son before the death of testator’s wife. It then recites:

“I have made advancements, and may in the future make advancements to some of my sons. The amounts so advanced will be found charged to such sons in my private books, to which they have been transferred from private papers or memoranda, and from the books of The Miller, DuBrul & Peters Mfg. Company, and of the Summerside Poultry Farm.
“I direct and will that my Trustees, at the time of the distribution of my estate, as herein provided, shall charge such son or sons in computing his or their distributive shares, with such sum or sums as may respectively be shown by my books, papers, etc., to be due from each, and deduct the same from the share or shares such son or sons would otherwise receive, so that my bounty to each may be exactly equal. ’ ’

Then after reciting certain charges and credits as to his son Orville, he provides as follows:

“As I consider that Orville has proved himself so lacking in business judgment as to be incapable of properly handling or earing for any share of my estate that might be coming-to him on final distribution, I direct and will that my Trustees shall retain in their hands the one-fifth part remaining after distributing the four-fifths as above provided in trust however for the following purposes: to manage, control, and look after said part; t'o use the income, if any, and the principal, if in their judgment that be proper, to provide ■ suitable support for Nan McDaniels DuBrul, wife of my son, Orville, and their children Napoleon and Marguerite DuBrul, as well as education for said children; and to pay said one-fifth part, less all deductions for advances heretofore made, or hereafter to be made, or as much as may then remain; in equal parts to my said grandchildren Napoleon and Marguerite DuBrul, when the one latest to arrive at legal age shall have reached that age.”

Orville N. DuBrul, now as plaintiff in error, seeks to reverse the judgments of the common pleas and probate courts refusing to require the executors to give to him a statement of the advancements made to him and to his brothers by his father and entered by him in his private books, or to permit an examination of decedent’s books to obtain such statement.

Plaintiff in error claims that, regardless of his ultimate interest in his father’s estate, the trustees are authorized in their discretion to make advancements to him under the provisions of Item III, and for that reason he is entitled to see or be furnished a statement from the books of decedent. The application was made to the executors, not to the trustees. It is therefore premature at least, as it appears that the estate has not yet been settled by the executors and turned over to the trustees, with whom plaintiff in error would deal if his claim were valid.

But in the opinion of this court the probate court was right in dividing that Orville N. DuBrul has no interest in the estate of his father Napoleon DuBrul by the terms of his will, and for that reason he is not entitled as a matter of right to be furnished such a statement or to examine such books. Although the language of Item III is sufficiently broad to apply to any of the five sons including Orville, the trustees would not under its terms be justified in mailing any advancement to him because they would be required to charge the amount so advanced to his distributive share of the estate. Orville has no such distributive share, and they have no authority to make any such charge against that of his wife and children who take the one-fifth part which might otherwise have gone to him.

■ Plaintiff in error has no interest in the estate of Napoleon DuBrul, and the judgment is therefore affirmed.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


author: Shohl, P. J.

text:
    PAYMENT OF PROFESSORS OF LOSS IN SALARY FROM ENTERING THE MILITARY SERVICE.
    Court of Appeals for Hamilton County.
    George Carrel, Auditor, et al v. State of Ohio, on the Relation of Sanford Brown et al, Directors of the University of Cincinnati.
    Decided, June, 1919.

      Trust Funds — Where for Purposes of Education Laws Relating to Will be Liberally Construed — Discretion of Trustees in Expenditure of, Will Not be Interfered with in the Absence of a Showing of Abuse— Facts and Conditions Existing at the Time Should Guide in the Matter of Expenditures.

    1. The directors of the University of Cincinnati have the discretionary power under the wills of Charles McMicken and Matthew Thoms, to pay from the trust funds thereby given, to professors and instructors of the University who entered the military service of the United States in the war with Germany, such amounts as would make up the difference between their regular salaries and the compensation paid by the Government.
    2. Gifts in trust for the purposes of education are within the rules governing charitable trusts and are liberally construed.
    3. Courts will not interfere with or control the discretionary application of funds by trustees in such a trust, except to prevent abuse or misuse. Such question is not properly raised in an action in mandamus.
    4. The propriety of expenditures to carry on a university must he determined in view of the facts and conditions that exist at the time.

      D. J. Ryan and Oliver M. Dock, Assistant City City Solicitors, for plaintiffs in error.

      Rufus B. Smith-, O. J. Renner and Sanford Broum, contra.
   Shohl, P. J.

On April 30lth, 1917, shortly after the declaration by the United States of a state of war against the Imperial German Government, the directors of the University of Cincinnati adopted the following resolution which was communicated to all the professors, instructors, officers and other employees of the University:

“Resolved, That all professors, instructors, officers and other employees of the University who enlist or are drafted in the army, navy, medical or hospital service of the United States or in recognized training camps of the United States who are now permanently employed for next year be assured that their positions will be held for them and that they will receive compensation out of the trust funds under our control at regular times in such amount as will make up the difference between the army, navy, hospital or other service pay and the regular salaries in this institution.”

At that time a substantial number' of professors and instructors had already entered the military service and others were about to do so. A list of the names with the amount of compensation due to each of the members of the teaching force under the resolution was certified in 1918 by the directors of the University to the civil service commission and'by them transmitted to the auditor of Cincinnati. Under the direction of an examiner in the office of the auditor of state, the city auditor refused to draw his warrant on the treasurer to make the payments called for by the list unless ordered to do so by the courts. The directors of the University thereupon brought this action in mandamus against the auditor and treasurer of Cincinnati, and the court of Common Pleas, after a trial, rendered judgment against the defendants and ordered a peremptory writ of mandamus to issue, directing, the drawing and the payment of the warrant. The city auditor and city treasurer prosecute error to this court.

The réfusal of the city officials to pay the professors and instructors is based upon the contention that it constitutes a payment of public money as a gratuity or donation and that the board of directors are-exceeding their powers in attempting to use funds for such purpose. They cite State ex rel Barker v. Philbrick, 13 O. D., 158, and Steubenville v. Culp, 38 O. S., 18.

In the first case, certain sanitary employees were laid off temporarily, and, in the latter case, a police officer was suspended from duty. In both cases it was adjudged that no compensation could be recovered by the complainants as they were not rendering services to the city. In the case at bar, however, the resolution does not call for the payment out of money received from taxation. The disbursements are to be from-trust funds. The record establishes that in addition to the funds raised by taxation, the board has an income from certain trust funds, among which are the McMicken fund and the Thoms fund.

Under the will of Charles McMicken a large amount of property was left for the purpose of establishing a college or university. Item 21 provides:

Item XXI: I therefore devise, and bequeath to the city of Cincinnati and its successors for the purpose of building, establishing and maintaining, as soon as practicable after my decease, two colleges for the education of white boys and girls, all the following real and personal estate in trust forever.”
‘ ‘ Item XXXVII: The establishment of the regulations necessary to carry out the objects of my endowment I leave to the wisdom and discretion of the corporate authorities of the city of Cincinnati who shall have power to appoint directors of said institution.”

The income from the McMicken estate thus devised amounts approximately to $28,000 annually.

Matthew Thoms, after certain other 'bequests, left the rest, residue and remainder of his estate as follows:

‘ ‘ Item III. All the rest, residue and remainder of my estate, real and personal, wheresoever situate, of which I may die seized, I give and devise to the City of Cincinnati, in trust for the University of Cincinnati, upon condition that out of the same there be set apart and provided a sufficient sum as the endowment of a professorship, to be called in memory of my father ‘ The William Thoms Professorship,’ and the residue, if any, of the property given, shall be applied to such uses and purposes of said university as the directors thereof may from time to time provide.”

The income from the Thoms estate, in excess of the amount required for the William Thoms professorship, amounts to approximately $6,000 annually.

- All the powers granted by these bequests are vested in the board of directors under Sections 7902 and 7915 of the G-eneral Code. Under the wills the disbursements of the money is left to the “wisdom and discretion of the board” in the one case, and it is to be “applied to such uses as the directors may provide” in the other. The directors justify the expenditure, in accordance with the resolution, on the ground that in a proper aspect and under a broad view, it promotes the purposes and objects of the donors and tends to further the success of the University of Cincinnati. If so, it comes within the discretionary powers granted to them.

The vital force of a university is its teaching body. No matter how fine the buildings, equipment and appointments devoted to the university purposes may be, the ultimate achievement of the university is accomplished 'by its staff of teachers. The establishment of a staff of professors in a university and the welding of all into a unit is a slow growth. The number of teachers who are the most competent and desirable is necessarily limited. In securing professors and instructors and in retaining them, the University of Cincinnati comes into competition with the other institutions of learning throughout the country.

The uncontradicted evidence shows that the policy of paying the professors' and instructors of universities, who entered the war service of the United States, the difference between the amount paid them at the University and the amount received from the government has been so generally followed in the universities and other institutions of learning, that it may fairly be said to ’be the generally accepted policy in the country. White the professors and instructors had no contractual obligation to resume their positions after the war, it was hoped that they would do so, and the directors knew that the continuing payments would operate in fact to bind them to the University. The áetion of the directors in adopting the resolution was taken because in the judgment of the directors it was advisable to maintain the reputation of the University in the educational world and thus make it an institution which would attract to its faculty men of high standing, to make certain the continuance with the University after the war of the services of those professors and instructors who had enlisted for the war, and to continue the good will of the- citizens of Cincinnati who had from time to time made gifts to the institution. Had the University declined to follow the accepted and prevailing policy, there might well have been a feeling among the members of the teaching body that the University was lacking in appreciation of its members, as well as in patriotism for the country, and it might have impaired the standing and' reputation of the University with the teachers whom it sought to attract.

The trusts under the wills mentioned, being given for the purpose of education, are within the rules governing charitable trusts. Zanesville Canal & Mfg. Co. v. Zanesville, 20 Ohio 483, 488; Russell v. Allen, 107 U. S., 163, 172; Perry on Trusts, Section 700; Dexter v. President and Fellows of Harvard College, 176 Mass., 192; Rockwell v. Blaney, 9 N. P. N. S., 495 et cit.

Courts are liberal in the construction of powers of trustees of charitable trusts. Zanesville Canal & Mfg. Co. v. Zanesville, supra; Mills v. Newberry, 112 Ill., 123; Ingraham v. Ingraham, 169 Ill., 432, 450; 3 Story Equity, 14th Ed., Section 1550.

While courts in proper proceedings will restrain trustees from dealing with trust funds in a manner not authorized by law, they will not interfere with the discretion of the trustees in a charitable trust and will not control their discretionary application of the funds, except toi prevent abuse or misuse. Perry on Trusts, Section 511; Attorney-General v. Moore, 19 N. J., Eq., 503, 50)7; Attorney-General v. Wallace, 46 Ky., 611, 620; see Hunt, Trustee, v. Edgerton, 9 C.C.(N.S.), 353. Affirmed 75 O. S. 594.

Moreover, an action in mandamus does not raise such questions. See Bannon v. Board of Education, 17 O. L. R., 47; State ex rel Clarke, v. Board of Education, decision by this court, Clinton county, May 26, 1919.

Just what expenditures are suitable and necessary to carry on a university must be determined in view of the facts and conditions that exist at the time. Cincinnati v. Jones, 28 C. C. 210. Under the circumstances it can not be said that the money in question was not devoted to the uses and purposes of the University. The resolution was designed to promote the objects of the donors of the trust funds, and the payments therein provided for should 'be made.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.


author: Washburn, J.

text:
    COMPENTATION FOR IMPAIRMENT OF EARNING CAPACITY.
    Court of Appeals for Cuyahoga County.
    John Di Cicco, Plaintiff in Error, v. The Industrial Commission of Ohio, Defendant in Error.
    Decided, June 27, 1919.

      Workmen's Compensation — Not Invariable Where for Impairment of Earning Capacity — Injured Man Entitled to the Benefits of Improved Conditions — “Benefits” and “Compensation" Distinguished.

    Where an injured employee is receiving compensation under the workmen’s compensation act on account of impairment of his earning capacity, the Industrial Commission is not justified in determining that such impairment has ceased merely because his earnings are again equal to those received by him before his injury, where the ■fact that he is now receiving as high wages as formerly is due to the great increase in the scale of wages and were it not for his injury he would now be receiving much higher wages than were paid to him before his injury.

      Gilbert Morgan, for plaintiff in error.

      R. A. Baskin, contra.
   Washburn, J.

Plaintiff, John Di Cicco, appealed to the common pleas court of Cuyahoga county from a decision or order of the Industrial Commission of Ohio, said to have been made on May 22nd, 1918, denying him the right to continue to participate in the industrial insurance fund of the state of Ohio.

A jury was sworn, but the case was tried on statements of counsel, one question only being submitted to and determined by the court, which directed a verdict for the defendant, and that controlling question was: Where an injured employee is receiving a compensation under the workmen’s compensation act on account of impairment of earning capacity, is the Industrial Commission justified in determining that such impairment ceases when the employee succeeds in earning as much as he was earning at the time of his injury, although such success is due to an abnormal increase in wages and when it is admitted that but for such injury he would earn twice as much as he was able to earn in his injured condition ?

In other words, if his actual earnings are compared with his earnings at the time of injury, then his earning capacity is not impaired, but if his actual earnings are compared with what he could earn if he had not been injured, then his earning capacity is still impaired. General Code Section 1465-80, which entitles him to compensation, provides as follows:

“In case of injury resulting in partial disability, the employee shall receive 66 2-3 per cent, of the impairment of his earning capacity during the continuance thereof, not exceeding a maximum of twelve dollars per week, or a greater sum in the aggregate than thirty-seven hundred and fifty dollars.”

It is contended that plaintiff’s earning capacity, but for the injury, is fixed by his average weekly wage at the time of injury and is not variable, and that as soon after the injury as he is again able to earn the same wages, there is then no impairment of his earning capacity; that the standard of comparison is money without reference to its increased or decreased purchasing value, and that the Commission can not take into consideration any enhancement in his earning capacity due to natural conditions such as his becoming older or more experienced, or the fact that owing to changed industrial conditions he could, but for the injury, earn much more than he was earning at the time of his injury, or any other circumstance which accounts for an increase in his earning power in spite of the handicap of his injury.

This seeming unjust conclusion is based upon the provisions of Section 1465-48, which provides that

“The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits.”

It s,eems plain to us that fhis section has no application to a case of an award of compensation.

In the workmen’s compensation law a, very clear distinction is made between “compensation” and “benefits.” The statutes provide for the payment of money in ease of death, and the payment in such case is spoken of as “benefits.” General Code Section 1465-82 and General Code Section 1465-83. Other sections of the statute's refer to money paid to the injured employees who do not die of their injuries, and in such cases the payment is spoken of as “compensation.” General Code, Sections 1465-76, 1465-79, 1465-80, and 1465 81. In the former class of cases,— benefits — Sections 1465-84 applies and the award is on the fixed basis of the average weekly wage at the time of the injury.

In the later class of cases — compensation—the basis is not fixed and invariable.. On,e corcumstance which may vary the basis in compensation cases is provided for in General Code, Section 1465-85, which is as follows:

“It (If) it is established that the injured employee was of such age and experience when injured as that under natural conditions his wages would be expected to increase, the fact may be considered in arriving at his agerage weekly wage.”

This distinction between “benefits” and compensation” is further shown by the amendment of Section 1463-87. That section provided for commutation of “benefits” and was amended to provide for commutation of “compensation” or “'benefits.” No other change was made by this amendment except the word “Commission” in the place of the word “Board,” made necessary by a change of duties from a Board to a Commission.

That the basis in “compensation” cases was not intended to be fixed and invariable, is apparent not only from the specific provisions of Section 1465-85, quoted above, but the very object and purpose of the law is to make good to the injured employee, a certain proportion of the loss he suffers in his earning power by the handicap of his injury; the use of the term earning ‘ ‘ capacity” indicates that; his “capacity” can not be ascertained without taking into consideration the conditions surrounding him, nor can it be ascertained whether or not his earning capacity has been impaired without taking into consideration what he could earn under those conditions if he was not in a crippled or injured condition.

Moreover, the income of th® Industrial Commission is based upon the payroll of the state for six month periods and varies with the increase or decrease of wages, and the Commission is authorized to make awards for compensation for impairment of earning capacity for short periods of time, and has a continuing jurisdiction and great power and a wide latitude in fixing compensation. It can safely carry out the spirit and intent of the law and compensate for real loss of “capacity” to earn.

Wher,e a real and substantial injury prevents an employee from earning what he could have earned if he had not been injured, his earning capacity has been impaired; a fund has been provided to compensate him for that loss, and his common law rights having been taken away, he is entitled to a liberal construction of the law which is said to have been passed for his special benefit.

The courts can not control or supervise the awards of the Commission, but the law does provide that when the Commission denies the right of a claimant to participate in the fund, or “to continue to participate in such fund,” he may appeal to the court to determine whether or not he has such right. That was done in this case, and while the record is very unsatisfactory, it does show that the plaintiff was refused the right to continue to participate in the fund because of an interpretation of the law which we hold to be erroneous.

There is a hint in the rather loose statement of counsel, to the effect that there was a commutation of plaintiff’s compensation, which possibly precludes him from an appeal, but the answer "aises no such issue, and the suggestion in the statements is not definite enough to enable a court to pass upon that question, and moreover it was not presented to the court, both parties desiring a ruling upon the interpretation of the statutes upon the question of earning capacity. Where an injured employee has been a participant in the fund, and continued participation is denied him, a. general denial only to his petition on appeal is not fair, to him nor the court. What has occurred and is a matter of record should be admitted if plead, and if not plead and it constitutes a defense, it should be set forth in the answer.

For error in rendering judgment against plaintiff, the judgment is reversed and the cause remanded.

Dunlap, P. J., and Vickery, J., concur.


author: Powell, J.

text:
    BOY KILLED BY ELECTRIC CURRENT.
    Court of Appeals for Richland County.
    James B. Jesson, Administrator, Plaintiff in Error, v. The Mansfield Railway, Light and Power Company, Defendant in Error.
    Decided, 1917.

      Negligence — High Degree of Care Required in Handling Electricity— But Electric Companies are not Insurers of Persons who Come in Contact with Charged Wires through Their Own Fault — Trespassers Without Recourse if Shocked.

    Actionable negligence-is not shown on the part of an electric light and power company in the case of a boy who was a trespasser and was found dead at the foot of a pole upon which wires charged with electricity had been strung by the company under permission of the municipal ’authorities.

      L. JK. Bean and W. 8. Kerr for plaintiff in error.

      McBride & Wolfe, contra.
   Powell, J.

This is an action for damages for the wrongful death of John Jesson, deceased, alleged to have been occasioned by the negligent and wrongful acts of the defendant, which are fully set out in the petition. The answer for a first defense admits a number of facts alleged in the petition, and denies all others, and is in legal effect a general denial of the negligence alleged and of the material allegations of the petitions. For a second defense it is alleged that the injuries which caused the death of said decedent were received by him wholly through his own fault and negligence contributing thereto and without fault or negligence on the part of defendant. A reply is filed which denies each a every allegation of the second defense of the answer. Upon the issues thus joined a trial was had resulting in a verdict for the defendant. A motion for a new trial was filed and overruled and a bill of exceptions was taken, containing all the testimony and the charge of the court, and the case is now before this court on a petition in error.

There are six assignments of error in the petition in error, mostly of a general nature, and which raise the contention that upon the pleadings and evidence the verdict should have been for the plaintiff instead of for the defendant.

We have examined the testimony carefully with reference to each of the errors assigned and find that there is no error apparent on the record prejudicial to the rights of the plaintiff in error.

The decedent was a boy 14 years of age and was found dead at the foot of one of the poles of the defendant at the time named in the petition, and the evidence is to the effect that his death was caused by electric shock. The claim is made that defendant was guilty of negligence in having an appliance that could conduct a dangerous current of electricity from its overhead wires to the street, and in not keeping its wires and other appliances so insulated and guarded that the current could not escape to the street.

It is settled law that a very high degree of care is called for in the handling and use of electricity and other dangerous substances and agencies, but those owning and using the same are not insurers of those who may come in contact with such substances by accident or otherwise. The testimony in this case does not disclose any necessity whatever for a contact with a charged wire or chain on the part of decedent. He was not in the employ of the defendant nor under any contractual relations with it, and the defendant owed him no other duty than it owed to the general public, viz: that it should use a high degree of care to prevent persons coming in contact with its wires or other appliances carrying an electric current to their injury.

It is not every act of negligence that is actionable. Actionable negligence arises from a breach of legal duty arising out of contract or otherwise owing to the person sustaining the injury or loss. Thompson on Negligence, Section 801.

The defendant had its wires suspended where they were by permission of the municipal authorities of the city of Mansfield. We can not say as a matter of law that the evidence discloses it was guilty of any negligence whatever. The jury has said that as a matter of fact it was not, and we can not say from the record that there was error in so finding. The contact of decedent with the charged wire or chain was voluntary and unnecessary, and we think the evidence fairly shows that decedent was a trespasser against the defendant’s property when he met with his unfortunate accident, and that if he had not been such trespasser, the same would not have occurred.

Upon the whole case the court is of the opinion that there is sufficient evidence in the record to sustain the verdict returned by the jury and the judgment rendered thereon; that the same is not contrary to law; that there is no manifest error shown by the record either in the admission or exclusion of evidence; that there is no error prejudicial to the rights of plaintiff in error in the charge of the court as given, or in the refusal to charge as requested. We find no error in the record which would justify us, as a reviewing court, in reversing the judgment of the trial court, and the same will therefore be affirmed.

Judgment affirmed.

Shields and Houck, JJ., concur.


author: Houck, J.

text:
    TIME OF ACCRUAL OF AN ACTION FOR MALPRACTICE.
    Court of Appeals for Cuyahoga County.
    E. C. Horne, Plaintiff in Error, v. Casiemieja Pawlicki, Defendant in Error.
    (Judges Powell, Houck and Shields of the Fifth District sitting in the place of Judges Meals, Grant and Carpenter of the Eighth District.)
    Decided, March 18, 1918.

      Physician and Surgeon — Malpractice Alleged in Failure to Remove Drainage Tube — When Cause of Action Accrued — Charge of Court.

    In an action for malpractice in the performance of a surgical operation, where the negligence charged was in leaving a piece of gauze or drainage tube in the incision at the time the stitches were taken out, necessitating a second operation for removal of the gauze after a period of great suffering on the part of the patient, the cause of action accrued at the time of the alleged negligence in failing to remove the gauze and not at the time the first operation was performed, and an action for damages is not barred by the statute of limitations because not filed within one year from the date of the operation, where the filing occurred within a year from the date of the alleged negligence in failing to remove the gauze.

      Bentley, McGhrystal & Biggs for Plaintiff in Error.

      David & Eeald contra.
   Houck, J.

This case comes into tbis court on error from tbe court of common pleas of this county. The parties here stand in the reverse order from where they stood in the court below.

The plaintiff below in her petition in substance says: that prior to the 6th day of September, 1915, she was suffering ill-health and, in his professional capacity, she called upon said defendant who advised an operation for ovarian troubles, and that on September 6th, 1915, said defendant performed upon her a surgical operation to relieve said trouble. She further avers in her petition that after said operation was performed upon her said defendant inserted in the incision made by him upon her a piece of gauze commonly known as a drainage tube, which said gauze was by said defendant permitted to remain in said incision and said incision was healed up without said gauze having been removed from said incision. Plaintiff further averred in her petition that as a result of said gauze having been negligently and carelessly permitted to remain in said incision by said defendant and same having healed up caused her great pain and suffering from the time she left the hospital where said operation was performed until July 12th, 1916, when a second operation was performed for the purpose of removing said gauze. The petitioner further averred that as a result of said negligent and careless acts of said defendant she became thin, pale, weak, unable to eat regularly, suffered at night until she could not sleep,' was bent over, and in the region of said incision she suffered terrible and excruciating pain, all to her great damages in the sum of $5,000, and for which she prayed judgment.

To this petition the defendant filed an answer consisting of two defenses. The first defense, after making certain admissions as to the defendant being a physician and surgeon, avers that in the summer of .1915 the plaintiff was afflicted with ailments which required or justified a surgical operation to relieve her and that he was employed to perform said operation, and that he did duly perform the same upon the plaintiff on the 30th day of August, 1915, and at no time thereafter; and that after said operation the incision in the plaintiff’s body therein made healed up and the defendant denies each and every other allegation in said petition contained which is not expressly admitted therein. In the second defense the defendant says that he- performed said operation on the plaintiff and fully completed the same on and not after the 30th day of August, 1915, and that any negligence or want of proper care of which the defendant might be shown to have been guilty- — though he denies that he was guilty thereof- — occurred at the time of said operation and more than one year before the filing of said petition; and the defendant says that the alleged cause of action of the plaintiff is for malpractice on the part of the defendant in and about said operation and that said cause of action did not accrue within one year next before the filing of said petition and'that the same is barred by the statute of limitations of the state of Ohio, and prays to be dismissed with his costs.

To this answer a reply was filed by the plaintiff, the same being in the nature of a general denial.

Upon the issues thus raised by these pleadings the case was submitted tó a jury upon the evidence and a verdict was returned in favor of the plaintiff in the sum of $2,250 A motion was filéd for a new trial, heard and overruled and a judgment was entered on the verdict by the trial court.

An examination of the petition in error discloses that many alleged errors are set forth therein in which it is sought to reverse the judgment below. However, in oral argument counsel for plaintiff in error urged but three grounds of alleged error, namely, that the cause of action stated in the petition was barred by the statute of limitations; second, that the court erred in its refusal to give in its charge to the jury certain instructions duly requested by defendant and which requests were made in writing ; and, third, that the court erred in its general charge to the • jury.

We have examined the bill of exceptions and the entire record in this ease with much care to ascertain whether or not the claims made by counsel for plaintiff in error or any of them are well taken.

’ Coming now to the question as to whether or not the cause of action was barred by the statute of limitations, we find from the record in this case that the operation in question was performed on the 30th day of August, 1915; that the petition in this case was filed on the 5th day of September, 1916. We further find from the evidence that the piece of gauze in question, which was inserted in said incision by the defendant below at the time of making same, and which was not removed at the time the stitches were removed from said wound some two weeks after tne operation was performed, and which gauze according to proper surgery, as shown by the evidence, should have been removed at that time, and which to us was the cause of the mischief, and the failure to remove said gauze is charged in plaintiff’s petition as negligence. It therefore follows that the date of the cause of action arose at least two weeks later than the date of the operation. We, therefore, find as a matter of fact and law that the cause of action arose about the 12th day of September, 1915, and that plaintiff’s action was not barred by the statute of limitations at the time the petition was filed.

The alleged error as to the statute of limitations is therefore not well taken.

Learned counsel for plaintiff in error insist that the trial judge erred in his refusal to give in charge to the jury certain instructions in writing which were requested by the defendant below. We have examined all of these requests and while some of them are sound as abstract propositions of law, yet we find none of those refused to be applicable to the issues raised by the pleadings or the proven facts in the ease, and therefore we find no prejudicial error in the refusal of the court to give such charges.

It is urged by plaintiff in error that the general charge to the jury as given by the trial judge was erroneous in that he failed to properly charge the jury upon the question as to the statute of limitations. We do not deem it necessary to discuss this question further than to say that we find the claim of plaintiff in error in this regard not well taken. We have no hesitancy in saying that in some particulars the charge was not as clear and specific as it might have been; but in substance and in fact it covered every proposition necessary to be charged with reference to the issues raised by the pleadings and the established facts.

Finding no prejudicial error in the record that would warrant or justify a reviewing court to reverse the judgment in this case, the same will be affirmed. Judgment affirmed.

Powell, J., and Shields, J., concur.