author: Gorman, J.

text:
    PENALTIES FOR. REQUIRING EMPLOYEES TO JOIN RELIEF ASSOCIATION AND WAIVE DAMAGES FOR. INJURIES.
    Court of Appeals for Hamilton County.
    Joseph F. Bailey v. The Baltimore & Ohio Southwestern Railroad Company; and Three Other Cases.
    Decided, March 18, 1916.

      Constitutional Law — Validity of the Statute Fixing a Penalty — For Reqxnring Employees to Join a Relief Association — Petition for Recovery of Such Penally Held Good Against Demurrer.

    Sections 9012-13-14, providing that it shall be unlawful for any corporation to compel employees to join an association, or to withhold any part of their wages for payment of dues in such association, and prohibiting the demanding or receiving of waivers from employees of any right to damages in case of personal injury or death during the course of such employment, and declaring agreements of that character void, are not in contravention of either the Federal or the state Constitution; and an action lies to recover a penalty for requiring an employee to do the things in these statutes forbidden.

      Albert D. Alcorn and Robert 8. Alcorn, for plaintiffs in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
   Gorman, J.

The above four proceedings in error present the same questions of law, and they were argued and submitted to the court as one cause involving the same or identical facts, from which facts the same conclusions of law should be drawn.

Each of the plaintiffs in error commenced an action against the defendant in error in the common pleas court under favor of Sections 9012, 9013 and 9014, General Code, to recover a penalty for withholding from their wages certain sums each month to be applied in payment of their dues in the relief department of the defendant in error.

It will be sufficient for the purposes of the court to refer to the petition of Joseph Bailey. He sets up thirteen causes of action, all of which, except as to dates, are identical. In his first cause of action he sets up the corporate existence of the defendant, and that it was organized to operate a railroad in Ohio and other states, and he then avers that:

. “Plaintiff, during the month of April, 1913, was employed by the defendant as switchman. Defendant required him, as a condition of. his employment, to join its relief department. Said association or department, by its rules and regulations, required him to agree to surrender or waive a right of damages against the defendant for personal injuries, and to surrender or waive his rights in said department or association, in case' he asserted his claim for damages against defendant for personal injuries.
“During April, 1913, the defendant unlawfully and illegally withheld from plaintiff's salary as such employee the sum of four ($4) dollars for the payment of dues in said department or association, contrary to the provisions of Section 9012, Genera] Code of Ohio, to the plaintiff’s damage in the sum of five hundred ($500) dollars.”

The trial court sustained a demurrer to this cause of action and to the petition setting up the other twelve similar causes of action, on the ground that no cause of action was stated. He also sustained like demurrers to the like petitions setting up like causes of action by the other plaintiffs in error.

The question presented to this court is the correctness of these rulings.

The sections of the code under which plaintiffs seek to recover are 9012, G. C., 9013, G. C., and 9014, G. C. Section 9012, G. C., in part reads as follows:

“No corporation directly or indirectly shall compel or require an employee to join »any company or association whatsoever, or withhold any part of an employee’s wages or his salary for the payment of dues or assessments in any society or organization, or demand or require either as a condition precedent to securing employment or being employed,” etc.

Section 9013 reads as follows:

"No railroad company, insurance society or association or other person shall demand, accept or enter into an agreement or stipulation with a person about to enter or in the employ of a railroad company, whereby he stipulates or agrees to surrender or waive any right to damage against a railroad company, thereafter arising for personal injury, or death, or whereby he agrees to surrender or waive in case he asserts such right, any other right.”

Section 9014, General Code, in substance provides that all rules, regulations, stipulations and agreements declared unlawful by the next three preceding sections are void. A corporation violating, or aiding or abetting the violation of either of such sections shall for each offense forfeit and pay to the person thus wronged or deprived of his rights thereunder not less than fifty nor more more than five hundred dollars, to be recovered by a civil action.

The demurrers for the purposes of the eases admit the truth of the averments set out in the various causes of action of the several petitions; and the sole question to be determined, therefore, is the right of the plaintiffs to recover on the admitted facts of the petitions. This in turn involves the constitutionality of these sections of the General Code. If these sections are valid constitutional expressions of the law-making body, then clearly the petitions disclose a violation of these Sections (9012 and 9013), and by the'express terms of Section 9014 the defendant company, by the act of violating these sections or either of them, became liable to the injured employee in a civil action, for the penalty fixed by the statute. On the other hand, if these sections are invalid because they are in contravention' of any provision of the state or Federal Constitution, then no cause of action exists in favor of plaintiffs and the demurrers were properly sustained.

It is claimed by counsel for defendant in error that these sections of our code are violative of the Fourteenth Amendment of the Federal Constitution, in that they impair the rights of citizens of Ohio to contract fully and freely concerning their own labor and the fruits thereof, and therefore deprives them of liberty without due process of law.

Before considering this question we shall take up the claim of defendant in error that the relief department of the defendant, which is attacked in the petition in these cases, is a valid and lawful organization. The following cases are cited in support of this claim, in which cases it is contended that this organization has been held to be a valid and lawful one: P., C., C. & St. L. Ry. Co. v. Cox, 55 O. S., 497; State, ex rel Sheets, v. P., C., C. & St. L. Ry. Co., 68 O. S., 9; Penn. Co. v. State, ex rel Grainger, 69 O. S., 536; State, ex rel Simpson, v. B. & O. R. R. Co., 88 O. S., 540.

The case of P., C., C. & St. L. Ry. Co. v. Cox, supra, was an action to recover damages for personal injuries claimed to have been sustained by Cox by reason of the negligence of the company. The company set up as a defense that’its relief department was a voluntary ’ association created for the purpose of managing a fund known as “the relief fund,” and that said relief fund was formed by voluntary contributions from employees, and appropriations when necessary to make up the’ deficiencies, all for the benefit of the employees who may be members thereof; that under the regulations of said relief department no employee is required to become a member of said relief department or to contribute to said fund, and that membership therein is purely voluntary, and an employee may withdraw therefrom at pleasure; that payments by the employees to the support of said relief fund were voluntary. A demurrer to this defense was overruled, and this ruling was sustained by the Supreme Court. In deciding the ease the court, through Spear, J., on pages 512 and 513, says:

“We think the contract set up in the answer is not fairly within the inhibitory terms of the act, when reasonably construed, and this conclusion makes it unnecessary to consider the uneonstitutionality of the statute.”

On pages 514 and 515, in speaking of the character of the relief department, and of the effect of the rules and regulations thereof on the members, this language is used:

“Nor is the contract a compulsory one. It is entered into voluntarily. If the employee conceives it to be for his interest to enter the relief class, he applies for the privilege; if not, he with like exereise of his own judgment stays out.”

It will therefore be seen that the constitutionality of these sections was not passed upon by the Supreme Court in this ease; nor was the point decided that a relief department, whose rules required an employee, or one about to become an employee, of a railroad company to become a member of said relief department, is a legal or valid association. On the contrary, the kind of a relief department which the court was considering in this case was one which was purely voluntary and whose rules did not require or compel railroad employees to become members thereof, or compel them to contribute to the relief fund.

But the petition in the ease before us avers that defendant required plaintiff, as a condition of his employment, to join its relief department, and that the rules of said department required him to agree to surrender or waive a right to damages against the defendant for personal injuries, and that the defendant unlawfully and illegally withheld from plaintiff’s salary the sum of $4 each month for the payment of dues in said relief department. The demurrer admits these averments to be true, and these requirements or exactions on the part of defendant company are the things prohibited by the statute, Sections 9012 and 9013, General Code. If the employee is not required or compelled to join the relief department but does so voluntarily, as was said in the Cox case, su/pra, then there is no violation of any statute; and therefore this case does not aid us in determining whether or not the demurrer to plaintiff’s petition was properly sustained.

The ease of State, ex rel Sheets, v. P., C., C. & St. L. Ry. Co., 68 O. S., 9, was an action in quo warranto brought by the Attorney-General to inquire by what authority the defendant company was engaged in transacting the business of life and accident insurance whereby it insured its employees against sickness, accident and death through its relief department, and praying for a judgment of ouster. The findings of fact upon which the ease was submitted to the court shows that the defendant’s relief department was entirely voluntary and confined to its employees, none of whom were required to become members thereof nor to pay dues thereto except voluntarily. The court found as a matter of law that such an association conducted as a voluntary relief department, where there was no compulsion or obligation on the part of the employees to join, was not illegal; nor were the acts of the defendant company in maintaining such a relief department ultra vires or contrary to public policy. But no question as to the constitutionality of the statute under which defendant company was maintaining ,said relief department was raised in that case, nor was there any question involved as to the legality of a compulsory relief department whose members were required or compelled to join, as a condition of their employment, by the defendant company whose employees wages were illegally taken to pay dues into said association. On page 33 the court says:

“Not a dollar of the fund ever belongs to the railway company, and it is made up primarily of a certain part of the wages of the employee retained for that purpose by his direction. * * * While an employee is not required to become a member, none but employees could do so. # * * Is this an insurance business ? It is not held out to be such. * * * The members of the fund are volunteers.”

The case of Pennsylvania Company v. State, ex rel Gallinger, 69 O. S., 536, is an unreported case and decided on the authority of P., C., C. & St. L. Ry. Co. v. Cox, 55 O. S., 497, and State, ex rel Sheets, v. P., C., C. & St. L. Ry. Co., 68 O. S., 9. Evidently from the title of the case and the reference to these two cases it was a case of quo warranto involving the same questions considered in the two cases cited. We can not speculate as to what questions were involved in this case, and can not see that the citation sheds any light on the questions under consideration.

The case of State, ex rel Simpson, v. B. & O. R. R. Co., 88 O. S., 540, is another unreported ease decided on the authority of the Cox case, 55 O. S., 597. This case would also, as appears from the printed record, seem to have been a quo warranto proceeding ; but in the absence of a report of what was there decided we can not say that this decision has any application to the questions raised in the instant eases.

There remains to be considered the case of Copeland v. B. & O. S. W. R. R. Co., No. 431 on the docket of this court, and cited by counsel for defendant in support of their contention that this decision is decisive of the questions involved in the cases under consideration. The Copeland ease was brought by an employee of the defendant company to recover from the defendant all the moneys which he alleged he was compelled to pay, or which were compulsorily deducted from his wages by the defendant company .as premiums for insurance in said defendant company against his own liability to injury or death. The total amount sought to be recovered was $112.30, and included weekly items of $3 extending over the period from-January 15, 1911, to December 22, 1913. The theory upon which a recovery was sought in this case was that the defendant company had insured plaintiff against death or personal injury in consideration of the sums withheld each we.ek from his wages, and that he was discharged by defendant from its employ against his will and thereby cut off from the benefits of said insurance, and that said discharge operated as a cancellation of his insurance. Plaintiff bottomed his right to recover these premiums compulsorily deducted from his wages under the rule laid down in Insurance Co. v. Pottker, 33 O. S., 49, the fourth paragraph of the syllabus of which is as follows:

“If in such case the company (insurance company) wrongfully declares the policy forfeited, and refuses to accept the premium when duly tendered, and to give the insured the customary renewal receipt evidencing the continued life of the policy, the assured is in equity entitled to demand a rescission of the contract and a return of the premiums paid thereon, with interest from the time of payment.”

No claim was made in that case that Sections 9012, 9013 and 9014, General Code, were unconstitutional and void, nor was this question considered or decided by this court. It appeared to this court that Copeland was seeking to recover back sums of money voluntarily paid by him to the railroad company, under a claim that he had been compelled to pay the same.

The case of State, ex rel Sheets, v. P., C, C. & St. L. Ry. Co., 68 O. S., 9, appeared to cover Copeland’s case, and this court so stated in its opinion. There is no express provision of law warranting a recovery of money paid into the relief department of a railroad company whether paid voluntarily or involuntarily. The remedy given by the statute, Section 9014, General Code, appears to be the recovery of a penalty of from $50 to $500 for a violation of the statutes which forbid employees of a railroad company being required to join relief associations or withholding a part of their wages against their will. It appears further that during the entire time that Copeland paid into the relief association of the railroad company he received the benefits of an insurance against injuries or death, and this court felt that under the circumstances he had received value for the dues paid in by him.

The trial court in the cases under consideration was warranted in sustaining the demurrers to the petitions on the language employed in the decision in the Copeland case. But this court did not intend in the Copeland case to hold Sections 9012 and 9014 unconstitutional, nor was its decision in that ease based on such grounds. We deem it to be fair to the trial court to say that he was no doubt misled by the language in the Copeland case, in deciding the case before us.

As to the question of the constitutionality of the sections of the General Code, raised in these cases, we are of the opinion that it was within the province and power of the Legislature to prescribe the regulations and conditions under which a railroad company, a corporation doing business in Ohio, might conduct and operate its relief departments, and to define the kind and character of relief departments or associations which such corporations could maintain. Courts must presume all statutes passed by the law-making body to be valid; and an act of the Legislature should never be held invalid or unconstitutional, unless clearly or manifestly so. These sections do not deprive either the railroad company or any of its employees of the right to freely and voluntarily contract with one another with reference to the employment of the employees or their rights to benefits in the relief departments. The inhibition is to requiring or compelling employees' to join relief departments or to submit to compulsory deductions from' their wages as conditions of employment or continuance in employment.

The statutes seek to prevent the coercion of the employees. Voluntary payments of parts of their wages, or voluntarily seeking to be admitted to membership in the relief departments is not prohibited. In all the cases decided by the courts of this state, in so far as we have found, upholding the railroad relief departments, the associations were either admitted or found by the court to be purely voluntary and not compulsory.

In the case of State, ex rel Simpson, v. Pennsylvania. Co. and B. & O. R. R. Co., 13 C.C.(N.S.), 37, the court said on page 39:

“ It is further contended as a second ground of demurrer that the amended petition does not state facts sufficient to constitute a cause of action on the ground that Section 9010, General Code, as amended April 7, 1908, is unconstitutional and void.
“We are of the opinion that it is entirely competent for the Legislature to place proper restrictions upon a corporation, such as a railroad company, in respect to its conduct and operation, and the character of relief associations that it maintains or assists in maintaining, and that it is not violative of any of the provisions of the Constitution.”

Section 9010, General Code, prohibits any railroad company from establishing, maintaining or assisting in maintaining

“a relief association or society, the rules or by-laws of which require of a person or employee becoming a member thereof to enter into an agreement or stipulation, directly or indirectly, whereby he stipulates or agrees to surrender or waive a right of damages against any railroad company for personal injuries or death, or to surrender or waive in case he asserts such claim for damages, any right whatever.” .

There would seem to be no good reason for holding that if such a statute is constitutional and valid, then Sections 9012, General Code, and 9014, General Code, are also valid enactments, inasmuch, as these sections prohibit any railroad company from directly or indirectly compelling or requiring an employee to join any association whatsoever or to withhold any part of his wages, and imposing a penalty of from $50 to $500 for a violation of the sections.

In the case of Shaver v. Pennsylvania Co., 71 Fed., 931, Judge Ricks of the United States Federal Court for the Northern District of Ohio held that Section 3270, Revised Statutes, a part of which section is now 9012, General Code, is unconstitutional and void because violative of Article II, Section 26 of the Constitution, and of the Fourteenth Amendment of the Federal Constitution; but the facts show that the relief association in that case was a voluntary one and in no way compulsory.

In the case of Pierce v. VanDusen, 118 Fed., 693, decided by the United States Circuit Court of Appeals for this Sixth District, Justices Harlan, Taft and Lurton, sitting, the court in commenting on this decision of Judge Ricks in the Shaver case, says on pages 702-703:

“It is quite clear from an examination of Judge Rick’s opinion that he intended to decide nothing more — indeed, the case under his view of the statute required nothing more to be decided — than that the part of the act of 1890' relating to contracts or agreements whereby a right to damages against a railroad company, arising from personal injuries or death, was surrendered or waived when the employee became a member of the relief association referred to, was unconstitutional, as depriving the employees of railroad corporations of their liberty without due process of law. He had no occasion in the case before him to consider the validity of the third section of that act.”

A perusal of this decision in 118 Fed., supra, satisfies us that the United States Circuit Court of Appeals did not approve of Judge Ricks’ holding in the Shaver case, and that what he said in that ease as to the unconstitutionality of Section 3270, Revised Statutes, was to be considered as obiter dicta.

Penalty statutes similar to Section 9014, General Code, have been frequently upheld as valid and reasonable legislation. Railroad Co. v. Cook, 37 O. S., 265; D., T. & I. R. R. Co. v. State, 82 O. S., 60; Seaboard Air Line v. Seegers, 207 U. S., 73; Western Un. Tel. Co. v. James, 162 U. S., 650.

Indeed, in the ease of C, B. & Q. R. R. Co. v. McGuire, 219 U. S., 549, the court held that McGuire, a brakeman who after being injured accepted his benefits as a member of the relief association to the amount of $822, was not thereby barred to maintain an action against the railroad company for the injuries received. The law of Iowa as to relief associations set up in that case to defeat McGuire’s recovery, was similar to the Ohio statutes. In the fourth paragraph of the syllabus of the ■ ease the court says:

“A state has power to prohibit contracts limiting liability for injuries, made in advance of the injuries, and to provide that the subsequent acceptance of benefits under such contracts shall not constitute satisfaction of the claim for injuries received after the contract. Such a statute does not impair the liberty of contract guaranteed by the Fourteenth Amendment; so held as to the Iowa statute relative to employees of railway companies. ’ ’

Under the employer’s liability acts of 1906 and 1908 passed by Congress, there is a provision that the acceptance of benefits from the relief department does not bar an injured employee from recovering, even though he agrees to waive his claim for damages, if he accepts the benefit for any injuries received after the agreement is entered into. This provision of these acts has been upheld as a valid exercise of the legislative power. Phil., Bal. & Wash. R. R. Co. v. Schubert, 224 U. S., 603; P., C., C. & St. L. Ry. Co. v. Sheets, 15 C.C.(N.S.), 305.

In the case in 224 U. S., supra, the court says:

“Congress has power to enforce the regulations validly prescribed by the employer’s liability act of 1908, but the provision of Section 5 of the act providing that exemptions from liability, shall be void, and that the acceptance of benefits under the relief contract shall not be a bar to recovery are not in contravention of any constitutional inhibition.”

Counsel for defendant in error have cited in support of their contention that these sections are violative of the Fourteenth Amendment of the Federal Constitution, the cases of Mo. Pac. Ry. Co. v. Tucker, 230 U. S., 340; C., M. & St. P. Ry. Co. v. Polt, 232 U. S., 165; C., M. & St. P. Ry. Co. v. Kennedy, 232 U. S., 626.

The first of these eases involved the right of the state of Kansas to fix railroad rates for transportation of oil, gasoline, etc., and fixed a penalty of $500 for a violation of the act.

The second case involved the right of the Legislature of South Dakota to enact a law allowing double damages against a railroad company for failure to pay a claim or to offer a sum equal to what the jury finds the claimant entitled to..

The third case involved the same question as was raised in the second case.

Suffice it to say that even a cursory reading of these decisions will satisfy one that the rules therein laid down have no application to the cases under consideration. The statutes construed in these cases undertook arbitrarily, and without an opportunity to have the question tried in a court of law or equity, to confiscate property and property rights of railroad companies. These statutes were not regulatory, but highly penal.

The statutes of Ohio under consideration, Sections 9012, 9013 ■and 9014, General Code, are purely regulatory and not confiscatory, as were the statutes passed upon in the cases above referred to.

Upon a full and fair consideration of the cases, we are not prepared to say that these statutes are so palpably and manifestly in contravention of any of the provisions of the Federal Constitution or of the Constitution of this state as to require us to hold that the General Assembly had no power to enact the same. Courts inferior to the Supreme Court should be very chary in holding acts of the laTv-making body unconstitutional, and should do so only in cases which are clearly in contravention of the organic law.

For the reasons stated the judgment of the court of common pleas will be reversed and the causes remanded for such further proceedings as are authorized by law.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    AS TO LIABILITY FOR. THE DEATH OF AN ONLOOKER.
    Court of Appeals for Stark County.
    Rena Peters, Administratrix of the Estate of Charles D. Peters, Deceased, v. Weston C. Howenstein et al.

    Decided, January Term, 1916.

      Negligence — Boiler of Traction Engine Bursts — And a Bystander Watching its Operation, is Killed — No Liability on the Part of Those Operating, the Engine.

    Recovery of damages can not be had for the death of one who was killed by the bursting of the boiler of a traction engine, which was being operated on a public road, where the decedent was not an employee of those owning and operating the engine, and was not present by invitation, but was a mere onlooker idly watching the operation of the engine.

      J. H. Robertson and Thomas F. Turner, for plaintiff in error.

      Welty & Burt and Taylor & Stewart, contra.'

      Motion to require Court of Appeals to certify its record overruled and motion to dismiss granted by the Supreme Court May 29, 1916.

   Houck, J.

This cause is here on error from the common pleas court of this county. The parties stand in the same relative positions as in the court below. The plaintiff brought suit in the common pleas court to recover of the defendants damages for the alleged wrongful death of the husband of plaintiff, Charles D. Peters, who was killed by the explosion of the boiler of a traction engine owned by the defendants, while the same was being used in hauling a steam shovel owned by one George Gareaux, on the 5th day of February, 1914.

Plaintiff avers in her petition that said boiler, engine, and the various fixtures and attachments thereto were old, having on said 5th day of February, 1914, been in use about fifteen years, and thereby had become greatly out of proper condition and repair for proper safety in the use of the same, in this, to-wit: the safety valve on said boiler did not work properly, would clog and not permit the same to blow off from said boiler when the pressure became great; that the water-gauge cocks to said boiler were fast and would not turn; that said boiler was old, much corroded and worn, thin and leaky, thereby rendering the same weak, unfit, unsafe and insecure, all of which defective, unsafe and insecure conditions of said boiler and attachments, as well as the age and long continued use of said boiler and its attachments, were on said 5th day of February, 1914, and for a long period of time prior thereto, well known to said defendants, and to each of them, or that said defendants, in the exercise of reasonable care, could and should have known of the same, and that by reason of the premises the said defendants were guilty 'of negligence, which caused the injuries resulting in the death of plaintiff’s decedent, and that the same was caused without any fault or negligence on the part of said decedent, and plaintiff prays for judgment against the defendants in the sum of ten thousand dollars.

The defendants filed an answer in the nature of a general denial.

The cause was tried in the common pleas court, and at the conclusion of all the evidence, and after both plaintiff and defendants had rested their ease, the defendants moved the court to direct the jury to render a verdict in favor of the defendants. The motion was sustained by the court, and the jury returned a verdict for the defendants. To the sustaining of this motion by the court, and in the court’s instructing the jury to return a verdict for the defendants, error is prosecuted to this court seeking a reversal of the judgment below.

The undisputed and conceded facts in this ease, as disclosed by the bill of exceptions, are as follows: The defendants owned the traction engine and boiler in question, and were invited, through Mr. Howenstein, one of the defendants, to assist one George Gareaux in moving a steam shovel upon the public highway between North Industry and East Sparta, said Gareaux at that time having the contract for the grading, paving and improving' of the highway, and defendants living in the vicinity where the work was being done, took the engine to the place where the steam shovel wag located, the same being immediately in front of the SteinmetzNarm, about three-quarters of a mile south of Howenstein Station, there being at that place in the road a highway leading to the east, and beginning on the east side of the road, known as the Steinmetz lane. Steinmetz’s fields were inclosed by fences, and plaintiff’s decedent was not engaged in any part of the work with Gareaux or the defendants, or either of them, and was not invited to the place in question, but out of mere idle curiosity had walked from Howenstein Station southward in the field of Steinmetz, and together with another person stood in the field back from the road some little distance from the engine and boiler in question watching the engine move the shovel, and while the engine was so engaged the boiler exploded, and plaintiff’s decedent was struck by a broken part of the same, and as a result of said injuries departed this life the following day.

The defendants disclaim any liability, and maintain that they were not negligent in the operation of their engine or the boiler belonging to same, and that plaintiff’s decedent was a trespasser, or a mere onlooker, and thereby assumed the risk he took by standing and remaining in the position where he was at the time of the accident, and that by reason of the premises the defendants, as claimed by them, owed no duty to the plaintiffs decedent save and except not to maliciously, intentionally or wantonly injure him.

We are free to say that the real question presented by the facts as disclosed in this case has never been passed upon by any court, so far as we know; and we have been unable to find any reported case, in this or any other state, covering the exact facts as shown by the record in the instant case.

What duty, if any, did the defendants owe to the plaintiff’s decedent? The decedent was not in the employ of, nor had he been invited or requested to be present and occupy the place and position he did when the unfortunate accident occurred. He was simply an onlooker, an uninvited guest, and notwithstanding the fact that the defendants might have been negligent in operating the engine and boiler in question, yet under these circumstances were the defendants liable in law to the plaintiff? In other words, what duty did the defendants owe to plaintiff’s decedent, taking into consideration all the circumstances and facts of the case?'

It will be conceded that the operation of a traction engine on the public highway is not unlawful, nor is it a nuisance in itself. If it becomes a nuisance, it is by reason of the fact of the way and manner it is operated, and not because it is a traction engine. The decedent not being an employee of the defendants, and not being present by invitation, and not about any business which would require him or his presence at the place where the injury occurred, but, upon the other hand, being there for the sole and only purpose, so far as the facts disclose, of satisfying an idle curiosity as to the operation of the engine and the steam shovel, can it be properly claimed that the defendants owed to him any legal or lawful obligation save and except that they would not wantonly, intentionally or maliciously injure him?

Under these facts and circumstances we think the only duty which the defendants owed to plaintiff’s decedent Avas the duty of not wantonly or intentionally injuring him, and there is no evidence submitted that would in any Avay tend to prove that the defendants Avantonly or in any way intended to injure the decedent.

Taking this view of the laAv applicable to the facts in the present case, we think the trial' judge committed no error in sustaining the motion to direct the jury to return a verdict for the defendants. Finding no error in the record, the judgment below should be affirmed.

Judgment affirmed.

Shields, J., and Poavell, J., concur.


author: Jones (E. H), P. J.

text:
    PROBABLE CAUSE IN AN ACTION FOR. MALICIOUS PROSECUTION.
    Court of Appeals for Hamilton County.
    The Cincinnati, Hamilton & Dayton Railway Company v. George W. Winnes.
    Decided, May 8, 1916.
    1. In instructing a jury with reference to probable cause in such an action, it is the duty of the court to apply the law to the facts by telling them whether the facts which the evidence tends to establish, if found by them to exist, did or did not constitute probable cause for the prosecution.
    2. It is error in such an action to refuse to give a special charge to the effect that, if the party causing the arrest in good faith laid the facts before an attorney and acted upon his advice in causing the arrest to be made, such advice is conclusive evidence of probable cause for the institution of the prosecution.
    3. It is also error in such an action to refuse to give a special charge to the effect that the waiving of examination by the defendant before a justice of the peace is prima facie evidence of probable cause; or to refuse the special charge that the return of an indictment against the plaintiff by a grand jury is prima facie evidence of probable cause for the arrest.
    4. And it is error to charge that if the defendant knew before the case was nollied that the charge was not well founded, his continuance in said prosecution may be regarded as evidence of actual malice for which punitive damages may be awarded, where there was no evidence that the defendant possessed such knowledge, and no explanation was given of punitive damages or of the kind of a ‘case in which such damages may be awarded.

      Waite & Schindel and Herbert Shaffer, for plaintiff in error.

      Galvin & Bauer, contra.
   Jones (E. H), P. J.

George W. Winnes, by the consideration of the court of common pleas, recovered a judgment in the sum of $3,500 against the Cincinnati, Hamilton & Dayton Railway Company for malieious prosecution, which judgment the said company by this proceeding in error seeks to have reversed. It also prays judgment of this court in its favor.

It is claimed that errors occurred during the trial in the admission and rejection of evidence, in the general charge of the court, in the action of the trial judge upon certain of the special charges requested, and that the verdict and judgment are not supported by the evidence.

There was not much difference between counsel, during oral argument here, as to the evidence on the record touching the question of probable cause.

Upon the question as to whether or no such evidence showed probable cause for the arrest of Winnes counsel disagreed, and argued ably each for his own contention as to the effect of the evidence bearing upon this all-important point. So it is in their briefs. Both quote and rely upon the same evidence in support of their diverse conclusions of law. One. argues from these facts that there was probable cause as a matter of law and that nothing was left for the company in the performance of the duty it owed to itself and society but to cause the arrest-of Ludlum and Winnes. The other says that “there was no circumstance in this case that would lead an ordinarily prudent person to. have a reasonable belief in the guilt of the person charged with the crime.” In fact, upon this phase of the case there is so little dispute over the facts that the question becomes one of law, viz.: Did Woodward, the agent of the company, in causing the arrest of Winnes have a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to ^warrant a belief that Winnes was guilty of the offense with which he was charged ? See Ash v. Marlow, 20 O., 119; Miles v. Salisbury, 21 C. C., 333.

The guilt or innocence of Winnes is in no wise involved in this controversy. It is only a question of the information in possession of Woodward or of the company at the time of the arrest, and whether he acted thereon as would any reasonable, prudent man.

Notwithstanding the lack of essential difference upon material facts, we have carefully examined the record and have been confirmed in our impressions based on the argument that the verdict below was not supported by the evidence. There was such a correlation of circumstances, such a dove-tailing of incriminating evidence and such a logical development of suspicious acts and situations, all brought to the notice of Woodward in such a fashion as would in our opinion justify a reasonable man in taking the action complained of. The record we think shows caution and prudence on the part of the agents and employees of the railway company, and cool deliberate action free from malice. We can not say there was no evidence to support the verdict, but rather, in the language of the statute, that it is not supported by sufficient evidence. Probable cause is a mixed question of law and fact. For this reason we can not enter judgment here, but think there should be a new trial of this cause.

It therefore becomes important to notice other alleged errors occurring at the trial:

First, the failure of the court to charge whether the facts proved constituted probable cause. This may not be reversible error in this case, for the reason that it does not appear that the attention of the trial judge was called to the omission. The charge of the court was in the abstract. It gave the jury no assistance in determining what knowledge on the part of Woodward would constitute probable cause in this case.

Our view of the law is well stated by the court in Hess v. Oregon Baking Co,, 31 Ore., 503, at page 512, thus:

“Without further elaboration of this question or further special reference to authorities, it is sufficient to say that, under the adjudged cases, it is generally the duty of the trial court, in instructing juries in cases of this character, to apply the law to the facts by telling them whether the facts which the evidence tends to establish, if found by them to exist, will or not constitute probable cause for the prosecution, leaving to the jury only the question as to the existence of such facts, and that it is error to define probable cause in general terms, and to submit to the jury the question as to whether the facts in the particular case do or do not come within such definition. The credibility of the evidence, and what facts it proves, are for the jury; but whether such facts do or do not constitute probable cause is a question exclusively for the court. The court should, therefore, by means of a hypothetical instruction, group the facts which the evidence tends to prove and instruct the jury that, if they find such facts to have been established, they must find that there was or was not probable cause.”

The court was asked to give special charges, as follows, and of his refusal so to do plaintiff in error complains:

Special charge No. S:

“The undisputed evidence in this case is that James H. Woodward, before instituting the prosecution against the plaintiff, laid the facts before a reputable attorney at law, a member of the Ohio bar, and asked his advice and was advised by said attorney that under such facts the plaintiff and E. C. Ludlum were in his opinion guilty of a crime, and that said attorney then prepared the affidavit upon which the' prosecution was instituted. I therefore charge you that if you find from the evidence that said James TI. Woodward in good faith laid all the facts which had come to his knowledge before said attorney and acted on his advice, such advice is conclusive evidence of probable cause for the institution of the prosecution.”

Special charge No. 4:

“I charge you that the fact that the plaintiff waived examination before Justice of the Peace Vail is prima facie evidence that there was probable cause for the prosecution against him.”

Special charge No. 9:

“I charge you that the indictment of the plaintiff by the grand jury of Warren county is prima facie evidence that there was probable cause for the institution of the prosecution against him.”

Without citing authorities other than Hess v. Oregon Baking Co., supra, we hold that the court erred in not giving these special charges. They correctly state the law and it was the duty of the trial judge to read them to the jury before argument, as requested.

The court erred in giving special charge No. 7 requested by plaintiff:

“The jury are instructed that if you find that at the time the defendant, through its agent, James IT. Woodward, if you find he was such agent, while acting within the scope of his authority, commenced this prosecution, and did not have probable cause to believe, and did not believe, the plaintiff guilty of the crime charged against him, and such person afterwards knew before said case was nolled that the charge was not well founded, his continuance in said prosecution may be considered as evidence of actual malice for which plaintiff is entitled to punitive damages in addition to the damage to which he might be entitled as compensation, if any.”

This was error:

First, because there was no explanation of the term “punitive damages,” nor of the kind of cases in which such damages might be awarded. Miles v. Salisbury, 21 C. C., 333.

Second, because there was no evidence showing that Wood-word had any knowledge, before the case was nollied, of the innocence of the accused or that the charge was not well founded.

We find no errors except those pointed out.

Judgment reversed and cause remanded for a new trial.

Jones (Oliver B.), J., concurs; Gorman, J., not sitting.


author: Shields, J.

text:
    THE RULE OF ORDINARY CARE IN CROSSING RAILWAY TRACKS.
    Court of Appeals for Stark County.
    The Pennsylvania Company v. Charles J. Gulling.

    Decided, February Term, 1916.

      Application of the Rule as to Looking and Listening — Must Be Effectively Performed, Rather than Performed at Some Specified Distance from the Tracks — Charge of Court in a Crossing Accident— Whether the Approaching Engine Displayed a Headlight a Proper Question for the Jury.

    1. The looking and listening required at a railway crossing is to be exercised at such proximity to the crossing as to make such looking and listening effective without regard to the distance from the tracks of the person so attempting to cross, and this requires ■ that the looking be so done as to enable the person to see that the way is clear for him to get over the tracks in safety before a train within his range of view of the tracks, going at the usual rate of speed of fast trains, would reach the crossing.
    2. Negligence is not shown in the case of one who looked when within forty feet of the crossing, and having a clear view of the tracks for the distance of three-quarters of a mile and neither seeing nor hearing an approaching train, drove upon the crossing in good faith believing he could safely cross, and in so doing was struck by a train.
    2. Whether the engine drawing the train which struck plaintiff displayed a headlight, as to which there was affirmative testimony both for and against, and whether a failure to display a headlight was the proximate cause of the accident, was a proper question for determination by the jury.

      Carey & Armstrong and A. M. McCarty, for plaintiff in error.

      Amerman & Mills and Lombard, Hext & Wasburn, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 9, 1916.

   Shields, J.

Proceedings in error are prosecuted herein to reverse a judgment of the Court of Common Pleas of Stark County, wherein the defendant in error in a certain action for damages recovered a judgment against the plaintiff in error for alleged negligence in operating a train of its cars over a public highway crossing east of the village of Louisville, in said county, thereby causing permanent injuries to the defendant in error, as set forth in his petition filed in the court below. The principal grounds of alleged negligence set out in said petition are—

‘ ‘ that said company on November 12, 1914,. about 5:30 p. M., and after dark, operated its said train of cars in a westerly direction over a certain public highway crossing, commonly called the Niekle Plate crossing, east of the village of Louisville, in said county, when the defendant in error, driving a team of horses attached to a wagon, attempted to drive upon and over the tracks of said company at said crossing, which cross said public highway at said crossing, and before attempting to drive upon and over said crossing listened for trains in either direction and hearing none, drove upon said crossing in the effort to cross the same, when said company’s said train of ears approached said crossing at a' speed of thirty-five or more miles per hour, without giving any warning by signal or otherwise, and without displaying any headlight on the engine attached to said train of cars, and did then and there negligently and carelessly, and with great force and violence run into and against said wagon in which the plaintiff was riding, demolishing said wagon and its contents, and with great force and violence threw the plaintiff out of said wagon and upon the ground, causing him severe, serious and permanent injuries,”

which are particularly described in said petition, all of which occurred, as claimed by him, without any fault or negligence upon his part, to his damage, including the moneys paid for medical treatment and the value of the wagon, in the sum of ten thousand dollars.

An answer was filed by said company admitting that its .line of railway crosses said public highway at said crossing where the plaintiff collided with one of the defendant company’s trains, whereby he sustained some injuries to his person and property, but not to the extent charged.

It admits that it was its duty to maintain a headlight on its engine and to give certain signals as it approached said crossing, all of which duties it says were performed, and subject to said admissions the defendant denies all the other allegations of said petition.

For a second defense the defendant says that if it was negligent in any of the particulars complained of, which it specifically denies, the plaintiff by his own negligent conduct contributed" to the proximate cause of his injury by failing to look and listen with ordinary care and prudence for the approach of said train, and by failing to stop and look and listen immediately before driving on said railroad track, and by failing to take reasonable and prudent precautions for his own safety. It denies it was guilty of carelessness, negligence or improper conduct, and says that plaintiff’s injuries and damages were caused by the negligence of plaintiff himself.

For reply to the answer of the defendant, the plaintiff makes a general denial of the allegations therein.

After a verdict was rendered for the plaintiff, a motion for a new trial was overruled and judgment was entered on said verdict. Afterward and within the statutory period, a petition in error containing various grounds of error was filed in this court for a review of said judgment.

An examination of the bill of exceptions herein shows that this ease is singularly free from objections made and exceptions taken to the admission and rejection of evidence upon the trial, and upon such examination we find the rulings of the trial court in said respects to have been proper.

It was argued that the trial court erred in refusing to give a charge to the jury before argument, on behalf of the plaintiff in error, what is designated in the bill of exceptions as Eequest No. 1, and which is as follows:

“It was the duty of the plaintiff, Mr. Gulling, just before driving upon the railroad' track, to look for the approach of trains. If you find that the headlight on the locomotive in question was lighted and could have been seen by Mr. Gulling, had he looked just before driving upon the railroad track, then there can be no recovery in this case and your verdict must be in favor of the defendant.”

This request was refused, and, in our judgment, was properly-refused. Reference was made by counsel in argument to the crossing cases of C., C. & C. R. R. Co. v. Crawford, Admr., reported in 24 O. S., 631, and to N. Y., C. & St. L. R. R. Co. v. Kistler, reported in 66 O. S., 326, and the entry in the case of Wooley v. C., H. & D. Ry. Co., 90 O. S., 387, was also referred to and commented upon. What the facts were in the last mentioned case we have no means of ascertaining, but testing said request by the rule of law laid down in the first two cases cited, and applying the reasoning of the rule therein stated, we do not think that said request falls within said rule, nor do we think that any fixed, inflexible and absolute rule requiring one to look at any given distance before attempting to cross over a railroad at a public highway crossing has been laid down by our Supreme Court. In the ease of C., C. & C. R. R. Co. v. Crawford, Admr., supra, it is held that—

“1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.
“2. But the omission to use such precaution, by a person injured, will not defeat his action, if, by due diligence in their use, the consequence of the defendant’s negligence would not have been avoided.
“3. Nor will the failure to use such precaution be regarded as negligence on the part of the plaintiff, if, under all the circumstances of the case, a person of ordinary care and prudence would be justified in omitting to use them.”

Again, in the case of N. Y., C. & St. L. R. R. Co. v. Kistler, supra, it is held that—

“The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.”

And, in the ease of Steubenville & Wheeling Traction Co., reported in 87 O. S., 187, the judge speaking for the court in that case in commenting upon the action of the court in the case of C., C. & C. R. R. Co. v. Crawford, Admr., supra, on page 194 says:

“The effect of the entire holding is that the omission to look is not negligence in all cases and as matter of law, and it remains the law of Ohio today, though there are a number of decisions of courts of other states, notably Massachusetts, which appear to hold a more rigid rule. It is the Ohio rule respecting the crossing of a steam road, and for a much stronger reason, the rule as to crossing a street railway track.”

Hence we think that no absolute rule has been laid down as to the looking required to be done at any given distance before going upon the crossing, but that the limit of the obligation on the part of one about to cross a railroad crossing is to exercise ordinary care under the circumstances, and that it should be so done “as to enable the person to get across before a train within the range of his vieio of the track, going at the usual rate of speed of fast trains, would reach such crossing. ’ ’ In other words, the looking and listening required is to be at such proximity to the crossing as to make such looking and listening effective, without reference to any given distance therefrom. We call special attention to the holding in the Eistler ease, because it serves to illustrate our view of the law on this feature of the case. Applying the principle just stated, let us inquire what the conduct of the plaintiff below was before attempting to pass over this crossing. It appears that the tracks east of said crossing for"three-quarters of a mile were straight and that there was nothing east or west of said crossing for said distance to obstruct a view of said tracks. Turning to the record we find that the plaintiff below testified as follows:

“Q. Now about what time was it in the evening when you came to what we term the Nickle Plate crossing, north of Louisville? A. Well, let us see, we always go by sun time, I call it six o’clock, that would be 5:30.
“Q. Was it dark or not? A. It was dark.
Q. Now as you approached that crossing how was you driving, just tell the jury? A. As I approached the crossing I was driving along a slow trot.
‘ ‘ Q. Now tell the jury what kind of a crossing that is, that Nickle Plate crossing? A. Well that crossing — the first railroad you come to is the street car line.
“Q. That is the Stark Electric? A. Stark Electric: and my recollection is that there was a street car, not a regular street ear, there wasn’t any lights in it, going east; I was coming this way.
‘ ‘ Q. Which direction was you going from Louisville now ? A. North.
“Q. Street car going east? ' A. I was going this way and the street car Avas going that way, and I was not sure that I could cross ahead of that ear so I pulled in my horses to a stop.
“Q. About hoAV close to the street car track? A. Of the street ear track of possibly 20 feet, because I had a lot of confidence in this team, they wasn’t afraid of anything of that kind.
“Q. Go ahead and tell what you next did? A. Then after this street car was past I started my horse on a walk, they walked across the street car track, and I leaned forward, I was sitting possibly like this (indicating) in my seat (indicating sitting forward on the seat, leaning forward); I leaned out of the front of the wagon and looked both ways to see if there was anything coming on the railroad track.
‘ ‘ Q. How many tracks is there there on that railroad crossing? A. Two tracks.
“Q. Double track? A. Double track.
“Q. How far is the closest track to the street car track; what is the distance approximately between those tracks? A. 65 to 70 feet.
"Q. Do they run parallel to each other at that crossing ? A. Yes, sir.
“Q. Hoav does the road that you was traveling strike the crossing, does it strike it perpendicular or at an angle? A. It strikes it at a sharp angle.
“Q. What you call an acute angle or what you call a diagonal? A. I would call it a diagonal.
“Q. Now, then, Mr. Gulling, just go forward and tell the jury what you did as you cross that crossing and what occurred? A. Well, after I crossed the street car track I leaned forward to look out for a railroad train; and I looked both ways twice at least, and when the team was on the railroad, the last time I looked east, there is something seemed to come down on me— looked like a black mountain; I had a clear view, I looked around the front of that curtain, and the next thing they struck me; there was no use to reach for the whip; I had the whip in the socket, never used it, I had it for an emergency; I leaned forward and give the lines on my horses, give a command — -I don’t know what you call it — anyway they answered me and leaped forward and the train got the rear end of that wagon.”

It thus appears that said request wholly eliminated the existing conditions, which were proper to be made known to and considered by the jury in determining whether or not the plaintiff was negligent before attempting to drive upon and over said crossing. If he looked when within forty feet of the track, as testified to by him, to see whether or not any train was approaching said crossing, and so looking he had a clear and unobstructed view of said company’s tracks for a distance of three-quarters of a mile, and neither hearing nor seeing any train approaching said crossing, he then drove upon said crossing for the purpose of crossing over the same, and believing and having good reason to believe that he could safely cross, and when attempting to cross was struck by said company’s train of ears, as the evidence here shows, such looking under such circumstances would not be negligence as a matter of law^as would prevent a recovery.

It is contended on behalf of the plaintiff in error that the court below erred in its general charge to the jury upon the subject of displaying a headlight on the engine of said company. Section 8945-1 of the General Code provides that—

“Every railroad corporation operating a railroad or a part of one in this state, shall equip each of its locomotives with a headlight of such construction, and with sufficient candle power to render plainly visible at a distance of not less than t^iree hundred and fifty feet in advance of such engine, whistling posts, land marks, and other warning signals, ’ ’ etc.

In its answer said company admits—

' ‘ That it was its duty to maintain a headlight on its engine, to give certain signals as it approached said crossing, and it avers that all of its duties in the premises were fully performed.”

As if adopting said admission said court instructed the jury as follows:

“The law requires, and counsel for defendant concedes, that the defendant must display, after dark, an adequate headlight on its locomotive; and that failure to do so is negligence. Now whether the defendant on the occasion in question failed in its duty in that respect, and if so whether such failure was the proximate cause of the plaintiff’s injuries, are questions of fact for you to determine. ’ ’

While perhaps it is true that every failure to perform a duty imposed by statute is not negligence as a matter of law, in this instance the statutory requirement appears to have been conceded, and the ultimate question of whether or not said company failed to display a headlight on its engine on the night in question, and if so, whether or not such failure was the proximate cause of the plaintiff’s injuries, was submitted to the jury to determine. We find no prejudicial error in said charge in this respect.

It is also urged that said court erred in its charge to the jury in respect to the statutory signals required, when negligence in this respect was not averred in the plaintiff’s petition. An examination of said petition shows that it was drawn with no little care and indeed with greater particularity of statement and detail than is required under the existing system of code pleading in this state. Quoting from said petition on this subject, it recites that — ■

“Yet the said defendant, well knowing its duties in the premises as aforesaid, did on, to-wit: the 12th day of November, 1914, negligently and carelessly run its said west bound freight train, then and there being drawn by an engine propelled by steam, at, to-wit: 5:30 oeloek in the afternoon, upon and over the track of said defendant and approached the said crossing at the intersection of the said tracks with the said highway, while it was dark, and negligently and carelessly failed to give due and timely warning of the approach of said train, engine and cars at á sufficient distance from the said highway crossing to give the said plaintiff, who was then and there approaching and attempting to cross the said track of the said defendant, in the exercise of due care and caution for his own safety, and without fault or negligence on his own part, reasonable opportunity and time so that the said plaintiff could stop and avoid going upon and over the said tracks, and negligently and carelessly failed to ring the bell on the said engine, and negligently and carelessly failed to sound the whistle as a warning to the said plaintiff, and negligently and carelessly failed to give any warning or signal whatever of the approach of said engine and train as the said train approached and ran over the said crossing. ’ ’
“In an action founded upon negligence, the petition should state the acts of commission or omission which the plaintiff claims to have caused th(p injury; and that statement being made, it is sufficient to aver that such acts were carelessly or negligently done, or omitted.” R. R. Co. v. Kistler, supra.

It is also argued that the verdict of the jury was clearly against the weight of the evidence and contrary to law. Counsel for plaintiff in error both in their brief submitted and in oral argument, contend that the decided weight of the evidence is that the headlight on the engine on the night in question was lighted at the time of said accident. That there is a marked conflict in the testimony of the witnesses testifying upon this feature of the case is apparent from a reading of the record, some of them giving positive testimony while that of others was negative in character. We recognize the rule that “all other things being equal, courts are naturally disposed to give more weight to affirmative than to negative testimony; to the witnesses who saw than to the witnesses who did not see,” but when affirmative testimony is given as to the existence of a certain fact, both by the plaintiff and defendant, it then becomes a question of fact to be determined by the jury, under proper instructions by the trial court. In this instance there was such testimony before the jury tending to sustain the contention of both the plaintiff and the defendant in the respect mentioned, and it then became a question to be considered by the jury under instructions as indicated. Gibbs v. Village of Girard, 88 O. S., 34.

In the light of the record before us, we are of the opinion that the jury were fully justified in finding that the defendant in error was not guilty of contributory negligence, or that such negligence on his part was the proximate cause of his injuries, and that the verdict of the jury was not against the manifest weight of the evidence or contrary to law.

Finding no error prejudicial to the plaintiff in error in the record, and further finding upon the whole case that substantial justice has been done between the parties hereto by the verdict returned by the jury and the judgment entered in the court below, the judgment of the court of common pleas will be affirmed.

Powell, J., and Houck, J., concur.


author: Jones (E. EL), P. J.

text:
    AS TO VALIDITY OF A CONTRACT OF SHIPMENT, ONE PROVISION OF WHICH HAS BEEN WAIVED BY THE CARRIER..
    Court of Appeals for Hamilton County.
    James F. Bennett v. The Pennsylvania Company and The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.

    Decided, February 14, 1916.

      Carriers — Shipments Under the Uniform Live Stock Contract — Agreement "by Carrier to Render Additional Service — Does Not Render Contract Void, Unless — Character of the Discrimination "Which is Inhibited.

    The waiver by a carrier of one of the provisions of a uniform contract of shipment, thereby, giving to the shipper a service other and greater than that specified in the contract, does not render the contract void under the Ohio statute relating to unlawful preferences for transportation wholly within the state, unless the discrimination thereby given to the shipper is unjust or unreasonable and can fairly be considered as granting some privilege or concession not enjoyed by others similarly engaged.

      Black, Swing & Black, for plaintiff in error.

      Maxwell & Ramsey, contra.

      Reversing Bennett v. Pennsylvania Co., 17 N.P.(N.S.), 42.

      Motion to require the Court of Appeals to certify its record_overruled by the Supreme Court, May 22, 1916.

   Jones (E. EL), P. J.

The discrimination inhibited by Sections 508, 564, 567 and 568 of the General Code is such an one as is unjust or unreasonable and can fairly be considered as giving some substantial privilege or concession not enjoyed by others similarly engaged.

Our statutes are practically like the provisions of the Interstate Commerce Act, and are to be alike construed. In Union Pac. R. Co. v. Updike Crain Co., 178 Fed., 223, it was held, syllabus, 2d paragraph:

“Interstate Commerce Act Prohibits Undue and Unreasonable Prejudices and Disadvantages Only. — The interstate commerce does not prohibit the giving of all preferences and advantages or the production of all prejudices and disadvantages. It prohibits only those that are undue and unreasonable.”

Hutchinson on Carriers, Third Edition, Section 538:

“All special contracts or traffic arrangements between carrier and shipper are not forbidden or condemned, but only such as operate unfairly and evidence undue favoritism towards one, or deprive another of his just rights.”

The facts stated in the petition are not alone sufficient to warrant therefrom a conclusion that there was an unlawful discrimination in this ease. The burden rests upon the railway company to prove that the favor shown the shipper constitutes an undue preference or unjust discrimination. Interstate Commerce Commission v. Baltimore & O. R. Co., 43 Fed., 37:

“Where a railroad company is charged with violating the interstate commerce act, by the issuance of ‘party-rate tickets’ at less than the rates charged single passengers, the burden of proving that such lower charge constitutes an undue preference is upon the person making the charge.”

The judgment is reversed and the cause remanded to the superior court for further proceedings.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Chittenden, J. Kinkade, J.,

text:
    AS TO THE FILING OF AN INTERPLEADER.
    Court of Appeals for Hamilton County.
    Tuke et al v. Manchester.
    Decided, March 15, 1915.

      'When Interpleader Should he Filed — Discretion of Court in Granting Leave to File After the Issues Have Been Made — Judgment for Plaintiff on the Pleadings.

    1. Section 11265, General Code, contemplates the filing of an affidavit of interpleader before the ’ issues have been made by the filing of an answer, and while a court may have authority to permit the withdrawal of the answer in order to permit the filing of an affidavit of interpleader, such action would be entirely within its judicial discretion and error does not lie to a refusal so-to do in the absence of a showing of abuse of discretion.
    2. Judgment for plaintiff on the pleadings in an action to recover money advanced upon a real estate transaction will not be reversed where the petition avers that plaintiff authorized her agent to offer $2,500 for certain property, advancing $400 to apply on the purchase price; that the agent accepted a receipt for the money paid, stating that the property was sold to plaintiff for $2,500 and payment of the June taxes; the plaintiff revoked her agent’s authority and demanded return of the money advanced, no denial of the revocation being made and no averment being made in defendants’ pleadings that plaintiff’s agent had any authority to make or accept any other offer for sale than upon the basis of $2,500.

      Clement Bates, for plaintiffs in error.

      Charles Sawyer and Peck, Shaffer & Peck, contra.
    (Judges of the Sixth Appellate District sitting in place of those of the First Appellate District.)
   Chittenden, J.

The plaintiff below, Mkry A. Manchester, brought an action against the defendants, Fred Tuke and others, to recover $400 which she had theretofore paid to them in pursuance of a real estate'transaction. The defendants filed an answer and later an amended and supplemental answer. A motion for judgment on the pleadings was thereupon filed by the plaintiff, which motion was granted. The defendants then made a motion to permit the withdrawal of their amended and supplemental answer and for leave to file an affidavit of interpleader. This motion was overruled, and the defendants prosecute error to this court.

We find no error in the action of the common pleas court in refusing leave to file the affidavit of interpleader after the defendant had filed an answer and an amended and supplemental answer. The provisions of Section 11265, General Code, contemplate the filing of such affidavit before the issues are made by the filing of an answer. The court may have had the right to permit the withdrawal of the answers and the filing of the affidavit of interpleader, but this was a matter entirely within the judicial discretion of the court and we find that its action constituted no abuse of such discretion.

The more difficult question arises in determining whether the judgment entered upon the pleadings was properly' entered. A majority of the court are of opinion that there was no error in granting the motion for judgment on the pleadings. The pleadings, as viewed by a majority of the court, show, in substance, that the plaintiff authorized her agent, Sadie Meyer, to offer $2,500 for certain real estate, and placed in her hands $400 to be paid as part of the purchase price of such property if the sale should be consummated. This offer was submitted to Tuke & Son, agents for the owner of the real- estate, and their principal agreed to sell the property for $2,500, with the further provision that Mrs. Manchester was to pay the June taxes. Thereupon Sadie Meyer paid the $400 to Tuke & Son, and took their receipt for the same, which receipt set out that the property had been sold to Mrs. Manchester for $2,500, she to pay the June taxes. Mrs. Manchester avers that the sale upon' her proposition was never consummated, and we find no averment in the pleadings to the effect that Sadie Meyer had any authority to make or accept any other offer of sale than upon the basis of $2,500. The petition further alleges, and this averment is not denied, that she revoked all further authority of the agent and made demand for the return of the $400. While the pleadings are not as definite as could be wished, a majority of the court are of the opinion that they justify the judgment entered by the trial court.

Finding no error in the record sufficiently prejudicial to justify a reversal of the judgment, a majority of the court are of the opinion that the judgment should be and the same hereby is affirmed.

Judgment affirmed.

Richards, J., concurs.

Kinkade, J.,

dissenting.

In my opinion the state of the pleadings was not such as to justify a judgment being entered in favor of the pleadings thereon.


author: Kinder, J.

text:
    INEFFECTIVE EXEMPTION CLAUSE UNDER A POLICY OF TORNADO INSURANCE.
    Court of Appeals for Auglaize County.
    Auglaize Box Board Co. v. Connecticut Fire Insurance Co.
    Decided, July 22, 1914.

      Insurance — Indemnity Against Loss from Tornado — Property Sold and Policy Assigned — Renewal of Policy Creates a New Contract, When —Assignee of Policy May Recover in Ilis Own Right, When — Ineffectual Exemption Clause.

    1. Upon the sale of property by an insured with an assignment by the seller to the purchaser of a policy of insurance covering such property which, as required by the terms of such policy, is assented to in writing by the insurer, and which by its terms limits the parties thereto to such policy as issued and such additional modifying-terms as may have been endorsed thereon in writing, a new contract of insurance arises between the purchaser and such insurer upon the terms and conditions only of the policy as originally issued, with such additional or modifying terms as may have been endorsed thereon in writing prior to such assignment.
    2. Thereafter the assignee of such policy, in case of loss, is entitled to recover in his own. right and is not limited to a recovery in the rigM of the insured named in the policy; hence, the assignee of such a policy is not affected by an exemption clause restricting the property covered by the policy which prior to such assignment was delivered by the insurer to the insured, but was not attached to or endorsed upon the policy, as required by its terms.

      Gottschall & Turner and Anthony Culliton, for plaintiff.

      Calhoun & Gunther and F. C. Layton, contra.
   Kinder, J.

The plaintiff, the Auglaize Box Board Company, filed its petition in the Court of Common Pleas of Auglaize County, Ohio, against the defendant, the Connecticut Fire Insurance Company, and sought a recovery for the loss of three steel smokestacks upon a policy of insurance issued to the Western Strawboard Company of St. Marys, Ohio, which policy, by its terms, agreed "to indemnify the latter company against all such immediate loss or damage as may occur by wind-storms, tornadoes and cyclones to the property in the policy described in a sum not exceeding five thousand dollars, thirty-five hundred dollars thereof being on building, etc., and fifteen hundred' dollars on their machinery of all kinds, including spare parts, gas and steam pipes, shafting, gearing, tubs, vats, bleachers, straw cutters, and their foundations, boilers, engines, pumps, their connections, setting and apparatus while contained in above-described building. ’ ’

The policy contained the further provision:

"And it is hereby mutually understood and agreed, by and between this company and the assured, that this policy is made and accepted upon and with reference to the terms, conditions, stipulations and restrictions herein stated and referred to, all of which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing.”

The petition contained appropriate averments touching the purchase of the property, so insured, from the Western Straw-board Company, and an assignment of said policy to the plaintiff with the consent and approval of the defendant company, together with the fact that the smokestacks constituted a part of the property covered by the policy under the second item therein, namely, that portion insuring the machinery, etc., and the damage thereto by the casualty insured against.

The defendant filed an answer containing nominally four separate defenses. The fourth defense sets forth facts upon which was predicated a prayer for reformation of the contract, together with the assignment thereof, which are, in substance, that the exhibit attached to the petition does not state all of the terms and conditions of the agreement actually made between the defendant and the plaintiff’s assignor; that one J. L. Smith was the agent of the defendant, together with a number of other companies issuing fire and tornado insurance; that on December 10, 1900, certain policies of insurance were issued by several companies, including the defendant, to the Western Strawboard Company; that in 1903 and 1906, on the expiration of policies, new policies of like terms were issued in lieu of such expired insurance; that while issued in such form the policies were in fact renewals of the original policy issued in 1900; that the said J. L. Smith was the agent of the Western Strawboard Company, having charge of its ■ insurance, with power to effect insurance and to substitute other insurance upon cancellation or expiration of any policies issued to such company; that the original policy, while issued without an exemption clause, was, by the requirement of the company and with the consent of the Western Strawboard Company, modified by a rider attached so as to exempt from the operation of the policy smokestacks; that the policy issued in 1903 contained such a rider and that the policy issued in 1906, and upon which the suit is brought, was, by the mistake of Smith, the common agent of the insurance company and the Western Strawboard Company, issued to the last-named, company without containing therein or having endorsed thereon the exemption clause as to such smokestacks, but that subsequently such exemption was prepared by said Smith and mailed to said company; that the mistake so made by said Smith in omitting said exemption clause was the mutual mistake of the defendant and said the-Western Strawboard Company, and that defendant did not know of such omission of said exemption clause and did not learn of the same until after the loss for which claim is made had occurred; that while the transfer of the policy from the Western Strawboard Company to the plaintiff was consented to by the defendant through its agent, Smith, neither the defendant nor said Smith, as the agent of said insured, knew that said policy did not contain therein or have endorsed thereon the clause exempting smokestacks from the operation of said policy.

The reply denied the affirmative averments of the so-called fourth defense, touching the assignment of the policy by the Western Strawboard Company to the plaintiff and the consent and approval thereof by the defendant company, together with a denial of all of the facts averred with respect to the issuance of the policy inconsistent with the averments of the petition and its right of recovery.

In the court of common pleas the fourth defense 'was treated as a cross-petition, and the issue tendered by said defense and the reply thereto was heard by and submitted to that court and resulted in a decree reforming the contract and the assignment as against the plaintiff in accordance with the prayer of said fourth defense or cross-petition.

Upon appeal the case is submitted to this court upon the issues thus tendered, the evidence and the arguments of counsel.

The following facts fairly appear, to-wit: In December, 1900, the Western Strawboard Company, then the owner of the buildings, machinery, etc., covered by the policy sued upon, applied for so-called cyclone insurance to one Smith, who was the agent of each of four companies, including the defendant company, and that four policies of $5,000 each were issued to the Western Strawboard Company by said companies, concurrent in their terms and provisions and the time for which the same should be effective, except that three of the policies were dated the 11th day of December, 1900, and the , policy of the defendant was dated the 10th day of December, 1900. Each of said companies refused to carry such insurance unless a provision was added exempting smokestacks from the operation of such policies. This provision was assented to by the Western Strawboard Company and a “rider” was attached to each policy embodying such exemption. At the expiration of three years, the term for which the policies were issued, new policies were issued, together with an additional policy of $5,000. In four of said policies the exemption clause was inserted in the body of the policy, but in the policy of the defendant company it was attached as a rider in substantially the following language: “ It is understood and agreed that smokestacks are not covered by this policy.”

At the expiration of such policies in 1906, new policies, in lieu of the expired policies, were issued to the Western Straw-board Company, four of which, as in 1903, had embodied in the policy the exemption covering smokestacks. The policy issued by the defendant company as issued December 10, 1906, contained no such exemption provision, either in the body of the policy or by way of rider. The acting manager of the Western Strawboard Company, at the issuance of the first policy, instructed the agent, Smith, to keep in force the policies of insurance on the property of the company in so far as they were issued through his agency. The defendant company, on January 7, 1907, discovered that the policy as issued by it did not contain the provision exempting smokestacks, either as a part of the body of the policy or by way of rider, and instructed its agent to have said provision attached to the policy, and he, after receiving a second notice from the company, prepared a rider as follows:

“St. Marys, Ohio, December 10th, 1906.
“It is understood and agreed that smokestacks are not covered under this policy. Attach to policy No. 106.
„ “J. L. Smith, Agent.”

He enclosed the same in an envelope addressed to the Western Strawboard Company with a request that the rider be attached to the policy in controversy herein, which envelope, containing such rider, was deposited in the mails. The rider was not attached to the policy by the Western Strawboard Company, and the plaintiff company, when it purchased the property and obtained the assignment of the policy with the consent thereto by the defendant company, had no.notice or knowledge of the existence of such a rider or any clause or provision exempting smokestacks from the insurance provided for in said policy. The agent, Smith, when he endorsed the consent of the company upon the policy, did not observe that the rider was not attached.

Whether such smokestacks, are covered by the provisions of the policy hereinbefore quoted is not presented by the issues submitted to this court for determination. The single question is whether, under the facts above set forth, the defendant company is entitled to have the policy issued by it reformed, as against the plaintiff, by the addition thereto of the above provision exempting smokestacks. In other words, was the Auglaize Box Board Company, the assignee of the Western Strawboard Company, in privity with it and therefore subject to have the policy reformed in the manner prayed for herein, as would have been the case with the Western Strawboard Company, or did the assignment of the policy by the Western Strawboard Company to the Auglaize Box Board Company, with the consent of the defendant company, result in the creation of a new "contract between the plaintiff and the defendant upon the terms’ of the policy as originally issued and without regard to the exemption clause of which the plaintiff company had no notice or knowledge?

If we have correctly understood the claims of the defendant company upon which it asserts the right to a reformation of the contract of insurance upon which suit is brought in this action, they are:

First. That the insurance agent representing the defendant company when the policy was issued was, by force of the instructions of the acting manager of the insured company at the date of the issuing of the first policy in 1900, constituted agent both of the insurer and insured, that he so remained at all times, including the issuance of the policy which is involved in this controversy, and that the omission of the exemption clause from the policy by such agent was the mistake or omission of both the insurer and.insured and might be corrected by a court of equity.
Second. That the several policies having been issued to the same company covering the same property, and each for the same term, each policy issued upon the expiration of the preceding policy was but a renewal of the policy first issued, and lienee all of the terms of the first policy, to which the insured consented, were incorporated in the policy last issued and formed a part thereof as though written therein or endorsed thereon in writing in accordance with the requirements of the policy last issued.
Third. That the assignee of the last policy, the one in suit, took the same upon the terms which bound the insured named therein (the assignor) : (a.) Because of the policy being a renewal only of the original policy, and so incorporating all of its terms; or (b.) the limitation clause having been mailed to the insured company before loss accrued and said insured having made no objection thereto, it is presumed to have agreed that the exemption clause shouM form a part of. the policy, even though not actually attached thereto, and that the plaintiff as assignor is bound by the terms of the policy as so modified.

Upon the part of the plaintiff it is contended that as assignee of the policy upon purchase of the property covered thereby, it is bound only by the terms of the policy as originally written, or such modifications thereof as were endorsed thereon in writing as required by the terms of the policy, and that it can not be bound by any terms or conditions not so incorporated in the policy and of which it had no knowledge.

A policy of insurance, complete in its terms, issued upon the expiration of a former policy issued by the same company and covering the same property, is not a renewal of the policy first issued so as to incorporate in the last-issued policy any of the terms of the former policy not included in said second policy when by the terms of the later policy the company and the insured are expressly limited to the terms and conditions printed in such policy and such additional terms and provisions as may be endorsed thereon in writing with the consent of the company and the insurer.

The direction by an acting manager of a manufacturing company to an insurance agent, placing the larger part of the insurance carried by such company, to keep such insurance alive and attend to cancellations by effecting other insurance in place of policies canceled, does not constitute said insurance agent the common agent of the insuring company and such manufacturing company as to policies issued to said company through such agent four years after such acting manager had severed all connection with such manufacturing company, and hence a mistake of such agent in omitting a clause exempting certain property from the provisions of such policy will not, under such circumstances, constitute a mutual mistake of the insurer and insured against which relief in equity may be granted to such insurer by a reformation of the policy so as to include such omitted exemption clause.

Upon the purchase of property of the insured with an assignment of the policy of insurance covering such property by the seller to the purchaser, which is assented to in writing by the company issuing the policy, a new contract of insurance arises between the purchaser and the insurer upon the terms and conditions only of the policy as originally issued or such additional or modifying terms as may have been endorsed thereon in writing prior to such assignment, and thereafter such assignee of the policy, in ease of loss, is entitled to recover in his own right and is not limited to a recovery in the right of the insured named in the policy as is the case when the transfer of property is not absolute and the assignment is for security. Hence, the assignee of such policy is not affected by an exemption clause restricting the property covered by the policy which was mailed by the agent of the insuring company to the insured under the policy, but which was not attached to or endorsed upon said policy as required by its terms when issued, and especially is this true when "it is not shown that the purchaser or assignee had any knowledge of the existence of such restrictive clause.

Judgment for plaintiff.

Crow, J., and Donnelly, J., concur.


text:
    DEVISEE FOR. LIFE — NO VESTED ESTATE IN HER. HEIRS.
    Circuit Court of Cuyahoga County.
    Aribella T. Barlow v. Frances A. Otstott et al.
    Decided, December 24, 1902.

      Wills — Interpretation of Devise.

    A devise to trustees, with directions to pay the rents and profits to A during her natural life and at her death to convey the property to her legal heirs in fee simple, does not vest any estate in the children of A during her lifetime and the “legal heirs” of A are determined at the date of her decease.

      Weed & Miller, for plaintiff in error.

      (¡has. H. Taylor, contra.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Error to the court of common pleas.
   The facts in this case are as follows:

In the year 1845 Margaret Norton died in the city of Cleveland, Cuyahoga county, Ohio, where up to the time of her death she was the owner of a valuable parcel of real estate fronting on Bank street in said city. Said Norton left a will, which was duly probated in the probate court of said county. She left surviving her a daughter, Harriet F. Dockstader. The said Harriet at the time of the execution of the will of said Norton and at the time of said Norton’s death, was the mother of two children, who were her only descendants. One of the provisions of said will reads:

‘ ‘ I give and devise my real estate situated in the city of Cleveland, * * " unto Alonzo S. Gardner and David G. Doan, and the survivor of them and the heirs of the survivor of them to have and to hold the same to the uses following, to-wit: That they the said Alonzo S. and David C. and the survivor of them and the heirs of the survivor shall from the rents and profits of said real estate (if I do not leave money and debts sufficient for the purpose) pay my just debts, charges of administration and funeral expenses and erect a suitable and respectable monument or grave stone over the grave of my deceased mother and over my own grave and after -paying the charges above imposed on it they the said Alonzo S. and David G-. and the survivor and the heirs of the survivor shall during the lifetime of Wm. B. Dockstader, the husband of my daughter Harriet F. Dockstader, take and receive the rents and profits of said real estate herein before described and therewith make all necessary repairs, pay all taxes and other necessary charges and expenses in and about the same and after deducting all such payments and reasonable charges for attending to the business, shall at least once in each year and oftener, if said Alonzo S. or David G-. or either of them or the heirs of the survivor shall see fit, pay over the residue of such rents and profits to my daughter Harriet F. Dockstader during her natural life, to her sole and separate use and benefit and after her decease convey said real estate above described to her legal heirs in fee simple.”

The trustees named in this item of the will duly qualified and acted in the execution of said trust for some time, when they were succeeded by Virginia E. Kidney, who, after acting for a time as such trustee, resigned and was succeeded by Bolivar Butts, who is still engaged in the execution of the trust.

The two children of said Harriet F. Dockstader hereinbefore mentioned were Frances A. Otstott and George B. Dockstader. Harriet F. Dockstader died on or about the 18th day of April, 1899. Prior to the death of said Harriet, her son, George B. Dockstader died, unmarried and without issue. On the 13th day of June, 1889, said George B. Dockstader executed a warranty deed to Lyman C. and Procter Thayer conveying to them for a valuable consideration his right, title and interest in and to the real estate herein before mentioned. At the time of the death of said Harriet said Frances A. Otstott was her only living descendant. The plaintiffs in error, by proper conveyances, are the owners of whatever rights the said Lyman O. and Procter Thayer took in the premises by virtue of the conveyance made to them by the said George B. Dockstader.

The action in the court below was brought by the said Frances A. Otstott, and the prayer of her petition is that the said Bolivar Butts, who is made a defendant, may be ordered to convey the premises to her, and that the title to such premises may be forever quieted as against the plaintiffs in error.

The plaintiffs in error file an answer and cross-petition in which they set np substantially the facts as hereinbefore stated and pray that the said Butts be ordered to convey an undivided one-half of the premises to them.

To that answer and cross-petition the said Frances A. Otstott filed a general demurrer. That demurrer was sustained and the plaintiffs in error, not desiring to plead further, a decree was entered that the premises be deeded to the said Frances and that the plaintiffs in error had no right or title therein. The error complained of here is in the sustaining of such demurrer and the entering of such decree.

The question presented depends entirely upon the construction to be given to said will. If under such will the said Otstott and the said George B. Dockstader became, when said will was probated, vested with an estate in said premises, there was error in the overruling of said demurrer; otherwise, there was not.

On the part of the plaintiffs in error it is claimed that the will is to be construed as though it read as it now does with the exception that the last clause hereinbefore quoted reads: “And after her decease convey said real estate above described to her two children, Frances A. Otstott and George B. Dockstader.” If this -were the reading, there could be no doubt that each of these parties would have had a vested right in the premises from the time of the probate of the will, and so the deed made bythe said George would have conveyed a title under which the plaintiffs in error would be entitled to make the claim which they do make; and this would probably be so even though the names of the two children had been omitted from the will. To hold that the will as it now reads has the same effect in law as though it read as above suggested would be to hold that the words “her legal heirs” have the same meaning as the word “children” would have if substituted therefor. Technically the word “heirs” has a different meaning. The definition given in Anderson’s Law Dictionary of the word heir is: “lie upon whom at common law the law casts the estate immediately upon the death of the ancestor;” and this is the recognized meaning of the word, though it is not infrequently used in wills, and perhaps other instruments, in a different sense, and not infrequently is construed to mean ‘ ‘ children, ’ ’ bnt it is ever held in a will to have this latter meaning, or any other than its strict technical meaning, unless the plain meaning of the will derived from the context requires a different meaning. In the present case we find nothing in the context to indicate that the testatrix intended any other than the strict technical meaning of the words "heirs at law.” For some reason she was not willing that her daughter should be the owner of this property, but she wished her to have the entire income from it during her lifetime, and it seems the natural and probable construction of the will to say that she wished the property at the death of her daughter Harriet to go to the same persons to whom it would go if Harriet were the owner of the property in fee at the time of her death and should die intestate. This result will be accomplished by giving to the words "heirs at law” their technical meaning. At her death she left as her only heir at law the defendant in error Otstott. U Harriet had owned this property and died intestate the law would have cast the estate upon Otstott, because she Avas the heir at laAV.

Holding as Ave do, that the testator provided that the same person or persons should take the estate at Harriet’s death as Avould have taken it had she owned it and died intestate, it foiloaats that the plaintiffs in error have no interest in the estate, and the judgment of the court of common pleas is affirmed.