author: WILDMAN, J.

text:
    INSURANCE — PLEADING.
    [Lucas (6th) Circuit Court,
    May, 1906.]
    Haynes, Parker and Wildman, JJ.
    Travelers Ins. Co. v. Anna M. Leibus.
    1. Pleading in Action to Recover Accident Insurance for Death Caused by Accident. I
    In an action for recovery for death, under a policy of accident insurance-containing the provision that the company insures against death resulting from injuries alone, the judgment against the company will not be reversed for failure to allege in the petition that death was caused solely by the accident, where the answer affirmatively alleged another cause, thereby presenting that issue.
    [For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 1115-1130. — Ed.]
    2. Inconsistent Instructions not Warranting Reversal Therefor.
    Where in such a case the court charged the jury generally that the plaintiff must show that death resulted from the accident alone, and also charged that the burden was on the defendant to show the specific cause of death to have been other than the accident, the apparent inconsistency is not of such a character as to require a reversal oí the judgment.
    [For other cases in point, see 2 Cyc. Dig., “Charge -to Jury,” §§ 282-286; 5 Cyc. Dig., “Insurance,” §§ 1304-1325. — Ed.]
    3. Use of “Proximate” Cause as “Sole” Cause with Other Restrictive Words-not Prejudicial.
    Nor did the use of the word “proximate” cause of death in the sense of “sole” cause, when taken in connection with other qualifying and restrictive words in the same connection, render the instruction confusing or erroneous to an extent requiring a reversal of the judgment.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1718-1745. — Ed.]
    4. Answers as to Weekly Wages Refer to Weekly Indemnity not to Recovery for Death.
    A clause avoiding a policy of accident insurance for a false or incorrect statement of the weekly earnings of the assured, is applicable only to the weekly indemnity to which the assured would be entitled in case of an injury which incapacitates him from following his vocation, and not to an injury resulting in death.
    [For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 393-410. — Ed.]
    [Syllabus by the court.]
    Error to Lucas common pleas court.
    Doyle, Lewis & Schaufelberger, for plaintiff in error.
    Potter & Potter, for defendant in error.
   WILDMAN, J.

This is a proceeding brought in error to. reverse the judgment of the court of common pleas in favor of the defendant in error, Anna M. Leibus, against the said insurance company.

It appears from the pleadings and record that one August Leibus, "who was insured in the Travelers Insurance Company, died on April 2, 1904, as the claimed result of an accident incurred by him in falling, -a short time previous to that date. Suit was brought by the beneficiary, Anna M. ’Leibus, in the court below, and a verdict 'and. judgment for'the ■sum of $5,000 obtained upon the policy of insurance.

There are several claims of error upon which the proceeding is prosecuted in this court to reverse that judgment. The record is a somewhat long one, and a critical examination of all the points involved and statement of the reasons for the conclusion at which we have arrived upon each claimed item of error would take longer time than I have now ■at my disposal and would hardly be necessary to a correct understanding of our general conclusions.

One of the important claims of the plaintiff in error is, that the petition of Mrs. Leibus in the court below did not state facts constituting a cause of action, and for that reason was obnoxious to the demurrer which was filed against it, and that the court erred in overruling .said demurrer. The point most specifically stated is, that the petition failed to allege in express terms tbat death had occurred alone from the accident described in the petition, and in an amendment to it, which in some detail stated the occurrence averred to have caused the death. It is not claimed that the petition does not sufficiently allege the death as the proximate result of the accident, but it is claimed that it nowhere alleges that it was caused solely by the accident, and that it should have so alleged.

We are strongly inclined to the opinion that the petition is open to this objection, but, under a decision of the Supreme Court and one or two general provisions of our civil code to which I will presently refer, our view is, that this, under all the circumstances of the case, is not ground for reversal.

The policy of insurance not only contains the general provision that the company insures the decedent against death resulting from the injuries alone, but it has an independent clause providing that the insurance shall not cover injuries resulting wholly or partly, directly or indirectly, from a number of causes mentioned in the clause of the policy referred to, among which is cited disease in any form. This was set up in a defense in the answer in the case at bar as a ground upon which the company was exonerated from liability, or rather, a ground for the -claim that the policy did not cover the death in this ease because, as asserted, it had resulted from a disease of some kind.

The decision of the Supreme Court to which I referred is the case of Yocum v. Allen, 58 Ohio St. 280 [50 N. E. Rep. 909], holding,

“Where, in a cause pending in the court of common pleas, a demurrer to a petition has-been overruled, and upon issues made by answer and reply, the case has been tried to a jury and a verdict and judgment for plaintiff rendered, this court will not reverse the judgment, even though satisfied that the demurrer ought to have been sustained, provided it also appears, upon a consideration of the whole record, that the overruling of the demurrer was an error which was not prejudicial to the adverse party. ’ ’ >

This decision of the Supreme Court is based upon the provision of our civil code to which I have referred, or perhaps to two .provisions of the civil code, which are referred to on pages 288 and 289 of the case cited.

“Respecting the defects in the petition,” the court said, “as to allegations of indebtedness, the writer is free to say” (and the writer in.this instance is Judge Spear) “that he has no sufficient answer to the criticism of counsel, and if we were passing upon the question in a court of first instance, there would seem to be evident propriety in holding the pleading insufficient. But the question before this court is not whether this petition, tested by technical rules, states a case, but whether the error in overruling the demurrer has worked prejudice to the adverse party which requires a reversal of the judgment. The second section of the code [Rev. Stat. 4948; Lan. 8463], enjoined this rule upon the courts: ‘ The provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.’ And Section 138 [Rev. Stat. 5115; Lan. 8630], enjoins a still further duty in the direction of liberality: ‘The court, in every stage of an action, must disregard any .error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect.’ ”

The petition in that case defectively stated the claims of the plaintiff. It was probably obnoxious to a demurrer upon the ground that the petition did not state facts constituting a cause of action, but notwithstanding another provision in the code, that the defendant shall be deemed to have waived all defects in the petition which might be raised by demurrer save only that the petition does not state facts constituting a cause of action, or that the court has no jurisdiction, the Supreme Court, applying the other provision of the code that the court in every such action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, refused to reverse the judgment notwithstanding the defective petition.

In the ease at bar we have a condition very similar to the one, which Upon a reading of the facts in Yocum v. Allen, supra, will be found to have obtained in that case. The precise matter was called to the attention of the court and jury upon the trial of the case by the claims made in the answer' after the demurrer had been overruled by the court; because the answer affirmatively alleged independent causes of the death, so as to show affirmatively by the defendant what the plaintiff had failed to negative — that the death had another cause than the accident. We think, on the strength of the decision in Yocum v. Allen, supra, that this judgment ought not to be reversed upon the ground that the petition was defective in failing to state that the death was caused solely by the accident.

Another point made in the petition in error before us is, that the court erroneously sustained a demurrer to the second defense in the defendant’s answer, pleading a false or incorrect statement of the assured as to his weekly earnings, and a clause avoiding the policy for such representations. Without pausing long upon this, it is enough to say that we think that this demurrer was properly sustained; that the clause in the policy upon which the defense was based was applicable only to the weekly indemnity which the policy provided for in case of injury to the person assured, and that it had no application to a case of death.

The plaintiff in error claims that the court erred in the admission and rejection of certain evidence during the progress of the case, and if I had time I would comment in detail upon the various rulings of the court in this regard as shown by the bill of exceptions. We have examined it, and especially the pages cited by counsel for the plaintiff in error, but we find upon none of those pages, or elsewhere in the record, any rulings of the court that in our judgment would justify a- reversal of the case upon either ground stated, the admission or the rejection of evidence, or other rulings during the progress of the trial, up to the time of the charge of the court to the jury, wherein some quite important questions are raised which demand a little more special attention.

It is urged by counsel for plaintiff in error that the court erred in charging the jury as the court did, substantially, that the burden was upon the defendant to show a specific cause for the death other than the accident. Did the court err in this respect? The court had already charged generally that the plaintiff must show that the death resulted alone from the accident; but later, and notwithstanding that, the court instructed the jury that upon the particular claims made by the defendant as to specific causes of death other than the accident, the burden was on the defendant to show them. This question we have examined with a good deal of care, and with the impression at 'first that perhaps the court committed substantial error in the charge so given.

In Freeman v. Insurance Co. 144 Mass. 572 [12 N. E. Rep. 372], it was held:

“In an action upon a policy of insurance against bodily injuries ‘effected through external, violent, and accidental means, within the meaning of this contract and the conditions hereunto annexed,’ one of which is, that ‘the party insured is required to use all due diligence for personal safety and protection, ’ the burden of proof is on the defendant to show that the assured did not use such due diligence.”

I will not stop to quote further from this case.

In the case of Badenfeld v. Accident Assn. 154 Mass. 77 [27 N. E. Rep. 769; 13 L. R. A. 263], in which it is held that in an action upon a certificate of membership in an accident association containing provisions that, “members are required to use all due diligence for personal safety and protection,” and that no claim shall be made upon the certificate “when death or injury may have happened in consequence of any voluntary exposure to unnecessary danger” the burden of proof is on the defendant to show that the assured did not use such due diligence, or that he did thus expose himself to such danger. I will pass this decision also without further comment.

In Moody v. Insurance Co. 52 Ohio St. 12 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699], it was held:

“The conditions precedent, performance of which the plaintiff is required to plead in an action on such a policy, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, and, it may be, other acts of like nature. Conditions which provide that the policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event, or doing, or omission to do some act, are matters of defense, and to be available must be pleaded, and their breach alleged. ’ ’

This in itself is not quite pertinent to the case at bar, but I cite it as in line with some later decisions which are in harmony with it in principle and which approach perhaps more closely the precise question which we have here. There are some authorities cited in the argument of counsel in Moody v. Insurance Co. supra, which should be read and considered in connection with the question here.

In United States Mut. Acc. Assn. v. Hubbell, 56 Ohio St. 516 [47 N. E. Rep. 544; 40 L. R. A. 453], it is held that death caused by accidental drowning is death through external, violent and accidental means within the meaning of the stipulation of an accident policy which gives indemnity against death by such means. Passing from the syllabus to the statement of the case on page 517, we have this fact, as to the pleadings, given: 1

“The answer set up that a condition of each of the policies was, that the ‘contract shall not extend to or cover voluntary exposure to unnecessary danger.’ ” * * *

On page 526 of the case cited, Judge Spear, speaking for the court, ■says:

“It being thus sufficiently shown by the evidence of the plaintiff!, that the assured came to his death within the general terms of the policy, the burden rested upon the company to prove that a recovery was defeated by reason of the exception pleaded, viz: that death was the • result of ‘voluntary exposure to unnecessary danger.’ ”

I will come back to this case a little later.

Aetna Life Ins. Co. v. Dorney, 68 Ohio St. 151 [67 N. E. Rep. 254] is a case cited by counsel during argument. In the second syllabus of the case I read:

“If a policy of insurance against accident contains a stipulation that the insurer shall not be liable on account of the death of the assured if it results wholly or partly from infirmity or disease, the stipulation is available as a defense notwithstanding Sec. 3625 and 3626 [Lan. 5778, 5779] Rev. Stat. whose effect is limited to defenses founded on fraud nr misstatement in the application. ’ ’

The court refused an instruction which the defendant requested, •and which the Supreme Court held was erroneously refused. It is this:

“Fourth. If you find from the facts and cirefimstanees proved that the coats of the stomach of said George S. Dorney had been eaten through by an ulcer and was left in a weakened and diseased condition, and that but for such diseased and weakened condition of his stomach the injury which caused his death would not have resulted from anything he did on the twenty-third day of October, 1899, then and in that •case the plaintiff cannot recover and your verdict must be for the defendant. ’ ’

The court held as above stated that the instruction was pertinent ■and should have been given. It will be observed that the language is not “If you fail to find that he was not diseased,” but “If you find from the facts and circumstances proved.” Of course this is not determinative of the question as to whether it is necessary to allege as a defense •or prove that the person was afflicted with a disease which caused the death, but it bints in that direction, and taken in connection with the-language in the syllabus itself that it is available as a defense, it seems to-us that it is an indication of the understanding by the Supreme Court as-to where the burden would rest.

I said that I would return to the ease of United States Mut. Acc. Assn. v. Hubbell, supra, and I do so to examine the rule therein given in connection with the language of the policy in the case at bar. This defense as made by the defendant is under the fifth clause of the policy, and I read the part of it which is pertinent to the question which we are considering:

“This insurance shall not cover death resulting wholly or partly/ directly or indirectly, from * * * disease in any form, nor shall this insurance cover accident, injuries, disability, or death, resulting, directly or indirectly from voluntary over-exertion, or from voluntary exposure to unnecessary danger.”

It is a continuation of the same paragraph, and it,is a use of the precise language that we find in the policy in reference to disease in any form and voluntary exposure to any danger. In other words, the policy does not cover death resulting from disease in any form, nor does it cover death resulting from voluntary exposure to unnecessary danger. I call especial attention to this, because the precise point decided in United States Mut. Acc. Assn. v. Hubbell, supra, is, ‘that “voluntary exposure to unnecessary danger,” was a matter with regard to which the burden rested upon the company. If that is true as to that specific cause of' death, it would seem equally true as to disease, that is, any special disease, upon which the defendant relied to defeat a recovery.

It is a very difficult thing to harmonize an instruction on the one hand, that the plaintiff must show that the death was caused alone by accident with another that as to any specific cause of death which with the accident contributes to it, the burden is on the defendant to point out its claim in that regard and to establish them by proof, and yet we have analogous eases in practice.

In this case, although the plaintiff is required to allege in general terms matter which entitles him to the relief sought, when it comes to-specific matters it’is incumbent upon the defendant to make the allegations and- proof, to point out specifically wherein the plaintiff is not. entitled to recover. To illustrate: In this policy, the fifth clause, in addition to the possible causes of death already quoted, provides that the insurance shall not cover death or disability resulting wholly or partly, directly-or indirectly, from intoxication; or while intoxicated, or from or "While violating law, or from hernia, or from bites or stings of insects. It will bardly be claimed that it is incumbent upon the plaintiff either to allege or prove that he had not been bitten or stung by an insect, that he was not intoxicated at the time of the injury, and if so, it was not incumbent upon him to show that the walls of his arteries had not become impaired by disease. In other words, he was not required to prove that, he was not afflicted with an particular disease. It may have been incumbent upon him to trace his death to the injury as a direct sequence, and. we are somewhat inclined to hold that having done this he has made-a prima facie case. It may have been necessary for him to show in a. general way that he was in health, but it was not incumbent upon himi to prove that his death was not due to his being intoxicated, or to any of these other specific things to which I have referred. The Supreme Court has held that it was not incumbent upon him to show that his death was not caused by involuntary exposure to unnecessary danger, mention of which we find in this same clause, but that it was -incumbent upon the defendant to prove that his death was caused by such fact.

The judge below attempted to draw this distinction, and it was a pretty difficult and a pretty fine distinction to draw. It was accomplished with difficulty and in some places it seems as if the judge had come pretty close to the line between correctness and error, but we are inclined to think upon the whole that he accomplished his difficult task with reasonable accuracy and correctness, and that, with the aid of some definitions that he gave and responses to instructions asked by the defendant as well as the plaintiff, he relieved the ease from,any possible prejudice to the defendant from his general instructions.

It is said that the court below confused the word “proximate” with the word “sole”; that he used the two words as synonymous, and it looks to us as if he had done so. In fact, in one part of the charge he almost expressly says that the word “proximate” is to be treated as equivalent to the word “sole” or synonymous with it. But the fact that he did so treat these words in itself, in our judgment, took away whatever injurious effect there was in some of the instructions that he gave as to the plaintiff being entitled to recover if the death was proximately caused by the injury, because he defined it substantially as meaning “solely” caused by the injury. He had made it perhaps reasonably clear in the first instructions that he gave at the request of the parties and in the general charge. But to avoid any possible cloud upon the charge, to take away whatever danger there might be to the defendant, counsel for the defendant properly attempted to guard the jury from any difficulty of understanding what the court was trying to tell them. This was at the conclusion of the charge and before the case was finally submitted. A request bad been made for certain special findings of the jury, answers to interrogatories, the fourth of which was: “Was the injury the proximate cause of his death?”

It was essential that the injury should be the proximate cause of the death, as well as that the matter should not be complicated by other cause such as was specified in the,policy as exonerating the company from liability, so that the interrogatory was proper enough, and the use of the word “proximate” in that request, in the interrogatory, was a correct one. The court had stated to the jury substantially that it was necessary that it should be the proximate cause, the only trouble in that respect with his charge being that he had also said that he used the word ,-as equivalent to “sole.” The defendant’s counsel asked the court as follows, at the same time objecting to this interrogatory:

“Before the jury retires I want to note an objection to the special findings, especially the last, to see that that is not put before the jury so as to confuse them and lead to wrong results. ‘Was the injury the proximate cause of his death?’ The jury ought to be charged that the court is using the term ‘proximate’ meaning the sole cause, independent of all other causes.
‘ ‘ The Court: That is correct. Gentlemen of the jury, the proximate cause of the death in the meaning of this contract is the sole cause of the death, as I have used that term in my instructions. ’ ’

As I have already said, the words “proximate” and “sole” are not synonymous. As a matter of law we cannot so consider them. But it was not necessary that this jury should be taiught law any further than was necessary, for their consideration of this case. The court gave them an instruction which was legally and abstractly erroneous, yet at the same time he instructed them as to just how it was to be applied, and no prejudice resulted if the application was correct. In other words, if he said to the jury that the injury must be the proximate cause of the death and at the same time, but in another part of his charge or instruction, at the request of counsel, told them that he meant by that that it must be the sole cause of death, then'he was telling them precisely what counsel for defendant was claiming all through the case to be the law that the injury must be the sole cause of death, and that the court had repeatedly in substance told them in other phraseology. And although he had told them that it was incumbent upon the defendant to show a particular disease, or that he was diseased, he had never departed from the proposition with which he started out, that as an ultimate fact the death must have been caused solely, or, as he expressed it “proximately,” meaning the same thing, by the injury. The jury then were instructed in substance that if the contention of fact which the defendant was making was true, that some other cause than the falling on the sidewalk contributed independently to the unfortunate, result, the death of the man injured, then the plaintiff, the beneficiary, was not entitled to recover. And that is the substance of the whole case, the gist of the whole contention.

And we have concluded after a very careful consideration of the case and study of it in all its aspects, that the judgment of the court below upon the verdict should not be disturbed. We think that substantial justice was done, that the defendant has had a fair trial. Nor aré we inclined to disturb the verdict upon the ground that it is contrary to the evidence. There was a conflict of evidence, a number of experts testified on both sides, about as many upon-one side as upon the other; and remembering that to establish ,any particular latent disease, the onus was upon defendant, we think that the jury was fairly justified in arriving at the conclusion to which they came that the plaintiff was entitled to the verdict sought. And with these views the judgment of the court below will be affirmed.

Haynes and Parker, JJ. concur.


source: Caselaw Access Project

author: PARKER, J. WILDMAN, J.

license: Public Domain

text:
    ACTIONS — BRIDGES—COUNTIES.
    [Sandusky (6th) Circuit Court,
    May 19, 1906.]
    Haynes and Parker, JJ.
    State ex rel. M. W. Hunt, Pros. Atty. v. S. M. Fronizer et al.
    1. County may not Recoves back Money Paid for Bbidge Without Offering to Return Bridge where Practicable.
    An action, under Rev. Stat. 1277 (Lan. 2656) as amended in 93 O. L. 408, to recover back for the use of the county money paid out for a bridge by the order of the county commissioners, where the bridge has been furnished under a contract void because of the omission of the auditor’s certificate required by Rev. Stat. 2834b (Lan. 4286), cannot be maintained without an offer to restore the bridge, where practicable, to the one from whom the money is sought to be recovered, where fraud is not an element of the transaction. ,
    [For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 516, 517. — Ed.J
    2. Revised Statutes 1277 (Lan. 2655) as Amended in 93 O. L. 408 Creates no New Rights but New Method of Enforcing Existing Rights.
    Revised Statutes 1277 (Lan. 2655) as amended in 1898 in 93 O. L. 408, does not create in favor of the public a cause of action theretofore not existing, but, instead, gives the power to a prosecuting attorney or, on his default, to a taxpayer, to institute proceedings to enforce a right of action which, before the amendment referred to could have been enforced only by the board of county commissioners under their general powers. It does not affect any right of action that existed or any valid defense that might have been interposed before its adoption.
    [For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 782-788; 7 Cyc. Dig., “Prosecuting Attorney,” §§ 27-32. — Ed.]

      ERROR to Sandusky common pleas court.
    M. W. Hunt and Basil Meek, for plaintiff in error*
    Hunt & Garn, for defendants in error.
   PARKER, J.

This case was submitted to Judge Haynes and myself; Judge Wild-man, the third member of the court, having passed upon the case in the court of common pleas, and his decision there being under review, did not sit here.

The opinion of Judge Wildman, published in State v. Fronizer, 15 Dec. 613, is so full and complete in its statement of the facts and issues as to make it unnecessary to restate the same, and for the statement of the case, we refer to that opinion.

The question in this case, is whether or not Rev. Stat. 1277 (Lan. 2655), — 1880, as amended in 1898 (93 O. L. 408) — authorizes the recovery back by the prosecuting attorney of money paid on county commissioner bridge contracts, void under Rev. Stat. 2834b (Lan. 4286), for the lack of the county auditor’s certificate, as therein required, without an offer to return or surrender to the contractors the structure furnished by them, and accepted by the county commissioners, under such void contract, where such structures are retained by the county and may be'returned.

The question arises upon demurrers to certain answers. The negative answer given to this proposition by the court of common pleas resulted in the overruling of the demurrers, and the plaintiff desiring to 'present that question at once to the higher courts, and not choosing to plead further, judgment yras entered in favor of the defendants upon the answers.

The answers admit the allegations of the petition to the effect that the certificate required by Rev. Stat. 2834b (Lan. 4286), had not been furnished, but they set forth that the contracts were entered into in entire good faith and honesty of purpose, and that a failure to procure the certificate and have it filed was a mere inadvertence; that it was not done with any design to violate the law or commit any fraud or wrong. That the property furnished was of value equal to the price charged and paid, and that the property has ever since been retained and used by the county, and is now in the possession of the county; that the county does not purpose or offer to return it, or to allow the bridge company to have it. The contention is thereupon made that the action to recover the price cannot be maintained until*the county returns or at least signifies a willingness to surrender possession of the property, so far as that may be practicable, and whether that is required of the county, is the real . question presented.

The court of common pleas was of the opinion that relinquishment of claims to the property is required under the circumstances set forth in the answers, and admitted by the demurrers, and with that conclusion, we are in accord. Very little could be added, we think, to the reasoning in .support of that proposition contained in the opinion of Judge Wildman, and in the authorities upon which his conclusion was largely based.

There are some conclusions upon subordinate questions, with respect to which we. are not in exact accord with Judge Wildman, or the opinion expressed by Judge Spear, of the Supreme Court, in Vindicator Ptg. Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733], and we feel disposed to express our own views upon those questions.

Counsel for the plaintiff insist that Rev. Stat. 1277 (Lan. 2655), as amended April 25, 1898, authorizing the prosecuting attorney to institute, an action in the name of the state, to recover back, for the use of the county, all public moneys misapplied or illegally drawn out or withheld from the county treasury, or to recover for the benefit of the county, any' damages resulting from the execution of illegal contracts, gives to the public, when thus represented by the prosecutor, a, new and different •cause of action from any theretofore existing in favor of the public.

Counsel for the defendants insist that this statute only confers a power upon the prosecuting attorney to represent the public in the prosecution of actions upon causes of action that are not new and are not created by this statute.

The following section, Rev. Stat. 1278 (Lan. 2656), authorizes like suits to be brought by taxpayers after they have made a request upon the prosecuting attorney to bring the suit, and he has refused or failed to do so.

It has seemed to us that the contention of counsel for the plaintiff is wrong, and that the opposite contention, the view maintained by counsel for defendants, upon this proposition is correct.

It is said by counsel for plaintiff in his brief that the case of Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372], arising upon a contract entered into in 1894, under a law as it was before the amendment of 1898, revealed the lack of the remedy which the plaintiff contends was provided by that amendment, and that the amended law was passed by the legislature for the purpose of providing such remedy. That prior to the amendment, if a suit in injunction was brought in time, the injury was averted, but if the mischief iad been accomplished, the public was remediless. That this put a premium upon successful fráud, and that the purpose of the amendment was to protect the public, and provide a remedy as complete for the recovery of money actually paid upon an invalid contract as that existing prior to the amendment to prevent such payment.

Insofar as this amendment of April 25, 1898 (93 O. L. 408), confers the right or power to institute the action upon the prosecuting attorney, we think the contention of counsel for plaintiff is correct, but that there was no cause of action in favor of the county in transactions of this kind, or no body authorized to institute suits on behalf of the county in eases like this, before that amendment, we think is not true; nor do we think that the case of Buchanan Bridge Co. v. Campbell, supra, disclosed such disability upon the part of the county or was the moving cause of the amendment referred to. If we have the true history of the moving cause of this amendment — and we think we have —it was a desire to have suits instituted by some other authority than the county commissioners against certain county, officers to require them to convert back into the county treasury, certain funds they were charged with having illegally drawn as fees and compensation and, therefore, the power to institute the suits was conferred upon prosecuting attorneys. A case of that character afterwards came before this court, and we decided that the amendment was ineffectual to accomplish the object sought, for the reason that the law as amended contains no provision that it shall reach past transactions, and that holding was. made under Rev. Stat. 79 (Lan. 98), which is a statutory declaration of' the general rule and principle that statutes have a prospective operation, unless the purpose to have them act retrospectively is made distinctly manifest.

Before this statute of April 25, 1898 (93 O. L. 408), was passed, Rev. Stat. 845 (Lan. 2104), provided that,

“The board of county commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining and defending all suits, either in law or in equity, involving an injury to any public, state or county road, bridge or ditch, drain or water course established by such board in [their) county, and for the prevention of injury to the same; and any suck board of county commissioners shall be liable in [their] official capacity for any damages received by reason of its negligence or carelessness [of said commissioners] in keeping any such road or bridge in proper repair; and to ask, demand and receive, by suit or otherwise, any real estate or interest therein, whether the same is legal or equitable, belonging to their county or any sum or sums of money or other property due to such county, and the money so recovered in any case shall be-[by them] paid into the treasury of the county, and they shall fake the treasurer’s receipt therefor and file the same with the county auditor.”

They were the general financial agents of the county, authorised, to bring actions for the protection of its property, or the recovery of money or property belonging to the county.

It was held by the circuit court of Hamilton county, in 1989 in State v. Zumstein, 2 Circ. Dec. 539 (4 R. 268), and certain other actions all decided and reported at the same time, that,

“Where money is illegally drawn from the county treasury, the prosecuting attorney of the county, in the absence of a statute authorizing him to do so, cannot bring an action in the name of the state, for the use of such county, and recover a judgment therefor. Section 1277 (Lan. 2655) Rev. Stat., only authorizes him to sue in such manner [as] to restrain a threatened misapplication of the funds of the county, or the completion or execution of a contract in contravention of the law of the state, or which was procured by fraud or corruption; and no other statute authorizes him to bring an action in cases like these. ’ ’

And that seems to have been the law with reference to the power of prosecuting attorneys in the premises up to the time of this amendment of Rev. Stat. 1277 (Lan. 2655).

That case was affirmed by the Supreme Court, and that case, we believe, is the one which disclosed the - ability of prosecuting attorneys to maintain actions of this kind. But the court added, and it appears as part of the syllabus, that,

“That duty (the duty to institute such actions) is imposed upon.the county commissioners as the financial representatives of the county. ’ ’

In the case of Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], with other cases decided at the same time, the question of the right or power of the commissioners to institute an action of that character (that particular case being an action to recover back from the auditor fees which it was charged he had illegally drawn) it seemed to counsel was involved, and so it was discussed, but the Supreme Court did not find itself obliged to pass upon it for the reasons stated in the opinion by Judge Spear. I quote from page 209:

“A question much argued, whether or not there can be a recovery (back by the commissioners, we think does not arise upon the record in this case, because of the agreement of the parties embodied in the submission, that if the allowance is found not to be regular and proper under the law, judgment is to go against the defendant.”

But by the court of common pleas and the circuit court of this circuit, it had been determined in that case that such action might be maintained by the county commissioners.

We are not sure that the question has been passed upon distinctly by the Supreme Court, but we are confident that the decision of this' court in the case of Jones v. Lucas Co. (Comrs.) supra, and the decision of the circuit court, of Hamilton county in the case to which I have referred, were correct upon that point.

In Buchanan Bridge Co. v. Campbell, supra, it does not seem to me that any disability operating to the disadvantage of the county, was disclosed. Nothing of that kind appears to have been commented upon or mentioned. In that case, the county had received the bridge and continued to keep it, notwithstanding the fact that it had not paid for if. Whether it bad a right to keep the bridge, whether it might keep it, in spite of the bridge compahy, without paying for it, was a question not mooted; at least, not presented to the court for its consideration or decision and not decided.

At the very close of the opinion by Judge Burkett, this remark is made:

“In this case both parties have acted m disregard of the statute, and the court will leave them where they have placed themselves, and refuse to aid either. ’ ’

And in argument here, a great deal seems to be made of that •expression by Judge Burkett. That was an action upon contract. The bridge company, having failed to receive pay for the bridge, and it having been determined it could not enforce the express contract, was seeking to recover upon a quantum valebant, upon an impliéd promise to pay so much as the bridge was worth; and it is with respect to that state of facts and with respect to the attitude of the parties there — their effort to undertake to enforce contractual rights growing out of the transaction — that we understand Judge Burkett to be speaking; and of course he there states the general rule and principle that where a contract is void, in any efforts the parties may make to enforce contractual rights the court will not aid them, but it will leave them where they have placed themselves. But it does not follow that there may not be rights arising out of the transaction — rights for the •enforcement of which the law affords a remedy — and where a remedy like that pursued in this ease is given it does not follow that it is en-forcible unconditionally.

It was certainly not very severe-upon tbe county in that instance for the court to pronounce that it would leave the parties where it found them, for the reason, as I have said, the county had both the bridge and the money. But we do not understand that as meaning that if the county had paid out the money either upon receiving the bridge, or without having .received it, the county would be without remedy to recover the money. We have no doubt that the county had such a remedy in such a case, and that not by virtue of the amendment of Rev. Stat. 1277 (Lan. 2655), but by virtue of the general principles of law, to be enforced by the commissioners under Rev. Stat. 845 (Lan. 2104). But because there were many transactions arising in which the commissioners were purchasers, and the public was not likely to be protected by thé institution by the commissioners of actions that must impeach their own conduct, it was well and wise to enact this amendment of Rev.‘Stat. 1277 (Lan. 2655), placing the authority to bring such actions in another public officer, or if he failed, then in a taxpaying citizen.

In the course of his opinion, to which I have already referred, Judge Wildman says as follows:

“Until the amendatory statute of 1898, a county whose officials paid out funds in fulfillment of invalid contracts, had no recourse on the recipient. This principle, recognized in the Buchanan Bridge Co. v. Campbell, supra, subjected an innocent public to loss because of the voluntary, but unauthorized, acts of its agents. To cure the manifest injustice of the principle, a new remedy was given to the public by the amendment. An action was provided for the recovery of the money and its restoration to the public fund. The reason for the amendment is manifest. The agents of the county exceeded their authority, and although they acted voluntarily, the county did not voluntarily part with its money. The voluntary acts of (he officials were not the voluntary acts of the public.”

Therein it will be observed his views are in harmony with those expressed by counsel for plaintiff in error.

In the case of Vindicator Ptg. Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733], Judge Spear says of this amendment, pages 372-373:

“Manifestly it is the purpose of this statute to reimburse-the treasury for unauthorized payments from it not otherwise provided for. It is in one sense a' remedial statute, and yet it gives a right of action which before its enactment did not exist, and could not, we think, apply to past transactions.”

Judge Spear appears to deduce therefrom that this statute au-thorises the recovery back of the money notwithstanding it may have been voluntarily paid. That cuts off the possible defense of voluntary payment. The court had already, in Jones v. Lucas Co. (Comrs.) supra, determined that the defense of res judicata could not be interposed in a suit by the commissioners though they had allowed the claim,, where the claim was wholly illegal. That principle has been reaffirmed, in a number of cases since, including Vindicator Ptg. Co. v. State, supra, and we think that for substantially the same reasons the defensa of voluntary payment could not have been interposed successfully against a claim asserted by the county commissioners or the prosecuting attorney on behalf of the county or public, for funds illegally paid out. by county officers, and that it was not necessary to invoke the amendment of Rev. Stat. 1277 (Lan. 2655), or to construe it as modifying rights of action, in order to determine that question against the printing company.

If an auditor, without authority of law, should draw a warrant in his own favor, or in favor of another, and the treasurer should pay that-warrant, and an action were brought to recover back the money from the recip/ient, could.the recipient ever have interposed the defense that the money thus paid to him without authority of law, was voluntarily paid, and that, therefore, it could not be recovered back? We have not made a study of, or search for, authorities upon this proposition, but it seems to us so apparent that that defense could not be interposed under such circumstances, that we have not deemed it necessary te find authorities. We do not understand that public officers can make a raid upon the public funds and pay them out illegally and that the persons receiving the funds can, in an action to recover them back, defend upon the theory that because the officers have acted voluntarily in an effort to rob the public they have bound the public under some doctrine of estoppel, or voluntary payment. The cases cited in the opinion in Vindicator Ptg. Co. v. State, supra, as supporting the doctrine of voluntary payment in the case of payment of public funds by public officers do not ¡any of them seem to us to support such defense where the payment is upon a claim or demand wholly illegal.

In the case of Vindicator Ptg. Co. v. State, supra, the public could not recover back on account of the bills for printing paid before the amendment, for the reason that the statute giving authority to the prosecuting attorney to pursue this remedy, does not relate to past transactions; but it seems to us, that if the action had been prosecuted by the board of county commissioners instead of the prosecuting attorney, the plaintiff would have met with no such difficulty as tó past transactions.

According to our view, Rev. Stat. 1277 (Lan. 2655), both as it stood before the amendment and as it stands now and amended, is not a statute defining rights or giving causes of action, but it is a statute conferring powers to pursue causes of action by appropriate suit or action, in some instances by bills in equity, and by injunction, and in other cases, where it would be appropriate “by civil action in the name of the state.”

We do not understand that this statute so operates upon causes of action as to change their nature; or that it so operates upon them as to remove any infirmities or conditions that may attach to them, or so as to remove any defenses that might be interposed to them. In cases like this, as I have intimated, we think it is well settled that the defense of res judicata and the defense of voluntary payment may not be interposed, but if the case were such before this amendment as that the plea of res judicata, or voluntary payment might be successfully interposed; then we suppose that such right, of defense is not taken away or destroyed by the amendment. If the defense of the statute of limitations were interposed, would it be argued, could it be said, that because this statute authorizes the prosecuting attorney to bring an action to recover the money back, that cuts off the defense of the statute of limitations? that by virtue of the statute he must recover it back? that it determines in the first instance what the result of the action must be? that it so operates upon the cause of action as to deprive the defendant of defenses that he might otherwise have to it? We think not. The statute does not say expressly, and we think it is not intended to imply, that the usual legal and equitable incidents of the transaction affecting the rights of the person asserting the claim, or the rights of persons defending against the claim shall be altered by the statute. It simply says the claim, whatever it may be, may be prosecuted in the name of the public, and for the benefit of the public by the prosecuting attorney, or if not by him, by a taxpayer.

In the expression of these views, we appreciate the fact that we are differing somewhat from judges of recognized ability and reputation, for whose views, we have the greatest respect; but it appears to us that in thus expressing such views in deciding the points decided in the cases, they went beyond what was necessary to the decisions, and after due consideration such views seem to us to be erroneous.

What the further results may be, if it shall be disclosed that the county may not be able or willing to make restitution or relinquish all claim to the property, we do not now attempt to say or forecast. We-leave that for future development. We do say, that it appearing that the county has not shown a willingness or disposition to return or relinquish its claims to the property, and no disability to do so being apparent, that in our opinion discloses a defensive position; that while this is not precisely an action for the rescission of the contract, it is of that nature; it is an action for the rescission or undoing, so far as ' possible, of transactions which were initiated by a contract, and which grew out of a contract. The contract itself is void. No contractual rights arose out of it, and there are no contractual rights to be enforced. But the fact remains that a bridge has been obtained by the county, and that payment for the bridge has been made and that both parties to the transaction acted in good faith, and the county suffered no actual loss; and that because of the illegality of the transaction the public,, through the prosecuting attorney, is authorized to sue to recover the money paid.

The bridge appears to be in the possession and use of the county., and we think the county, before it should be permitted to recover the whole amount, (and that is what it seeks to recover,) should at least evince a willingness to relinquish any claim to the bridge.

As I have already said, the facts as pleaded and confessed by the demurrer, show good faith in the transaction, and that the failure to-furnish this certificate was a mere inadvertence. If there were fraud-in the transaction, the rights of the parties might be somewhat different upon a question of rescission, but can it be said that because of Rev. Stat. 2834b (Lan. 4286), which requires the certificate for the evident purpose of preventing public authorities from entering into contracts, which may require the payment of money, unless the money is on hand to make the payment — preventing them from going in debt — can it be said, that in all instances, no matter what the circumstances, if this certificate is not placed on file, thé contract is so utterly void that no rights or liabilities can grow out of the transactions? We think that is not true, even though contractual rights may be vitiated and extinguished. We can imagine a cáse where a fraud might be perpetrated upon a person selling a bridge to the county, a bridge company if you please, by a representation that the certificate was on file, by an exhibition of something which purported to be a genuine certificate, but which was not — where as a matter- of fact, the certificate required by law, was not on file. Will it be said that in a ease of that kind, where the county had obtained the-'property, it might retain it without paying for it?

A -certificate might be placed on file, but one so defective in character that it would not come up to the requirements of the statute, and yet the parties might proceed in good faith, supposing it to be a good and sufficient certificate. If it should turn out that it was not, would it be said that this statute is so drastic that the result would be that the-county could keep the property, without paying for it?

It is to .be remembered that statutes are not to be construed as imposing penalties or forfeitures unless that purpose is so clear and manifest that the conclusion that such was the purpose cannot be escaped; and here we find nothing in the statute indicating a purpose to impose a penalty or a forfeiture, but the purpose, so far as we can gather it from the statute, is only to save the county or the public from wrong or imposition or loss, and where the contract is repudiated and there is no fraud in the transaction and there is an effort to place the parties in statu quo, as nearly as.possible, we think that effort should be forwarded by the courts.

The judgment of the court of common pleas will be affirmed;

WILDMAN, J.

While sitting as a judge in the common pleas court, I passed upon the demurrer just considered by Judge Parker, and for that reason have taken no part in the review of the case by the circuit court.

While the opportunity offers, however, I wish to place 'myself in accord with my associates upon the circuit bench, and with what I believe to be a correct interpretation of the law, by assenting to the criticism which has been made upon certain expressions in the ppinion rendered by me in the court below.

I refer to the expressions following the dicta of one of the judges of the Supreme Court in the interpretation of the statutes in force at the time of the decision of Vindicator Ptg. Co. v. State, supra, and indicating that a county at that time had no cause of action to recover through its officials, money which had been paid as the price of bridges, under invalid contracts.

My present judgment is, that the county had such cause of action, even prior to the enactment of the amendment of 1898 (93 O. L. 408), and that the amendment was a designation of an official who might institute the suit in behalf of the county. Before that time, the power to protect the interests of the county so far as suing to recover moneys unlawfully paid out, was concerned, resided under the general statutes, in the county commissioners. By reason of possible complicity of county commissioners in the making of illegal and invalid contracts, the legislature by this amendment gave to another public officer, the power tb represent the county in the protecting of its interests. Provision had already been made that the prosecuting attorney might by proper suits prevent the carrying out of unlawful contracts, but there was no provision that the prosecuting attorney could so represent the county in the recovery of money which had been illegally paid from its treasury.

In order further to protect the interests of the public the amendment of 1898 empowers any taxpayer to represent the county in case the prosecutor refuses to act as such representative. By these enactments the law clothes either the prosecuting attorney or the taxpayer with a certain representative capacity to act for the county, not only in the endeavor to bring back to the treasury the funds which have been unlawfully taken therefrom, but also in making such proffer for the county as the county should justly make as a condition precedent to obtaining redress of the wrong which has been committed against the public.

It is because of the fact that the opinion which I announced from the common pleas bench has gone into one of the published journals, and because the decision which has been rendered by the circuit court at the present hearing is very likely to be reported, that I have thought best to make these statements in order to harmonize any apparent difference between the opinion entertained by my associates and my own.


author: ©USTIN, J.

text:
    BILLS AND NOTES.
    [Clark (2nd) Circuit Court,
    May Term, 1906.]
    Wilson, Dustin and Sullivan, JJ.
    Harry L. Rockfield et al. v. First Nat. Bank of Springfield, Ohio.
    [The Act op April 17, 1902 (95 O. L. 162), Known as “The Negotiable Instruments Act,” does not Change State Rule op Decision.
    One who places his name on the hack of a promissory note before delivery is a maker or surety, and is not entitled to notice of presentment and nonpayment. The act of April 17, 1902 (95 O. L. 162f] known as “The Negotiable Instruments Act,” does not change the liability of such party as established by the Supreme Court of the state for many years.
    [For other cases in point, see 1 Cyc. Dig., “Bills, Notes and Checks,” §§’ 360-380; §§ 1037-1039. — Ed.]
    [Syllabus by the court.]
    Error to Clark common pleas court.
    Jas. Johnson, Jr., for plaintiffs in error.
    Martin & Martin and Hagan & Hagan, for defendant in error.
   ©USTIN, J.

(Orally.)

The First National Bank, as payee, brought two aotions in the •common pleas court against Rockfield et al., upon two promissory notes •of the defendant railway, on both of which notes the names of defendants, Rockfield and Snyder, appeared on the back as indorsers. Several ■other indorsers were also upon the notes, which were payable at the .bank.

The petition in each ease is in the usual form, and does not aver that these indorsers were notified of any dishonor of the paper, by the maker.

The indorsers above named demurred to- the petitions, and the demurrers were overruled. They then answered, and plaintiff below demurred to the answers, which set up that the defendants named were accommodation signers, and that they had not been notified of the •dishonor of the paper.

The demurrers to these answers raised the same questions as the ■demurrers to the petitions. The demurrers were sustained, and Rock-field and Snyder prosecuted error to this court upon the judgments rendered, alleging that the court erred, first, in overruling the demurrers to the petitions, and second, in sustaining the demurrers to the ■answers.

Highly important and startling questions are thus raised as to the effect of the statute which was passed April 17, 1902 (95 O. L. 162), codifying the law of negotiable instruments in Ohio. It is conceded that up to that time the law was, as announced by several decisions of the Supreme Court, that a stranger to an .instrument, who had signed before delivery of the instrument, his name being upon the back thereof, was, in the absence of any explanation, maker and surety; but it is now contended that he is an indorser, entitled to notice of presentment and nonpayment, and, in the absence of notice, that he is discharged.

This theory of the case presents several ingenious and interesting points, and an examination of the question has been quite entertaining to the court.

We think that the sections which should be considered in determin-ag this question are, first, Rev. Stat. 3173i (Lan. 4961), the subhead )e.ing, “Liability of irregular indorser.” This section reads as fol~ ows:

“Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:-
“1. If the instrument is payable to the order of a third person, he is liable to the payee and all subsequent parties.
“2. If the instrument is payable to the order of the maker, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.
.“3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee.”

Therefore, his liability, as here defined, is the same as the maker and surety. It is in exact accord with the holdings of the Supreme Court in Ewan v. Brooks-Waterfield Co. 55 Ohio St. 596 [45 N. E. Rep. 1094; 35 L. R. A. 786; 60 Am. St. Rep. 719], and previous decisions.

Revised Statutes 3173k (Lan. 4963), describes the liability of a general indorser, and that is the subhead to this section, which reads:

“Every indorser who indorses without qualification, warrants to all subsequent holders in due course:
‘ ‘ 1. The matters and things mentioned in paragraphs numbered one, two and three of the preceding section. ’ ’

Said paragraphs one, two and three of Rev. Stat. 3173j (Lan. 4962), which define the warranty where negotiation is by delivery, are as follows:

“1. That the instrument is genuine and in all respects what it purports to be.
“2. That he has a good title to it.
“3. That all prior parties had capacity to contract.”

That implies, of course, that he is an indorser in the regular course, and that it was transferred by the payee or some subsequent indorser. That would be just as the law was before in the case of a party who indorsed after the first delivery.

“And, in addition, he engages that on due presentment, it shall be accepted or paid or both, as the case may be, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.”

This describes what was previously known as the liability of a. general indorser, in the course of trade.

Now, let us look at the subdivision on dishonor of paper. Revised Statutes 3174g (Lan. 4986), reads:

“To whom notice of dishonor must be given.
“Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is npt given is discharged.”

It is true that the words there are general; any indorser or drawer shall be given notice. We think that must be read in the light of previous definitions of regular and irregular indorser, and to make the statutes consistent, it can only apply to a general indorser. It will be observed that in Rev. Stat. 3173i (Lan. 4961), the party is not described as an indorser.

“Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as in-dorser in accordance with the following rules: ’ ’

In Rev. Stat. 3173k (Lan. 4963), every indorser, etc., is described as such. In Rev. Stat. 3173i (Lan. 4961), the party described has the liability of an indorser to a certain extent; in the first, he is called an indorser.

Now, Rev. Stat. 3173h (Lan. 4960), has also been commented upon. “When person deemed indorser” is the subhead.

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

•We think that is not inconsistent with the other section; but if it were, the statute describing the irregular indorser — and Rockfield and Snyder meet the description in this case- — should control, upon the familiar principle that if there is any conflict between a general and a special statute, the special statute governs.

We are unable to see this in any other light than that Rockfield and Snyder come under the description of irregular indorsers in Rev. Stat. 3173i (Lan. 4961), and their liabilities are the same — as before stated, by decisions of the Supreme Court — as makers and sureties.

Some point was made of the fact that the title of the act reads as follows: “To establish a law uniform with the laws of other states on negotiable instruments,” and it is argued that that indicates in itself the intention to change the law on that subject; otherwise there would be no necessity for the act; and the implication is, that the laws of Ohio are different from those of other states, and this act is made to conform to them, thereby showing the legislative intent to change the law; on this subject.

That argument would be quite forcible .if it only applied to the subject of indorsement. Then perhaps there would be an indication that the legislature intended to change the law in Ohio on the subject of the liabilities of an indorser. But, in fact, it includes the whole field of tbe law of commercial paper; and while it does imply an intention to change the law in some respects, and -make it conform with that of other states, there is no indication where the change is to appear. There are pages and pages concerning commercial paper in all its phases; and we get no light from the title as to what is to be changed.

We think that the court did not err either in overruling the demurrers to the petition, or in sustaining the demurrers to the answers, and that the law has not been changed by the statute referred to, and the judgment, will therefore, be affirmed.

Wilson and Sullivan, JJ., concur.


author: DUSTIN, J.

text:
    COURTS — CRIMINAL LAW — JURY—TRIAL.
    [Franklin (2nd) Circuit Court,
    October 8, 1906.]
    Dustin, Wilson and Sullivan, JJ.
    Clara Fendrick v. State of Ohio.
    1. Jury Districts and Trial Districts Coextensive.
    Tbe jury district and trial district under act 97 O. L. 7 .(Lan. 3202; B. 1536-795a), extending tbe jurisdiction of police courts to offenses committed witbin four miles of tbe municipal limits, should be coextensive. Hence, a trial of one for an offense, committed without tbe limits of tbe municipality but witbin tbe jurisdiction of such court, by a jury selected wholly from witbin tbe municipal limits, pursuant to an ordinance so-requiring, is illegal.
    [For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 743-758. — Ed.]
    2. Aeeidavits in Minor Criminal Prosecutions need not Conclude with Formal Statements Required in Indictments.
    Affidavits on which prosecutions for misdemeanors and minor offenses are based need not conclude with tbe words “contrary to tbe form of tbe statute in such case made and provided and against tbe peace and dignity of tbe state of Ohio.” If the affidavit describes tbe crime, tbe court will take judicial knowledge that it is contrary to the statutes, and against tbe peace and dignity of tbe state.
    [For other cases in point, see 1 Cyc. Dig., “Affidavits,” §§ 90-131; 5 Cyc. Dig., “Indictments and Informations,” § 59. — Ed.]
    [Syllabus approved by tbe court.]
    Error to Franklin common pleas court.
    C. D. Saviers, for plaintiff in error:
    An affidavit for prosecution of misdemeanor is not required to conclude with “contrary to the statute in such cases made and provided and against the peace and dignity of the state of Ohio.” Laning, Crim. Law & Prae. 540; Olendorf v. State, 64 Ohio St. 118 [59 N. E. Rep. 892],
    An impartial jury of the district in which an offense is committed is necessary to conviction in the police court where its jurisdiction extends, beyond corporate limits. Section IQ of the bill' of rights of 1851 Anonymous, 86 Bull. 301; State v. Voris, 10 Dee. 451 (8 N. P. 16) ; Lloyd-v. Dollisin, 13-23 O. C. C. 571; Cooley, Const. Lim. Sec. 320; Cooper v.. State, 16 Ohio St. 328; State v. Peters, 67 Ohio St. 494 [66 N. E. Rep.. 521] ; Hanaghan v. State, 51 Ohio St. 24 [36 N. E. Rep. 1072]; Carper v.. State, 27 Ohio St. 572; Davis v. State, 19 Ohio St. 270; Hogue v. State,. 13-23 O. C. C. 567; Smith v. State, 4 Circ. Dec. 35 (12 R. 458); Geiger v.. State, 3 Circ. Dec. 141 (5 R. 283) ; Pope v. Cincinnati, 2 Circ. Dec. 285-(3 R. 497); Frank v. Cincinnati, 7 Dec. 544 (7 N. P. 146) ; Ladd v. Stater 3 Circ. Dee. 137 (5 R. 276) ; Hartnett v. State, 42 Ohio St. 568; Palmer v. State, 42 Ohio St. 596; Reed v. State, 15 Ohio 217.
    J. M. Butler, G. S. Marshall, C. E. Carter and J. G. Westwater, for defendant in error.
   DUSTIN, J.

Plaintiff in error was prosecuted in the police court of the city of Columbus for ‘‘keeping a house of ill fame,” it appearing from the affidavit that the house was located some two hundred feet outside the corporate limits pi the city.

The claim of jurisdiction was based upon 97 O. L. 7, giving said court jurisdiction in minor offenses over the city, and the adjoining territory within four miles of the corporation line.

Upon trial a jury was summoned from the city, pursuant to ordinance No. 14,401 which provides for the selection of jurymen from the city only.

Plaintiff in error demurred to the affidavit because it did not close with the words “contrary to the statute in such cases made and provided and against the peace and dignity of the state of Ohio.” The demurrer was overruled. She also challenged the jury because selected from the city, and not from the county or district in which the offense is alleged to have been committed pursuant to Sec. 10, Art. 1 of the constitution. The challenge was not sustained.

Exception was also taken to the admission of evidence as to the reputation of the place, and of the women who were found there. There was a verdict of guilty and sentence.

On error to the common pleas court, the proceedings were affirmed; and error is now prosecuted to this court to reverse the judgments of the courts below for the reasons above stated, and because the verdict was against the weight of the evidence.

We are of the opinion that there was no error in overruling the demurrer to the affidavit. Section 20, Art. 4 of the constitution provides that all indictments shall conclude with the words “against the peace and dignity of the state of Ohio.” There is no such requirement as to affidavits upon which prosecutions for minor offenses are founded. Nor is it necessary. If the affidavit describes the crime, the court will take judicial notice that it is contrary to the statutes and if contrary to the criminal statutes, it is against the peace and dignity of the state of Ohio.

The next question is more serious. It would be easy of solution but for the provision of the ordinance with reference to the drawing of the jury. The mere fact that all the members of the jury happened to be citizens of Columbus, was a matter of no consequence. If their names were drawn from a box containing names of citizens of the outside townships, the'rights of the accused would have been fully preserved. But, the ordinance referred to required that the jury 'be selected from citizens of Columbus. Residents of other parts of the county were excluded. As Judge Earnhart aptly remarks in State v. Voris, 10 Dec. 451 (8 N. P. 16), tfye citizens of the outside territory 4‘could appear only as culprits.” They had no part in the administration of the law; even with reference to offenses committed within their own bailiwick. Although living in a district defined in the statute, and much larger in area than the city of Columbus, they are subject to be dragged to the smaller district, and tried before what is to them an alien court, although in their residence district there is an organized judicial system. We think that is not within the letter or the spirit of the constitution.

The question has not been passed upon in Ohio, except by Judge Earnhart, in State v. Voris, supra, and by Judge Slough, of Fairfield county common pleas court in Friend v. Holliday, 48 Bull. 107. In the report of Friend v. Holliday, no authorities are cited. But Judge Earnhart’s opinion is supported by pertinent citations.

In Olive v. State, 11 Neb. 1, it is held in a very full opinion, that,

“While the legislature doubtless may, in their discretion, by general law, create trial districts larger than a single county, yet, to be effective, such law must be accompanied by one under which jurors can be called from the whole, and not from merely a portion of such district. In other words, the trial district and the jury district must be the same.”

To the same effect is Armstrong v. State, 41 Tenn. (1 Coldw.) 338.

As holding to the contrary, two citations are noted: State v. Stewart, 60 Wis. 587 [50 Am. Rep. 388], and State v. Robinson, 14 Minn. 447, and upon these the decision of the court below was founded. Both of these cases were with reference to proceedings under a statute giving a county court jurisdiction over crimes committed within the territorial limits of the county “and one hundred rods beyond the boundary line.” In the first case the accused was charged with obtaining property under false pretenses, and it appeared that the alleged false pretenses were made in one county and the property (a horse) obtained in another. The accused was arraigned in the county where the false pretenses were made, and the point was suggested that the crime was not complete without obtaining the property, and that the law giving the court jurisdiction beyond the county was unconstitutional for the reasons urged in this case.

The court held the law constitutional, but its opinion was founded upon cases holding that where a crime was committed partly in one county and partly in another, the accused was triable in either. The , nourt, however, went further and held that the law was constitutional as applied to any crime; but expressly refused to decide “whether a juryman residing outside of the county, but within one hundred rods of the county line, and hence within the district, would for that reason be .incompetent, or a subject of peremptory challenge,” such a question not being before the court.

In State v. Robinson, supra, the court was inclined to sustain a law of long standing, which served a useful purpose in avoiding embarrassing questions and technical difficulties in prosecutions for crimes committed near county lines.; and also because there was “an entire absence of adverse authority.”

With due respect to the high character of these authorities, we think the holding in the Nebraska and Tennessee cases above cited, and by Judge Earnhart is more logical and consistent. In all criminal ■cases, we think the jury district should be coextensive with the trial district, in order to meet the requirements of the constitution.

We find no other error in the proceedings.

The judgments of the common pleas and policé courts will be reversed, and remanded to the police court for a new trial before a. competent jury.

Wilson and Sullivan, JJ., concur.


author: MARVIN, J.

text:
    DAMAGES — MUNICIPAL CORPORATIONS..
    [Summit (8th) Circuit Court,
    September 30, 1905.]
    Marvin, Winch. and Henry, JJ.
    Matthew Barry v. Akron (City).
    City may be Liable fob Injuries Resulting Solely from Icy Condition of Sidewalk.
    The liability of a municipal corporation for injuries resulting solely from the icy condition of a sidewalk, where such condition is peculiar to that particular place, is a question of fact for the jury, and the court will not say as a matter of law that, in a proper case, such liability does not exist.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§,■ 2208, 2781-2784, 2824, 2825. — Ed.]
    Error to the Summit common pleas.
    E. F. Voris, for plaintiff in error.
    C. F. Beery, for defendant in error.
   MARVIN, J.

Barry was walking along on the sidewalk on the south side of Mill' street, in the city of Akron, on the evening of December 18, 1902, about nine o’clock p. m. The sidewalk on which he was passing was somewhat icy. He slipped and fell, receiving an injury. He sued the city. On the trial he gave evidence tending to show that by reason of the icy condition of the sidewalk it was dangerous to walk upon; that the place of injury was upon a much traveled and frequented street of the city; that this condition was peculiar to this particular part of the sidewalk and was not general throughout the city; that the city, through its-officers, had knowledge of such condition and that Barry was without such knowledge or notice, and that such condition of the walk was the proximate cause of the injury. Evidence was introduced tending tO' establish each one of these propositions. As to the condition of the walk at the place of the injury, and as to the want of knowledge on the part of Berry, including the fact of its being too dark for him to see at the-time, was his own testimony; also as to the fact that this was peculiar to this particular part of the walk and not general throughout the city. We have his testimony, strengthened by that of Professor Egbert, as to' the weather conditions in the city at the time. As to knowledge on! the part of the city through its officers, we have the location of the' offices of the city on the same street and near to the place of the accident, and the fact that the officers passed along this walk very frequently, probably several times each day. This is shown by the testimony of Mr. Payne, the city engineer.

It would seem from tbe evidence introduced that Barry was, without question, entitled to have his cause go to the jury unless as a matter of law the city could not be held responsible for the condition of the-walk.

At the close of the evidence introduced on the part of the plaintiff below, the court directed a verdict for the defendant, and it is that order-which is complained of in this proceeding.

It is provided by Rev. Stat. 1536-131 (Lan. 3923) as follows:

“In all municipal corporations council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts and viaducts within the corporation, and shall cause the same to be kept open and in repair and free from nuisance.” Whether under this section the city may, under any circumstanees, be held liable for injuries caused by the accumulation of snow and ice upon the walk has been the subject of much discussion and consideration in Ohio. It is claimed that our Supreme Court has substantially held that it cannot. A recent case, Leipsie (Vil.) v. Gerdeman, 68 Ohio St. 1 [67 N. E. Rep. 87], is one in which the court held the village was not liable, but it held so because of the facts in that case. Ice came on in the night, the party injured was injured at eight o’clock in the morning, in broad daylight, and the court held that under those circumstances the city could not be made liable; but Judge Crew, in his opinion, at page 6, says, in speaking of the charge as to the liability of the village, the charge being that if by reason of the negligence of the authorities of the village this icy condition was such as to make it dangerous to go upon the walk, and that knowledge was brought home to the municipal authorities and not known to the plaintiff, etc., etc., the village would be negligent and might be held liable, “While in a proper case such instruction would perhaps be unobjectionable, or at least free from error, in the light of the established facts in this case such instruction was, we think, unauthorized, misleading and erroneous.

In Russell v. Toledo, 10 Circ. Dec. 367 (19 R. 418), it is held that: In an action against a city for damages for injuries sustained by a fall on the sidewalk in consequence of the accumulation of snow and ice thereon, the question whether the city was negligent in not removing the snow and ice from the sidewalk is one of fact to be determined by the jury. In an elaborate opinion in.this case Judge King discusses the decisions in Ohio bearing on the question, and reaches the conclusion already recited.

In Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533], it is held only that contributory negligence on the part of the injured party bars a recovery, and Judge Day, in the outset of the opinion, on page 248, takes occasion to say that the question of whether the city can be held in any case, etc., is not decided.

In Conneaut (Vil.) v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], nothing further is decided than that contributory negligence on the part of the party injured bars a recovery, though Judge Shauck closes the opinion by saying, “Whether the village was guilty of actionable negligence may well be doubted in view of Chase v. Cleveland, 44 Ohio St. 505 [9 N. E. Rep. 505; 58 Am. Rep. 843].” This last case was submitted upon a demurrer to the petition. The petition set out that the sidewalk on Wood street in Cleveland was icy and.dangerous to walk upon, and that the city should have had knowledge, and that the plaintiff was injured without any fault on his part. Judge Spear in that case says at the conclusion of his opinion, that whether or not the municipality might be liable because of the icy condition of the sidewalk is not there decided.

1 In the case of Hausmann v. Madison (City), 21 L. R. A. 263 [85 Wis. 187; 55 N. W. Rep. 167; 39 Am. St. Rep. 834], is a note, on page 268, referring to a large number, and quoting from a large number, of cases in which there are conflicting decisions, some courts holding that a municipality may be liable under certain conditions for an icy condition of the sidewall^, others holding to the contrary; but we think that the better reason and the weight of the authority is that in a proper case the city may be held liable for injuries resulting solely from the icy condition of the sidewalk, when that icy condition is at a particular place and different from the sidewalks in other parts of the city. We think that the reasoning of Judge King in Russell v. Toledo, supra, is, in the main, sound. Judge King states a rule of pleading there to which we could not subscribe, and gives that as one of the reasons why the court held as they did in Chase v. Cleveland, supra, but the reasoning, aside from that, we think, is sound.

Our Supreme Court has not, so far as we have found, in any ease, held that a municipality may not be liable, and the last utterance to which our attention has been called is what is stated by Judge Crew in Chase v. Cleveland, supra.

We are of the opinion, therefore, that it was error to direct the jury to return a verdict for the defendant, but that the ease should have been submitted to the jury under proper instructions.

Judgment is reversed and the case remanded to the- court of common pleas.

Winch and Henry, JJ., concur.


author: PARKER, J.

text:
    SALES — WARRANTY.
    [Wood (6th) Circuit Court,
    April 29, 1905]
    Hull, Haynes and Parker, JJ.

      Oil Well Supply Co. v. Charles S. Davidson.
    Yendbb or Goods without Examination, Vendee Descbibing theib Purpose, Held Impliedly to Wabbant Them Fit tor Described Purpose.
    A firm dealing in ail well supplies which sells to a driller a cable for use in drilling a well, the latter explaining the purpose for which the cable is intended, and the dealer having none in stock of the proper kind, sending one to the purchaser from another place is held impliedly to warrant such cable to be fit for the purpose described and of merchantable quality, and if such cable prove defective the selling company should bear the loss and not the purchaser. The fact that the seller was without authority to warrant it, is immaterial in the absence Df notice to the purchaser of such limitation of authority.
    [For other eases in point, see 7 Cyc. Dig., “Principal and Agent,” SS 354-364; “Sales,” §§ 305-317. — Ed.]
    ERROR to Wood common pleas court.
    I. C. Taber, for plaintiff in error.
    Baldwin & Harrington, for defendant in error.

      Affirmed, (unrep.) Ohio Well Supply Co. v. Davidson, 51 Bull. 620; 75 O. S. 000.

   PARKER, J.

Tbis action was originally brought by the Oil Well Supply Company in the court of common pleas of Wood county, to recover for a •certain bill of goods that had been sold to one Charles S. Davidson, amounting to a little over $100.

Admitting the purchase of the goods and the fact that they had not been paid for, the defendant set up by way of setoff, the fact that some time before he had purchased of the supply company a drilling cable at a cost of something over $400, it being a cable of considerable length, fourteen or fifteen hundred feet, I believe; and he claimed that, at the time he commenced trading with the supply company, he was told by the manager of the store (the manager having made some inquiry as to his financial standing) and if he found anything wrong with any article he purchased, that the company would make it right.

He states that afterwards, when he went to purchase this cable, the manager said he had not in stock-a cable he could stand by, or would stand by, but that he had one in another store; a branch store at Find-lay. The defendant told him he would take it, and thereupon the manager had it sent to Davidson at a point where he was about to drill an oil well, and Davidson received it. He commenced in a day or two to use it in a well that he had already drilled something like a thousand feet or more in, and as soon as he commenced to use the rope, it showed, that it was of poor 'quality. It commenced to fray and break, and he had to cut it off at different times, and finally after using it but a short time he had to discard it and get another. It appeared to be rotten and certainly was of no practical use to the defendant, and of no value to* him except as it was sold as old junk for a few dollars.

By way of reply to the answer of the defendant, the supply company claims that its agents have no authority whatever to warrant the worth or quality of goods; and it also denies that any such warranty was, in fact, .made; that if made, the agent had no authority whatever to make it; that it was contrary to and against the direct and positive-orders of the company.

The case went to trial and quite a volume of -testimony was taken to show that the agents had no authority to make any warranty. Testimony was taken in Pittsburgh in the way of depositions of the officers of the supply company, and testimony of agents here in the field, showing • that there were circulars and letters issued, and a form of contract for the purchase of goods was furnished the agents in which it was stated, that the company would not warrant any of the goods that were sold, the same being sold upon a commission, and not manufactured by them. Testimony was offered on behalf of the plaintiff, and again on behalf of the defendant as to whether there was any general custom in the oil field for the supply stores to warrant the quality of goods, and if the* goods failed to be of marketable quality to replace them, and upon that the testimony was quite conflicting.

At the time the agent sold the cable to the defendant, the form of contract that was required by the company was not used, nor was anything said at that time about the warranty of the goods. The' only phrase that it is claimed was used by the agent who sold it, was that he had a cable he ‘was willing to stand by, that it was a higher priced cable* than some of the others, and the -defendant said he would take that 'cable, and that cable was, in fact, sent him. At the time of the bargain it was not in the store and the purchaser did not see it, the purchase being made at Trombley, Wood county, and the cable referred to by the agent being in Findlay, Hancock county, whence it was sent directly to the defendant in the field where he was then at work.

On this state of facts the court charged the jury fairly and correctly upon the law of the case. The question in regard to the right of the agent to make a warranty turned upon the legal question whether in the usual course of trade and business, an agent of this kind, a general agent, would have the right to make a warranty, and upon that a proper charge was given to the jury.

Another question that was made, was as to whether there was an implied warranty as to the quality of the goods, that they should be of good merchantable quality and fairly and reasonably fit for use. One decision cited that we think has some bearing upon the case, is that of Rodgers v. Niles, 11 Ohio St. 48 [78 Am. Dec. 290], In that ease it seems there had been a sale of three boilers by Bodgers & Company to Ailes & Company to be used in certain mills the latter were erecting, and it turned out in using the boilers that they were defective, owing to a defect in the material that went into them. A discussion, — it seems to have been a very able discussion,— which was participated in by some of the leading Cincinnati attorneys, was had as to whether there was an implied warranty by the manufacturers against these secret defects, it being contended on the one side that there was, and on the other side that the manufacturers were only bound to use reasonable care in the selection of the material which went into the boilers. The Supreme Court divided on the question, a majority of the court holding that there was an implied stipulation.

The decision was given by Judge Scott and I will read some from it, page 53:

“The general rule of common law undoubtedly is, that upon an executed sale of specific goods, the vendor will not be held liable for any defects in the quality of the articles sold, in the absence of fraud, or express warranty. Where the purchaser is not deceived by any fraudulent representations, and demands no warranty, the law presumes that he depends on his own judgment, in the transaction, and applies the maxim ‘Caveat emptor.’ But to this general rule the requirements of manifest justice have introduced sundry exceptions, of which some are as well settled as the rule itself, while as to others, the authorities cannot be easily reconciled. We do not propose an investigation of the subject further than is demanded by the ease before us. The principal, if not the sole exceptions to the rule, are found in cases where it is evident that the purchaser did not rely on his own judgment of the quality of the article purchased; the circumstances showing that no examination was possible on his part, or the contract being such as to show that the obligation and responsibility of ascertaining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an article for a particular purpose or use. Thus, it' is said by Mr. Story, ‘when an examination of goods is, from their nature or situation at the time of the sale, impracticable, a warranty will be implied that they are merchantable. Thus, if goods be at sea, or not arrived; or if they fill the hold of a ship so that nothing but the surface can be seen; or if tbey be in bales, so that an examination of the center cannot be-made without tearing each bale to pieces; the seller will be understood to warrant them merchantable, and of the quality demanded and expected by the buyers.’ Story, Contracts Sec. 834.
“It is true that the warranty of merchantable quality has, in several cases, been held to be limited to cases where the examination is impracticable, and not merely inconvenient. Hyatt v. Boyle, 5 Gill. & Johns. 110; Hart v. Wright, 17 Wend. 267. So also the implication of warranty is said not to extend to cases where an examination, thougli practicable, would be fruitless, on account of the latent character of the defects; but only to those cases in which there can be no examination-1 Parsons, Contracts 466. The same writer, however, says: ‘One exception to the rule of caveat emptor springs from the rule itself. For a requirement that the purchaser should ‘beware’ or should take care to ascertain for himself the quality of the thing he buys, becomes utterly unreasonable under circumstances which makes such care impossible.’ ”

Then he cites some' cases upon the general rule, and says:

“With respect to the doctrine that a sale made for a particular purpose, implies a warranty that the thing sold shall be fit for the purpose, it is said in 1 Smith L. Cas. 250, that ‘the sounder view seems to be, that no engagement of this sort can be implied against the vendor, save where the contract is partially or wholly executory; and that, in this case it is not in the nature of a>warranty, but of an implied stipulation, forming part of the substance of the contract.’ ”

The jury returned a verdict in this case in favor of the defendant, Davidson, and we think the verdict should be sustained.

The large amount of testimony that was taken in regard to the notice to agents, which notice was never brought home to Davidson, must be disregarded.

The ease stands upon the questions, first, whether there was an express warranty, and upon that the jury found in favor of the defendant, and, secondly, whether there was a sale of the article for & specified purpose, and an implied warranty that it was fit for that purpose. Passing the first question, upon which there is.a conflict in tlm evidence, we hold that the vendor is liable upon the implied stipulation.. The vendee did not see the cable and had no means of examining it.

He told the agent what he wanted, and the agent told him they hack the article at the other store and they would send it to him, and we hold that under such circumstances the vendor was bound to send to him an article that was merchantable, and reasonably fit for the use intended. It is very clear from the evidence, that for some reason this cable was of poor quality and really unfit for use — of no practical use — and we hold that the loss should fall upon the vendor. The judgment of the court of common pleas will, therefore, be affirmed, but without penalty.

Hull and Haynes, JJ., concur.