text:
    AS TO LEGALITY OF NOTICE OF LOSS.
    Circuit Court of Cuyahoga County.
    Royal Insurance Company v. M. Silberman.
    Decided, November 18, 1904.

      Insurance — Soliciting Agent, Not Agent for all Purposes — Question of Performance of Conditions for Jury — Parol Evidence of Custom Not Admissible to Vary Written Contract.

    1. Section 3644, Revised Statutes, making the agent who solicits insurance the agent of the company, does not make him the agent of the company for all purposes, but only those connected with the negotiation of the contract, and notice of loss given to such agent will not constitute notice to the company.
    2. Where an insurance policy provides that immediate notice of loss shall be given the company, it is a question for the jury to determine, whether, under all the circumstances in the case, the insured has complied with that requirement in giving notice-of a loss.
    3. In determining whether or not the insured has complied with the condition of a policy that immediate notice of loss be given the company, evidence of a local custom by which notice of loss is given to the agent soliciting the insurance, is not admissible.

      Carpenter, Young & Stocker, for plaintiff in error.

      C. W. Stage and W. G. Guenther, contra.
    Marvin, J.; Winch, J., and Hale, J., concur.
   This is a proceeding in error brought here to reverse a judgment of the court of common pleas of this county. Silberman was the owner of certain chattel property, baled rags, which were stored in a warehouse. Silberman obtained a policy of insurance upon these goods from the Royal Insurance Company. The insurance was brought about by one Max Levi obtaining for Silberman an application for this insurance. Levi represented no insurance company in which the risk would be taken; he applied to another insurance firm, Snider & Crittenden, and they again make the application, or called the attention of the agents, Tremaine, Draper & Company, of the Royal Insurance Company, and the policy was issued, put into the hands of Levi, and by him delivered to Silberman and the premium paid to Levi. The commissions were, undoubtedly, divided between the agents.

On the 19th day of August, 1901, a fire occurred which injured this property, and suit was brought to recover for this injury to the property by fire.

The insurance company set up as a defense that notice of the loss was not given to it as required by the terms of the policy.

The language of the policy in that regard to notice is: “If fire occur the insured shall give immediate notice of any loss thereby, in writing, to this company.”

On.the 20th day of August, 1901, the day following the fire, Silberman gave oral notice to Levi of the loss. Levi told him to make out a bill showing his loss, and this he did. Levi communicated to the firm of Snider & Crittenden the fact that the loss had occurred.

The testimony in regard to this notice to Levi was admitted by the court under objection of the defendant, and the court having allowed the testimony, charged the jury upon the effect of such evidence. Before giving the language of the court in its charge, attention should first be called to Section 3644 of the Revised Statutes of Ohio, which reads:

“Section 3644. (When solicitor held to he agent of insurer.) A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party company or association thereafter issuing a policy upon such application or renewal thereof, anything in the application or policy to the contrary notwithstanding.”

The court charged the jury, in effect, that if they found that Levi solicited this insurance, the premium was paid to him, and he delivered the policy to the assured, then he was the agent of the company, upon whom it would be proper to serve notice of the loss under the policy, and that he would have authority to waive the conditions in the policy, which has already been read, that notice in writing must be given to the company in case of loss. There was no error in the admission of this testimony, if there was no error in the charge. It may be that the testimony might be admitted, though the charge was wrong.

Counsel representing the assured has furnished us a brief, and called attention to a considerable number of authorities in oral argument, all of which have been examined. An authority to which attention was not called is Section 419 of Wood on Insurance, which reads:

“Where an agent is entrusted with policies signed in blank, and is authorized to issue them upon the application of parties seeking insurance, he is thereby clothed with apparent authority to bind the party in reference to any condition of the contract, whether precedent or subsequent, and may waive notice or proofs of loss, and may bind the company by his admission in respect thereto. ’ ’

A number of the states have statutes similar to our statute, Section 3644, passed for the purpose of protecting people who obtain insurance through, agents from the defenses which were made in many cases that the agent had not authority from the company, and that, therefore, representations made by such agent were not binding upon the company.

In Iowa, the statutes provide, ‘ ‘ That he who solicits the insurance shall be the soliciting agent of the company,” and under that statute it is held that knowledge of such agent of conditions existing at the time of the issuance of the policy, though they may be such as are negatived by the application, and are such as under the terms of the policy would forfeit the insurance, constitutes knowledge of the company. To that effect is the case of St. Paul Fire & Marine Insurance Company v. Schafer, 76 Iowa, 82. In that case the policy was different from that which the insurance company intended and from that which any agent of the company was authorized to issue. The fact was, however, that it was not the regular agent of the insurance company, but one who was only so by force of the statute, to whom the conditions were known. The company brought suit to reform the contract'after the fire; the court held that the knowledge of that soliciting agent was the knowledge of the company, and they could not, therefore, maintain their suit to reform the contract.

Other eases in Iowa are to that effect and hold that whatever knowledge the soliciting agent had, that is, he who solicits the insurance, and who by virtue of the statutes is the soliciting agent, is the knowledge of the company.

In Wisconsin the statutes provide: “That he who solicits the insurance is the agent of the company to all intent and purpose,” and it is held that such agent may, after the policy is issued, waive the provisions that there shall be no other insurance upon the property, without the consent, in writing, endorsed upon the policy of the company issuing the policy. It was so held in the case of Schomer v. Hekla Fire Insurance Co., 50 Wis., 575.

Attention has also been called to the case of Pollack v. German Fire Insurance Company of Pittsburg, Pa., 86 N. W., 1017. In this ease, however, the direct question of whether the soliciting agent is the agent of the company, beyond being such agent for the purpose of the contract made between the insurance company and the assured by virtue of the policy is not raised. And the strongest authorities in that regard that we find are the authorities cited in Wood on Ioiswaoice, under Section 419, to which attention has been called.

Elliot on Insurance, Section 165, which was not cited to us in the argument, but which seems to us to be directly in point, reads as follows:

“Section 165. (Notice of Loss to Local Ageoit.) The local agent of a fire insurance company had actual authority to accept applications for insurance, fix the premium or rate of insurance, and fill up, countersign and issue policies thereon, which he received from the company, already signed by its president and secretary. This was the extent of the agent’s actual authority, and there .was no evidence tending to show that his apparent • authority .-was other or greater-than his actual authority. The policy required written notice of loss to be given to the company. It ytas held that the agent had no authority to receive or waive notice of loss and, hence, notice to him was not notice to the company. ’ ’

It will be noticed that the agent here spoken of was the local agent, but he had authority to accept applications for insurance, to fix the premium or rate of insurance, to fill up and countersign and issue policies therein which he received from the company already signed by the president and secretary.

In another section of Elliot on Insurance is a discussion of the construction of the statutes.

In Section 157 there is a discussion as to the agency of insurance brokers; and in other sections a discussion as to the difference between general and special agents. And, perhaps, one of the matters to be considered in this case is, as to what is meant by the word "agent” as used in our statutes.

Wood on Insurance adopts the idea that he is the agent of the company for all purposes. But is it necessary to hold that he is an agent for all purposes to accomplish the real purposes for which the statute was enacted? It seems hardly probable that the statute was passed for the purpose of making him an agent beyond the agency one would have who had the actual authority to accept applications, to fix the premiums, to fill up and countersign and issue the policy and receive the premium. One who has authority to do that would be clearly the agent of the company. But in the case referred to here, it was held that that kind of an agent had no authority to receive or waive notice of' loss. The authority cited is 63 Minn., 305, and the syllabus reads practically the same as has already been read from Elliot; indeed, I think the language is the same.

Now, I know that it does not appear from the statutes that he who is there designated or declared to be the agent of the company shall be only the local agent; but what has already been said seems to us to show that he ought not to be held by reason of the statutes to be an agent with greater authority than the agent spoken of in-this case; and though he is such agent, that his knowledge of conditions and facts at the time of the issuing of the policy is to be held to be the knowledge of the company, and that he may waive the condition that there shall be no other insurance during the continuance of the policy.

In one of these cases to which attention has been called he may waive other conditions during the continuance of the policy while the policy is in force before the loss, yet to say that he is an agent who can do more than the local agent, seems to be carrying the statute further than most of the cases go.

In the case under consideration, I mean the case in 63 Minn., 305, the question seems to be well considered and is fully disposed of. I read from the opinion, beginning on page 309, but premise that by saying that Seeley & Company were the soliciting agents; they were the agents to whom the application was made, who delivered the policy, and who received the premium. The court says:

“If Seeley & Co. were the proper parties to whom to give this notice — in other words, if it was within the scope of their authority to receive notice of loss — we would not feel any doubt but that if, when they received verbal notice, they made no objection to its form, they would be deemed to have waived the omission to give it in writing. But it is self-evident that if they had no authority to receive such notice, then they could waive nothing in the matter. Upon this state of facts, it was not within the scope of the authority of Seeley & Co. to receive or waive notice of loss, and hence notice to them was not notice to the company. Even if there could be any doubt of the correctness of this proposition as a new question, it has been too long and too well settled in this state to be now considered open. Bowlin v. Hekla F. Ins. Co., 36 Minn., 433; 31 N. W., 859; Shapiro v. Western Home Ins. Co., 51 Minn., 239; 53 N. W., 463; Shapiro v. St. Paul & M. Ins. Co., 61 Minn., 135; 63 N. W., 614. But we think the rule is correct upon both principle and authority. It is in accordance with the general principles of the law of agency. It is elementary that a principal is only liable for acts done by his agent within the scope of the authority, actual or apparent, with which the principal has clothed him; that it rests entirely with the principal to determine the extent of the authority which he will give to his agent; also, that every person dealing with an assumed agent is bound, at his peril, to ascertain the nature and extent of the agent’s authority.
“In insurance cases courts frequently inaccurately classify agents as ‘local’ and ‘general.’ But the extent.of the territory which is to be the field of his agency is no test of the extent of an agent’s authority within that field. His field of operations may include the whole United States, and yet his powers be special and limited. On the other hand, his field of operations may be confined to a single county or city, and yet his authority within that field be unlimited. In the present ease there is no question of apparent as distinguished from actual, authority. The question is simply one of actual authority, expressed or implied. Authority to act in the matter of a loss under the policy, after it has occurred, is not expressly given. All the authority expressed relates to the making of the contract of insurance. It is a fuiidamental principle Í21 the law of age2iey that a delegation of power, unless its extent be otherwise expressly limited, carries with it, as a necessary incident, the power to do all those things which are reasonably necessary to carry into effect the main power expressly conferred. But it is equally fundamental that the power implied shall not be greater than that fairly and legitimately warranted by the facts; in other words, an implied agency is not to be extended by construction beyond the obvious purpose for which the agency was created. We do not think that mere authority to make a contract of insurance carries with it implied-authority to act in the matter of a loss under the policy after it has occurred. If the implied authority extends to accepting notice of the loss, it would logically follow that it also extends to proof of loss, and even to the adjustment of the loss — a length to which no court has ever gone. The rule which we have adopted is also in accordance with the general current of the authorities. Lohnes v. Insurance Co., 121 Mass., 439; Smith v. Niagara F. Ins. Co., 60 Vt., 682; 15 Atl., 353; Bush v. Westchester F. Ins. Co., 63 N. Y., 531.

And then the court in this case goes on to say that if it is to be held that proofs of loss may be made to any agent, he may waive proofs of loss and, legally followed out, he might waive the requirements of notice; he may waive the proofs of loss, and he may waive every other matter and adjust for the company, because it can be said that he is the agent of the company; therefore, whatever he does binds the company; but this court say in the opinion no one has ever claimed it went so far as that. That is, that there must be some limit to his agency. We reach the conclusion that the statute does not make the soliciting agent, or the agent who solicits the application, the agent of the company, authorized to receive notice of loss. But in this connection evidence was permitted to go to the jury, also, as to a custom existing in this city at the time of the fire and at the time of the issuing of this policy, by which those sustaining loss, gave notice to the agent who delivered the policy; that that notice was sent on through whatever intermediate agents there were to the company. That was admitted under objection. We think it was error to admit it.

We have looked at the ease in 111 Federal Reporter, 697, in which evidence as to a custom was held proper to be considered, but the custom there under consideration was a custom among insurance brokers by which, if application was made to an insurance broker or agent who could not issue a policy through the company represented by him, he arranged with the agent of some other company; and it was held that the insurance company was bound to know that custom. We think that is far removed from undertaking to show- that a contract expressed in terms could by custom mean something different from what it provides.

The statute has said that an agent can do some things, which we have already stated, that will bind the company, though the acts of the agent are in violation of some of the terms expressed in the contract. Beyond that, we do not think the authorities go.

But, on the 17th day of September, 1901, written notice was given to this company of the loss, and the court submitted to the jury the question of whether that was a sufficient compliance with the requirement that in case of loss immediate notice shall be given to the company. It was twenty-nine days after the loss. It was charged by the plaintiff in error that the court should have said, as a matter of law, that that notice was not a sufficient compliance with the law. In the Minnesota case, from which extracts of the opinion have been read, it was held, as a matter of law, that notice after a period of about sixty -days was, under the circumstances of that case, not a sufficient compliance with the requirement. Other cases have fixed certain periods. As a matter of law it has been held that the notice given at a certain time, after a certain number of days, was not a sufficient compliance.

We think here it was proper to leave to the jury whether what was done under all the facts and circumstances of the case, which were proper to be considered, was a sufficient compliance with the requirement to give immediate notice, and but for the fact that we find that the court gave to the jury certain things to take into consideration in determining that question, we should affirm its judgment. But the court in giving to the jury the rulings by which they were to determine whether the notice given on the 17th day of September was a sufficient compliance with the requirement that an immediate notice be given, said:

“And in determining whether or not the notice was given within reasonable time, you will consider all the circumstances in the case • consider the character of the plaintiff; the fact that he is a foreigner by birth; that his mother language is not English; that he neither reads English or writes it, nor speaks it very well; those are all circumstances affecting the obligation to be prompt. And you may also in that connection consider certain testimony which was introduced tending to show that it is the uniform custom in this city to give notice to the agent who has procured the risk; you may consider that as throwing light upon the propriety of his not giving any further notice for twenty-nine days.”

We think the court called attention to some things which the jury ought not to have been permitted to consider, and especially this matter of “custom.” We do not think that that bore at all upon the question of whether he should have given notice earlier, in writing. . It is a matter of contract, not custom. Pie had contracted to give notice, immediate notice, which means, of course, within a reasonable time under the circumstances; but that time, we think, can not be varied by any custom which is shown here.

We have not been able to fully satisfy ourselves that the court should call attention to the fact that this man was not native born and did not understand our language. Some countenance is given to that in Elliot on Insurance, Section 188, in that the ignorance of the party assured is permitted to be considered; and we should not reverse the case on this branch of it, but for the court telling the jury to consider the custom. We think it legitimate for ¿he jury to consider the question of effort made by tbe assured to give the notice by notifying Levi, and we think the evidence on that subject was properly admitted. For that reason then we are not satisfied that it is erroneous. We are satisfied that the court’s charge as to custom is erroneous.

Another defect set up is that the provision of the policy in lines 86-91, both inclusive, were not complied with. That reads •.

"In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent- and disinterested appraisers, the insured and this company each selecting one, and the two chosen so shall first select a competent and disinterested umpire; the appraisers together shall estimate and appraise the loss then, stating separately sound value and damage, and failing to agree, shall submit their differences to the umpire, who shall make an award in writing. The parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.”

No appraisement was ever had. But we do not think that should defeat a recovery if the assured, under the circumstances of this case, on the 17th of September, did give notice of this loss. No attention was paid to that by the company, so far as appears, until the 26th day of October, when the company wrote him that the first they knew of his loss was when they received proofs of loss made on the 16th day of October. The company was mistaken; they knew on the 17th of September, but no attention was paid to it until the 26th of October, ten days after the proofs were made out. Then correspondence back and forth went on for a few days, before they wrote and answered on the 15th day of November, denying all liability. They did not suffer for want of appraisement. They paid no attention to the notice which the jury found sufficient, for there was a special finding by the jury that the notice was sufficient, and then they did not take the matter up as to whether the loss was great or little.

It is with regret that we reverse this judgment. The defect is a technical one, but it is one under the law the company may make, and for the error indicated, and for no other, the judgment is reversed and the cause remanded to the common pleas court.


source: Caselaw Access Project

license: Public Domain

text:
    DUAL AGENCY MUST BE SPECIALLY PLEADED.
    Circuit Court of Cuyahoga County.
    Godfrey Fugman and Anna L. F. Fugman v. A. Trostler and O. C. Ringle & Co.
    Decided, November, 1903.

      Pleading and Practice — Action Upon Express Contract and Upon Quantum, Meruit Not Inconsistent — Burden of Proof — Dual Agency a Matter of Defense — Trial—When Charge to Jury Misleading.

    1. An action upon an express contract for real estate commissions and a second cause of action set forth in the same petition, based upon the same transaction and in which recovery upon a quantum meruit is sought, are not inconsistent and the court may, in its discretion, overrule a motion to compel plaintiff to elect between them.
    2. Dual agency as a defense can not be shown under ^a general denial, but must be specially pleaded, and when so pleaded the burden of proof is upon the defendant to establish it.
    3. A charge to the jury which directs them to use their sense of fairness, fairplay and good conscience, and not be influenced by anything, but a desire to do what is right and fair between the parties, is misleading, when no reference is made to the law and facts in the case.

      White, Johnson, McCasUn & Gannon, for plaintiffs in error.

      JS. H. Bushnell and J. G. Hutchins, contra.
    Winci-i, J.; Hale, J., and Marvin, J., concur.
    Error to tbe court of common pleas.
   A. Trostler was plaintiff below and brought his action against Godfrey Fugman, Anna L. F. Fugman and O. C. Ringle & Co. to recover commissions for the sale of real estate. The amended petition contains two causes of action. The first cause of action alleges that the Fugmans were the owners of certain real estate and O. C. Ringle & Co. their agents for its sale. That Trostler represented to them that he could procure a purchaser for them if they would pay him one per cent, commission on the sale, whereupon the following agreement was entered into between the parties:

“Cleveland, 0., April 1st, 1901.
“It is hereby agreed by and between Godfrey Fugman, O. C. Ringle & Co. and A. Trostler, that in consideration of services rendered as agent in negotiating sale and transfer of the Fug-man property at the corner of Wade Park and Dunham avenues to John Schaber, said A. Trostler shall receive as his share o.f the commission one (1%) of the selling price of said property.
“(Signed) O. C. Ringle.
“Godfrey Fugman.”

Plaintiff further alleges that said Godfrey Fugman was authorized to enter into said contract by his wife, Anna L. F. Fug-man and signed the same in her behalf as well as his own, and that O. C. Ringle did the same in behalf of O. C. Ringle & Co.

Plaintiff then alleges that he procured said John Schaber to purchase said property for $54,000; that it was conveyed to Schaber for s.aid price; that he had demanded his commission which had not been paid, although the defendants Fugman had paid to Ringle & Co. a portion of said commission due plaintiff under said contract, but not all.

The second cause of action recites substantially the same facts as are set out in the first cause- of action, except that it makes no reference to the express contract dated April 1, 1901, and concludes with an averment that the fair and reasonable value of plaintiff’s services is not less than $540.

The prayer of the amended petition is for judgment in the last named amount.

The answer of the Fugmans admits the making of the contract with Trostler, dated April 1, 1901, but states that at the time said contract was made they were asking $60,000 for their property; that Schaber refused to buy at that price and the written contract for commissions was thereupon rescinded by all the parties to it. That afterwards, Trostler, acting as agent for Schaber, and not otherwise, offered to buy said property for $54,000 and thus initiated new negotiations which were conducted on the part of Schaber by Trostler, acting as his agent, and a sale was finally made at that price. That the latter negotiations had no reference to the first negotiations in which Trostler was to induce a sale by the Fugmans at $60,000, the later negotiation being carried on by Trostler as the agent of Schaber exclusively, to induce the Fugmans to sell for $54,000, without any promise, express or implied, from the Fugmans, to pay any commission whatever.

The answer of O. C. Ringle & Co. adopts the answer of the Fugmans and further states that they have received no part of the commission claimed to be due Trostler.

It will be noticed that the two causes of action set out in the amended petition refer to the same transaction, the first pleading an express contract and the second seeking to recover on a qtiantum meruit. At the trial defendants moved that plaintiff be compelled to elect upon which cause of action he would rely. This motion was overruled, and the overruling of said motion is assigned as one of the errors in the trial of the case.

The two causes of action were not inconsistent and it was within the discretion of the court whether the plaintiff should be compelled to elect between them. Ware v. Reese, 59 Ga., 588; Warner v. Nagel, 33 Minn., 348; Manders v. Craft, 3 Colo. App., 236; Longprey v. Yates, 31 Hun., 432; Evans v. Habfleisch, 36 N. Y. Supr. Ct., 450; Packard v. Reynolds, 100 Mass., 153; Wilson v. Smith, 61 Cal., 209; Cowan v. Abbott, 92 Cal., 100; Globe Light & Heat Co. v. Loud, 47 Mo. App., 439.

Again it is claimed that the court erred in ruling on evidence, but the record shows no prejudicial error of that nature.

Very serious criticisms are made by counsel for plaintiff in error of the charge of the court. Counsel for Ringle & Co. criticise the conversational style of the charge, and the recital of testimony by the court, objecting that the court made itself the purveyor of the testimony to the jury, and that the closing part of the charge, while a beautiful homily, is not good law. Admitting the merit of much that has been urged against the charge, we have examined it with reference to the facts .proved in the ease to see whether the defendants below were in any manner prejudiced by the charge pf the court as given.

As to the recital of the evidence to the jury by the court:

We think the court fairly stated what the witnesses on both sides had testified and that in this respect the charge comes within the rule laid down in the ease of Morgan v. State, 48 O. S., 371, in which it was held that it was not improper for the trial judge to sum up the evidence, if it is fairly done.

Again, the court used the following language:

“He (the plaintiff) says: ‘I ought to receive it; I sold this property. This contract, says I was to have on'e per cent, commission upon the selling price of this property; I sold it, there is no denial of that, and I am entitled to my five hundred and forty dollars.’ ”

This, we are inclined to believe, was a colloquial way of referring to the allegations of the petition; if it referred to the evidence it may fairly be said that the record shows no denial .that the plaintiff sold the property.. The language used was unfortunate, but upon a careful examination of the whole case we do not think it was misleading.

It is urged that the court erred in charging the jury that the burden was upon the defendants to prove that the plaintiff was acting as agent for Schaber as well as for them. The dual agency was properly pleaded in the answers. It has been held that the double agency can not be shown under a general denial. MacFee v. Horan, 40 Minn., 30; Reese v. Garth, 36 Mo. App., 641; Childs v. Ptomey, 17 Mont., 502; Durvee v. Lester, 75 N. Y., 442.

Such being the law, it follows that the burden was upon the defendants to prove that plaintiff acted also as agent for the purchaser.

That part of the charge which has given us the most difficulty is the concluding words of the court, as follows:

‘ ‘ This is a matter now in which, as in all matters in court, you want to use your judgment, your sense of fairness, fair play and good conscience and not be influenced by anything but a desire to do Avhat is fair between these people.”

We had supposed that juries were to be influenced only by the facts as they may find them and the law as the court may give it to them, but counsel for defendant in error has reminded us that if a jury doesn’t use its judgment, sense of fairness, fair play and good conscience, and doesn’t show a desire to do what is fair between the parties, its verdict is at once set aside by all courts.

The trouble with the language used in this case is that it is misleading; the whole case is left to the jury to decide between the parties without reference to the law or the facts. They were mislead in at least one important respect in this case, the verdict is too large.

While we are satisfied that the plaintiff proved a meritorious claim against the defendants, the verdict does not disclose whether the jury based its verdict upon the express contract of April 1, 1901, set up in plaintiff’s first cause of action, or the implied agreement pleaded in his second cause of action. There is evidence therefore to sustain the verdict, but the recovery could not have been under the agreement of April 1, stipulating a straight one per cent, on the selling price.

We are satisfied that by mutual consent of all parties that agreement, when the selling price of the property was reduced, was modified to one-half of the usual broker’s commissions, testified in the case to be two per cent, on the first $10,000 and one per cent, on the balance.

The verdict therefore should not have exceeded the sum of $320 with interest from June 7, 1901, amounting in all to $350.

If defendant in error, Trostler, will remit all of his judgment in excess of that amount, the judgment will be affirmed.


text:
    SPIRIT MEDIUMS AND FORTUNE TELLING.
    Circuit Court of Cuyahoga County.
    Lena Wolf v. State of Ohio.
    Decided, February 8, 1904.

      Criminal Law — Pretending to Toe Spirit Medium Not a Violation of Law Against Fortune Telling.

    A representation that the accused is a spirit medium, made to one person only, does not constitute a violation of Section 7017-4, Revised Statutes, making it a misdemeanor for one to represent himself to be an astrologer, a fortune teller, a clairvoyant or a palmister.

      Hart, Can-field <& Croke, for plaintiff in error.

      City Solicitor, contra.
    Marvin, J.; Winch, J., and Hale, J., concur.
    Error to the court of common pleas.
   This is a proceeding in error to reverse the judgment of the court of common pleas and the police court of the city of Cleveland. The judgment in the police court was a judgment o.f conviction, and that was affirmed by the common pleas court.

The prosecution of Lena Wolf before the. police court was undertaken under Section 7017-4, Revised Statutes, and that section, so far as applicable here, reads:

"Whoever shall represent himself to be an astrologer, a fortune teller, a clairvoyant or a palmister, shall be guilty of a misdemeanor,” etc.

The case has some curious features about it. It involves, among other things, the question of what is meant by "represent” and what is meant by a "fortune-teller.”

The information reads that—

"One Lena Wolf, late of said city of Cleveland, on the 3d day of December in the year aforesaid” (and there seems to be no aforesaid year mentioned), “in said city and county did unlawfully represent herself to be a fortune-teller to one James Dolan.” It will be observed that, so far as this information charges, she made no representation to any one but to one person, James Dolan, that she was a fortune-teller, and this is the way she made the representation: “By then and there pretending to have the power to reveal future events in the life of him, the said James Dolan, in the following manner, and in substance, to-wit: By then and there seating herself upon a chair opposite to a chair occupied by him, the said James Dolan, facing a small wooden table.” (So far there is no representation that she is a fortune-teller; so far she could do all that without making any pretense of being a fortune-teller.) “She, the said Lena Wolf, then and there passing the palms of her hands over and across the top of said table, and then and there pretending to place herself in a tranced condition” (up to this point, so far as appears, she made no representation of being a- fortune-teller); “and while pretending to be in said tranced condition to clasp the right hand of said James Dolan, and then and there saying to said Dolan, in substance, the following: ‘You are going to change your business before the first of the year and next spring.’ Now to that extent there seems to be a fore-telling of a future event; but if it required any kind of mystic help to -say to one he is likely to change his business, it seems a little strange. Indeed I suppose it would not be regarded as fortune-telling for any one to say ‘ I do not think you will continue in the business in which you now are.’ She then said, ‘You must not be afraid to go into this, Big Chief. You will make lots of money.’ There is the fore-telling of something. Suppose she had said, ‘You will lose money.’ I suppose most of us would be safe in telling our acquaintances: ‘You are likely to lose money, or are making money,’ without really being charged with representing ourselves to be fortune-tellers. ‘You will have a partner ; you are afraid of him, but he is all right. I see a gold field; lots of gold. You have an interest in this gold field.’ So far there is no fore-telling of future events in this regard. ‘You are going there but Big Squaw does not want you to. I am a little rosebud in the spirit land that is talking. You are the Big Chief.’ Contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Ohio.”

Now, if there is any charge of crime in that information we are unable to see it. We think that a demurrer to that information, or a motion to quash should have been sustained. It is too ridiculous a thing to found a charge.of crime upon. The statute itself is bad enough to make it an offense to represent one’s self to'be á fortune-teller, a palmister, a clairvoyant or an astrologer, but clearly it was not the understanding of the makers of that statute that because a person says to another person ‘ ‘ I can read your palm, or I am a spirit medium and have communication,” to charge him with being a fortune-teller.

The statute provides that one may be licensed. It seems clear that the term “fortune-telling” does not include all sorts of claims to mysterious power from the fact that it is allowed by the words “clairvoyant,” “palmister” and I think “astrologer” and this woman, the bill shows, had a card representing herself to be a spirit medium. It is easy to understand that good men and women should be glad to converse with those who have passed into the spirit land; but how any one wpuld care to talk •with an ignorant Indian girl because she is dead and can not use either English or any known Indian dialect, how it should deceive any one, is a very strange thing.

We think we should have to strain the statute very much to say the representing to a single person' — not making a public representation, not holding out that she was in the habit of telling fortunes — that she could as a spirit medium read something of one’s life, constituted a representation that one is a fortuneteller. A definition of fortune-telling includes making a practice of foretelling of pretending to foretell future events. But the said Dolan, who had time in the performance of his duties as a police officer to call on her, and all she told him, was that she saw gold fields, and she thought he would get richer, and that she was a little rosebud.

A demurrer to this information should have been sustained. But when the facts were heard the court should have found there was no such representation, no holding out to the public, nor any such claiming even to one person that she made a practice of fortune-telling. It certainly was not the intention of the Legislature to include every one who represented himself to be a spirit medium, else that would have been included in words. Spirit communications are held very sacred by some excellent people, but certainly not, I take it, the trash given out here about a rosebud, big chief and big squaw*.

Judgment is reversed. The court of common pleas is reversed, and the police court as well. The proceedings will be dismissed.


author: Gorman, J.

text:
    EMPLOYERS NOT EXCULPATED FROM BLAME BY FURNISHING APPLIANCES IN ORDINARY USE.
    Court of Appeals for Hamilton County.
    Dreses Machine Tool Company v. James G. Henderson, a Minor, by Lorenz Lemper, His Next Friend.
    Decided, March 8, 1915.

      Negligence — Flying Splinter from Lathe Causes Operator to Loose an Eye — Guards Against Such an Injury Not in General Use, But Employer Held Liable.

    The fact that machines of a certain type are used in the trade without guards for the protection of employees operating them, and that although guards are known to the trade their use is infrequent, does not render it improper to submit to the jury the question of whether in the case under consideration the defendant employer was guilty of negligence in not providing a guard; and where the jury has found that negligence existed, and has fixed reasonable damages which should be paid to the injured employee on account of such negligence, a reviewing court will not disturb the judgment based thereon.

      Robertson & Buchwalter and Theo. C. Jung, for plaintiff in error.

      Littleford, James, Ballard & Frost, contra.
   Gorman, J.

The action below was one to recover damages by the defendant in error, a minor by his next friend, for personal injuries claimed to have been received while working upon a turning lathe in the machine tool shop of the plaintiff in error. It was alleged in the petition, and the evidence tended to show, that the defendant in error James G. Henderson, while at work for the plaintiff in error on or about the 24th of November, .1912, in its machine tool shop on McMicken avenue in this city, engaged in operating a certain lathe to turn mitre gears from steel castings, was injured by a splinter or sliver from the steel casting thrown from the lathe into his left eye, thereby causing the loss of sight in said eye.

It was claimed in the petition that the negligence of the defendant consisted in failing to place a guard over the tool which did the cutting of the steel casting which was being turned in the lathe to make the mitre gear. There was a great deal of testimony offered pro and con upon the practicability of the úse of a guard.

The evidence of Henderson tended to show that guards were used at the LeBlond Machine Tool shop in the city of Cincinnati, where the same sort of lathes were in use as the one at which he was at work when injured. There was also other evidence tending to show that guards made of sheet iron or galvanized iron and cardboard were used in many shops in the city of Cincinnati, which guards were usually made by the employees operating the lathes. It was further shown in evidence that the superintendent of the Dreses Machine Tool Company knew of the practice of using guards, and that he had known them to be used when mitre gears were turned out of brass rather than steel. There was also evidence of others that they had used guards and known of them to be used. But the great weight of the evidence tended to show that guards were not used generally upon lathes of the kind involved in the ease at bar.

There was a verdict in favor of plaintiff, Henderson, in the court below for $4,000, and a judgment entered upon that verdict. It is now claimed that there is error in the record of the case which calls for a reversal by this court.

Practically the only grounds upon which plaintiff in error claims a reversal in this court are, that upon the facts shown in the case there was no culpable negligence upon the part of the Dreses Machine Tool Company; that the use of a guard upon the machine in question was impracticable and not in general or customary use, and that it was contrary to the. custom of the trade to use a guard. There was evidence tending to show that where these guards were used, made of sheet iron, galvanized iron or pasteboard, the dangers resulting from the flying of particles of steel were greatly minimized if not entirely removed. There was also evidence tending to show that guards are manufactured and sold made of wire gauze close meshed, and glass, which when placed in position before the cutting tool deflect the particles of steel thrown off so they can not come in contact with the eyes of the operator.

The contention of the defendant is that the rule to be observed in a case of this kind is that the master is not bound to furnish the most approved appliances that may be had in his business; that he has performed his duty when he has furnished appliances of ordinary character and reasonable safety in general use; and that the evidence in this ease tends to show that it was not customary to employ guards upon these lathes. The evidence is conflicting upon the practicability of the use of guards, and the great preponderance of the evidence tends to show that the guards were not in general use.

But we do not think that this is determinative of the question of negligence in this case. We do not think that the right of plaintiff to recover depends upon the fact that the guards were usually, generally or customarily used upon the kind of lathes at which he was put to work.

In 1911 the Legislature amended Section 1027, General Code, so as to read as follows:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows:
“7. They shall guard all saws, wood-cutting, wood-shaping and all other dangerous machinery.”

Previous to the amendment of this section in 1911, this subdivision of the section required only the guarding of saws, woodcutting and wood-shaping machinery, and by the addition of the words “all other dangerous machinery,” the court is of the opinion that the Legislature intended to extend the provisions of guarding to all dangerous machinery.

Now we think the evidence in this case tends to show that this was a machine attended with more or less danger in its operation, It was of frequent occurrence for those who operated machines of the character of the one involved in the case at bar to have splinters of steel or metal fly into their eyes, and to the extent that there was danger to the eyes of the operative we believe that the machine was dangerous and that by the terms of the statute it was incumbent upon the plaintiff in error, as it was upon every other owner of such shops, to guard the lathes so as to minimize the danger that would result to the operatives.

It is laid down in Section 916, Labatt’s Master & Servant, Yol. 3, 2d Ed.:

“That the entire failure to furnish any instrumentalities or materials in a case where they are necessary for the servant’s protection is not less a breach of the duty to furnish proper instrumentalities or materials than is the furnishing of instrumentalities or materials which fall below the legal standard of safety. A servant who bases his right of action on the total lack of requisite appliances must show that, under the circumstances, they were reasonably necessary for his protection from a danger which the master knew or ought to have known to be incident to the work, and that they were either not obtainable at all or were not readily accessible.”

Now the plaintiff’s right to recover in this case is based upon the absence of a guard, and that it was reasonably necessary to have such a guard in order to protect him. There is a conflict of authority as to whether or not the master has performed his duty when he has furnished a machine such as is ordinarily or customarily in use, or whether or not he must go further and furnish appliances and machinery which are readily obtainable and known to science or the trade which will tend to protect the operator and employees.

Section 940 of Labatt’s Master & Servant, Vol. 3, states the rule as follows:

“ Where the only inference that can be reasonably drawn from the evidence is that the master conformed to the general usage of the average member of his trade or profession with respect to the adoption or retention of the instrumentality in question, he may be declared as a matter of. law to have been in the exercise of due care. The language in which this doctrine is formulated or referred to would, if taken literally, often convey the idea that the generality of the usage and the similarity of the business or establishment of which the usage is adduced as a standard of comparison are the only points to be considered, and that the manner in which that business or establishment is conducted, and the character of the persons engaged in it are not material factors in the question to be determined.”

But, he says:

“It is clear that under the general principles of the law of negligence, these latter elements must be material, and that the test really propounded is not usage of any employers, however imprudent and unskilful, or of any concerns, however ill regulated, but the usage prevailing among prudent and skilful employers and in well regulated concerns. That this is the actual position taken is shown by the following extract from the opinion in a leading decision by a court which has been one of the most uncompromising exponents of the doctrine now under discussion.”

The author then quotes the language of the court in the section above cited. The author does not agree with those courts which hold that the master has performed his duty when he furnishes machinery and appliances such as are in ordinary and general use. In Section 947 of Volume 3, he says:

“The doctrine that conformity to common usage is not conclusive in the master’s favor. The principle upon which a large number of decisions is based, some of which emanate from the courts whose rulings are reviewed in the preceding sections, is that embodied in the remark of Wiles, J., with reference to the plea put forward by the defendant in a well-known case, that, ‘no usage could establish that what is in fact is unnecessarily dangerous was in law reasonably safe as against persons towards whom there was a duty to be reasonably careful. That is to say," the position is taken that custom furnishes no excuse, if the cus-tom itself is negligence. In this point of view the master’s conformity to general usage is regarded merely as evidence tending more or less strongly to exculpate him from the charge of negligence. After it has been shown that the defendant had complied with the usage of other employers in the same line of business the question whether the particular instrumentality or method was reasonably safe still remains open, and unless it is decided in the master’s favor, he must indemnify the servant.”

The author states that it is proper for the master, in an action by the servant to recover damages, to introduce evidence tending to show that he conformed to the general custom and that he furnished an ordinarily safe machine or appliance, but nevertheless it is still a question to go to the jury whether or not the master has performed his full duty even when he furnishes machinery and appliances in general and ordinary use in the business. He cites a great number of authorities in various states to show that the latter view is very strongly maintained in many jurisdictions. On page 2550 of the 3d volume, under Section 947, he says:

“In spite of the imposing array of authorities which have adopted the doctrine explained in paragraph 940 et seq., the present writer has no hesitation in saying that in his opinion the cases just cited embody the correct principle. The essential meaning of the theory that the ease ceases to be one for the jury when conformity to common usage is once established, is that employers ought to receive the benefit of -a presumption which may be thus expressed: The persons who pursue a. particular line of business at any given time are reasonably prudent, and the majority of a reasonably prudent body of persons will not use unsuitable instrumentalities or methods when suitable ones are available. As a basis for the doctrine founded upon it, however, this presumption seems to be extremely unsatisfactory.”

Hje then proceeds to show at length that this presumption does violence to reasonable logic and experience, and concludes the section (947) with these words:

“Under such circumstances, it is submitted, there is no sufficient basis upon which to found an inference of law that an employer fulfills his duty when he adopts instrumentalities and methods which are in common use.”

In Bailey on Personal Injuries, Master & Servant, Vol. 1, pages 381, 382, 383, it is stated that while it is proper for a master to be permitted to introduce evidence to show that he conformed to the general and ordinary custom in the furnishing of machinery and appliances, nevertheless it is still a question for the jury to determine whether or not he was negligent notwithstanding such appliances. On page 382, he cites this case:

“An employer, however, was held guilty of negligence in not furnishing a guard to prevent small pieces of boards and knots from being thrown back. The machine was of standard type and as sent into the market such machines were not furnished with a guard, yet upon the evidence of a former employee that he caused a board to be bolted to the frame work of the machine to act as a guard, which remained for about two seasons and a half, when it was shattered by recoiling pieces of timber and was not replaced, it was held that the employer was liable in not providing some other device. It was said that an employer could not be excused for operating a machine, although of standard type, when a reasonable amount of experience and observation has developed the fact that it is inherently dangerous and could be made reasonably safe by attaching safeguard appliances. See Johnson v. Atwood Lumber Co., 101 Minn., 325; 112 N. W., 262.

In the case of Roy Lumber Co. v. Donnelly, 31 Ky. L. Rep., 601, the court of appeals on page 603 employs this language: —“The third contention of the appellant is error in the instructions. ’ ’—

‘ ‘ The court in effect instructed the jury that they should not find for appellee, if the saw was guarded and protected with safe appliances, as was customary and usually employed with such saws to make them safe and prevent them from swinging out into the room.
“This is not the true test, and was prejudicial to appellee. It was proper for appellant to introduce testimony showing that this saw was placed, guarded and protected as such saws used for a like purpose are usually and customarily guarded and protected. If the saw in question was so guarded and protected, it created a strong but.not conclusive presumption that it was reasonably safe. If the custom and manner of hanging and guarding these saws is dangerous, it should not prevail, if they could be swung and protected in a reasonably safe way.”

The court is of the opinion that, aside from the question of whether or not this case is covered by the statute, Section 1027, General Code, it was proper to submit to the jury the question of whether or not the master, plaintiff in error, was relieved from liability by furnishing a lathe without a guard and that that was the custom and general method of furnishing lathes to employees.

We think the great weight of authority supports the rule laid down in the case of Mather v. Rillston, 156 U. S., 391. The opinion was announced by Justice Field, in which he says:

“All occupations producing articles or works of necessity, utility or convenience may undoubtedly be carried on, and competent persons familiar with the business and having sufficient skill therein may properly be employed upon them, but in such cases where the occupation is attended with danger to life, body or limb it is incumbent on the promoters thereof and the employers of others thereon to take all reasonable and needed precautions to secure safety to the persons engaged in their prosecution, and for any negligence in this respect, from which injury follows to the persons engaged, the promoters or the employers may be held responsible and mulcted to the extent of the injury inflicted. * * * Occupations, however important, which can not be conducted without necessary danger to life, body or limb should not be prosecuted at all without all reasonable precautions against such dangers afforded by science. The necessary, danger attending them should operate as a prohibition to their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence.”

In the case at bar we think the evidence shows that there was known to science and to those employers using lathes, such as the one in question, guards which would prevent or minimize the danger attending the flying of steel splinters from the metal which would have a tendency to injure the eyes of the operator. We think the evidence in this case fully discloses that if a guard such as the operators had used themsélves, of sheet iron or pasteboard had been used, the probabilities are that the plaintiff below would not have suffered injury to his eyes. It is. further shown that other kinds of guards were known to science and attainable, and it was proper to submit the question to the jury whether or not the master had done his full duty when he furnished a machine without a guard, even though that was the usual and customary method of furnishing machines. It was in the last analysis for the jury to say whether or not a reasonably prudent employer, in view of the experience which he had, or should have had, would not have taken further precautions to protect his employees.

This being practically the only question involved in this case, except the question of the excessive amount of the verdict— which we do not believe was excessive — we are of the opinion that the judgment of the court below was in accordance with substantial justice, and that the judgment should be affirmed.

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


author: Powell, J.

text:
    ENFORCEMENT OF CONTRACT BETWEEN MUNICIPALITY AND GAS COMPANY.
    Court of Appeals for Perry County.
    Village of New Lexington v. The Ohio Fuel Supply Co.
    Decided, July 31, 1913.

      Minimum Charge per Month for Gas — Where Consumption Falls Below a Fixed Amount — Can Not he Demanded hy the Company When . Provision Therefore is Not Found in its Contract with the Municipality — Jurisdiction to Enforce Such a Contract.

    1. An ordinance fixing the rates which may be charged consumers for gas when accepted by the company constitutes a binding contract which may be enforced by the municipality.
    2. While a controversy between a municipality and a gas company as to rate to be paid by consumers for gas would fall within the jurisdiction of the Public Service -Commission, the -courts have ..jurisdiction to settle differences of that- character Whenever a contract has been entered into and so long as the contract exist*.

      3. When a petition filed by a municipality alleges the making of such a contract, its breach and a continuance of the breach, with a prayer for injunction and general relief, it states a cause of action,

      T. B. Williams and John Ferguson, for plaintiff.

      L. B. Denning, contra.
   Powell, J.

The petition in this case was filed by the village of New Lexington, against the Ohio Fuel Supply Company, alleging for its cause of action that on the 27th day of January, 1897, an ordinance was passed by its council granting to the New Lexington Natural Gas Company, its successors and assigns, the right to lay and maintain in the streets and alleys of said village, mains and pipe fixtures for conveying natural gas, and supplying the same to the said village and its inhabitants for use as fuel and for lighting purposes; that pursuant to such grant said company laid its mains and pipes in said village, and exercised the rights and privileges granted by said ordinance; that thereafter and prior to September 8, 1903, said right or franchise was assigned to the defendant who has been, and is now exercising all the rights and privileges contained in said ordinance or granted thereby; that on said 8th day of September, 1903, plaintiff by its council passed another ordinance fixing the price at which natural gas could be sold therein at twenty-five cents per 1,000 cubic feet of gas, meter measurement, and provided that the company so selling the same should make a reduction of 20 per cent, discount from said rate to any one paying for the same on or before the 10th day of the succeeding month, and provided that no greater rate should be charged therefor during a term of ten years, together with other terms and conditions, fixing the rights of the company in the use of its franchise, and in supplying gas to the citizens of said village; that the defendant in writing accepted the said ordinance and all its terms and provisions, and agreed to be governed thereby in its charges for gas furnished to said village and its inhabitants, and was governed thereby until November, 1910; that ever since November, 1910, it has violated said ordinance and its said agreement to be bound thereby by imposing on all the citizens of said village not consuming fifty cents worth of gas per month a minimum charge of fifty cents for each and every month whether the meter shows that amount of gas consumed during such month or. not, and which charge is alleged to be illegal and in violation of said ordinance; that defendant .threatens to turn off its gas to. such of the citizens of said village as refuse to pay said minimum charge unless their meter shows that amount of gas consumed, and have turned off the gas from such of its consumers as have not paid such charge. Injunction is prayed for.

To this petition a demurrer is filed alleging three grounds of demurrer—

1. Want of legal capacity to sue.

■ 2. Want of jurisdiction of the subject-matter.

• 3. The petition does not state facts sufficient to constitute a cause of action.

This demurrer should be overruled, because—

1. The ordinance of September 8, .1903, and its acceptance by the defendant constitute a contract, and it is such a contract as the village is specially authorized to make for the benefit of its inhabitants. Section 3982, General Code.

If a municipality is authorized to make a contract, it has authority to enforce it, by implication, if not by express provisions.

2. ' It is contended that questions, such as are presented by this petition, are questions that ought to be settled by the public service commission, and not by the courts, but this court takes the view that this is a proceeding to enforce a contract already entered into, plain and unambiguous in its terms, and that the controversy is properly cognizable by the courts, and not by the public service commission. It invokes judicial authority, and properly belongs to the courts. When the contract terminates or the time comes when there is no contract existing between the parties, then it could properly be submitted to the commission, but so long as a contract exists, its enforcement is for the courts.

3. The petition alleges a contract, a breach of it, and a threatened continuation of such breach, with a prayer for injunction and general relief.

We think it states a cause of action.

These questions are not made in a recent case, decided by our Supreme Court, involving the same question as is sought to be determined in this action, viz: the right of a public service corporation to make a minimum or “readiness-to-serve” charge when operating under an ordinance or contract, that makes no provisions for such charge. That action was commenced,

1. By the city of Springfield, Ohio.

2. Against the Springfield Light, Heat & Power Co.

3. To enjoin the imposition of a minimum or “readiness-toaerve” charge in violation of an ordinance of said city, under which it operated and for general relief.

The judgment of the court of common pleas in favor of the city was sustained by the Supreme Court without report. The case is numbered 13153 on the docket of that court.

The same questions were made by an amended answer in that case as are made in' the amended answer in this case, the first defense consisting of certain admissions of fact, and a general denial of everything not admitted or controverted, and being in legal effect a denial of the legal conclusions arising from the averments of the petition. For its second defense defendant alleges that there is an initial cost of fifty cents per month for each consumer,» consisting of taxes, interest on money invested, cost of ington, entirely aside from the cost of gás used by such consumer consisting of taxes, interest on money invested, cost of operation and inspection, and other items of expense, so that a customer who uses less than fifty cents a month worth of gas is unprofitable and must be carried at a loss. In addition to such initial and overhead expenses, the defendant company has a rule that each customer must agree to take a minimum of fifty cents worth of gas per month, or pay that sum when the meter shows less than that amount'of gas consumed. It alleges that such rule, is reasonable and just, and such charge is not fixed or: prohibited by statute or ordinance.

To this defense a demurrer is filed, and it is to the same defense, that the Court, of Appeals of Clark County sustained a demurrer in the Springfield case cited above, excepting only that the subject-matter of that action was the furnishing of electricity to the city and its inhabitants, while this relates to the furnishing of natural gas. Said judgment sustaining said demurrer was affirmed by the Supreme Court.

The. matters alleged in the said second defense are not defensive against a contract entered into of which they are not a part, and furnish no reason why the contract should not be carried out as made. There is nothing alleged that was not already in existence, when the contract was entered into, and it is presumed they were all taken into account at that time.

The demurrer to said second defense will be sustained, and a decree may be entered in favor of the plaintiff, making the injunction heretofore allowed, perpetual, and exceptions may be noted.

Voorhees, J., and Shields, J., concur.


author: Richards, J.

text:
    TENANT INJURED BY FALLING INTO CELLAR.
    Court of Appeals for Hamilton County.
    Louise Stinson v. Ferd Metzger.
    Decided, March 29, 1915.

      Landlord and Tenant — Damages for Personal Injuries Suffered by a Tenant by Reason of a Defect in a Common Passageway — Not Recoverable from the Landlord, When Tenant Knew of the Condition.

    A tenant will not be permitted to recover from her landlord for personal injuries caused by a fall through an open cellar door in a common passageway, where no claim is made that the landlord or his servants were in any way responsible for the door being left open and there had been no change in the passageway or the cellar door during the tenancy.

      Robert 8. Alcorn and Thorndyhe Sr Gap elle, for plaintiff in error.

      Gideon O. Wilson, contra.
   Richards, J.

Error to the superior court.

The action was commenced in the Superior Court of Cincinnati by Louise Stinson to recover damages for personal injuries suffered by her in falling into a cellar, the cellar door having been left open. She was a tenant of the defendant, occupying the lower apartment in a three-story flat, certain other tenants using the second and third stories. Each of the tenants used the cellar or basement and obtained access to the same by a cellar way located in the rear of the flat. The premises had a common passageway leading from the street to the rear of the flat and thence turning at right angles around the building. The passageway at the rear where the cellar was located was unlighted and had remained in that condition ever since the plaintiff had occupied the premises. The cellar door when closed was even with the surface of the concrete passageway and the tenants frequently walked over the cellar door in order to get to the side of the door which enabled them to lift the door and enter the cellar way. On returning to her apartment after dark on the evening of the injury, the plaintiff walked along this unlighted passageway and the cellar door having been left open by some person, other than the defendant or his agents or servants, she walked into the same and was severely injured. The trial judge directed a verdict for the defendant and to this action error is prosecuted.

It appears from the bill of exceptions that no defect existed in the construction of the cellar door, and that it remained in the same condition all the time that the plaintiff occupied the premises as a tenant. She at one time complained to the landlord that no railing was placed around the entrance to the cellar, but it does not appear that he promised to erect any railing or barrier, and the conditions continued the same. Certainly it can not be said that a cellar door in a passageway is in and of itself an inherent defect. It is common knowledge that with the increased congestion incident to city life, such , method of construction is very frequently resorted to. The landlord did not reside on the premises and no claim is made that either he or his servants were responsible for the door being left open on the occasion of the injury to plaintiff.

The principle applicable is stated in Stackhouse v. Close et al, 83 O. S., 339, in substance, that a lessor, out of possession- and control, would not be liable to a tenant for personal injuries in the absence of deceit or of any agreement or liability created by statute. The circumstances disclosed in the record do not show any ground of liability against the landlord. The plaintiff knew when she rented the premises the exact condition of the passageway and the cellar door. There was no concealed defect and no misrepresentation. She got exactly what she bargained for when she rented the premises. It can not be successfully maintained that the condition tended to show the existence of a nuisance.

Counsel for plaintiff cite and rely on the case of Hohly et al v. Sheely, 21 C. C., 484, a decision of the circuit court in Lucas county; but an examination of that case discloses that evidence was submitted to the jury tending to show the active negligence of the owner of the premises and her agents, in the opening and shutting of the door and in the management of the same. The case, therefore, is not in point on the question now under consideration.

We think the rule of law applicable to the case at bar is well stated in Quinn v. Perham, 151 Mass., 162, where it is held that a tenant will not be permitted to recover against the landlord for personal injuries caused by a defect in a common passageway, if the tenant knew of the passageway when the tenancy began and if no substantial change had occurred during the continuance of the tenancy. This case is cited and explained in Andrews v. Williamson, 193 Mass., 82, 94.

The plaintiff’s own testimony tends to show negligence on her part in walking along the passageway in the dark without ascertaining whether the cellar door was closed, and this conduct brings the case within the holding of the circuit court in Dawson v. Seiberling, 18 C.C. (N.S.), 267, for such evidence indicates that her own negligence was largely responsible for the unfortunate injury with which she met.

Finding no error, the judgment of the superior court will be affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Grant, J.

text:
    PROSECUTION EOR. LOANING MONEY ON CHATTELS WITHOUT A LICENSE.
    Court of Appeals for Montgomery County.
    Charles Houser v. State of Ohio.
    Decided, January, 1916.

      Criminal Law — Loaning Money on Chattels — Means Loaning on the Faith or Pledge of Chattels — Money.Broker’s License Law — Can Not be Given Greater Deterrent Effect by Broadening its Construction.

    A conviction can not be had as for the violation of a statute which prohibits the business of “making loans upon chattels or personal property of any kind” without first obtaining a license as provided in the act, where the evidence of the loan consists only of a note of hand, unaccompanied by any enforceable security “upon chattels or personal property;” a paper writing, signed by the borrower, but not sworn to nor recorded nor filed for record, the only material parts of which are certain recitations to the effect that the signer is the owner of certain undescribed chattels and that these are unencumbered, ’ the writing being delivered to the lender,' is not the security contemplated by the act.
   Grant, J.

Error to the court of common pleas.

Charles Houser, plaintiff here, was tried in the municipal court of th.e city of Dayton, as for a violation of certain provisions of Section 6346 of the General Code of Ohio.

The affidavit upon which his trial was there had, and which was the first step towards jurisdiction taken by the trial court, was in the following words and figures, as to its material and charging parts:

“Did unlawfully then and there carry on the business of making loans upon personal property, by then and there loaning the sum of twenty and no/100 ($20.00) dollars to one Mary Brown upon certain personal, property, without first having then and there obtained a license so to do from the secretary of the state of Ohio, the said Charles Houser, not then and there being engaged in business as a bank or building and loan association, contrary to the statute in such eases made and provided, and against the peace and dignity of the state of Ohio.”

The trial resulted in the conviction of the accused and he was sentenced to pay a fine of $-and the costs. A new trial having been denied and an exception saved, error proceedings to reverse this judgment of conviction were prosecuted in the court of common pleas, where the judgment was, upon consideration, affirmed. We are now asked to reverse both of these judgments.

Various- formal assignments of error are made, but the one relied on as basic in the ease is that the conviction had in the court of - first instance can not be supported by the evidence and so is contrary to law.'

The two sub-sections of the statute upon which the accused was prosecuted and convicted, and. which alone are material here, read, respectively, as follows:

' Section 6346-1. "No person, firm or corporation except banks and building and loan associations shall engage or continue in the business of making loans upon chattels or personal property of any kind whatsoever, or of purchasing or making loans upon salaries or wage earnings, without first having obtained a license so to do from the secretary of state.”
Section 6346-6. "Any person, firm or corporation, or any agent, officer, or employee thereof, violating any provision of this act, or that carries on the business of making loans upon chattels or personal property of any kind whatsoever, or of purchasing or making loans upon salaries or wage earnings without first obtaining a license as provided in this, act shall, for the first offense, be fined not less than fifty dollars ($50.) nor more than two hundred dollars ($200), and for a second offense not less than two hundred dollars ($200) nor more than five hundred ($500) dollars, and it shall thereupon become the duty of the secretary of state upon such second conviction to revoke any license heretofore issued to such person, firm or corporation.”

The inhibition of these provisions, so far as it touches the accused in this case, is against loaning money "upon chattels or personal property,” without first having obtained a license to do so from the secretary of state.

"We assume as fully proved that the accused had no such license.

For the rest, the single kernel of grain in the case, when sifted clear of a good deal of chaff — all the papers before us being considered- — -is to be found in the following and only material facts :■ A woman applied to the accused, or the concern for which he must be deemed responsible, for a loan of money. Finally, and after some circumlocution, she got it. It was evidenced by one, or perhaps two, promissory notes, in the-ordinary cognovit form, and in no other way.

These notes were not secured in any way beyond the signature of the maker. At the time, the woman was asked to sign and did sign a paper, which was represented to her by the lender as being a mortgage upon her furniture. It was not a chattel mortgage, nor anything resembling a- mortgage. It consisted of several statements or recitations, the most material of which were of the tenor and effect that certain undescribed property belonged to the applicant for the loan and was in no way incum-bered. The paper was not sworn to,.nor was it ever filed or recorded in any public office, so far as appears.

The ulterior purpose of the accused and his coadjutors in the enterprise, probably was to get the woman to believe she was giving a mortgage on her furniture, in the expectation that she would be sufficiently frighténed by that thought not to part with her belongings till the debt was paid, so that the lender-would in effect have all the security that a mortgage would give him, without any of the disadvantages of taking a mortgage, including the taking out of a license under the statute. Still, it was not a mortgage, nor anything like a mortgage.

These being the facts alone essential, in our estimation, to a determination of the question before us, we are now to inquire" what that question is.

To our apprehension and in this ease, it is whether the loan made by the accused, under the circumstances mentioned, was a loan “upon chattels or personal property of any kind,” as those words are used in the statute under consideration. For loans thus made are the loans denounced by the statute "when made by an unlicensed person, and for making which punishment was visited upon the accused by the judgment complained of here.

“Loaning upon chattels,” we take it, means loaning on the faith of chattels, on the security of chattels, on the pledge of chattels — the faith, the security, the pledge, in any case being made good and effectual by some legally recognized and binding form of sanction. Such we apprehend is the usual, the ordinary and plain significance of the words used by the lawmakers in framing the enactment. In the absence of any reason apparent, for imputing to them a technical or other different meaning, no reason is perceived for a departure from this customary use of them now. To force another meaning into them would, in our judgment, amount to an assault on the English language, or would at least be taking improper liberties with it, if not doing outright violence to it.

Indeed, we do not know that another meaning is seriously contended for here. The contention, rather, seems to be, if it is understood, that what is called a liberal construction of a penal statute shall be allowed in order that some general or wholesale mischief to the community at large shall be — not exactly punished in the person of the particular offender, but to secure immunity against future like offenses — such seems to be the argument, in effect, although of course the example of punishment in the case in hand must be visited on the accused at the bar, who, lest others may offend, is to feel on his own back the legal rod in pickle provided by the statute in question.

Shifting momentarily from legal to medical nomenclature, the claim appears to be that this penal law is to be used as a prophylactic, or, in common parlance, as a deterrent, against future misdeeds of other evil-minded persons, the prisoner to suffer vicariously in that respect as well as properly for his own misdoings. Certainly, if his own crime is made out beyond a reasonable doubt, then he should suffer for that single reason, and it would not be difficult to separate his proper and real offending from that which is sought to be reached by way of example to others.

But. that does not appear to be the drift of the argument made to us, if we rightly catch it. We are asked to affirm a conviction arising not so much from a plain infraction of the known letter of a penal statute, as from what the “Immortal J. N.” used to call “the attitude of the situation.” That is, a necessity springs from the notorious bad conduct of so-called “loan sharks” and their oppression of the needy, which can be met only by the condign punishment of some one, in order that the practices may be guarded against and stopped. And of course the “horrible example” must be at hand as equally necessary, in order that this remedy may be advanced. It looks like a variety of that “military necessity” under which Dayton, Ohio, groaned a half century and more ago, and of which its' people hoped themselves Avell rid, and all the country said Amen. Even Mr. Lincoln was ashamed of it. A- citizen, by a process unknoAvn to the law’s letter, to sustain which, as here, “the spirit of the law” was invoked, was seized and sent into the military lines of an armed enemy. General Burnside, in his return to the Avrit of habeas corpus, said: “An emergency is upon us which requires the operations of some power that moves more quickly than the civil.” And the federal judge who denied the Avrit, in his opinion, said:

‘ ‘ The occasion which calls for the exercise of this power exists only from the necessity of the case; and where the necessity exists,- there is a clear justification of the act. * * * In the judgment of the commanding general the emergency required it; and whether he acted Avisely or discreetly, is not properly a subject for judicial review. ’ ’

This is not far different in tone from the appeal put up before us to look with leniency on a conviction which may be upheld if the “spirit of the law” can only be brought to bear. The doctrine appears to us somewhat vagrant, not to say lawless. We should as soon look to see the court of Star Chamber and its practices resurrected and transplanted to Dayton, as to think the Burnside theory of what law is has been revived and brought back among you.

“In Adam’s fall we sin-ned all,” said the old catechism; It was all right to punish Adam, but .the. rest of the line has not gained a foothold in enlightened, jurisprudence. ■ We see nothing in the reason of the thing why Charles Houser should not be condemned if he has broken the commandment of the statute. We see no reason why he should be condemned if he has not broken the law, even though an example may be needed to keep others from breaking it. The probably mythical English judge who is said to have said in sentencing a culprit — “We hang you, not for stealing horses, but that horses may not be stolen, ’ ’ has not been thought to have spoken in the voice of a just or humane jurisprudence.

Of course the proposition is not put up to us in this precise form. We are not in so many words asked to wrest a statute from its import of language, not on the side of leniency, but. of severity, to the end that an ultimate general .public good may result. But the appeal to interpret the statute not so much according to its letter as in its “spirit” of tutelage over the common welfare, to the disadvantage of a prisoner — in substance and effect to resolve the doubt, if there is one, not in his favor, but against him — the purport, we say, of the exhortation can hardly be mistaken. We can not allow the force of it to coerce a judgment on our own part, which would be at variance with that commended by the facts of this case and the law applied to them, stripped of the ulterior consequences which may be supposed to flow from our action here upon the community, aliunde.

Having regard to this consideration and following the example of the prudent mariner who has been swept from his course by a gale of wind, we may with propriety, we think, take our bearings according to the chart of the statute, the breach of which is by the judgment complained of imputed to the accused. We have already adverted to what it prohibits, and have shown, as we suppose, that what the accused did violated none of the things forbidden by it. In other words, it is too plain for dispute, as appears by the evidence, that he did not loan Mrs. Brown money upon the faith, or pledge or security of chattels, although he made her think that he was doing so. He is not charged with obtaining money under false pretenses. What he really is charged with is not having a license. Collecting license fees is not the end or purpose of the statute; that is but the taxing incident of the law, designed to raise the revenue necessary to its administration.

Failure to obtain a license is not the mischief aimed at and to be repressed by the statute. Before going far afield for vagrant authorities to justify stretching the letter of a law that it may be executed in what is vaguely called its “spirit,” we may observe one canon of construction by going to the title of the act to find out what its framers were striking at when they put it in words. That title is this: “An act to regulate and license the loaning of money upon chattels or personal property of any kind and of purchasing or making loans upon salaries or wage earnings. ’ ’ It appears to us too clear for controversy that the mere failure to obtain a license, of itself and without more, without the further fact of loaning money on chattel security, is not enough to call down on the head of one who fails to have a license the penal consequences of a broken law. That professional lenders are bad men — some or all of them — is quite beside the question, as we must think. The defendant below was not prosecuted for being an all-around bad citizen, nor can he be punished for that, however culpable in that respect he may be. Bad citizenship is not a crime in this commonwealth. If it were, the formula of the crier would indeed be appropriate: “God save the state of Ohio, and —! ”

Upon full consideration in the ease lately reviewed by us in the Eighth District — State of Ohio v. French et al, construing this same statute — we held, affirming the common pleas, that the words of the title declaring the mischief to be remedied by the act and defining its repressive purpose, are to be distributed over all of its subsequent provisions. The supposed offense prosecuted in that case consisted in not giving the borrower a card, as required by sub-section 3 of the act. The difference between the two cases in point of law, is, we think, nil.

We adhere to that holding, finding nothing in the considerations brought forward here to shake our confidence in its correctness. To do otherwise — finding the facts where we do find them — would place ns under the reproach of allowing a man to be punished because he did not pay for a license to do a thing ho did not do. This would be a legal solecism and a contradiction and confusion of moral terms.

In reaching this conclusion — somewhat laboriously, it is true— we have paid but scant attention to the elaborate discussion of the supposed law of the case, on either side, backed as this is by numerous citations put before us with characteristic industry and zeal. But attention has been paid to them, and, in the view we have taken of the case, a particular discussion of them would not be useful or informing. They are largely addressed to the appeal — already met and disposed of — to construe the controlling statute as a drag-net, where a particular man is asked to be punished under it, or in the words of the contention to apply its spirit if its letter shall not be enough. We have said all that we care to say on this point. To work a conviction the statute must point its finger to this individual accused with that degree of inerrancy which the criminal law requires at the hands of the state, and be able then to say: “Thou art the man!” That requirement has not been met; that burden has not been borne, but the reverse, as the evidence without contradiction shows.

We have the utmost respect for the authorities brought forward in the briefs. In our opinion they are beside the question. We feel that we must keep within the known land-marks of the law, and not stray into the fields of speculation as to what might be if it were interpreted in what is called its “spirit” and intention, instead of declaring it as it says and in our estimation plainly is. That this offender, and likely other evil-minded persons, may go unwhipped of justice because we administer a statute according as we find it to be, and not according to what it might be or should be, is true. But really we must not concern ourselves with that or permit that consideration to control us in any way. We are not the Legislature. Our guide is “Est ita lex.”

We deem ourselves guilty of no impropriety in closing our opinion in speaking of a statement to be found in one of the briefs. It is this:

“The common pleas court, after having heard the arguments of counsel and considering briefs, handed down a very able opinion sustaining the conviction of the municipal court, and now the plaintiff in error seeks to have this opinion set aside. ’ ’

If our function in this case is to set aside opinions, then we have labored under a singular delusion as to what the one duty of any court is — namely, to declare the law. We disclaim the right or the wish to do more.

What the consequences flowing from that declaration may be, is matter of indifference. We might as well concern ourselves with our shadows on the wall.

Fortunately there is a court for the correction of our errors, and we have no ambition but to be right, even at the expense of being set right by the power whose duty it is to do that. The law is the ruler of us all, and it behooves us all to walk with John Milton, “as ever in his great Taskmaster’s eye.”

There is no evidence in this record to support either of the judgments complained of.

For that reason both are reversed and final judgment for the plaintiff in error, to recover his costs, expended, is rendered.

Meals, J., and Carpenter, J., concur.


author: Chittenden, J.

text:
    EXECUTION STAYED PENDING DETERMINATION OF RIGHT TO SET-OFF.
    Court of Appeals for Hamilton County.
    Charles L. Evans v. Lou Beddinger and Elmer Stevie.
    Decided, March 8, 1915.

      Replevin — Rights of Surety on Bond in an Action in Replevin — ‘Where His Principal Has an Action for■ Damages Pending Against the Plaintiff — Set-off.
    The surety on a replevin bond against whom judgment has been entered is entitled to the benefit of any valid judgment obtained by his - principal against the defendant in an action by such principal to recover damages for breach of a contract with reference to the same property involved in the replevin suit, where both his principal and suck defendant are insolvent; and the action to reeover for the breach of contract being a pending action, execution against the surety should -be stayed until the amount of the set-off, if any, is therein determined.

      Cobb, Howard & Bailey and Henry L. Rockel, for plaintiff in error.

      Bolle, Taylor & O’Donnell, for Lou Beddinger.
   Chittenden, J.

Error to the court of common pleas.

The facts, so far as they need be stated in this opinion, are as follows: On or about February 17, 1911, Elmer Stevie and Lou Beddinger entered into an agreement whereby Stevie was to exchange his automobile with Beddinger for a motor launch and was to pay Beddinger $150 in cash. The automobile was delivered to Beddinger and Stevie paid him $139.20. After more than a year had elapsed and Beddinger had failed to deliver the motor boat to Stevie,' Stevie brought an action in replevin to recover possession of the automobile. The plaintiff in error, Charles L. Evans, became surety on the replevin bond given in that action. On trial in the common pleas court a verdict was rendered in favor of Beddinger, and the jury having assessed the value of the automobile at $150, Beddinger elected to take the amount of the judgment in lieu of the automobile, and thereupon judgment was entered in favor of Beddinger against Stevie for $150. Execution was issued upon this judgment and returned unsatisfied. Evans was then cited to show cause why the judgment rendered against his principal should not be enforced against him. He appeared in response to such citation and filed his answer in which answer he set out in substance the facts concerning the trade between Stevie and Beddinger, and that his principal, Stevie, had begun an action in the Common Pleas Court of Hamilton- County against Beddinger to reeover damages in the sum of $450, alleged to have been suffered by him by reason of a breach of the contract of trade above referred to. He further alleged the insolvency of the defendant Beddinger, and asked that no further proceedings be taken against him during the .pendency of the .action by .Stevie against Beddinger until after judgment should have been entered therein in favor of Stevie, and that then sueh judgment should be set-off against the judgment of Beddinger, and that after sueh set-off he be discharged from further liability on the bond. To this answer a demurrer was filed which was sustained by the court, and no further pleading being filed by Evans judgment was entered against him in the sum of $150. Error is prosecuted in this court by Evans. He insists that the common pleas court erred in sustaining the demurrer and entering judgment against him.

We have considered the oral arguments of counsel and have examined the briefs, and upon consideration of the question involved, we conclude that Evans is entitled to the benefit of having set-off against the judgment entered against him and his principal, Stevie, any valid judgment obtained by Stevie against Beddinger. At the time the matter was presented to the trial court on the demurrer, no judgment had been rendered. The allegations were simply that the action was pending, and we think that the trial court was justified in declining to stay the entering of judgment until after the case brought by Stevie against Beddinger had been determined. No existing defense was shown by Evans that would necessarily preclude the entering of judgment against him upon the summary proceedings that were instituted to accomplish that purpose; but it is clear that, in view of the allegations of the insolvency of Beddinger, and the fact that Beddinger had been'unable to satisfy his judgment upon execution against Stevie, Evans was entitled to be protected against the collection of the judgment from him until such time as 'it should be determined that no valid set-off could be obtained in the form of a judgment in favor of Stevie in the pending suit. Therefore, we think, that while the trial court did not err in sustaining the demurrer, it should have stayed the issuing of execution upon such judgment until the right of set-off could be determined in the then pending case of Stevie v. Beddinger. It was stated by counsel in oral argument in this court, and not disputed, that a verdict by direction of the court wás reeéntly rendered in favor of Stevie for $150 in that case.

Under the statutory power conferred upon this court to modify judgments, we will so modify the judgment of the common pleas court as to stay the issuing of execution upon the judgment until after the final determination of the action set out in the answer of Evans. The judgment as so modified will be affirmed.

Richards, J., and Kinkade, J., concur.