text:
    (Sixth Circuit—Sandusky Co., O., Circuit Court
    Dec. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    CORTHELL v. THE STATE.

      What Bill of Exceptions must show—
    1. A bill of exceptions must show that it has been filed, signed and allowed by the court and made a part of the record before it can receive the consideration of a court on appeal.

      Proof required under an indictment—
    2. It is error on the part of a court to require proof of something not alleged in an indictment or not in issue.

      Effect of a demurrer before motion—

    3. A demurrer filed before motion to quash or a plea in abatement is presumed to admit the facts as stated in an indictment, and such motion of plea will not be allowed thereafter.

      Insufficiency of allegations — ■
    4. An allegation that an explosive was in close proximity to a public highway does not conform to the statute which requires that before the same shall be ordered to be moved it must be within such distance to a residence or dwelling as to cause accident in case of an explosion, and in that case must be removed to a place of safety.

      What indictment should contain—
    5. Every indictment should contain a complete description of the offense charged, and must in all cases contain the negative averment if the matter of such exception enter into and become a part of the description of the offense.
   King, J.

Error to the Court of Common Pleas of Sandusky County.

Plaintiff in error was indicted under provisions of section one of an act of the general assembly, passed April 12, 1893, and was tried upon the indictment as found, and convicted and sentenced in accordance with the provisions of the statutes relating to that subject.

A motion for a new trial was made and overruled. A-bill of exceptions was taken, and the case brought to this court for review. The record does not show that the bill of exceptions was ever filed, signed and allowed by the court, and made a part of the record, and that being so, the errors, or alleged errors, set forth in the bill of exceptions cannot receive any consideration at our hands, if the 'result of that consideration was to in any wise modify the judgment of the lower court. It is necessary in order to have a bill of exceptions considered, that it be allowed by the trial court and made a part of the record, and the record must show that fact. There are, however, some questions argued in connection with it that I will refer to.

The claim is made that the verdict is against the weight of the evidence, and that I dismiss; that improper evidence was admitted on the part of the State is the principal claim. Questions were asked of one of the witnesses for the state relating to his qualifications. - An objection is predicated upon the statute authorizing ail inspection of factories and magazines were nitroglycerin and explosives are either manufactured or stored, to be conducted under the inspection laws of the state, and under jurisdiction of the state inspéctor of workshops. The state inspector of workshops is required byjthe statute,'' to designate one of the district inspectors, a'jman whoHhas knowledge of explosives, as general inspector\in the [state, of explosives in and of all factories and magazines where the same are either manufactured or stored. It is claimed that it was error for the court to admit certain evidence offered by the State that he had had experience and ['was a fit person to have been appointed to that position. The court admitted evidence of that bind on the part of the State, and charged the jury that it must find that he was that kind of a person, and it is here urged that the testimony admitted was not competent to prove that fact. Counsel for both parties seem to agree that it was necessary for the State to prove he competency of this official. It was.not prejudicial to the defendant, but it was erroneous on the part of the court to require the State to prove something that was not alleged in the indictment, and prove something that was not in issue. If juries are to determine as to the qualifications of state or county officials before a man can be convicted of a violation of law, we would have a queer state of affairs. They might as well inquire into the qualifications of the prosecuting attorneys and grand jury. The statute has specifically prescribed what the course of proceeding shall be when anybody has cause to inquire into certain defects. Under section 7248, the accused may except to an indictment by: 1st, A motion to quash; 2nd, A plea in abatement, and 3d, A demurrer. A motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of an indictment, or in the manner in which an offense is charged.

Under section 7250, a plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto, and under that clause a plea in abatement might be filed and under it certain things might be shown.

Uuder section 7253, it is provided that the accused shall be taken to have waived all defects which may be excepted to by motion to quash or plea in abatement by demurring to an indictment; so if the question of the competency of this official could have been raised at all, the right to do so was waived by filing a demurrer, or pleading not guilty, so that was not a question to submit to the jury. It was none of their business whether the state inspector was qualified or not qualified In that connection it was said or shown on the trial that he had been appointed under the statute that was repealed, and the same argument applies to that • Whether he was or was not a state official, is not a matter that could be referred to the jury I only refer to these because they may become pertinent questions hereafter, and that is all I care to say about the questions which arise upon the papers presented here, called a bill of exceptions.

Before the case came to trial, defendant filed a demurrer to the indictment, and it has been argued that that demurrer should have been sustained, and we have examined the question with considerable care and looked at this indictment from all directions aud are constrained to hold that the demurrer ought to have been sustained, but not for any of the reasons that have been by counsel suggested to this court.

It has been argued that this indictment was in fault, because the law did not, in any respect, authorize the finding of an indictment charging such an offense, as is here attempted to be set forth. We cannot come to this conclusion. I will refer just briefly to the statute itself. It was passed April 12, 1893, repealing section 1 of another act passed a year before which was the first statute upon that subject, passed April 15, 1892. That statute consists of two sections. The first section is as provided by act of 1893, the second remains and is still the law. The first section as amended reads:

“That the chief state inspector of workshops and factories shall appoint from among district inspectors of workshops and factories, whose appointments are now author-zed by law, at least one inspector who shall be a skilled and experienced person, thoroughly conversant with the manufacture and use of powder, dynamite, mtroglycerin, fuses or other explosives and their compounds, whose duty it shall be to inspect all manufacturing establishments in state of Ohio wherein the manufacture of powder, dynamite, nitroglycerin, fuses or other explosives are manufactured, and all magazines or store houses wherein such explosives are stored, and he shall personally inspect the process of manufacture, the handling and storage of such explosives, and he.may direct and order any changes or additions that he may deem necessary in or about such manufactories, magazines or store houses for the safety of the employes and the public, and when on inspection it is found that any manufactory, magazine or storehouse mentioned herein is in such close proximity with any residence or dwelling as to cause accident in case of an explosion, the said inspector may cause said explosives to be,removed to a place of safety, the distance to be calculated by the quantity and quality of the explosive so stored or manufactured, and the said inspector may, with the advice of the chief inspector, advise such rules and regulations as he may deem necessary in addition to the provisions of the statute now giving authority to the inspector of workshops and factories, and his assistants, all of which shall be applicable to the places of manufactory, sale and storage of explosives named in this statute. ”

Section 2 provides “that said inspector of workshops and factories shall enforce the provisions of this act under the same conditions and penalty as applied in section 2573c of the Revised Statutes.”

Before I go to thej’others, I want to say it is clear from • the reading of this statute that it is indefinite in many, respects, and it is not to .be wondered at that any lawyer who had not had extensive practice in criminal proceedings, would be unable in the^first instance to draft an indictment that would cover the offense he was seeking to charge, or the facts he was intending to prove, as within the provisions of this law; but still, as I have once said, I do not think the law is so indefinite that an offense cannot be charged under it. This statute was passed in addition to a statute in force in the state of Ohio relating to a system of inspection laws that have been passed in the last few years. The section to which reference is made and under which penalties are enforced was amended in 1892, same volume of Ohio Laws, page 112, and that section provides that inspectors shall, after having faithfully inspected various places that are named in the statute, notify the owners, proprietors, or agents of such establishments or factories to make alterations or changes within thirty days, and if such alterations and changes are not made within thirty days, or within such time as such alterations can be made, such proprietors, owners or agents, shall be deemed guilty of a misdemeanor, etc.

These provisions are applicable to the subsequent statute relating to nitroglycerin factories and storehouses. It may be said that if the owners or proprietors or agents of these,having been so notified by the inspector, did not make the alterations or make the removals required by him within thirty days, if such additions or removals could be made within that time with the exercise of proper diligence on the ' part of the owners, they would be guilty of a misdemeanor.

Now this indictment charges: “That O. S. Corthell, at the county of Sandusky, Ohio, was one of the owners and managers of a nitroglycerin magazine, and did then and there keep on hand a large amount of nitroglycerin, and then and there did unlawfully, knowingly and willfully and negligently permit and suffer said nitroglycerin magazine to be and remain at an unsafe distance from a certain public highway, and a certain public building, to wit, a schoolhouse, contrary to a notice served upon the said C. S. Corthell by the state inspector"of workshops and factories, which notice was dated February 28, 1895, though more than thirty days have elapsed from the date of said notice, and said C. S. Corthell has had sufficient time to make said alterations in accordance with said notice of February 28, 1895, to the great damage, danger, prejudice and common nuisance of the citizens of the state of Ohio, there being and abiding.”

Section 1, which I have referred to, provides that this inspector may direct and order such changes or additions as he may deem necessary in such factories or magazines for the safety of employes; he may do that in the first place; in the second place, upon an inspection if it is found that such a concern, a nitroglycerin magazine or factory, is in close proximity to the residence or dwelling or in such close proximity to a residence or building as to cause accident in case of an explosion, he may cause said explosives to be removed to a place of safety. It seems clear the pleader intended to follow the second clause relating to the removal of these explosives, the one authorizing notice to be given to the one who conducts a business where the manufactory or storehouse is within close proximity to a residence or dwelling, and not as alleged in this indictment within close proximity to a highway or schoolhouse or public building. So that allegation in the indictment does not fully conform to the statutes, and we have not the power, nor has any court the power to extend by construction the language that has been placed in this statute. The allegations that this was in close proximity to a public highway does not conform to the statute, which requires that before such an order can be given to remove these explosives that it must be within such distance to a residence or dwelling as to cause accident in case of an explosion, and in that case must be removed to a place of safety. So far as that allegation in itself is concerned it would seem not to be proper to extend the rights of the authorities further than the statute has given permission. Following this a little further I want to say that allegation is indefinite as well as being beyond the terms of the statute — in saying and alleging that he did this contrary to a notice served upon him by the state inspector of workshops, which notice was dated February 28, and for more than thirty days from date of the notice still continues to keep his magazine there. This is indefinite, because there is no direct allegation there of any fact. No allegation that notice was ever served on defendant. I think that the indictment should set forth in substance the condition of the notice. He should be informed by 'the indictment what they had notified him to do, and upon which they predicated the allegation of the offense against the laws of the state. This it does not do. It alleges that he permitted this magazine to remain thirty days beyond the date of the notice. This is of no importance. The law says the notice should ask him to remove this structure or explosives within thirty days. Thirty days after service that means, nothing else. So the allegations in the indictment should be specific, and allege that he allowed them to remain beyond a period of thirty days after the notice to him.

After saying this much about the indictment, I want to say beyond that, that so far as the bill of exceptions discloses it seems clear that an indictment framed, upon the facts claimed here would be sufficient.

This statute contains two provisions with reference to what may be done. In the first instance, after inspection, an inspector may order any changes or additions that he may deem necessary in said factory, or store house, for the safety of its employes or the public. That is a very broad provision of the statute, and certainly gives power to the inspector to require this for the safety of the public as distinguished from the following clause which refers to the dwelling house or residence. True,that the forepart of the statute does not refer to any removal of the explosives, but it does say he may order any change, alteration or addition which he may deem necessary for the safety of the public, and I do not see why he might not change the place of storage as well as to change the form of construction, if that be necessary for the safety of the public, and that would include, of course, those who pass along the public highway, and those who attend the public school. If such an order was made, it would be entirely within the power of the grand jury to find an indictment if such an order had been disobeyed' for a period of thirty days.

In this connection I want to say that under the provisions of the statute to which I referred there is another provision which also ought to be noticed; that if he fails to comply with the order the inspector shall notify the owner or proprietor of such shop or factory which will include by construction a magazine or nitroglycerin factory, to make the alterations or additions necessary within thirty days, and if they are not made within thirty days from the date of said notice or “within such time as such alterations can be made with the exercise of proper diligence on the part of said proprietors or owners,” said proprietors or owners so notified shall be deemed guilty of a misdemeanor. It would be necessary, in drafting an indictment under that section, to negative the fact that not only had he allowed his magazine to remain in this position, dangerous to the safety of the public for a period of thirty days, but that he also had allowed it to remain for a period longer than he might, by he exercise of proper diligence, have made the changes required in the notice of the inspector.

One or two questions upon the general provisions relating to the indictment. It is laid down in the 11th Ohio, 282, that it is a rule of criminal law, based upon sound principles, that every indictment should contain a complete description of the offense charged. That it should set forth the facts constituting the crime, so that the amused may have notice of what he is to meet, and so that the court, applying the law to the facts charged against him,may see that a crime has been committed. And upon the question as to negativing all of these exceptions ^contained in the statute, Judge Ranney said in the 4th Ohio State, page 477: “It is perfectly well settled that the indictment or information must in all cases contain the negative averment, arid there is no doubt as a general rule, that some proof must be given to sustain it, where the grouhd of action rests upon such negative allegation, or where the statute in describing the offense, contains such negative matter; and where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise. “And again, in the 17th Ohio State, 453, it is said a negative averment in the matter of an exception in a statute is not requisite in an indictment unless the matter of such exception enter into and become a part of the description of the offense.

And in the 4th Ohio State it was held that that rule was so applicable to all cases unless the subject matter to the negative averment lies so peculiarly within the knowledge of the defendant that it could be readily and easily proved by him, and cannot without great inconvenien ce be proved by the party making the averment, “unless the proof is pratically beyond the reach of the government and clearly within the power of the accused,” says JudgeRanney.

We hold that the demurrer should have been sustained, and the judgment should therefore be reversed and remanded to the court of common pleas.


source: Caselaw Access Project

author: Laubie, J.

license: Public Domain

text:
    (Seventh Circuit—Mahoning Co., O., Cir. Court,
    April Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    PITTSBURGH & LAKE ERIE RAILROAD COMPANY v. JOHN W. BLAIR.

      Suit for damages for personal injury — Evidence—Amputation becoming necessary after petition filed — Fact admissible in evidence without amending petition.

    1. Where, in an action to recover damages for personal injury, the petition alleges an injury to the hand “necessitating the amputation of three fingers, ” it is competent upon the trial, without amending the petition or filing a supplemental petition, to prove that since the commencement of the case it has become necessary to amputate the remainder of the hand at the wrist, as a direct result of the injury complained of.

      Same — Conductor getting off train while in motion — Contributory negligence — Burden of proof .

    2. If the plaintiff, the conductor of a freight train, by his own testimony shows that he received such injury by a car wheel running over his hand, by reason of a fall from a defective car stirrup, in attempting to get off his train while it was going at the rate of four or five miles an hour, in the middle of the night, with a lantern on his left arm, and his left hand partially disabled, at a station where he was required to register the time of passage of his train; and that the rules of the company did not require him to get off while the train was in motion, but authorized him to cause the engineer to bring the train to a stand-still, such testimony raises a presumption of negligence on his part, and the burden is upon him to rebut such presumption, and the court should so instruct the jury, if attention is called to the matter at any time before the jury retires.

      Same — Railroad running in two states — Contract of service and injury occurring in other state, Jurisdiction of Ohio court.

    3. Where an action for personal injury, resulting from a defect in appliances or machinery, against a railroad company operating by lease or otherwise a line of railroad partly within the State of Ohio and partly within the State of Pennsylvania, and where it appears that the plaintiff’s contract of employment with, the railroad company was made in the State of Pennsylvania, and his services under that contract were to be and were actually performed on said road wholly within the limits of the State of Pennsylvania, and that said accident occurred within said State, whether the second section of the Statute of Ohio, volume 87, page 149, relating to the presumption of knowledge and of negligence in such cases, applies when it would change the legal effect of such contract under the law of the State of Pennsylvania, quaery?

      Excessive verdict — Facts—$8,000.
    4. Where the plaintiff, a freight conductor, has his left hand crushed in an accident necessitating first,the amputation of three fingers, and afterwards, the amputation of the balance of the hand at the wrist, and where it appears that prior to the accident one of the bones of the plaintiff’s left hand had been broken in the palm of the hand which had resulted in at least one and probably two fingers of that hand becoming stiffened and withered, but which prior accident did not incapacitate him from performing his duties as freight conductor, Held : That a verdict of eight thousand (88,000.00) dollars was excessive, but the plaintiff below having voluntarily entered a sufficii nt remittitur, that error is cured.
   Laubie, J.

In this case the Railroad Company seeks to reverse a judgment rendered against it in favor of Blair for $8000, for an injury to his hand.

Counsel for the plaintiff relied very strongly upon what is claimed to have been an erroneous holding on the part of the court below in the admission of evidence of the second amputation of the hand. It seems that at the time of the filing of the petition the plaintiff had,by reason of this accident certain fingers of the hand amputated, and leaving the thumb and index finger of the hand still upon it. But before the trial, under the advice of his physicians, he was compelled to suffer an amputation of the whole [.hand, or of the remaining part of the hand, at the wrist. It was alleged in the petition that three fingers of the hand had to be and were amputated by reason of the injury, and objection was made to testimony as to the second amputation on the ground that it was not alleged in the petition, and that defendant had no notice of it, and was not prepared to meet it. But we think the objection was not welljtaken. The plaintiff might have proved by medical testimony upon the trial, a permanent injury being alleged, that it would be^necessary thereafter to amputate the hand; and if he might do that, certainly he would be entitled to show that it had been in fact amputated since the filing of the petition, without setting it out in a supplemental petition.

It is claimed that the court below erred in instructing the jury that it might take into consideration the ordinary method amongst railroad conductors of getting off trains at registering points, in order to ascertain whether or not, the plaintiff was injured by his own negligence. He was a conductor of a freight train, and by reason of a defective step fell,and the wheels of the car ran over his hand, in the night when the train was in motion, at a station where he was required by the rules of the company to register the time of its arrival and departure from that place. And he testified that it was customary for railroad conductors in performing this duty to get off while the train was in motion; and subsequently, on cross-examination, he testified that he bad seen others get off moving trains for the purpose named. There was no objection taken to this testimony; it was gone into voluntarily apparently by both parties, and no objection of any character was made to it until after the court’s charge, and then the counsel for the defendant below excepted to the court permitting the jury to consider it.

Now while it is true that the court might have properly refused to submit the matter to the jury, yet where the evidence went in without objection, so that it was before the jury, it was not error for the court to permit the jury to consider it. If there had been objection taken to the testimony so as to have raised the point at the threshold, and made it where and when it should have been made, a different proposition would be presented. This court has heretofore declared that such testimony is incompetent, and cannot be introduced for the purpose of excusing negligence on the part of the plaintiff, because if it is a negligent act, no amount of custom can make it otherwise. But as there was no objection whatever made to the testimony, the court might, in its discretion, submit it to the consideration of the jury.

Exception was taken to the charge in regard to the knowledge of the defect by the company. The claimed cause of the injury by the plaintiff was, negligence of the company, in permitting to be upon one of its cars a defective stirrup or step, upon the end of the car, for the use of the employes of the company in getting on and off the train; and it became an important question in the case whether the defendant company had knowledge of this defect or not'. The accident occurred the 4th of September 1894, and consequently after the act of April 2, 1890, 87 O. L. 149, was passed. The second section of this act provides: “It shall be unlawful for any corporation to knowingly and negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging, are in any way defective. If the employe of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employe, or his legal representatives, against any railroad corporation for damages,on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation. ” The words “such corporation”, as used in this section,refer to corporations of the kind and character named in the first section of the act. That is, corporations owning and operating, or operating, or that may hereafter own or operate a railroad in whole or in part in this state. This case having been not only tried, but 'the accident itself having occurred long after the passage of this act, if the facts were of a character necessary to bring it within the statute, it would be subject to its provisions, and would be required to be tried with that in view. The case, however, in fact, was not tried below with reference to that statute, and no claim was made as against the defendant by virtue of its provisions, but the case was presented to and tried by the court, upon the common law ,liability of the defendant. But here counsel for the defendant in' error raised the question of the applicability of this statute to the case, and we are therefore not permitted to overlook it; perhaps we would not in any event, as it is the general law of the state; but at all events we are not permitted to overlook it when it is raised by counsel in the case. Was plaintiff in error a corporation owning and operating, or operating, a railroad partlj within and partly without this state at the time in question ? Of that there is no dispute. The pleadings concede it was, and that it is a corporation organized under the laws of this state as well as of the state of Pennsylvania. The service that Blair was performing at the time was performed in the state of Pennsylvania, and there is where he was injured.

He had been running as conductor on the branch road of the ^company between Pittsburgh and Ohartiers station for six jor eight months prior to this injury, and he was at the time ofjthe injury on a return trip ¡¡from Chartiers station to Pittsburgh; so that he was in the performance of services entirely within the state of ^Pennsylvania. It does not appear, however, that the contract of service was made injthe state of Pennsylvania. It appears fromjthe record that the plaintiff had his residence in this city-when he was originally hired by the company, and still resides here. That he was originally hired to work upon the road as conductor to run between Youngstown and some point in Pennsylvania on the line of the road, and so continued for several years; but six or eight months before the accident he^was assigned by the assistant train master of the company to this branch in Pennsylvania, to take charge as he said of the double (BB) caboose. It does not appear by the record where the assistant train master’s office was, nor where he lived; all that appears is that Blair was hired by the company, and was assigned to do business wherever his superiors chose to put him, and for a few months before this injury was received he had been assigned to duty upon thejoranch road in Pennsylvania where he was injured. And as this corporation was running and operating a road partly within and partly without this state, and as the contract was not shown to have been made in Pennsylvania, the case is governed by the act referred to. If the contract had been made in the state of Pennsylvania, and to be wholly performed there, I think this statute would not apply. In McCann v. Pennsylvania Company 10 C. C. R., 139, there was, as in this case, nothing to -show that the contract was made in the state of Pennsylvania, and therefore this court held that the provisions of the act of April 2, 1890, supra, applied to the case, because in such case those provisions affected the remedy only. It would be different if the contract had been made and was to be performed wholly in Pennsylvania. A contract made in the state of Pennsylvania,for a service to be performed in that state,must be governed by the law of that state; and no other state, by reason of the provisions of the constitution of the United States, can be permitted to violate it or change its legal effect as declared by the laws of the state of Pennsylvania. So that if the contract had been made in the state of Pennsylvania, to be performed there, then the effect of this statute would be to create a cause of action in this state in favor of the employe which he would not have in the state of Pennsylvania; because, as shown by this record, in the state of Pennsylvania, inspectors and conductors are fellow-servants, and if the accident was caused, as claimed both here and in the Me Cann case, by the inspector’s negligence, plaintiff (a conductor) could not recover. And this statute, which applies solely to the remedy,cannot either directly or indirectly make that a cause of action here which was not such in the state of Pennsylvania. But this question does not arise in this case, as it does not appear that this contract was made in the state of Pennsylvania. This consideration also applies to the exception taken to the charge of the court in submitting whether or not the defendant had a corps of competent inspectors whose duty it was to inspect this car.

It is claimed that there was no question in the case of the competency of the inspector, because no such claim was made in the petition, and that the sole allegation in the petition in this regard was that the company had no inspector at all at Jacob’s Run to inspect the car. But these matters all disappear by reason of the force and effect of the statute referred to, which makes a prima facie case, and throws the burden of proof upon the defendant where the accident occurred through a defective piece of machinery or appliance, when the defect is shown to have existed which caused the injury.

The answer, however, among other things, alleged that the defendant company had a competent corps of careful inspectors along its line, whose duty it was to carefully inspect cars substantially at every station upon its line, and wl o regularly and carefully performed that duty; that in the state of Pennsylvania the plaintiff and such inspectors were fellow-servants, for whose negligence no recovery could be had by the plaintiff; that it had discharged its duty to the plaintiff, and if he was injured by reason of the negligence of such inspectors in failing to discover and remedy such defective step, the plaintiff could not recover of defendant therefor. In Railroad Company v. Erick 51 Ohio St., 146 the same answer was made substantially, and the court held that it was no defense under the statute referred to, and that the company could only relieve itself from the imputation of negligence by showing that actual, careful and proper inspection had been made of the car in question, and no such defect found. These matters, therefore, all passed out of this case by virtue of the provisions of the statute in question. Whether there had been an actual inspection of the car was properly left to the jury under further issues in the case.

The next proposition that is made is as to the burden of proof upon the question of contributory negligence. The court charged that the burden of proof of contributory negligence was upon the defendant,unless the testimony on part of the plaintiff raised a presumption of contributory negligence on his part, and if the jury found that it did, then the burden of proof would rest upon the plaintiff to rebut and remove this presumption, and produce a preponderance of evidence that contributory negligence upon his part did not exist. Counsel for the company excepted to this, and insisted that the court should have instructed the jury that the burden of proof on this point was upon the plaintiff, and a majority of this court think that should have been done. Undoubtedly,in this state the'practice is.to submit the question to the jury, and allow them to determine upon which party the burden rests; but this court has heretofore held that the rule was intended to, and does, apply only to cases where the question is doubtful under the evidence. As I have had occasion to say heretofore in regard to this rule, it is an unfortunate one at best. It seems as if it grew out of an attempt to shove responsibility from the shoulders of the court to those of the jury, and at the expense of the parties litigant. I think a party should have the right to have the court say upon whom the burden of proof rests, whether upon the plaintiff or upon the defendant, and to take exception to it if it is against him. This rule places the court in the undignified position that when counsel asks the court to say upon whom the burden rests, the 'court has to respond. “Oh, I don’t know, you will have to ask the jury.” And this in regard to a legal proposition, and not a question of fact.

If the facts are such that it is doubtful whether or not the plaintiffs testimony raises such a presumption, this rule applies, and the question must go to the jury, the court not being permitted' then to determine it; but if the presumption is not doubtful, if the facts are such that there can be no reasonable presumption but that of negligence, then the rule does not apply in our estimation, and it is then a question of law only to be determined by the court.

Now, how is it in this case? Blair was conductor of this • train with the authority to stop it by signal to the engineer, in the performance of his duties whenever he saw fit, and at, the point where he got off the train at West Newton, to go. to the office to register, he was authorized by the rules of the company to stop the train, and was not required to get off while the train was in motion. He was not required to expose himself to injury in that form, but was authorized to bring the train to a standstill in order to allow him to get off in safety, to go to the office. - and register. Instead of doing this, and taking what would have been a reasonably safe course for him, in the middle of the night, in the dark, with a lantern upon his left arm, and his left hand partially useless, he undertook to get off while the train was going as he says himself, four or five miles an hour. He did not even use his lantern to light the way. Instead of holding it down so he could see what was below him, whether everything was in order below him, and where he was going to step to, he had it upon his arm.

He claims he was injured because the stirrup or step of the car was loose at one side; the nut was off the bolt, and when he put his weight upon the step, it gave way and threw him down, and'the train ran over a part of his hand. Beyond any question, he could not have suffered such an injury if he had performed his duty in the way the company had authorized him to do it — -to stop his train, bring it to a standstill, before he attempted to get off. Now, I do not say that this was negligence per se, that it was such negligence as would absolutely bar a recovery, but I do say that the only reasonable presumption that could be drawn from this state of facts is that of negligence; that it would be intolerable to permit a jury to say that to attempt to get off a moving train in the dark in that manner and under those circumstances, did not raise a presumption of negligence.

Concede that the case should go to the jury to determine whether it was such negligence as would bar a recovery, but that the facts as told by himself raised a presumption of negligence against the plaintiff, I think is beyond dispute.

Thejopinion expressed in Grant v. Railway Co., 10 C. C. R.,362 as to the safety of such an act, had .reference entirely to the evidence the court was then called upon to review as it had been presented by the plaintiff, and by way ofjcomparison to getting off in front of a locomotive; and is not to be understood as holding that such -an act is in fact a safe one or free from negligence. It is perhaps generally held that it is not negligence per se to get off a moving train, while it is movingjslowly; but many courts hold that it is negligence per se, and bars recovery. This case itself illustrates the danger of getting off a moving train, in that the plaintiff in do.ing so was injured and run over; and in such a case, that a jury may be permitted to hold that the burden of proof of contributory negligence is on the defendant, because the evidence does not even raise a presumption of negligence against the plaintiff would be unjust.

In his passage from the top of the car to the ground, Blair had many things to contend against. Accidents of this character will occur from various causes. One man is injured because the hand hold is defective or broken, or gone. Another is injured because the stirrup is defective. Another,because when he steps down on to the ground, he steps on a pebble or in a small hole, and his foot turns and he is thrown under the train. There are a hundred different ways wherein in attempting to get off a moving train, andjespecially in the night, an injury may occur to the party, and where ordinary care and caution for his own safety would require that he should, if he had the power to do it, stop the train, bring it to a standstill, so he might alighUin safety; and beyond all question the burden of proof should rest upon him who voluntarily and unnecessarily runs such a risk; and giving the jury the'right to find otherwise is in violation of the rule as heretofore laid down by. this court, and which this court intends to follow until the Supreme Oourt holds that it is wrong. In the opinion of a majority of this court, the court below erred in submitting this proposition to the jury, instead of instructing them that the burden of proof as to contributory negligence rested upon the plaintiff. There was no necessity of the court telling the jury why, that it was because the plaintiff’s evidence raised a presumption of negligence on his part, so as to prejudice his case by the expression of such opinion. All the court had to do was to instruct them that the burden of disproving contributory negligence rested upon the plaintiff; and for not doing so this case will have to be reversed.

James P. Wilson and S. D. Jackson,for plaintiff in error.

W. S. Anderson and R. B. Murray, for defendant in error.

There is still another question, that is as to the amount of the verdict, or damages. The jury awarded to the plaintiff the. sum of $8,000. It seems that his hand had been injured before, and that for a year he had but partial use of that hand, The bones of one if not two of the middle fingers had been broken just above the knuckle joint,and he could not shut the hand tight, and the other fingers were withered somewhat. For the loss of this imperfect left hand, the jury awarded him the sum of $8.000,and we all think that this was excessive, and could have been given by the jury only through prejudice or passion, But this matter has been arranged and a remittitur agreed upon, so that the question as to the charge may be the sole question presented to the Supreme Court for revision, and the case is reversed, therefore, solely on that one ground.

Burrows, J., dissents from the first proposition of paragraph 2, of the syllabus,


author: Follett, J. Hale, J:

text:
    (Fifth Circuit—Richland Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Follett, Hale and Pomerene, JJ.
    (Judge Hale of the Eighth Circuit taking the place of Judge Jenner.)
    STATE OF OHIO ex rel E. H. ZURHORST et al v. NORMAN M. WOLFE.

      Prejudice or bias of Judge — Proceeding to have case tried by another Judge — Section 550 Rev. Stat.

    After the affidavit asking for the designation of another judge to try the case on account of prejudice or bias is filed with the clerk, the judge against whom prejudice Or bias is alleged, has under sec. 550 Rev. Stat., nothing further to do with the case.

      Prejtidice or Bias — No facts need be alleged or be shown.

    Where parties claim bias or prejudice,they need not set out facts upon which they base their claim. Whether a man is biased or not is a fact of itself, and it is not necessary to state something else to show that he has such bias. The fact of bias or prejudice is not issuable.

      Misjoinder of parties in such case.

    Different parties cannot join in the proceeding to disqualify a judge in different actions in which they are not jointly liable or interested.
   Follett, J.

This case is in this court upon an alternative writ of mandamus that was allowed by Judge Jenner and Pomerene, and it is now here on the answer and reply of the parties.

First Defense — Defendant admits that the said John D. Nicholas is judge as alleged and was during said month of October the presiding judge; and admits himself to be judge as alleged and presiding as alleged to succeed said Nicholas, and defendant denies each and all the allegations of said petition not herein expressly admitted.

Second Defense — Defendant says that said second subdivision of the sixth judicial district contains two judges duly elected, qualified and acting,and no more, to wit: The Hon. Thomas Duncan and this affiant, and alleges that said affidavits and each and all'and every part thereof are false in fact and untrue,, and alleges that each and both said judges are wholly disinterested, unprejudiced,¡unbiased as to each and all said causes, and in no wise disqualified to sit and try the same. And further, that each and all said affidavits are insufficient in law.

Third Defense' — Defendant says: That there is a misjoiner of parties and causes of action in this, to wit: that of said relators only said French and Zurhorst are parties to said cause numbered 5332; only said French is a party to said cause numbered 5,605; only said Zurhorst is a party to said cause numbered 5746; only said 'Kunz, said French and said Zurhorst are parties to said cause numbered 5857; none of said relators are parties to said causes numbered respectively 5621, 5792, 5848 and 6151; and said relation and interest of said relators to said numbered causes is not ncr was it at the commencement otherwise or different than herein alleged.

Fourth Defense — Said petition was not .originally prepared, signed or verified with reference to this defendant, but was so prepared, verified and sworn to preparatory to an action about to be brought in the Circuit Court of Coshocton county against said John D. Nicholas, and against no other or different person whomsoever, and said original petition was afterward mutilated and changed so as to make it apply against this defendant.

Said changes and mutilations are as follows, all of which were made after the same were sworn to and before the presentation to this court for the allowance of the alternative writ: The name of the defendant in said verified petition was John D. Nicholas, only, instead of Norman M. Wolfe, as appeared in the style of the case preceding the allegations thereof, who was there described as a judge ¡¡of the third subdivision of said district instead of the second subdivision, as it was mutilated to make it appear. Said verified petition contained the following allegation: “Relators state that defendant, John D. Nicholas, is the judge óf a court of common pleas in and for the third subdivision of the sixth judicial district of the state of Ohio.” Said allegation was mutilated by erasing the word “defendant” and inserting the word”one;’’and further changed by inserting after the words “common pleas” the words “duly elected and qualified.’’And further, said original petition was so mutilated and changed by adding to the allegations thereof the following: “Said N. M. Wolfe is the duly elected and qualified judge of the common pleas court in and for the second subdivision of the sixth judicial district of the'state of Ohio.”

Further, said original petition contained the words “N. M. Wolfe, judge of the Common Pleas Court, ” which was so changed as to read “N. M. Wolfe, defendant, judge of the Common Picas Court.”

Further, said original petition contained the following allegation, to wit: “That immediately on the filing of the said affidavits above set forth, in each and every above named case, the clerk of the common pleas court of Rich-land cpunty, Ohio, then and there entered the fact of the filing of each and every affidavit above set forth in each and every above named case on the trial docket of said court of common pleas of Richland county, Ohio, as required by law, and thereupon the said clerk of said court of common pleas of Richland county, Ohio, did then and there notify the then presiding and supervising judge of the sixth judicial district of the state of Ohio, the Hon. John D. Nicholas, who was not then disqualified himself and is still qualified to act in said above entitled causes, and who has failed without any fault on the part of these relators to proceed in the manner provided by section 469 of the Revised Statutes of Ohio, to designate and assign some other qualified judge of the common pleas court of said sixth judicial district outside of the second subdivision of the said sixth judicial district, to hold the court of common pleas in Rich-land county, Ohio, and try the causes where the above named causes are pending in said common pleas court of Richland county, Ohio; said Hon. John D. Nicholas, having delayed to make any such appointment to the present time, and having failed to designate and appoint some qualified judge of the sixth judicial district to try the above causes as required by law.”

Defendant says: Said allegations were changed first by" the following insertions, to wit: Immediately following the words therein, “as required by law,” the following allegation, “of which court said N. M. Wolfe was then judge.” Also immediately preceding the words therein “who was not then disqualified himself, ” the following allegation:“ and did also notify the said Hon. JohnD. Nicholas, as judge of the common pleas court in and for the third subdivision of the sixth judicial district of Ohio,” and also immediately preceding the words therein, “to hold the court of common pleas, in Richland county, Ohio,” the following allegations: “and designated and assigned himself the said John D. Nicholas aforesaid, and has notified the defendant, N. M. Wolfe, of such designation.”

Defendant further says: Said allegations were also changed and mutilated by striking out the following, “has failed without any fault on the part of these relators”, and by striking out the following language: “Said Hon. John D. Nicholas, having delayed to make any such appointment to the present time, and having failed to designate and appoint some qualified judge of the sixth judicial district to try the above causes as required by law.”

Defendant further says: Said original petition contained the following prayer, which prayer followed the allegations 'of said petition so mutilated and changed as aforesaid, to-wit: “Wherefore relators pray that a peremptory writ of mandamus issue to said Hon, John D. Nicholas as judge of the common pleas court of the third subdivision ofjthe sixth judicial district of the state of Ohio (the said^N. M. Wolfe, the present supervising judge of said sixth judicial district, being disqualified to act in the premises as aforesaid), commanding him to designate and assign some judge of the court of common pleas of the sixth judicial district of the state of Ohio, outside of the second subdivision of said sixth judicial district, and being properly qualified, to hold the court and try these causes where said above named causes are pending in the court of common pleas of Richland county, Ohio.”

Defendant says: The above and foregoing was all of said prayer, and the only prayer when said petition was so verified as aforesaid; but before the same was presented for the allowance of said pretended writ,said prayer was so mutilated and changed to make it read as follows, to wit: ‘‘Wherefore relators pray, that a peremptory writ of mandamus issue to said Hon. N M. Wolfe as judge of the common pleas court of the second subdivision of the sixth judicial district of the state of Ohio (the said N M. Wolfe, judge of the common pleas court of the said sixth judicial district, being disqualified to act in the premises as' aforesaid), commanding him to allow said Hon. John D. Nicholas, as judge aforesaid, to hold the court of common pleas in Richland county, Ohio, and try each and every one of the above named causes; and that he, the said N, M. Wolfe, refrain from deciding any one of the above named .causes, or rendering any order or decree, or taking any action in any of the above named causes.”

And defendant says: That before said petition was so mutilated and changed, to wit: On the 19th day of November, A. D. 1894, in the county of Erie and the state of Ohio, before one George H. Peeke, an alleged notary public, the said Ed. H. Zurhorst subscribed and.verified the same, and then and there declared upon his oath that the allegations of said petition in its original form were true as 'said Zurhorst declared he then verily believed; and defendant says: That neither before or since said pretended verification and said mutilation has said petition been differently verified or sworn to, nor has the same in its present form been verified, signed or sworn to by any person or persons whomsoever, and that said alternative writ was procured by fraud and imposition practiced upon honorable judges of this court, and without any evidence or affidavit either of the truth of said averments, or even in. belief thereof. Wherefore defendant asks to be dismissed, with his costs.

Now come the plaintiffs and relators, Ed Zurhorst and Charles W. French, and for a first reply to the answer of Hon. N. M. Wolfe say, that they deny each and every allegation that said answer contained.

And for a second reply', they say that since the allowance of the alternative writ herein, said N. M. Wolfe has complied with the order of the court, and has allowed the Hon. John D. Nicholas to hold court and make orders in all the cases mentioned in the objections of plaintiffs and relators herein, except the case of H. Balliett v. The Lucas Construction Co., which has since been settled to the satisfaction of these plaintiffs and relators.

The following are the statutes which authorize proceedings in mandamus:

'' Section 6742 provides for the writ and by whom it may be issued, and then section 6743 provides that the defendant may demur on the return day.

The answer makes the questions that might have been made upon demurrer. It has been urged that the petition does not show such a state of things as would authorize a writ of mandamus to issue. It. was issued against one of the judges of the court of common pleas in, the second subdivision of the sixth district, and the writ asks that he be directed to turn over to Judge Nicholas certain cases in which affidavits were filed which disqualified Judge Wolfe from sitting in said cases by reason of bias and prejudice.

The court does not find in this statute to which I am referring, that after these affidavits were filed, there was anything for Judge Wolfe to do further in said cases. But this writ asks that he be made to turn the cases over to Judge Nicholas.

The proceeding under section 550 provides for the affidavit which I will read:

“When a judge of the common pleas court is interested in any case or matter pending before the court in any county of the district, or is related to, or has a bias or prejudice for or against either oi any party in such cause, or is otherwise disqualified to sit in such cause or matter, and there is no other judge in the same subdivision who is not so disqualified, on the filing of an affidavit of either or any party in such cause or matter or of his or her counsel, setting forth the facts of such interest, bias, prejudice or disqualification, the clerk of the court shall enter the fact of the filing of such affidavit on the trial docket in such case, and forthwith notify the supervising judge, or if he be disqualified as aforesaid,a judge of some other subdivision who is qualified, of the district, who shall proceed, in the same manner as provided in section 469 of the Revised Statutes of Ohio, to designate and assign some other judge of the district not so as aforesaid disqualified, to hold the court and try the cause where the same is pending; and it shall thereupon be the duty of the judge so assigned to proceed and try such cause.”

Section 469 is a provision of the statute as to the judges of a district meeting to determine who shall be the presiding judge, at which tinie they apportion the work in their subdivisions among them, and designate what judge shall hold certain courts, etc. This statute, section 550, says, that on the filing of an affidavit, which is provided for in this section, the clerk of the court in which the affidavit is filed shall minute it on the trial docket, and then he shall notify the presiding judge who is to designate someone to try the case, if there is no other judge in the subdivision to try it, and those are the steps that are to be taken.

The clerk is to enter the filing of the affidavits on the trial docket, and that would be the end of the trial of that case by the particular judge that the affidavits applied to; his duty would cease, a nd there would be nothing more for him to do in reference to the case. It was for the presiding judge .then, to send some other judge there if there were no other judge in that subdivision qualified to try the case.

If there was such a judge, the supposition, would be that he would try the case without any special assignment.

In this case it is admitted that affidavits were filed, and the proof shows that they were filed with the clerk, and he noted them on the trial docket; also that they were sent to the then presiding judge, Nicholas, because the affidavit, it seems, applied to both judges in this subdivision. In that state of the case, the evidence tends to show that Judge Wolfe disregarded the filing of those affidavits, because, as he says in his answer, they were not sufficient in law, and he insisted on going forward as these parties complain.

It appears that Judge Nicholas did not move in the matter. We would have to infer that, at least, from the writ as originally prepared, on the ground, that there was no other judge that was not engaged. But I may speak of another objection that is made to the petition for this alternative writ, viz., that it was not intended to apply to Judge Wolfe, and was originally prepared and sworn to for a writ of mandamus to Judge Nicholas, who was then presiding judge of the district, on account of his not taking action in the matter as speedily as he should.- He had done nothing, and evidently the parties contemplated resorting to this remedy to compel him to do his duty as presiding judge. The petition clearly indicates, and, in fact, it is admitted, that it was originally prepared, not against Judge Wolfe, but as against Judge Nicholas, and intended to be filed in the Circuit Court of Coshocton county; but it is so altered as Jpply to Judge Wolfe, and one question is as to whether it was afterward sworn to by the relators. It may be somewhat suspicious, but counsel in]_the case have testified that it was verified and sworn to afterward, but we do not think much will turn upon that as we look upon the case now.

Judge Nicholas, as the evidence shows, did come here, and as the reply discloses, also did try these cases, and was permitted to try them by Judge Wolfe, as the alternative writ commanded'Judge. Wolfe to permit him to do, except one case which it is said was settled to the satisfaction of the parties.

This is the state of the case and of the pleadings, and, in the face of these facts, it is insisted that the affidavits were not sufficient to disqualify Judge Wolfe, or to come within the spirit or the letter of this section 550, as to bias and prejudice. It is claimed that the affidavits were insufficient, because they failed to set forth the facts of this bias and prejudice. The statute says, “set forth the fact of such interest.” If a judge were related to any of the parties, that is a fact; or, if he has an interest in the result of the litigation, as is claimed Judge Wolfe had, a judgment claim against some of these corporations and might be affected,» probably, by its solvency, if so, that is a fact. I speak of these matters because it is claimed that where parties put it on the ground of bias and prejudice, they must set forth the facts upon which they base that claim. But, whether a man is biased or not is a fact of itself, and you have not to state something else to show that he has such bias. We think the facts required by the statute do not refer to anything but relationship or interest that the party may have in the litigation. It is a sort of metaphysical question as to whether he is biased or not. The judge says he was not, and he probably was not; but does that satisfy the party, or is that what the legislature intended when it provided that a litigant should have the right to have his case tried by a judge who he did not think had any bias or prejudice against him? We think that is not an issuable fact to be tried.. It is suggested that there ought to be some court to decide the question of bias or prejudice, but we are not without some authority bearing upon this question.

The federal legislature (Congress) provided for the removal of cases on the ground of local “prejudice” —one of the very words used in our statutes, “prejudice.” A party who filed an affidavit under the law might have a case removed from the state court to the federal court, and the question was made in that class of cases, just as it is made here, as to setting out the facts and a trial by some court, to.determine whether the charge vras groundless or not.

In the 42d Federal Reporter, we find tne case of Cooper against The Richmond & D. R. R, Co., circuit court of the northern district of Georgia, June 21, 1890. There the question was on the ground that there was a local prejudice.

Under our statute there can be a removal from one county to another, if a party says he cannot have a fair trial in the county in which he is to be tried. If there is “prejudice” in the community generally, he may suffer in the impaneling of the jury.

In the case cited, it is said that since the act of Congress of March 8, 1887, a petition for removal accompanied by affidavit by a person authorized to make it, stating his own knowledge, is sufficient to justify an order of removal, following the case of Whalen v R. R. Co. The second syllabus of that case is: “.Where such an affidavit is presented,. the court will not permit an adverse party to traverso it,” etc.

In a case from Wisconsin, vol. 47, page 435, against the city of Milwaukee, on the change of venue, the affidavit states that the party making it has reason to belief that he cannot have a fair trial on account of “prejudice” — which entitles such party to a change of place of trial. The court say:

“Whether perjury can be assigned upon such an affidavit is a query, but at least an assignment of perjury cannnot be made on a traverse of the fact.”

We think the affidavit is sufficient in this case to entitle a party to a trial of his cause by another judge in whom he can have confidence and belief and before whom he can have a fair trial, without any “prejudice or bias;” so that on the point of the sufficiency of the affidavits, we hold that they were sufficient to entitle the party to the remedy which this statute gives.

Now, the material fact in this case is, had Judge Wolfe, anything further to do? It is claimed that he said he “would goon.” If he did, the parties would have a remedy, but the question is whether it would be by mandamus. A judge after he is disqualified has no jurisdiction to try a case, and if he went on, there would be a remedy by appeal or by error. Such a judgment, of course, in a case tried by a judge after he was disqualified^under the section here, would be invalid. That is enough, perhaps, to be said on that point.

We think therefore, that the party here did make such a showing as entitled him to have his case tried before a judge that was not disqualified by proceedings under the statute referred to, and in conclusion the question is: What is there that this court or any other court can by madamus compel Judge Wolfe to do after he was disqualified? There is nothing in the statute that requires him to do anything. The affidavits, as I have suggested, going into the hands of the clerk, he is to notify the presiding judge, of the subdivision, and then the other steps are pointed out- — • the presiding judge is to appoint some other judge who is not disqualified to try the case. Judge Wolfe had nothing else to do that a wit of mandamus would be authorized to compel him to do; and it would seem that when.this petition was prepared, that was the idea counsel for relators had. Judge Nicholas being dilatory they set out to mandamus him, compelling him to do what he was required to do as presiding judge; that is, to designate some judge to go and try it. Now, a writ of madamus might be proper for that purpose — it was a duty imposed upon him by this section because of his being presiding judge. It is not really a judicial act, but in the nature of a ministerial act, a special duty.

There is another objection urged to this proceeding for mandamus, and that is that there is a misjoinder of parties All these parties who filed these affidavits joined in this petition for the writ of mandamus. And as I before suggested, this objection also could have been raised by demurrer to the petition; misjoinder of parties plaiixtiff is a ground of demurerr. The question then is: Who is or who are the plaintiffs, the state of Ohio or the relators? This proceeding is carried on in the name of the state of Ohio, and the parties seeking the remedy are called relators. Whether they are plaintiffs so as to come within the rule of misjoinder of parties under our statute, we are not deciding —where the proceeding is in the name of the state on [relation of any party; but in this case, although thej object sought may be the same in all cases, yet their interesáis not the same.

Each party is only interested in its own case, and if there is any prejudice or bias on the part of the judge in one case, there need not be in any other case. We^do^not think, therefore, that different parties could join|to] disqualify a judge in different actions in which they were not jointly liable or interested.

It would have been a complete answer of itself, if respondent had alleged that he had complied with[the[alternative writ, if it was properly issued. All that the writ required him to do was that he should permit Nicholas to try the cases, It appears that Judge Nicholas gave as an excuse for his delay, that there was no other judge that was not engaged that he could assign at the time, 'but he did come here afterward and try some of these cases, and it does not appear that there was any obstruction put in his way when he got here, otherwise than it seems that he was disqualified by some other affidavits that were filed. The alternative writ of mandamus commanded Judge Wolfe to show why he did not turn the cases over to Judge Nichols — the cases referred to in the petition.

Judge Wolfe’s answer contains several defenses. He claims there is a misjoinder of parties and causes of action, and that the said petition was not originally prepared, signed nor verified with reference to him, but with reference to an action to be commenced in the Circuit Court of Coshocton county against Judge Nicholas. I have said all perhaps that is necessary to be said upon these questions in the answer — that there is a misjoinder of parties as suggested The court think that is so if this is a case for mandamus; but this court think the case is not.

Coming to the reply of the relators:

It did not say a word as to when the petition was verified, and that it is a material matter. A paper may be altered, as is admitted the petition was in this case, but it certainly would have to be verified. As I have already suggested, it has been shown that it was verified after it was altered.

If Judge Wolfe had said in his answer, and had done what relators admit in their reply he had, it would have ended the case, because that is all that he was required to do. But the relators still ask that the alternative writ be made peremptory. If the respondent has done all that he was required to do, — if this were a proper proceeding for mandamus — that would be the end of it. And the court find that what Judge Wolfe was commanded to do by the alternative writ has been done, and the petition will be dismissed at the relators’ costs.

Hale, J:

I concur in the judgment rendered, but I have not been quite able to concur in the fact that it should be dismissed because of the reply. I understand Judge Wolfe to claim that he has done nothing in compliance with the writ, but my opinion is that mandamus is not the proper remedy in the case.


author: Scribner, J.

text:
    (Sixth Circuit—Erie County, Ohio, Circuit Court,
    Nov. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    E. M. COLVER v. S. C. WHEELER.

      Endorsement of note in blank before delivery — Liability of accomodation endorser—
    1. Where one endorses a promissory note in blank, before delivery. and acceptance by the payee, but when delivered there appears written over the name of such endorser, a guarantee of payment and waiver of notice of non-payment and protest, which the endorser claims was placed there without his knowledge or consent, for which alteration he claims to be discharged from liability, it appearing, however, that such insertion of guarantee and waiver was not added with the connivance of the payee, Held, that by endorsing the note in blank, before delivery of the same, the endorser made himself liable as a maker of the note, and may be treated as a surety not entitled to demand of payment or notice of non-payment and protest as an endorser.

      Agreement to forebear suit or to extend time of payment sufficient consideration for accomodation endorsement—
    2. The claim being made that the endorsement was made without consideration and merely to accommodate the maker, of which the payee had full knowledge, Held, that an agreement to forebear suit on a pre-existing debt is a sufficient consideration for a note given therefor; and an agreement to so .forebear until the maturity of the note will be presumed in the absence of proof to the contrary.

      Suit on note — Maker having left the state, suit may be brought against endorser alone—

    3. In a suit on a promissory note, where the principal maker has removed from the jurisdiction of the court, the endorser may be sued alone, and it is not necessary to join the principal'maker as defendant in the suit.

      Error to the Court of Common Pleas of Erie County.
   Scribner, J.

On the 1st day of February, 1893, S. C. Wheeler, the defendant in error in this proceeding, commenced an action before a justice of the peace of Erie County, against E. M. Colver, the present plaintiff in error, upon a paper writing which reads as follows:

$112.00' Sandusky, O., April 1st, 1882.
Six months after date we promise to pay to the order of S. C. Wheeler one hundred and twelve dollars, with interest, being for rent of house, past due, from T. A. Lee. Value received. T. A. LEl!,

On the back thereof, as the transcript of the proceedings before the justice reads, is the following indorsement:

“I guarantee the payment of the within note at maturity without notice of non-payment or protest.
“E. M. COLVER.”

Such proceedings were had in this action before the justice of the peace that the case, afterwards came into the court of common pleas by way of appeal from the judgment rendered therein by the justice of the peace.

In the court of common pleas the plaintiff filed his petition against the defendant, E. M. Colver, reciting the making and delivery of the paper called a promissory note, before referred to, and a copy of the indorsement alleged to have been written upon the back of it, and alleging the non-payment of the money due upon this allegation. The petition contains this additional allegation:

“Plaintiff further says that shortly after said Colver and said T. A. Lee had made and signed and delivered to him their said joint promissory note, and before its maturity, said T. A. Lee went away from the' city of Sandusky and county of Erie, and so far as plaintiff knows, said Lee never returned to this county, and he has no knowledge of ever having seen said Lee thereafter, and that said T. A. Lee is, and for many years has been a non-resident of the county of Erie, and State of Ohio.
“That at maturity of said note, plaintiff demanded of said defendant E. M. Colver payment thereof, which was refused, and at divers and sundry times thereafter he demanded of said E. M. Colver payment of said note, and the interest thereon, but he has ever failed to pay the same or. any part thereof, though he promised to pay the same, or cayse the same to be paid at some future period; yet he has ever since failed, and still fails and refuses to pay the same, or any part thereof.”

Wherefore plaintiff prays judgment against the defendant Colver upon the obligation sued upon.

The defendant filed an answer, and in the first instance denied every allegation contained in the petition, excepting that the case came into the court of common pleas by way of appeal. The pleader then proceeded to set forth certain defenses and allegations on the material questions arising on this case.

“And for a second defense to the petition of plaintiff herein, the defendant says that if at any time he executed anote similar to the one set forth in the plaintiff’s petition, when the note was executed he refused to assume the obligation of a maker, but did assume the obligation of an indorser, and only those of an indorser, and accordingly wrote his name on the back of the note as such indorser without any consideration than that of accommodating T. A. Lee, all of which the original parties to the note well knew. That said Wheeler, or some other person, authorized by him to do so fraudulently,unlawfully and without authority,defaced, altered and changed his said indorsement of the note by writing over his name the following words: “I guarantee the payment of the within note at maturity without notice of non-payment or protest.

“And for a third defense to the petition of the plaintiff herein, this defendant says, that if at any time he executed a note similar to the. one set forth in plaintiff’s petition, he executed the same as an endorser, and never guaranteed the same, and said note was never protested at maturity, and this defendant did not have due and legal notice of the demand and non-payment of said note.

“And for a fourth defense to the petition of the plaintiff herein, this defendant says that if at any time said T. A. Lee executed a note similar to the one set forth in plaintiff’s petition, that no place of payment was stated in said note,' and no demand was ever made of Said A. T. Lee at maturity of said note that he pay the same, nor were said T. A. Lee or this defendant ever notified at the maturity of said note, and no effort has been made by the plaintiff herein to collect any amount that may be due on said note from said T. A. Lee.’’

Plaintiff filed a reply to this answer, taking issue upon several of the material allegations contained in it, and making special averments in regard to the transaction itself not necessary to be particularly noticed here.

The case was tried in the court of common pleas, and was submitted to the court, a jury being waived by the parties. Upon the conclusion of the trial to the court, a finding and judgment were entered by the court in favor of the plaintiff. A motion for a new trial was overruled, exception taken, and a bill of exceptions embodying the testimony, was signed by the court and duly filed with the records in the case; and the case is now before us on a petition in error by the defendant below, who insisted upon a reversal, on the ground that the court erred in divers particulars, and more especially in rendering judgment in favor of the plaintiff below, and against the defendant.

The original instrument, on which the action is brought, was attached to and made a part of the bill of exceptions. It is correctly copied into the transcript of the justice of the peace and in the original petition filed in the court of common pleas, as I have already read. The indorsement made upon the back of the instrument, and about which there is a controversy, reads as follows:

“I guarantee the payment of the within note at maturity without notice of non-payment or protest.
“E. M. COLVER.’’

It may be stated, by way of a preliminary presentation of some of the material facts in the case, that the testimony shows that at the date of the execution of the note Mr. Lee, the maker, was a tenant of Mr. Wheeler, the paye of the note, occupying a house owned by him, with his family; that an amount of rent as specified in the note, was past due; that Mr. Wheeler was urging immediate payment of these arrears of rent; that Mr, Lee, who was a brother-in-law of the defendant Colver, (the wife of Lee being a sister of the defendant), applied to Mr. Colver to aid him in this difficulty; that the paper thereupon was executed, and the note so signed by Lee was afterwards indorsed by Colver (as to whether or net the blank above the indorsement was filled at the time of the indorsement and delivered by the defendant Colver is not in controversy); that Mr, Lee remained a citizen and resident of Sandusky in Erie county, until in November, 1882, (the note being dated April 1st, 1882, and having six months to run, with interest); that some time in November, 1882, Mr. Lee left the county, removing, perhaps, to one of the counties in the southern part of the state; that in 1887 Mr. Lee left the state, and removed to one of the western states where he was residing at the time this action was commenced in 1893, and where, perhaps, he is still residing.

According to the testimony of the witness Lee, he was the tenant of Mr. Wheeler and the principal in the note sued upon, which was given, as already stated, to secure the payment of past-due house rent, the time of payment from the terms of the note being extended for a period of six months from April 1, 1882; that the note was drawn by defendant Colver, at the request of Mr. Lee, in the office of the defendant, and was there signed by the tenant Lee, and by him thereupon taken and tendered to the plaintiff who refused to receive it without the indorsement of the defendant; that thereupon Mr. Lee returned with the note to the defendant and informed him of what had taken place between the plaintiff and himself, and thereupon the defendant wrote his name on the back of the note, where it now appears, and handed it to Lee, who at once delivered it to the plaintiff; that at the time the note was so delivered there was no writing on the back of it other than the signature of the defendant. It must be remembered that I am now speaking of the testimony given in behalf of the defendant.

The testimony of the defendant, so far as it relates to the making of the note and the writing of his name upon the back of it, is substantially the same as that of Mr. Lee. They agree that so far as the making and indorsing of the note are concerned the whole business was done in the office of the defendant and in the absence of the plaintiff. The rent demanded by the plaintiff was past due, and circumstances in the case show that the plaintiff was insisting upon the payment of or security for the rent, and Lee thereupon proceeded to defendant, who was his wife’s brother, and stated the situation to him. The note was thereupon prepared by the defendant, was signed by Lee, who took it to the plaintiff. The plaintiff refused to receive it unless it was indorsed by the defendant. The defendant then wrote his name on the back of it,and in that form, as it is claimed, by the defendant, it was by Lee delivered to the plaintiff.

In some essential particulars the plaintiff in his testimony differs from the testimony of the defendant and Mr, Lee, as to this transaction, but according to their testimony, the plaintiff was at no time present when the business was transacted between the defendant and Lee, nor does it appear, nor is it suggested in the record, that any part of the conversation or statements occurring between the defendant and Lee at the time of the making or indorsing of the note by the defendant was communicated to the plaintiff before the delivery to or acceptance by him of the note as indorsed,

Leaving this view, therefore, for the present, what purports to be a guarantee written above the signature of the defendant, we are to inquire what liability, if any, attaches to the defendant under the decisions of our courts by reason of the indorsement in question.

First — The note was manifestly given upon a good consideration, It appears by the testimony in the case that the rent which the note was given to secure was past due at the time of the transaction in question here. The note was made payable six months after its date, April 1, 1882, and the acceptance by the plaintiff Wheeler, the landlord, of such a promissory note, bearing a signature in any form that created a liability of a third person,amounted to an extension of the time of the payment of the rent then past due, and that extension, that agreement to extend the time of payment, was abundant consideration for the promise, whatever may be its character,of the defendant to pay the amount so secured.

That is established in the case of Smith v. Worman, 19 Ohio St. 145, and in the case of Holyworth v. Koch, 26 Ohio St. 33, where the court say this:

“An agreement to forebear suit on a pre-existing debt is a sufficient consideration for a note given therefor; and an agreement to so forebear until the maturity of the note will be presumed in the absence of proof to the contrary.”

The same doctrine is stated in the case of Osborn v. Low, 40 Ohio St. 347, and in other cases not necessary now to refer to.

The defense set forth in the answer filed in the case, is said to be sustained by a ruling of the Supreme Court in the case of Seymour & Co. v. Leyman and Mickey, 15 Ohio St. 515. In this case the suit was brought upon a promissory note executed by one Leyman to the firm of Mitchell,Harshbarger & Co., payable to their.order, and at the time this note was made,and.before it was delivered to Mitchell, Harshbarger & Co., the defendant Thomas Mickey indorsed his name in blank for the consideration upon which the note was given. That is Ihe statement of the petition filed in the case. It was then delivered 'to Mitchell,Harshbarger & Co. Here is a copy of the note:

$200.00 Mansfield, Ohio, October 7, 1854.
Three years after date I promise to pay to the order of Mitchell, Harshbarger & Co. two hundred dollars, at---■ — • with interest after six months; value received.
(Signed.) H. LEYMAN.

And indorsed:

I guarantee payment on the within and waive demand «•nr rinripA
(Signed.) THOMAS MICKEY.

Then comes the indorsement to J. S. Seymour & Co., signed by the assignee of Mitchell, Harshbarger & Co., the payees.

In his answer to the petition brought upon this note, Mickey says this:

“That when the note was executed he refused to assume the obligations of a maker, but did assume the obligations of an indorser, and, accordingly, wrote his name on the back of the note as such indorser, without any consideration than that of accommodating Leyman,the maker of the note, all of which the original parties to the ncte well knew. That said firm of Mitchell, Harshbarger & Co., or some person authorized by them so to do, fraudulently, unlawfully and without authority, defaced, altered and changed his said indorsement of the note by writing above his name the following words, to-wit: I guarantee payment of the within, and waive demand and notice. Whereupon he prays to be dismissed with his costs,”

There was a demurrer to this answer. The demurrer was overruled, and judgment was rendered in favor of the defendant Mickey, so that his answer made a good defense. The case was taken to the Supreme Court, which affirmed the judgment of the'court below, remanding it with leave to the plaintiffs to reply or amend their petition.

The court say this, in passing upon the case:

“It is important to notice the position which these plaintiffs occupy in relation to this note. The note is not on its face payable to bearer, and so transferable by delivery merely, but to the order of Mitchell, Harshbarger & Co., or to whomsoever they should indorse it. They have never indorsed it at all. It has passed out of their hands by delivery only; and so, through Williams, and by his indorsement, to the plaintiffs. The plaintiffs, therefore, have not a strictly legal title to the note. They are the holders of the note with an equitable title only; and, under the old system of procedure, could not sue upon it in their own names, but only in the names of the payees. The consequence is, that these plaintiffs cannot claim the exemption from equities existing between prior parties, which the law ordinarily gives to indorsees of commercial paper before due. They stand simply in the shoes of the payees, Mitchell, Harshbarger & Co., and subject to all the equities existing between the original parties to the note, and are affected by the notice which these payees had of the actual contract between Mickey and Leyman as to the responsibilities to be incurred by the indorsement of the former; or, possibly, had the payees at the time they received the note, been ignorant of such special stipulations, Mickey would, under the settled doctrine of tbe Ohio cases, have been held in favor of the payees, as a guarantor of the note. Greenough v. Smead, 8 Ohio St. 415, But, the answer avers, that the demurrer admits that Mickey, when the note was executed, “refused to assume the obligations of a maker, but did assume the obligations of an indorser, and only those of an indorser;” and that this “all the original parties to the note well knew.” And this state of facts might, if necessary, be shown by parol proof. Greenough v. Smead, supra. The plaintiffs, then, being the owners in equity only of this note, are bound by this original contract, and by the notice of it to the original parties, among whom are Mitchell, Harshbarger & Co., the payees.”

It will be seen, as the Supreme Court has expressed, that inasmuch as Mickey had admitted in his answer in the case, that by stipulation between -himself and Mitchell, Harshbarger & Co.,the payees,at the time he indorsed the note, it was agreed that Mickey refused to assume the obligations of a maker, but did assume the obligations of an indorser, and only those of an indorser, and that this all the original parties to the note well knew, this is the contract, then, as admitted upon the pleadings, as construed by the Supreme Court, that by his indorsement Mickey assumed the obligations of an indorser, and only those of an indorser, and all the parties to the transaction well knew that such was the agreement between the parties.

Seymour & Co., the plaintiffs, took and held the paper by equitable title, and not by any legal title, and they were bound by all the equities existing between Messrs. Mitchell, Harshbarger & Co., the payees of the note, and Mickey, the indorser. The court held, upon this state of facts, as admitted in the pleadings, there having been no proper ground of liability fixed, the defendant was entitled to judgment upon the demurrer to the petition.

In this case the pleader has adopted, substantially, the same form of answer as was presented in that case. The identical language employed by the pleader in that case is employed here. There was no demurrer to the answer; the averments of the answer in that regard were denied by the reply of the plaintiff.

The case went back, and was again reported in 15 Ohio St. 515, and there the pleadings were amended, so that it appeared, was averred and was shown in the case, that the consideration moving from Mitchell, Harshbarger & Co., the payees of the note, toLeyman,and that the indorsement made by Mickey, was that he was to be liable only as an indorser. The court there lay down this rule:

1. It is the settled law of this State, that where a person, not a party, writes his name in blank on the back of a promissory note at the time of its execution and delivery, the prima facie presumption is, that he is a maker of the note, and he may, accordingly, be treated as a surety.
2. This ordinary presumption may, however, be rebutted by parol evidence of a different intention and agreement of the parties; to which, when proved, a controlling effect will be given.
3. Where the design of such indorsement, in blank, is to give the payee additional security for the payment of the note, parol evidence tending to limit the liability of such indorser, will be construed, if possible, so as not to defeat the general intention.
á. Therefore, where A, as a security, on behalf of the maker, to the payees of the note, at the time of its execution, writes his name on the back thereof, having previously refused to become a joint maker, and having stated that he would assume only the obligations of an indorser, he will be regarded at least, as a conditional guarantor; and his liability to the holder of the note, like that of an indorser to an indorsee, will be fixed by demand and notice.

It will be observed, in passing, that the court is here speaking of the transaction occurring between the indorser of the note and the maker or the guarantor and the payee of the note, not of what occurred by way of conversation or understanding or otherwise between the principal of the note and the indorser or guarantor, but between the parties to the transaction itself, and the court render a very elaborate opinion in the case, and reach the conclusion expressed in the syllabus.

There may be cited in the same connection, without stopping to read the cases, Osborn v. Low, 40 Ohio St. 347; Greenough v. Smead, 3 Ohio St. 416; Bailey v. Stoneman, 41 Ohio St. 148; Castle v. Rickly, 44 Ohio St. 490.

The case of Seymour v. Mickey, reported in 10 and 15 Ohio St., already referred to,shows that in those cases there was a clear and positive agreement between the payee and the maker of the note by which the transferee was bound; that by this agreement, although in parol, the liability of the indorser was strictly limited. In that case the consideration of the note was the extension of time allowed upon rent then past due, an extension of six months, a perfectly good consideration, as I have shown by the authority, and one which abundantly supported the giving of the note as far as the principal liability was concerned.

, In that case of Seymour & Co., reported in 10 and 15 Ohio St., it appears there was a positive and express stipulation between Mickey, the indorser, and Mitchell, Harshbarger & Co., the payee of the note and the vendors of the goods, that Mickey should be liable only as an indorser and not otherwise, and that this agreement between the parties to the note, Mitchell, Harshbarger & Co., the payees, and Mickey, was as effective and binding as if it had been entered in writing upon the back of the instrument itself.

It does not appear there was any such agreement here to which the plaintiff was a party, or of which he had notice. As before stated, it is claimed that an understanding was had between Lee and the defendant, as to what should be the nature of the liability of the latter, but this cannot charge nor affect the plaintiff. It is said in the testimony of Lee that the plaintiff insisted on having the indorsement of the defendant; but this does not necessarily, nor does it fairly imply that the defendant should assume the strict liability of an indorser, and an indorser only, as was the contract in the Mickey case. It does not appear from the testimony given in behalf of the defendant that there' was any special agreement with the plaintiff as to what should be the nature of the liability assumed by the defendant by his indorsement, or that they expressly stipulated as to the nature and extent of his liability On the contrary, it appears that as the note was executed and indorsed here, the indorser would be regarded as a maker or guarantor, in either of which positions he would not be entitled to demand and notice.

The conclusions above stated proceed upon our understanding of the facts supported by the testimony introduced in behalf of the defense. It should be added, however, that the plaintiff testified with the utmost directness and positiveness that the indorsement or guaranty appearing on the back of the note above the signature of the defendant, was written at the time the note was made, and the name of the defendant written on the back with the express consent of the defendant, and was a part of the transaction. It is claimed, also, that certain matters testified to by another witness tend to corroborate the evidence given by the plaintiff concerning the principal transaction In this conflict of the testimony, passed upon by the court, we could hardly expect to suppose that the finding of the court below was so clearly against the weight of the evidence as to justify us in interfering with it.

The suggestion is made in the case that the defendant was a surety, and as such was entitled to be protected under section 5419. It does not appear in the record that any formal suggestion of surety was made to the court, nor does it appear that the court was requested to enter upon the record any suggestion in that regard. It does not appear, as I stated at the outset, that the principal, Lee,' — and undoubtedly be was the principal, for it was his debt, and not the debt of Mr. Colver — had removed from the state in 1887. The action was brought in 1893. It was, of course, out of the question, therefore, if he had desired to do so, for the plaintiff to join as defendant in the action the principal maker of the note, Mr. Lee. The plaintiff did what under the circumstances he could do. He proceeded against the only party within the jurisdiction of the court; that was the party whose name appears on the back of the note, and this court is- upheld by authorities, beyond any doubt that a creditor has not to go out of the state to pursue any of the parties to an obligation.

Section 5419 of the Revised Statutes provides:

“When judgment is rendered in a court of record within this state, upon an instrument of writing in which two or more persons are jointly or severally bound, and it is made to appear to the court, by parol or other testimony, that one or more of the persons so bound signed the same as surety or bail for his or their co-defendant, the clerk of such court, in recording the judgment thereon, shall certify which of the defendants .is the principal debtor, and which surety or bail; the clerk shall issue execution on such judgment, commanding the officer to cause money to be made out of the goods and chattels, lands and tenements, of the principal debtor, or, for want of sufficient property of the principal debtor to make the same, that he cause the same to be made of the goods and chattels, lands and tenements of the surety or bail; and the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail shall be taken in execution,”

If there is liability on the part of an indorser of a note, as a matter of course he may be pursued. If the principal debtor had left the state, or could not be reached by the process of the court, that would not interfere with the right of a creditor to proceed against the surety.

These remarks cover, substantially, the material points as presented in this case. We have gone through this record from the beginning to the end, and are unable to find any point upon which we might, feel ourselves justified in interfering with the action of the court below, and for this reason the judgment of the court of common pleas will be affirmed; but there will be no penalty allowed in the case..

Plaintiff in error excepts.