text:
    INJURY FROM COLLISION OF ELECTRIC CAR. WITH WAGON.
    Court of Appeals for Richland County.
    S. N. Ford, Receiver of The Mansfield Electric Railway, Light & Power Company, v. A. F. Reamsnider.

    Decided, January Term, 1917.

      Negligence — Oar Strikes Wagon at Street Intersection — Motion to Direct Verdict for Defendant Properly Overruled — Where Questions of Fact Are in Dispute — Competency of Evidence as to the Injuries Received — Charge of Court.

    1. An averment that the plaintiff was injured permanently, his right limb mangled and both bones broken between the ankle and knee, is sufficient to warrant admission of evidence to the effect that as a result of the accident his right leg was shortened.
    2. An erroneous instruction to the jury that if they find for the plaintiff they will assess his damages at such a sum as “in their opinion” would be reasonable and just, is cured by a subsequent instruction which directs the jury, in estimating the amount of damages to be awarded, to take into consideration the nature of the injury sustained and any impairment in earning power.

      McBride <& Wolfe and W. S.- Kerr, for plaintiff in error.

      Beed & Beach, contra.

      Motion for order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court March 6, 1917.

   Shields, J.

This action was brought in the court of common pleas by A. F. Reamsnider, defendant in error, to recover damages of S. N. Ford, as receiver of the Mfansfield Railway, Light & Power Company, plaintiff in error, for injuries received by him through the alleged careless and negligent operation of one of the cars of the plaintiff in error.

In his petition below the said Reamsnider alleges, in substance after obtaining leave .of court to bring suit against the said receiver:

“that on or about October 5, 1914, said receiver was operating the cars of the defendant company on the tracks of said company on South Main street, in the city of Mansfield; that said said South Main street is entered at right angles from the east by Granite street in said city, and that both of said streets are public thoroughfares and much used and traveled by vehicles and pedestrians; that said city at said time had a city ordinance in operation prohibiting the running of street ears in said city at a rate of speed not to exceed eight miles per hour; that on said date the said Reamsnider was assisting in hauling large sewer tile with a team and wagon, and proceeding west on said Granite street with a load of said tile he observed on reaching said -South Main street the north bound ear of said defendant company about 500 feet distant; that he' did not know and had no means of knowing the speed of said approaching car and believing that those in charge of the same were observing and would observe said speed limit and that said ear was not running and would not run at an unusual rate of speed, and the plaintiff having ample time to cross said track with said team and wagon, and while exercising due care and precaution, started to cross the same. That said car thus approaching from the south in charge of the conductor and motorman of the defendant company was running in violation of said city speed ordinance at a high, reckless and dangerous rate of speed, to-wit, from 20 to 25 miles per hour; that said motorman could see said team and wagon crossing onto said South Main street from said Granite street and starting across the tracks in ample time to check the speed of said car or stop it and thus avoid collision, but the plaintiff says that the said defendant company, through its agents, carelessly and negligently failed to do so; that the said defendant company by its agents so negligently drove, run and conducted said car that the same was thereby run and driven against his said wagon, upsetting the same, violently throwing the plaintiff to the street under said tile, whereby he was seriously and permanently injured, to his damage in the sum of eight thousand dollars, for which judgment is prayed. ’ ’

To this petition an answer is filed by the defendant, the first defense being in the nature of a general denial, and, secondly, contributory negligence is averred in this that the injuries, if any were received by the plaintiff, were due to his own fault and negligence directly contributing thereto; that he did not look or listen for the approach of said street ear, that he went directly in front of said car without looking or listening and that he took no precaution whatever for his own safety. To which answer a reply was filed by the plaintiff denying the contributory negligence charged.

Upon trial had the plaintiff recovered a verdict and judgment against the defendant, and a petition in error is filed for the reversal of said judgment.

' At the close of the evidence offered by the plaintiff below it appears that a motion was submitted by the defendant below, and renewed at the close of the case, for a directed verdict in favor of the said defendant, which said motion was overruled, and which action of the court below is assigned as error. A reading of the evidence as found in the bill of exceptions fully satisfies this court that under the rule of law making it the duty of the trial court to submit to the jury all disputed questions of fact arising upon the trial of a ease, no error was committed by that court in overruling said motions.

Exceptions were taken to the action of the trial court in respect to the admission and rejection of certain evidence upon the trial, particularly in relation to the evidence offered by the defendant in error tending to show that as a result of said collision and accident his one leg was shortened. This evidence was admitted over the objection of the'plaintiff in error, and it is contended that the action of the trial court in so admitting it was prejudicial error. It is certainly not an open question as to what the rules of pleading require in stating a cause of action, and that a recovery, if any is had, should be based upon the cause of action stated as a ground of recovery; and where the pleader fails to state his cause of action properly or definitely, the statute furnishes a remedy for relief in such eases. By referring to the plaintiff’s petition we find that the allegations therein covering his injuries are as follows:

‘ ‘ That said defendant by its said servants so negligently drove, run and conducted said car as aforesaid; that the same was thereby run and driven against said wagon, upsetting the same, violently throwing plaintiff to the street and under said tile; that the plaintiff was thereby seriously and permanently injured ; that his right limb was mangled and crushed, both bones between the ankle and knee were broken and a compound fracture 'sustained; that plaintiff was confined to his bed six weeks, suffered and is still suffering physical pain and anguish.”

In the foregoing we find the averment that the plaintiff was injured permanently, with the added description of the injury to his right limb. True, the effect of said injury is not expressly stated, bnt is not the averment that the injury is permanent, sufficient to warrant the evidence offered? We think it is; but if counsel thought otherwise, it was their privilege, by motion before trial, to have sought further and fuller information of the character and extent of this injury; but- having failed to do- so and having answered said petition, did not such answer constitute a waiver of any objections thereto because of a want of definiteness and sufficiency of allegation? We think it did. Further, it would appear that the resultant injury to the right leg, as described in said petition, could not be- otherwise through any natural process of reasoning than as described by the defendant in error as the same appears on page 45, and as described by the physician in charge as the same appears on page 60 of the bill of exceptions, in describing the effect of said injuries. Taking this view, we hold that the action of the trial court in admitting said evidence was not prejudicially erroneous, nor do we find any substantial or tenable ground for any other exceptions taken to the admission or rejection of evidence which prejudicially affect the legal rights of the plaintiff in error.

It is vigorously contended that the plea of contributory negligence interposed by the plaintiff in error, and sustained by the evidence, as claimed, should have resulted in a judgment for the plaintiff in error on the trial in the lower court, and that the judgment of said court' is therefore contrary to law and against the manifest weight of the evidence. In connection with this alleged error is also the claim made by the plaintiff in error that the court below erred in its charge to the jury, especially on the subject of damages as the same appears in the last paragraph of said charge on page 116 of the record, wherein said court charged the jury as follows:

“If you. find for the plaintiff, you will assess his damages at such a sum of money as, in your opinion, will be reasonable and just compensation for the injuries he sustained. And in assessing his damages if you so find, you are not to take into consideration the fact that he received part pay from the state for his time under the workmen’s compensation law.”

Duty on the part of the jury in fixing damages was certainly not to be determined by the opinion of the jury, but by the evidence. The charge in this respect, if standing alone and without further explanation, would be erroneous, but in the following paragraph on page 117 of the record we think such error was cured by the further and following instruction:

“In estimating his damages, you will take into consideration the loss of time, the physical and mental pain, if any, he has sustained by reason of such injuries, if any, and if you believe from the evidence that plaintiff has not recovered and that his injuries are permanent, and that he will thereafter suffer pain therefrom, and that his ability to labor and earn money will be impaired by reason thereof, then you will take that into consideration in estimating his damages.”

Considering said charge as a whole, we do not think it open to the criticism made and 'we therefore hold that said instruction as the same appears on page 116 of the record when read in connection with the paragraph following is not such error ás to justify a reversal of said judgment.

Some little confusion, if not inconsistency, appears in the testimony of the defendant in error in relation to the speed of the ear just before and at the time of the collision and accident. Referring to his testimony on cross-examination, as the same appears on page 47 of the record, it appears he testified as follows:

“Q. Isn’t it a fact that you knew that car was running beyond the speed limit before you drove on the track, and knowing that you drove right in front of it, isn’t that so? A. I can’t say that I knew it was running faster than the speed limit at that time.
“Q. Will you. say that, when you drove on the street ear track, it was running faster than the speed limit? A. I say I thought it was running faster than the speed limit.
££Q. How long before you drove on the track did you know that it was running faster than the speed limit ? A. I knowed it when I first saw it.
££Q. That it was running faster than the speed limit? Á. When we drove on the street.
££Q. You knew then that it was running faster than the speed limit? A. I seen the car coming but I didn’t know whether it was running faster than the speed limit or not.
£ £ Q. Will you say it was running faster than the speed limit or not? A. No.
££Q. Was it running as fast as the speed limit? ■ A. I don’t know'.
££Q. You are not willing to say that it was running faster than the speed limt? A. No.”

Whatever the fact concerning the speed of said car at the time he drove out of Granite on South Main street, to cross the tracks of the plaintiff in error, whether it was running in excess of the speed limit or otherwise, it was a fact for the determination of the jury, and the fact is undisputed that said ear at that time was some 500 feet distant from Granite street where the motorman in charge of said car had an unobstructed view of the track between that point and said street, and where the defendant in error testifies he first saw said car, and at that time anticipating that the motorman in charge of said car would observe the provisions of said speed ordinance, and supposing and believing that he could safely cross the tracks of the defendant company before said car approached and reached Granite street, he proceeded to cross the tracks of said company, and was struck and injured by said car.

Without stopping to analyze the evidence in respect to the speed said car was running, it will be sufficient to state that under the law the defendant in error had a right to suppose, as he was about to cross said tracks, that the motorman in charge of said car was running the same within said speed limit, that he would operate the car in an ordinarily careful and prudent manner and that the same was under proper control. The jury were so instructed and properly so, in our judgment, in accordance with the principles of law laid down in the cases of The Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 O. S., 187; Mansfield Ry., Light & Power Co. v. Kiner, 17 C.C. (N.S.), 431 (affirmed by Sup. Ct.); Harris v. Cleveland Electric Ry. Co., 19 C.C.(N.S.), 410, et seq.

Counsel for plaintiff in error contend that the cases cited are to be distinguished from and are unlike the case at bar because the facts appearing therein are different from the facts appearing in the case before us, and therefore the rule of law declared in said eases does not apply here, but in this contention we disagree with counsel.

The facts in the case were before the jury, they were passed on by the jury, under instructions by the trial court, and while technical errors may have occurred in the proceedings of the trial as well as in the charge of said court, after reviewing the evidence and the circumstances appearing in the record in said case, including said charge, we are of the opinion that no such error intervened as to work injustice to the legal rights of the plaintiff in error and that substantial justice has been done between the parties hereto. Way & Co. v. Langley, 15 O. S., 392; N. O. T. & L. Co. v. Jennings, Admr., 19 C.C.(N.S.), 602.

It follows that the judgment of the court of common pleas will be affirmed. Exceptions,

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


source: Caselaw Access Project

author: Jones (Oliver B.), J.

license: Public Domain

text:
    CHARACTER. OF AFFIDAVIT REQUIRED UNDER. THE BULK SALES LAW.
    Court of Appeals for Hamilton County.
    Romeo & Company, Inc., v. Elias Nassif and George Nassif, Partners under the Firm Name of Nassif Bros.
    Decided, February 5, 1917.

      Bullo Sales Law — Definition of the Term “Creditors” as Used Therein —Nature of the Affidavit Which Must he Filed With the Purchaser.

    1. The bulk-sales law (Sections 11102 et seq., G. C.), requires a list of all creditors to be furnished to the purchaser, or an affidavit that the seller has none.
    2. The term “creditors,” as used in Section 11102, G. C., refers to no particular class, but to all creditors of the seller.

      Matthews & Matthews, for plaintiff.

      Cogan, Williams & Ragland, contra.
   Jones (Oliver B.), J.

This is an action to have a purchaser of a stock of goods sold in bulk declared a trustee, and for the appointment of a receiver and the sale of said property for the benefit of the creditors. .The case is predicated upon General Code, Sections 11102, 11103 and 11103-1, as amended 103 O. L., 462. It was brought into this court by appeal.

A motion has been filed to dismiss this appeal on the ground of want of jurisdiction. Defendants contend that, as the cause of action arises because of the statutes alone, it was entirely unknown to the English chancery practice and therefore is not appealable. They rely particularly upon the case of Hollowell v. Schradin, decided by this court and found in 14 O. L. R., October 30th, 1916, in which the majority of the court hold an action to foreclose a mechanic’s lien not to be appealable.

The bulk-sales statute, however, is based upon and is an outgrowth of the equitable doctrine of fraudulent conveyances, long known in equity jurisprudence and always the subject of chancery jurisdiction. Like the matter of partition it may be provided for by statute and yet not lose its equitable character.

The Supreme Court has fully considered and discussed the jurisdiction of this court in appeal cases in Wagner v. Armstrong, 93 O. S., 443, and Manning v. Lakewood, 94 O. S. Under these cases, we are of the opinion that this action is appeal-able, and the motion to dismiss the appeal is therefore overruled.

The constitutionality of the bulk-sales law was upheld in Steele Co. v. Miller, 92 O. S., 115.

The only question presented here is the sufficiency of the affidavit made by the seller, Dominick Sgro. It is in the following terms:

“Dominick Sgro, of lawful age, being first duly cautioned and sworn, -deposes and says that he is the owner of the store and the stock, fixtures, etc., contained therein, located at the northwest corner of Richmond street and Central avenue, Cincinnati, Ohio; that this affiant at the present time has no creditors on account of any goods sold, supplied or delivered to said place of business; that said store, stock, fixtures, etc., are free from mortgages, lien's and all claims whatsoever; that this affiant in and about the conduct o.f said business has no creditors and that all indebtedness against him on account of the conduct of said business has ben settled and satisfied.”

Section 11102, General Code, as amended, provides:

“The sale * * * in bulk, of any part or the whole of a stock of merchandise * #- * other wise than in the ordinary course of trade and in the regular and usual prosecution of the business of the sellers * * * shall be void as against the creditors of the seller s;:- * * unless the purchaser * * * demands and receives from the seller * * * a written list of names and addresses of the creditors of the seller * * * with the amount of the indebtedness due or owing to each and certified by the seller * * * under oath to be a full, accurate and complete list of his creditors, and of his indebtedness; * * *.”

Strict compliance with this statute is necessary.

It will be observed that the parties to the sale made an attempt to comply with it. The affidavit, however, is not in broad terms that the affiant has no creditors, bnt is only to the effect that he “has no creditors on account of any goods sold,” etc., and that affiant “in and about the conduct of said business has no creditors,” etc. This limits the affidavit to trade creditors, to those connected with that business. This fails to comply with the statute which puts no such limitation as to the “creditors” of the seller. At the bottom of page 127, Johnson, J., in the opinion of the court in Steele Co. v. Miller, 92 O. S., 115, says:

“It affects all within the class of creditors of such merchants. ’ ’

It is clear that creditors outside of the particular trade are interested in the subject, as they well might give credit because of the existence of that business.

As stated by the court in Steele Co. v. Miller, supra, the Ohio statute is a substantial copy of that of Michigan. There the law has frequently been considered by the Supreme Court. In People’s Savings Bank v. Tan Allsburg, 165 Mich., 524, it was held that this statute “applies to no particular class of creditors, but to all of the creditors of the seller.” Another case where the affidavit was held insufficient is that of Interstate Shirt & Collar Co. v. Windham, 165 Mich., 648.

The seller having failed to comply with the requirements of the statute in this ease, the defendants must be- held to be trustees' for the benefit of the creditors.

A decree may be taken, and the case will be remanded to the common pleas court for its execution.

Jones (E. EL), P. J., and Gorman, J., concur.-


author: Shields, J.

text:
    THE PRACTICE OF ASTROLOGY, FORTUNE TELLING OR. CLAIRVOYANCY.
    Court of Appeals for Stark County.
    Lucy Haas v. State of Ohio.
    Decided, February Term, 1917.

      Constitutional Law — Acf Prohibiting the Practice of Clairvoyancy, etc., Without a License — Does Not Interfere With Religious Freedom and Is a Valid Enactment — Tenets of Church to Which an Accused Fortune-Teller Belongs Not Material to His Defense.

    1. Section 13145, providing that “whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortuneteller, clairvoyant or palmister, shall be fined,” etc., does not violate the section of the Bill of Rights guaranteeing religious freedom, hut is a valid and enforcible enactment.
    2. It is the representation, of possession of power to foretell future events where made by persons who are without a license so to do, which constitutes the gist of the offense, and exhibits disclosing the tenets of the religious society of which the accused is a member are immaterial in determining whether the accused has unlawfully made such representations.

      Braucher & Sterling, for plaintiff in error.

      W. S. Buff and G. A. Fisher, contra.
   Shields, J.

Error is prosecuted to reverse the judgment of the court of common pleas in affirming the judgment of the criminal court of the city of Canton, Ohio, wherein the State of Ohio, defendant in error herein, was plaintiff, and Lucy Haas, plaintiff in error herein, was defendant, for a violation of Section 13145 of the General Code of Ohio by the plaintiff" in error.

It appears that an affidavit was filed before the judge of said criminal court, charging that on.the 24th day of March, 1916, in said county and state, “one Lucy Haas not being then and there legally licensed so to do, did unlawfully represent herself to be a fortune-teller and clairvoyant to one Yelva Benson.” Upon trial had the said Lucy Haas was found guilty and fined $25 and costs, and ordered to stand committed until said fine and costs were paid, “and that said defendant be imprisoned in the Stark county workhouse and kept at hard labor for the term of thirty days, said workhouse sentence only however is suspended, such suspension to be in effect during the good behavior of the defendant, to all of which the defendant excepts.”

As already stated, error proceedings were prosecuted to the court of common pleas to reverse the foregoing judgment of the said criminal court, and an examination of the petition in error filed in said court of common pleas shows that the same grounds of error were alleged and relied upon in that court as in.this court, except the added alleged error that said court erred in affirming the judgment and sentence of said criminal or police court.

There seems to be no room for dispute as to the facts in this case, the testimony of the witnesses for the state on the trial below showing that the occupation of the plaintiff in error at the time .and on the occasion mentioned was in fact as alleged in said affidavit, as evidenced by her “readings” to the said Yelva Benson and others, for which a compensation was paid in each instance to the said Lucy Haas through one John Mohler, acting as an officer of the First Spiritualist Church of Canton,Ohio, who assumed to and did issue a certificate for such “readings” for and on behalf of the said Lucy- Haas.

That the statute in question aims to protect the general public from imposition of questionable practices of persons claiming the power to foretell future events, etc., is apparent, but we are here met with the proposition that one who without having been licensed so to do represents himself or herself to be a. fortune-teller or clairvoyant does not fall under the ban of said Section 13145, unless such representation is accompanied with some overt act to carry the same into- execution.

Said Section ■ 13145 of the General Code reads as follows:

“Whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortune-teller, clairvoyant, or palmister, shall be fined, ’ ’ etc.

No aids in interpretation or construction need be invoked to. understand the full meaning of this section. It means just what it says. It is the representation when the license is lacking that is sought to be punished. Here it is clear from the evidence that it was pre-arranged between the plaintiff in error and the said John Mohler that applicants for “readings” should first apply to and pay said Mohler for a certificate for said “readings”; that such certificate entitled each applicant to a “reading” to be given by the plaintiff in error as a spiritual medium; that the said Velva Benson paid for and received such certificate and was given such “reading” by the said plaintiff in error acting as a spiritual medium, but who had not been legally licensed so to do. Under this evidence, we have no hesitancy in holding that the requisites of the offense ás defined by this section were fully proven, both the representation and the overt act of undertaking to reveal the unseen and unknown future.

It is also urged that said Section 13145 is unconstitutional, being in violation, as it is claimed, of Section 7, Article I, of the Bill of Rights of the Constitution of the state of Ohio, which, provides that:

“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience.” * * *

Although probably couched in somewhat different language, the above just and humane rule of religious liberty has been a part of the Constitution of this state from the time of its formation as a state, and so remains today. The people of the state approve and practice it, and the courts of this state uphold it. There is no room for discussion as to what the constitutional provisions and settled law of this state are as to the rule referred to, but if there was, we could not be 'otherwise than entertained and enlightened by the able and comprehensive discussion of the subject contained in the brief' of counsel for plaintiff in error herein- but as we view the case before us, the question raised here on the record is not an attack upon the religious freedom of what is known as the First Spiritualist Church of Canton, Ohio, or upon any other church, or its doctrines or beliefs, but upon the conduct of the plaintiff in error as an individual in unlawfully representing herself to be a fortune-teller and clairvoyant, not being -legally licensed so to do. This is the sole question raised by said affidavit and, as stated, we do not consider the constitutionality of said section as affecting any church organization or society in issue here. It is the nature of the plaintiff in error’s business, not the tenets of her church, that is in controversy here. In this country laws are made for the government of actions, and while they can, not interfere with mere religious belief and opinions, they may with practices. If it were otherwise, the professed doctrines or religious beliefs would be superior to the law of the land, and in effect to permit each citizen to become a law unto himself. As was said in State v. Neitzel, 69 Wash., 567-569, which was a prosecution for one engaging in fortune-telling under the code of that state, where the constitutionality of the statute was attacked, the court held that:

“lie was engaged in fortune-telling, for he was professing to tell future events in the life of the witness. The statute is clearly valid.”

Further:

‘ ‘ The fact that defendant was a regularly ordained minister in ‘National Astrological Society,’ and that the principles of religion laid down by that society include the practice of casting and reading horoscopes, was equally unimportant, because, while religious beliefs and opinions may not be interfered with, harmful ‘practices’ may be prohibited,” citing Reynolds v. United States, 98 U. S., 145.

Again, in Smith v. People, 51 Colo., 270, a prosecution for practicing medicine -without a license, for treating and healing the sick, etc., Mr. Justice G-arrigues, delivering the opinion of the court in this ease, on page 277, says:

“Defendant claims he comes within the exemption which says: ‘Nothing in this act shall be construed to prohibit ® * * the practice of religious tenets or general beliefs of any church whatsoever, not prescribing or administering drugs.’ The Constitution provides, there shall be no interference with the ‘free exercise and enjoyment of religious profession and worship.’ The statute does not interfere with the free exercise of religion or worship. Any persons, individually or collectively, any minister, or any church congregation may resort to prayer whenever they wish for the healing of the sick. No attempt is made to interfere with religion or religious devotions. This does not, however, authorize one under the cover of religion or a religious exercise, to go into healing commercially for hire, using prayer as the curative agency or treatment. Religion can not be used as a shield to cover a business undertaking. Defendant was engaged in a business venture, not a religious exercise.”

If the constitutionality of this section was in issue, we might well refer to the ease of State of Ohio v. Marble, 72 O. S., 21.

Exceptions were taken to the court below in excluding, on motion,- the following:

Defendant’s Exhibit No. 2, called “An Associate Minister’s Certificate,” Defendant’s Exhibit No. 3, called “Articles of Incorporation of the Ohio Spiritualist Association,” and Defendant’s Exhibit No. 4, called “Constitution and By-laws of the Ohio Spiritualist Association.”

If we are correct in our views hereinbefore stated as to the proceeding not being against any church or society, but against the plaintiff in error as an individual, then the exclusion of the exhibits offered on behalf of the defendant below was proper, and we therefore hold that the court below did not err in excluding them.

Also, on page 48 of the record, it appears that the following question was asked of the defendant:

“Q. I would ask you further, Mrs. Haas, whether at the time you gave these readings .to Mrs. Manderbaugh and to Miss Benson, or at any other time, you did or said anything to these people contrary to or outside of the constitution and by-laws of your organization, the Ohio Spiritualist Association?
“Objection. Objection sustained. Defendant excepts.”

We deem the objection to this question apparent on its face, and the action of the court below was therefore proper in excluding it.

A reading of the record shows that there were other exceptions taken to the admission and rejection of evidence during the trial, all of which we have examined together with all the other errors alleged in said petition in error, and upon such examination we find no such error in the record herein as to justifya reversal of the judgment of the court of common pleas in affirming the judgment of the criminal court of the city of Canton,. Ohio, and said judgment of the said court of common pleas will therefore be affirmed and said cause remanded for execution. Exceptions.

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


author: Meals, J.

text:
    RICHT OF APPEAL FROM THE INDUSTRIAL COMMISSION.
    Court of Appeals for Cuyahoga County.
    Samuel Hoogenboom v. Industrial Commission of Ohio.
    Decided, June 1, 1915.

      Workmen’s Compensation Act — Construction of Section 27, Relating to ■ the Right of Appeal.

    A workman who suffers an injury while in the employ of one who has not complied with the provisions of the workmen’s compensation act has. no right of appeal from the determination of the State Liability Board of Awards on his application for compensation on account of such injury.

      Scurry F. Payer, for plaintiff in error.

      Gyrus Looker, Prosecuting Attorney, contra.
   Meals, J.

Error to the court of common pleas.

The plaintiff sustained certain injuries while in the employ of the Cleveland Co-Operative Stove Company, which company had not complied with the provisions of the Ohio Workmen’s Compensation Act.

In pursuance of the provisions of Section 27 of the Compensation Act (Yol. 103 Ohio Laws, page 82), the plaintiff filed an application with the State Liability Board of Awards for compensation, in accordance with the terms of said act. Section 27 is as follows:

“Section 27. Any employee whose employer has failed to comply with the provisions of Section 22 hereof, who has been injured in the course of his employment, wheresoever such injury has occurred, and which was not purposely self-inflicted, or his dependents in ease death has ensued, may, in lieu of proceeding against his employer by civil action in the courts, as provided in the last preceding section, file his application with the state liability board of awards for compensation in accordance with the terms of this act, and the board shall hear and determine such application in like manner as in other claims before the board; and the amount of compensation which said board may ascertain and determine to be due to such injured employee, or to his dependents in case death has ensued, shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the board; and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the board, which with an added penalty of fifty per centum may be recovered in an action in the name of the state for the benefit of the person or persons entitled to the same. And any employee whose employer has elected to pay compensation to his injured, or to the dependents of his killed employees in accordance with the provisions of Section 22 hereof, may, in the event of the failure of his employer to so pay such compensation or furnish such medical, surgical, nursing and hospital services and attention or funeral expenses, file his application with the state liability board of awards for the purpose of having the amount of such compensation and such medical, surgical, nursing and hospital services and attention or funeral expenses determined; and thereupon like proceedings shall be had before the board and with like effect as hereinbefore provided.”

The Industrial Commission rejected plaintiff’s claim on the ground that “the proof submitted by applicant does not establish 'the fact that applicant received an injury while in the course of employment; and the proof submitted by the applicant does not establish the fact that applicant’s disability as shown in his application, was caused by an injury sustained in the course of his employment.”

Thereafter, the plaintiff filed an appeal from the determination of the commission in the court of common pleas, claiming the right so to do by virtue of the provisions of Section 48 of said act. Section 43 is as follows:

“Section 43. The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty days after the notice of the final action of such board, may, by filing his appeal in the common pleas court of the county wherein the injury was indicted, be entitled to a trial in the ordinary way and be entitled to a jury if he demands it. In such a proceeding, the prosecuting attorney of the county, without additional compensation, shall represent the state liability board of awards and he shall be notified by the clerk forthwith of the filing of sucjh appeal.
“Within thirty days after filing his appeal, the applicant shall file a petition in the ordinary form against such board as defendant, End further pleadings-shall be had in said cause, according to the rules of civil procedure, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant; and if they determine the right in his favor, shall fix his compensatioir within the limits under the rules prescribed in this act; and any final judgment so obtained shall be paid by the state liability board of awards out of the state insurance fund in the same manner as such awards are paid by such board. ’ ’

The defendant filed a demurrer to the plaintiff’s petition filed in the appeal, which demurrer was sustained.

The act relates to and embraces both employers who do and those who do not comply with the provisions of the act. Thus, two classes of employers are contemplated in the act. Section 27 of the act relates to the class which has failed to comply with the provisions of the act. An employee of this class is given an election of remedies for injuries sustained in the course of his employment. He may proceed against his employer by civil action in court, or, in lieu thereof, he may “file his application with the State Liability Board of Awards for compensation in accordance with, the terms of the act, and the board shall hear and determine such application for compensation in like manner as in other claims before the board; and the amount of compensation which said board may ascertain and determine to be due to such injured employee, or to his dependents in case death has ensued, shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the board; and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the board, which with an added penalty of fifty per centum may be recovered in an action in the name of the state for the benefit of the person or persons entitled to the same,” etc.

Obviously, therefore, if an employee of this class elects to file his application with the State Liability Board of Awards for compensation, he may have his claim for damages against his employer liquidated, and if not paid as provided in the act, “may recover the amount thereof, with an added penalty of fifty per centum in an action in the name of the state for his benefit.” He is not, however, by this section or any other of the act, given a right to have “the amount of compensation which said board may ascertain and determine to be due such injured employee, or to his dependents in case death has ensued,” paid out of the insurance fund created by the act; and nowhere in the act is an employee of this class given the right of appeal from the determination of the board.

Section 43 of the act relates to the class of employers who have complied with the provisions of the act, and contributed to the insurance fund created by the act. And Section 23 of the act provides that an employer who has complied with the provisions of the act ‘4 shall not be liable to respond in damages, at common law or by statute, for an injury or death of any employee, wheresoever occurring, during the period covered by such premiums as he has been required to pay into the state insurance fund. ’ ’

An employee of this class has but one remedy for injury sustained by him in the course of his employment; that is, to file his application with the State Liability Board of Awards for compensation to be paid out of the state insurance fund, and the decision of the board thereon is final, provided, however, “in case the final action of the board denies the right of the claimant to participate at all in such fund on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant” shall have the right of appeal from the determination to the court of common pleas.

From this we think it clear that the right of appeal is given only to the employees of this class.

We conclude, therefore, that the demurrer was properly sustained, and the judgment is affirmed.

^Grant, J., and Carpenter, J., concur.


author: Grant, J.

text:
    VALIDITY OF JUDGMENTS AGAINST MEMBERS OF BENEFICIAL ORGANIZATIONS.
    Court of Appeals for Wood County.
    William Munn v. Henry M. Barfield, Receiver.
    Decided, December 5, 1914.

      Mutual Benefit Societies — Judgments Against Individual Members— Secured in an Action Against 'the Society — Are Valid and Bnforcible, When — Complaint of Denial of a Day in Court Does Not Lie, When.

    1. A subscription to membership in a beneficial organization is equivalent to a power of attorney to tbe association to appear and act and be bound in tbe place of tbe said member in respect to tbe corporate functions of tbe association, and a judgment against an individual member for unpaid assessments to pay death losses, obtained against tbe association by a beneficiary acting for herself and all other beneficiaries similarly situated and entitled, is a valid judgment until met by tbe defense that tbe alleged debtor was not a member of tbe association at tbe time tbe liability arose, or that be has paid tbe assessment, or has a set-off against it.
    2. Tbe expression “a day in court” means simply that there has been due process of law with respect to notice to defendant and an opportunity to be beard, and complaint of denial of bis right to a day in court does not lie in the mouth of one who has been haled into court and given an opportunity to present a defense, but had none to offer which went to the merits of the case pending against him.
   Grant, J.

This petition in error’ asks for the reversal of the judgment of the court of common pleas.

The parties stand here, as to position, in the inverse order of their standing in the court below, but to avoid confusion they will be designated in the opinion as they were there.

The action in the first instance was brought before a justice of the peace and in that court the defendant prevailed. Upon an appeal had and issues joined by pleadings in the court of common pleas, the cause came to a trial to a jury. At the conclusion of the plaintiff’s evidence the defendant moved for a direction to the jury to return a verdict in its favor, which was refused, and he excepted. The defendant then offered some testimony, which upon objection made was rejected, and on motion of plaintiff the court thereupon instructed the jury to return a verdict for him, which was done, and the defendant saved his exceptions. A motion for a new trial was seasonably made and denied. Whereupon judgment was entered upon the verdict. To all of which also excéptions were duly taken. The action of the trial court in taking these various steps is assigned as error, upon which this proceeding is prosecuted.

Reduced to its lowest terms the complaint is this, for substance : The defendant was a member of the Northwestern Ohio Masonic Relief Association, a statutory beneficial organization, and as such he was subject to assessments to meet death losses as the same might accrue. While he was such member and so liable, certain deaths did occur and assessments in that behalf were duly made. Upon default for payment of these losses an action was begun in the courts of Lucas county by a beneficiary entitled to be paid the avails of an assessment, against the association and its trustees, on her own behalf and on the behalf as well of all others similarly situated and entitled, the object of which, among others, was to have found the number and amount of such unpaid assessments, the reduction of the same to judgment, the ascertainment of the members liable to contribution to the payment thereof and the amounts of their several liability in that behalf, the levy of an assessment, ratably, upon each liable member, and the appointment of a receiver to enforce collection, the association and its trustees and officers having failed to do so.

In that cause such proceedings were then had that the allegations of the petition were found to be true and the relief prayed for was allowed, and the plaintiff in this action was appointed receiver and clothed with adequate authority to begin and prosecute it to effect in all proper jurisdictions, the defendant having been found in the suit of origin to be liable in the amount sued for here.

In this suit the plaintiff declared on the finding and judgment of. the Lucas county court, setting out the proceedings in ex-tenso, with proper exemplification, in his petition, all of which he proved on the trial.

The defendant’s answer was a general denial in manner and form, followed by a perfunctory denial, for alleged want of knowledge, of the proceedings and 'judgment had in Lucas county. Then he made his real supposed defense, to the effect that he was no party to the Lucas county judgment, for which reason he was in no manner concluded by it, and that in so far as it purported to fasten a money liability on him, it was void.

This asserted nullity of the judgment, so far as it touched him, was the real and sole issue in the case. It amounts to this, as was heard many times in the argument for the defendant at the bar, and which we find repeated in his brief, that the defendant has not had “his day in court.” That question settled, and all the complaints lodged in the petition in error here are settled.

When the defendant moved the court for a directed verdict on the plaintiff’s evidence, it may, we think, be doubted whether technically he did not then and thereby submit the case to the court for determination, upon which submission the court, by directing a verdict for the plaintiff,, found, as a matter of law, the issues with the latter for want of defensive evidence, and whether the subsequent tender of evidence by the defendant was seasonable to arrest that consequence.

But as the trial court did not proceed on that footing, but found that the offered testimony constituted no legal defense to the action and was therefore incompetent, and as the point is not relied on here to uphold the judgment complained of, no further observation in this respect is deemed proper.

As to the question really in issue here, we do not think it is open in Ohio.

It was no part of the duty or right of the defendant to make the assessments or to pay them. By becoming a member of the association he surrendered that and consented to be represented in those respects by the association. His subscription to membership amounted to a power of attorney to the association to appear and act and be bound in his place and stead, in these corporate respects and relations. So that, whenever it became necessary to resort to legal compulsion to enforce the performance of the corporate duties of making assessments, he was conclusively there in the persou of the association. It is true that he would be there sub modo only and vicariously, but effectually there for that purpose. Upon these matters and in this relation, therefore, it can not be said that in the case in hand the defendant has not had his day in court.

• If it shall be said that the finding of the Lucas county court cast him in judgment in an amount certain, and that for that reason a personal obligation has been fixed without summons or other process on him, the answer is that in so far as that court proceeded in determining the necessity of the assessments and the duty of making and paying them, the sole right of appearance and defense was with the association in its capacity as the representative of its members. And the consequent function of ascertaining how many members there were was clerical only and sounded in rem, so to speak. Given the assessments to be met and the number of the association members, and an arithmetic does the rest. From those data it is a mere matter of computation to find all that the Lucas county court purported to find, aside from those matters in the action as to which the defendant must be deemed, conclusively, to have been represented by the corporation. So far, he had no day in court because he was entitled to no day. In all that was done there no personal right and no substantive individual defense of his was touched to his hurt. All these were preserved to him, to be asserted at his^ will whenever he should be haled to court at the foot of a summons to answer to a demand for judgment. Among those rights preserved to him was that of showing that he was not a member of the association at the time the liability to assessment arose, or that he had paid his assessment, or that he had a set-off against it. The court in that action settled none of those things beyond, his right of opportunity to assert them, issuably, to a jury.

That the corporation is held to have represented him in the Lucas county action as to the necessity of the assessments, their validity and amount, is not, we think, to be doubted under the law as settled in Swing, Trustee, v. Rose et al, 75 O. S., 356, without the presence of the defendant in-court. The liquidation evidence in that case by premium notes is not to be differentiated from that which resulted in this case from the legal maturing of the death losses.

With those matters adjudicated, all else done in the court of Lucas county was clerical only; an adding machine could have done it as well as the court and at less expenditure of mental tissue.

We now approach the master grievance of the defendant urged upon us here. It is that he has not had “his day in court. ’ ’ The expression is often inaccurately used. What really is meant by day in court is due process of law. Two things are essential to it: first, lawful notice; second, opportunity to be heard.

Bearing in mind the rights we have stated which were reserved to him, in the former action, and as to those rights, the defendant has had fulfilled to him both these fundamental conditions of due process of law; lie has been summoned to judgment and he has had full opportunity to be heard. Being thus summoned, and having his chance to speak in his answer to the challenge, does it appear that he was not a member of the association? He does not claim it. Does he assert payment by him of his ratable share of the assessments found necessary in the action in which, as to that thing, he was vicariously but still conclusively represented by the corporate association, or a set-off against them? He does not. A consideration by the trial court of anything else offered by him as evidence, would be threshing over old straw or else entirely beside the question.

He has had his day in-court. That is to say, he has had due process of law, running to him, personally, and when brought to the bar he has nothing to the purpose to offer. So thought the trial court, and we agree with it. We can not sep that any error of substance, to the injury of the defendant, has intervened in this record, nor can we say that in the proceedings substantial justice has not been done.

The judgment complained of, therefore, is affirmed.

Winch, J., and Meals, J., concur.


author: Houck, J.

text:
    CONSTRUCTION OF A WILL WITH REFERENCE TO AFTER-ACQUIRED REAL ESTATE.
    Court of Appeals for Richland County.
    George W. Strock v. John Strock et al.
    Decided, March 19, 1917.

      Wills — Testatrix Dies after a Purchase of Real Estate Not Covered hy Her Will — Intention of Testatrix Derived from Residuary Clause— And Not from Consideration of the Will as a Whole.

    A will containing the general residuary clause, “the balance and remainder of my property of every kind and description I give and bequeath,” etc., covers after-acquired real estate, and in an action for partition of said real estate it will be treated as having passed under the residuary clause.

      James W. Galbraith, for plaintiff in error.

      James P. Sewwrd and Kramer & Jarvis, contra.
   Houck, J.

Error to the Court of Common Pleas of Richland County.

The parties to this proceeding in error stand here in the same relation to each other as they stood in the court below.

This is an action brought for the partition of certain real estate described in the petition of the plaintiff and of which the testatrix, Mary Elizabeth Clark, died seized, but said real estate was acquired by her after the execution of her last will and testament.

The conceded facts are as follows: On April 4th, 1910, Mary Elizabeth Clark, who then owned no real estate, made and executed her last will and testament. Her estate, at the time, as specifically described in her will, consisted only of mortgage securities, bonds, stocks, money loaned and cash in bank, from which personal estate she gave and bequeathed certain money bequests amounting to about $8,800, leaving a balance of personal property which would pass under a residuary clause of her will in the sum of $10,000; that about two and a half years after the execution of her will she purchased the real estate described in the petition of plaintiff, and at the time of her death was seized of same. Said testatrix never re-executed or republished her will. The residuary clause of the will of Mary Elizabeth Clark is as follows:

“Item 10. The balance and remainder of my property of every kind and description I give and bequeath to Curtis King and his wife, Jennie King, -and to Roy Sipe and his wife, Alice Sipe, share and share alike; that is, to Curtis King and his said wife the one-half of the amount left after all of the above gifts, and to Roy Sipe and his said wife the other half remaining after all of the above gifts.”

The only question to be determined in this case is, does the real estate acquired by the testatrix subsequent to the making of her will pass by the terms and provisions thereof ? This question must be solved by a proper, true and correct interpretation of the terms and provisions of the will now before us for construction, but in arriving at the intention of the testatrix it is not necessary to construe the entire will and all of its provisions, if the question to be determined can be ascertained from one clause thereof, which we think is clearly apparent in the instant case, being the residuary clause as contained in item 10. Counsel for. plaintiff in error urges that the will before us for construction be construed according to certain rules of construction, and in his printed brief cites many of these rules upon which he relies. True, we have well settled rules for the construction of wills, such as the following: (a) The intent-of the testator, the guide in the construction of a will, is to be gathered from a consideration of the entire instrument. (?;) The whole will must be construed together, and in the light of the whole will and all the surrounding circumstances each clause is to receive its interpretation, (c) Nothing is more clearly settled or of more frequent application in the construction of a will than the rule requiring the intention of the testator to be gathered from all its parts and not from isolated passages. These rules are sound, but are only applicable when the language used in the will is ambiguous, indefinite and uncertain, or where different items or clauses of the samé will relate to the same subject-matter, and then it becomes necessary to consider the entire will or different items therein in order to ascertain the intent of the testator. But no such case is presented here, for the reason that but one item of the will is necessary to be construed for the purpose of ascertaining whether or not the real estate in question passed by devise. Section 10579, General Code of Ohio, provides as follows:

“Any estate, right or interest; in lands or personal estate or other property acquired by the testator after making his will, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the will to have been his intention. ’

Let us inquire: Does the language used in item 10 of the will before us plainly and manifestly show upon its face an intention on the part of the testatrix, Mary Elizabeth Clark, to devise her after-acquired real estate ? We think so. The language contained in this item of the will must be interpreted to mean just what is expressed therein by the words and language used. The mere fact that we can not understand why the testatrix so provided, or that such provision is different from what was or might have been expected will not warrant or justify putting a construction on said language different from the plain meaning of the words used therein. The language is clear, plain and unambiguous, and we are bound to hold that the intention of the testatrix, as manifestly shown by the language used in item 10 of her will, was to devise all after-acquired property of which she might die seized. It seems to us that this is the natural and ordinary meaning and import of the language thus used. To us it seems clear that the language employed is such that there can not be any doubt as to its being a general residuary clause: ‘ ‘ The balance remaining of my property of every kind and description I give and bequeath,” etc.

We feel that the law is well settled that such words, in the residuary clause of a will, wholly and entirely preclude an interpretation to die intestate as to any property of which the testator may die seized. The learned counsel for plaintiff in error relies upon the ease of Wright v. Masters et al, 81 Ohio State, page 304. We have examined it with much care and can not agree with the claim thus made. A careful reading of the opinion in the above cited case (at pages 312 and 313) clearly discloses the fallacy of counsel’s contention. Judge Crew, speaking for the court in said case, says:

1 ‘ This rule of the common law has, however, been so far modified by statute (Section 10579, General Code) in this state, that property acquired by a testator subsequent to the execution of his will, shall pass thereby, if, from the will itself, it shall appear with sufficient clearness that such was the intention of the testator. * * * The language of this statute clearly .indicates its limitation, and shows it to have been the purpose of the Legislature to restrict its operation to those cases where the intent of the testator to pass after-acquired property is clearly and sufficiently disclosed in his will. TIence, in every instance the question involved becomes one of construction, and the intent of the testator must be sought in the Avill itself. The will under consideration in the present case makes no reference whatever in any of its provisions to after-acquired property. The property therein devised by item one to Mary Masters during her life is definitely designated and specifically described, and there is in the provisions of said will no hint or suggestion anywhere of a purpose on the part of the testator to give her more> than the property thus specifically described. This will con-’ tains no residuary clause, and there is in it no clause, either general or specific, under which the property in controversy would or could pass to Mary Masters as devisee, even if the testator had owned the same at the time he executed said will. ’ ’ ■

It will be seen that in the case of Wright v. Masters et al, supra, that the will contained no residuary clause, and there was no provision in it, either general or specific, whereby after-acquired property would or could pass to the claimed devisee. But not so in the case at bar. We do find a residuary clause which is specific, definite and certain, and which by the plain language used devises “the balance and remainder of my [testatrix’s] property of every bind and description.” We therefore are of the opinion that the doctrine laid down in the ease of Wright v. Masters et al, supra, is a case which seems to us to be directly in point and decisive of the case at bar, and instead of it being favorable to the contention of plaintiff in error in this case we are free to say that it is directly in point and fully bears out the claim of the defendants in error.

We wish to call the attention of counsel to the case of Newton v. McKinstry, 16 Circuit Court (N. S.), page 219. A careful examination of this case as to the facts and the law,' as laid down by the learned judge in the opinion, leads us to the conclusion that it is a ease directly in point with the instant case, and that the doctrine enunciated therein is also decisive of the question before us.

In view of what we have already said we hold that the will of Mary Elizabeth Clark passed the real estate in controversy, which was acquired by her after the execution of her will. Thus finding, it follows that the judgment of the common pleas court must be affirmed.

Judgment affirmed.

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


author: Richards, J.

text:
    LIABILITY OF VILLAGE OFFICIALS FOR FALSE IMPRISONMENT.
    Court of Appeals for Wood County.
    H. C. Middleton v. The Village of Bloomdale et al.
    Decided, May 15, 1914.

      Mayor and Marshal Not Civilly Liable — For Arrest Alleged to Have Been Umoarranted — Because of Invalidity of Ordinance Claimed to Have Been Violated.

    Village officials are not liable to respond in damages for false imprisonment because of tbe alleged infirmity of the ordinance under ■which, the arrest was made, where they acted in good faith and with an honest belief in its validity.
    ■ William, Dunipace and A. B. Gilfillian, for plaintiff in error.

      McClelland & Bowman and J. M. Steelier, contra.
   Richards, J.

H„ C. Middleton was arrested on December 17, 1912, in the village of Bloomdale, charged with the violation of an ordinance of that village requiring, among other things, a license fee for those persons engaged in the business of bill distributing. This arrest was made by the defendant, George Beam, who was marshal of the village, and was made upon said defendant actually seeing the plaintiff violating the ordinance. The arrest was made with the knowledge and approval of -the mayor, who is the defendant, G. M. Book. Middelton, on being arrested, was locked up in the village jail and remained there for some eight hours, he having requested not to be taken before the mayor until receiving an answer to a telegram which he had sent to his employer, and during this time a warrant was issued for his arrest and detention. Not receiving such answer, he was taken, on the evening of the same day, before the mayor, who stated to him, in substance, that the best way would be to pay the license fee, which was two dollars, and the fees of the marshal, amounting to sixty cents, which sum of two dollars and sixty cents he thereupon paid and was given a receipt for the same, and was thereupon released from custody.

This action is brought to recover damages in the sum of $10,-002.60, by reason of such claimed false imprisonment.

"While the village of Bloomdale is named as a party defendant, it was released on demurrer and the action proceeded against the mayor and marshal and the bondsmen of the latter, and resulted in a verdict in favor of the defendants on the trial in the court of common pleas.

The plaintiff was engaged in the business of distributing advertising matter throughout the village, which printed circulars contained matter advertising “Jello” and included recipes for the use of the same.

The amended petition on which the action was tried avers that the defendants imprisoned the plaintiff and deprived him of his liberty for the period of eight hours, unlawfully and on a pretended charge of violating ordinance No. 122 of the village, but the pleading contains no averment that the ordinance mentioned was unconstitutional, although it became apparent on the trial of the case that the plaintiff was relying on his right to recover damages against the mayor and marshal by reason of the unconstitutionality of the ordinance. He did not, however, offer to introduce the ordinance in evidence, and when it was offered in evidence by the defendants, he objected to its reception, and the court, on consideration, sustained the objection, so that the ordinance was not introduced in evidence at any time during the trial of the case. The trial judge took the position that the ordinance not being before the court, it would be presumed to be constitutional, and so stated to the jury.

In the view we take of this case we find it unnecessary to determine whether the trial court was right in assuming that the ordinance was a valid and constitutional enactment, because we are of the opinion that under the circumstances disclosed by the evidence in this case, the village officials, namely, the mayor and the marshal, are not liable to respond in damages in an action for false imprisonment. The evidence shows that they acted in entire good faith; and whether the ordinance was valid or not, it is clear that they believed it was so, and not subject to any constitutional infirmity.

The law provides convenient and appropriate methods for determining the constitutionality of statutes and ordinances, and it by no means follows that a person who has been arrested under an unconstitutional statute or an unconstitutional ordinance may maintain an action for false imprisonment against the officials for such arrest, where the officers proceeded in good faith and in an honest belief in the validity of the enactment.

It would not be possible to reconcile the decisions of the various courts on this question, but we are convinced, from a careful examination, that the greater weight of authority and the better reasoning are in favor of the position that under the circumstances stated, an action for false imprisonment will not lie.

Many cases are collected in 19 Cyc., 345, under the article “False Imprisonment,” where the eminent author, Mr. Jaggard, recognizing the conflict of opinion, states that the weight of authority is that the court has jurisdiction to determine the question of constitutionality, and, therefore, that the person making complaint to a magistrate, the magistrate issuing the warrant and an officer serving process, fair on its face, are not liable.

A case in all respects similar to the one at bar is that of Bohri v. Barnett, 144 Fed., 389, the syllabus of which reads as follows:

“An action for false imprisonment based on the arrest, conviction and imprisonment of plaintiff for violation of an invalid city ordinance will not lie against the magistrate who tried the cause, the city attorney who prosecuted, the constable who made the arrest, or the person who filed the complaint, where all acted in good faith without malice and in the belief that the ordinance was valid, and the proceedings were regular and the magistrate had jurisdiction of all prosecutions for violations of the city ordinances, which necessarily included jurisdiction to determine the validity of the ordinances. ’ ’

Under the laws of this state the duty of hearing and deciding actions brought for the violation of the ordinances of a village rests in the mayor, and he alone must determine, in the first instance, as to the validity of the ordinance. This was a judicial matter to be determined by him according to his best judgment of the law, and that matter was within his jurisdiction, and surely it.would be a harsh rule to lay down that such an officer would be liable to respond in damages in the event that he should be mistaken in his judgment as to the validity of the ordinance.

I cite on this point also: Rush v. Buckley, 70 L. R. A., 464; Brooks v. Mangan, 86 Mich., 576; Tillman v. Beard, 121 Mich., 475; Gardner v. Couch, 137 Mich., 358, and Tyron v. Pingree, 67 Am. St. Rep., 424, where an elaborate note may be found; Calhoun v. Little, 71 Am. St. Rep., 254, and Thompson v. Jackson, 61 N. W., 1004, 1006,. 'These eases will be found to bear out the principle which has just been enunciated.

The question has been under consideration in some of the courts of this state, and, as'illustrating the views expressed, I refer to Wheeler v. Gavin, 5 C. C., 246, a decision of the circuit court sitting in Darke county, holding that under the circumstances existing, an action would not lie against the mayor nor against the parties filing the affidavit. A more recent case is that of Williams v. Morris, 14 C.C.(N.S.), 353, holding that the Legislature is presumed to have passed only constitutional laws, and that an arresting officer is not liable for false imprisonment where he acted under a statute which was subsequently declared unconstitutional.

We are in entire accord with the language of the Supreme Court of Wisconsin in Robertson v. Parker, 67 Am. St., 889, 893, where this expression may be found:

“We are content to join in the increasing procession of states that have adopted and are following the more humane and less stringent test of liability in cases of this kind. ’ ’

We call attention to 19 Cyc., 338,.with the suggestion that the jury may have found under the evidence that the plaintiff by his conduct waived whatever rights he had, if any,, and acquiesced in'any claimed irregularities.

Finding no prejudicial error, the judgment will be affirmed.

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


text:
    RELIEF AFTER. JUDGMENT.
    Court of Appeals for Franklin County.
    Emma McCathran v. The Columbus Transfer Co. et al.
    Decided, February 6, 1917.

      Judgment Alleged to Save Been Obtained by Fraud — Allegations of Conspiracy and False Sioearing — Sufficient to Support Petition for Vacation of Such Judgment and Award of a New Trial — Materiality of Newly-Discovered Evidence — Section 11681, G. C.

    1. A petition containing allegations of a conspiracy to secure judgment by means of false testimony, which false testimony was given at the trial and a judgment obtained which was based thereon, states a good cause of action for vacation of said judgment and the award of a new trial, “for fraud practiced by the successful party in obtaining a judgment or order.”
    2. The court finds that the newly-discovered evidence proferred in this case is material and could not with reasonable diligence have been discovered and produced at the trial, and leaving its weight for determination by the proper tribunal the order granting a new trial is affirmed.

      Huggins, Huggins & Hoover, for plaintiff in error.

      G. D. Saviers, contra.

      Shields, Powell and Houck, JJ., of the Fifth Appellate District, sitting, by designation, in place- of Ferneding, Allread and Kunkel, JJ., of the Second Appellate District.
   Shields, J.

An action was originally commenced by the plaintiff in error to recover damages against one of the defendants in error herein, the Columbus Transfer Qo., for the alleged negligent operation of an automobile resulting in causing her injury. After issue joined by.answer and reply the case was submitted to a jury ending in a disagreement. Afterward a second trial was had and the plaintiff in error recovered a verdict and judgment against the said defendant in error, the Columbus Transfer Co., in the sum of $7,540, which the trial judge ordered reduced to the sum of $5,000. By proper proceedings had on the part of said defendant in error, error was prosecuted to the court of. appeals of said county to reverse said judgment, which was by said court affirmed. Thereupon the plaintiff in error caused an execution to issue upon said judgment, and while the same was in the hands of the sheriff of said county awaiting action therein, the said defendant in error, brought an action in the court of common pleas of said county against the plaintiff in error to vacate and set aside said judgment for the reasons set forth in the amended and supplemental petition of the plaintiff in error filed herein, upon the hearing of which, after a motion and demurrer to the same were overruled, said judgment was by said court ordered vacated and set aside, and a temporary injunction was granted restraining the enforcement of the collection of said judgment and the levying of said execution issued thereon, to which action of said court in vacating and setting aside said judgment and granting a new trial to the said defendant in error, error is prosecuted in this court to reverse the order and judgment of said court.

While numerous errors are alleged in said petition in error for the reversal of the action of the court below, we will consider only the grounds of error especially urged upon the attention of this court.

The following questions are made upon the record: First, under which subdivision of Section 11361 of the General Code does said action for the vacation of said judgment fall, if under either? Secondly, if it falls under Subdivision 10 of said Section 11361, then the contention of the plaintiff in error must prevail, because it is not claimed that there was any conviction for perjury of the successful party in securing said judgment but if it is held not to' fall within the provisions of said Subdivision 10 of said Section 11361, the further question arises, did the defendant in error make a proper and sufficient showing for a new trial upon the grounds of newly-discovered evidence to authorize the court below to grant the same ?

That the action begun in the court below is authorized by Sections 11631 and 11580 of the General Code is conceded, and that said action was instituted within the statutory period as required by Section 11640 is also conceded, but the controversy here is not what particular statute meets and governs the first question raised, but what particular subdivision of such statute is applicable.

Among the causes enumerated for which a new trial may be granted, after the term at which it was made, are the following:

Section 11631-1. By granting a new trial for the cause within the time and in the manner provided in Section 11580.

Section 11631-4. For fraud practiced by the successful party in obtaining a judgment or order.

Section 11631-10. When such judgment or order was obtained, in whole or in a material part, by false testimony on the part of the successful party, or any witness on his behalf, which ordinary prudence could not have anticipated or guarded against, and the guilty party has been convicted.

Without reviewing the allegations in the amended and supplemental petition which are the foundation of this proceeding, and the law which we think applies, we are content to state but little more than the conclusion we have reached on the first branch of this ease, and that is, that we can not see our way clear to hold that this proceeding for a new trial falls within the provisions of Subdivision 10 of said Section 11631. It is contended on behalf of the plaintiff that the gist of the action is perjured testimony at the trial. Not only is this so, but an examination of the plaintiff’s amended and supplemental petition shows it is averred therein that a fraudulent conspiracy was entered into between the plaintiff and her companions in said automobile to recover damages for injuries sustained, in the over-turning of said automobile as herein described, by agreeing to testify upon the trial of the plaintiff’s case, and she in turn for them in their cases, that said automobile at the time of said accident was being driven by a chauffeur in the employ of the said defendant in error, the Columbus Transfer Co., whereas in truth and in fact said automobile was not so driven; and it is also alleged that said fraudulent conspiracy was carried out and that the plaintiff and her said companions did so testify, and that said judgment was obtained by said plaintiff against the said defendant in error, the Columbus Transfer Co., by means of said false testimony. It thus appears that conspiracy is charged as well as false swearing — an allegation that the action was one for fraud not alone practiced at the trial. While we have read the well prepared and well considered brief of counsel for plaintiff in error with no little interest, treating in an able manner as it does of a variety of subjects relating to the question at issue, we can not agree with said counsel that the holding made in the case of Baldiuin v. Sheets, reported in 39 O. S., 624, is not decisive of the question made here. Subdivision 10 of said Section 11631 was then as it is now. In that case the Supreme Court held that a petition, containing allegations of a conspiracy and that false testimony was given upon the trial by the defendants therein by which judgment was obtained, stated a good cause of action to vacate the judgment under Subdivision 4 of said Section 11631.

In this connection counsel for plaintiff in error refer to the case of Micheal v. American National Bank, 84 O. S., 370, and contend that the rule of law announced in that case controls the case at bar. There the court was not considering a case within a statute, but a case in equity, while the case here is one for a new trial based upon a statute. As we view it, that ease is clearly distinguishable from the ease before us for the additional reason that there was no fraud charged in that case, and the learned judge speaking for the court in said case expressly states in the opinion on page 382 that:

“The amended petition herein contained no allegation of fraud in the original action on the part of the bank or any one. It is not claimed that the bank perpetrated any fraud at any time on the court or on the defendants, nor that the verdict in that case was the result of fraud. There is no averment that there was any false testimony introduced by the bank.”

Here fraud is expressly charged as a result of a conspiracy and false swearing. "Without further pursuing this branch of the case, it will be sufficient to state that investigation shows the decision in the case of Baldwin v. Sheets has not been reversed or modified, and applying the rule of law laid down in that case to the facts in the ease before us, we are of the opinion that the action herein is one for a new trial under Subdivision 4 of said Section 11631.

Having determined that the action does not fall under Subdivision 10 of said Section 11631, our next inquiry will be to ascertain whether or not the party here applying for a new trial has exercised that degree of diligence contemplated by the ]aw in obtaining the newly-discovered evidence presented as a ground for such new trial.

In the enumeration of causes provided by statute for a new trial, Subdivision 7 of Section 11576 of the General Code, as one of the grounds therefor, provides that:

“Newly-discovered evidence material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial.”

A reading of the testimony offered in support of the application here made, assuming that the plaintiff in error and others apparently interested in the event of this suit made the state1ments attributed to them by what are designated as the detective witnesses, leaves no doubt in the mind of this court that such testimony is material to the issue made by the pleadings in the case, for it is apparent that the liability of the defendant in error, the Columbus Transfer Co., depends upon the fact whether or not its chauffeur or other authorized agent was in active charge of the automobile at the time of the accident. We can not and do not say that the calling or occupation of these detectives discredits their testimony, but that such testimony should be received with caution and carefully scrutinized is enjoined both by the experience of courts and the observation of men generally, and it is not perhaps too much to say that it appears impossible to reconcile the testimony of at least one of these witnesses, being inconsistent as it is, if indeed not open to strong suspicion of being untrue. Granting this, the testimony of the other witnesses describes their visits with the plaintiff in error to the scene of the accident with such minuteness of detail and particularity of statement, which when considered in connection with alleged conversations, partaking of the nature of confessional statements, had by such witnesses with the plaintiff in error and her associates in the saloons mentioned, on the occasions mentioned — such testimony, like all other facts, would be the province of a jury to determine and not the court. True, the plaintiff in error denies the statements of these witnesses, but the history of the events of the night in question are not to be lost sight of in considering the evidence offered. What the effect of this evidence would be upon final trial we are unable to say, but giving to the statements of the witnesses a fair and reasonable construction, would they not likely have weight with a jury? Or stating the rule in this state as laid down in Ludlow v. Park, 4 Ohio, pages 5-45, and in Railroad v. Lang, 24 O. S., 133, would the legitimate effect of the testimony of these witnesses be such as to require a different verdict? We are aware that new trials on the ground of newly-discovered evidence are not indiscriminately favored by the law that litigation may not be unnecessarily and indefinitely prolonged, still the same law will not wink at the defeat of justice by condoning wrong at the expense of litigants. We are of the opinion that the testimony of these witnesses is material, and not cumulative, leaving the credibility of such witnesses and the weight of such witnesses’ testimony to the functions of another tribunal to determine.

Under Subdivision 7 of said Section 11576 of the G-eneral Code, it must appear that the newly-discovered evidence for a new trial is not only material, but it must likewise appear that such evidence could not have been discovered before trial by the exercise of reasonable diligence. An examination of the testimony offered upon the hearing in the court below in this respect shows that the superintendent of the Columbus Transfer Co. soon after said accident sought interviews with parties, except the plaintiff in error, whom he supposed could and would give him information touching the incidents and circumstances of said accident, but it appears that they declined to so do. Referring to pages 129 and 130 of the record, the said superintendent, after stating that he had interviewed the witnesses at the scene of the accident, and made an unsuccessful effort to interview others, was interrogated as follows:

“ Q. I will ask you to state whether after that you made any efforts, and if so, what efforts you made, in order to ascertain the truth and the facts about the accident ? A. I made a great deal of effort; I made all the inquiries I could, and talked with every body that had any connection with it, and tried to find out from the nurses at the hospital whether McCollum made any statement or not.
“Q. Did you talk with any of the doctors? A. And with the doctors, Dr. Howell, and the internes at' the hospital, the nurses and also with * * * I believe with Henry Morgan and the boy’s mother.
“Q. With the exception of the information that you got from Mr. Stouffer, the Pendleton boys and Mir. McCoy as to statements that had been made to them relative as to who had driven the ear, were you able to ascertain in any way? A. No, sir; positively not.”

From the foregoing it appears that said transfer company was not guilty of laches in endeavoring to ascertain the facts and circumstances of the accident soon after it occurred, but on the contrary it appears to have used reasonable diligence to that end.

Of course the fact is not to be overlooked that McCollum, the chauffeur, died soon after the accident, and that the alleged disclosures of the plaintiff in error as to who was driving and directing the automobile at the time of the accident were not made until just prior to the bringing of this action, hence the said transfer company could not prosecute said action until it obtained said information. In the light of the testimony of the superintendent of the said transfer company, we are of the opinion that the requirements of said Subdivision 7 of said Section 11576 have been met by said transfer company, and we are further of the opinion that the judgment of the court of common pleas in vacating the judgment rendered in favor of the plaintiff in error and awarding a new trial should be and the same is affirmed. Exceptions.

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