author: Swing, J.

text:
    (First Circuit — Hamilton Co.. O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    STATE EX REL LUEDERS v. JAMES B. ERMSTON.

      Appointment of officer for term commencing after expiration of term of appointing officei—
    When authority is given to an officer to make an appointment, such officer can not make an appointment the term of which is to begin after the expiration of his term. But when the statute expressly provides that the appointment shall bé made on a certain day, or as soon thereafter as practicable, the appointment may be made notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer.
    Quo Warranto.
   Swing, J.

This is an action in quo warranto, wherein Wm. Lueders claims to be prosecuting attorney of the police court of the the city of Cincinnati, and that the defendant, James D.Ermston, wrongfully keeps him out of possession of the same.

Plaintiff's right to the relief asked, depends on his title' to the office.

The case was heard in this court on a demurrer to the petition. .

The petition alleges the appointment of the plaintiff by John A. Caldwell, the then mayor of the city of Cincinnati, on the 24th day of May, 1897, the confirmation of said appointment by the board of legislation on the 1st day of June, 1897, the giving of bond according to law, and the taking of the oath of office.

The only question in the case is, whether the said John A. Caldwell, as mayor, had the power to make the appointment. If he had, the relator is entitled to the office, otherwise not.

The authority to appoint the prosecuting attorney of the police court, is lodged with the mayor of the city, and is contained in the following provisions of secs. 1708a, and 2690o, of the Rev. Stats.

Sec. 1708a, is as follows:

“In cities of the first grade, of the first class, there shall be a mayor, auditor, treasurer, police judge, clerk of the police court,and corporation counsel, who shall be chosen by the electors, for equal terms, at one and the same, general municipal election; and a prosecuting attorney of the police court,who shall be appointed by the mayor, with the advice and consent of the board of legislation.”

So much of sec. 2690o, which bears on the question at issue, is as follows:

“That all appointments provided for in secs. 1708a, 2205 and 2436 shall, except in cases of vacancies, be made on the first Monday in May, or as soon thereafter as practicable,of each year m which appointments are required.”

At the time of the appointment by Mayor Caldwell of said plaintiff, Carl Nippert was the prosecuting attorney of the police court, having been appointed by said Mayor Caldwell on the first Monday in May, 1894, and his time would expire on July 4tb, 1897, so that the year 1897, was the year in which an appointment for prosecuting attorney of the police court was required.

The term of Mayor John A. Caldwell, expired on July 4th, 1897, and he was succeeded by Col. Gustav Tafel, who was elected mayor on the first Monday of April of the year 1897.

It was claimed by counsel for defendant, that as the term of office of the said John A. Caldwell would expire at the time when his appointee, the plaintiff, would go into office,, that such an appointment could not be made, and quite a number of authorities were cited to us in support of such a proposition. We see no reason to question any of the authorities cited, but it seems to us, that these authorities go only so far as to say, that when authority is given to an officer to make an appointment, such officer can not make an appointment the term of which is to begin after the expiration of his term,

If the law in this case had said, that the mayor of the city of Cincinnati should appoint a prosecuting attorney for the police court when an appointment was required, there would be no question but what the authorities cited would be applicable, and Mayor Caldwell would not be permitted to make an appointment to an office, the time of which commenced after the expiration of his own term.

But there is no general rule of law which pretends to place any barrier on the powers of the legislature in such matters. So that,if the legislature has said when and how, and by whom any appointment is to be made, and the courts can satisfactorily ascertain what the legislature has said, that is the end of the inquiry, and there can be no rule of law to change or interfere with it. There can be no escape from this, unless the courts lay violent hands on the law, and nullify the law by judicial legislation. This we do not intentionally propose doing.

What is the meaning of that portion of the section above quoted ?

In construing this law, we recognize as good law the doctrine that a thing may be within the letter of the law, yet not within the law; but where the letter of the law is plain and unambiguous, all the court can do, is to follow the law as laid down, and not go into speculation or surmise.

In the case of Woodbury & Co. v. Berry, 18th Ohio St., 456, the first proposition of the syllabus, is as follows:

“Where the words of a statute are plain, explicit, and unequivocal, a court is not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute, it may be convinced that, the legislature intended to enact something different from what it did in fact enact. ”

To the same effect might be cited other decisions by our own supreme court and other courts of last resort, but the above is direct, clear and sufficient.

This section says: “That all appointments provided for in sec. 1708a, 2205 and 2136, shall be made on the first Monday in May, or as soon thereafter, as practicable, of each year in which appointments are required.”

It is clear that the time, to-wit: the first Monday in May, on which the appointment is to be made, is not mandatory, for the statute itself says, that it may be made as soon thereafter as practicable; but the question here is, can the appointment be made on or after the first Monday, in May, in the year in which it is required — -that is, in the year in which there is a new prosecuting attorney to be appointed ?

We are unable to see why the appointment cannot be made on or after the first Monday in May, of the year 1897» The language of the statute is as clear and as explicit as it is possible to make it. It says in so many words, that it may be made on the first Monday in May.

For the court to say that the mayor cannot appoint the prosecuting attorney o,p that day, would simply be to set the law at defiance and override it. We think it cannot be questioned but what the legislature had the right to say, when, and by whom, the appointment in question should be .made; and that it has made the provisions in this regard, is equally plain. : -

Frederick Hertenstein, for Relator.

D, T. Wright, M. F. Wilson, and Otway Cosgrave, for Defendant.

: To hold that Mayor Tafel, who went into office July 5, 1897, only could appoint, would completely nullify that portion of the statute which says, that the appointment shall be made on the first Monday of May. If there was any reason to think that the legislature, when it said,in effect, that the appointment might be made on the first Monday in May, did not in fact mean that the appointment could be made then, but that it intended that it should not be made until the first Monday in July, there might be force in defendants claim; but we are utterly at a loss to see how it can be claimed in reason, that when the legislature had in such plain and explicit language, said, that the appointment might be made on the first Monday in May, that in fact, the legislature did not intend that it could be done on that day.

We know of no rule of construction which would authorize such an interpretation. To set at naught such plain and unmistakable language, would simply mean to ignore the power of the legislature, and to substitute therefor, the idea of the courts,

It is said, that to give effect to the law as it now reads, jwould make the law inharmonious with the original law.

We are of the opinion,that this statement is correct. No doubt, the original law contemplated that the prosecuting attorney of the police court should be of the same party as 'the mayor,during the mayor's term of office. But the law,as amended, has in positive terms changed this, and whether it was intended to do this or no.t, is in the nature of an idle speculation, when it has in fact been done in such unmistakable and positive language.

Demurrer to petition will be overruled, and unless defendant desires to plead further, the prayer of the petition will be granted.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King-, Haynes and Parker, JJ.
    EDSON ELY, v. SOPHIA OTT.

      Bastardy suit — Evidence of cohabitation with other men before time of conception—
    1. In a bastardy proceeding-, testimony offered on behalf of defendant to show that at times from six months to a year prior to the time the prosecutrix conceived the bastard child, she associated with a man other than defendant under circumstances and in situations that afforded them opportunities to have sexual intercourse, unaccompanied by an offer to prove that they had shown a disposition to have sexual intercourse, was properly excluded: first, because of the remoteness of the time; and secondly, because evidence of mere opportunities without evidence of disposition also to commit such acts, was immaterial.-:

      Excessiveness of judgment in bastardy case — When reviewdble—
    2. A reviewing court is not authorized to disturb the judgment of the trial court on the ground that the judgment required to be paid by the reputed father for the maintenance of the bastard child is excessive, unless it shall appear that there has been an abuse of the discretion vested in said trial court, and in this case the court refuses to disturb a judgment of $1800.
    - Error to the Court of Common PJeas of Lucas county.
   Parker, J.

/ On the Blst day of December, 1892, Sophia Ott filed an affidavit before a justice of the peace of this county, charging the plaintiff in error, Edson A. Ely, with being the father of her then unborn bastard child. He was arrested upon the charge, and an examination was had. He was •bound over to court, and it appears that the case was twice tried in the court of common pleas, and the jury each time disagreed; and the third time it came on for trial in November, 1896, and the result of that trial was a verdict of guilty returned against the plaintiff in error. Upon this the judge of the court adjudged that the plaintiff in error was the father of the bastard child, which was then alive, and about four years old, and required and adjudged that the plaintiff in error should pay for its support and maintenance the sum of 11300, requiring him to enter into bond as provided for, for the performance of- that obligation. The plaintiff in error made a motion for a new trial, which was overruled, Thereupon he filed his petition in error in this court to reverse that judgment and have that verdict set aside. The ground relied upon here, and argued, • are, that the court erred in excluding certain evidence offered on behalf of the plaintiff in error; second, that the verdict is against the weight of the evidence; and third, that the amount which the plaintiff in error, was adjudged to pay for the support of this bastard child was excessive.

Coming to a consideration of the first point stated, it appears upon page 148 of the bill of exceptions that during the progress of the cross-examination by. counsel for defendant in error of one of the witnesses for plaintiff in error after he had entered upon his defense below, questions were asked with a view of ascertaining the relation of the relator, Sophia Ott, with her brother-in-law Green; it being claimed, and counsel for the plaintiff in error stating, that their relations had been unduly intimate. They attempted to show this evidently for the purpose of discrediting the witness Sophia Ott,-and for the purpose of throwing doubt upon her statement as to the paternity of this bastard ehild. The examination, appearing at page 148 of the bill of exceptions, runs as follows:

“Q. Do you know where Freedom Green and his wife lived in 1890 and 1891 ? A, lam not sure, but I think they lived up to Palmyra.”
“Q. At the time that you saw them starting off together, in a buggy or wagon, was when they started to Palmyra, was it? A. Yes: that is where they said they were going.”
, ,“Q. You knew that they lived there at that time? Á. I suppose they did.”
‘‘Q. Isn’t it a fact that you and all.the neighbors there knew right where they lived? A. I heard that they lived there; we supposed that they did.' I never heard that they lived anywhere else. ”
• ‘Q. At the time you said they went back there to the woods together, and passed your house, that was the same day that they started to Palmyra, wasn’t it — later in the day? A. I don’t know whether they went to Palmyra that night or not. ”
“Q. It was when they lived at Palmyra? A. Yes.”

Mr. Hamilton, who appeared as counsel for the relator, asked, “I ask to have the Palmyra business, and the going back into the woods, excluded.”

The Court: The jury will not consider that, or anything that transpired in 1891.

It was charged on behalf of the relator, and it was attempted to be shown, that'the illicit intercourse between the relator and defendant which resulted in the conception of this bastard child, occurred in July, 1892. There is some little difference about the date in July in the testimony of the witnesses, but it was agreed on all hands that the occurrence about which they testified when this intercourse was said to have taken place, was in July, ’92. Perhaps it may be said that it certainly occurred upon the 8th day of July, 1892. Counsel for the defendant below excepted to the exclusion of said testimony. The matter again came before the court and jury, it appears, at page 175 of the bill of exceptions. It was during the examination of Josephine Ely, a witness for the plaintiff in error, while her examination was being conducted by counsel for the plaintiff in error:

”Q. How frequently, during a period, say, of six months or- a year prior to this suit — prior to the 8th day of July— ha.d’you seen Sophia and Freed. ..Grreen around together? (Objected to.)”

The Court: “I think the time is too long — within six months or a year would be too remote. ,

It seems that there was some mistake upon the part of counsel for the plaintiff in the framing of that question, or that there is some misapprehension of what the question really was, the way it reads: How frequently, during a period, say, of six months or a year prior to this suit — prior to the 8th day of July — had you seen Sophia and Freed. Green around together?” But we discuss it and pass upon it as it seemed to have been understood by all the parties, as a question asked with reference to the date when this occurrence which resulted in the conception of this child took place. The court says: ‘‘I think the time is too long — within six months or a year would be too remote.”

‘‘During that same period, what had you seen them doing together? (Objected to; sustained; defendant excepted.)”

Mr. Southard: ‘‘By these [questions I expect the anwer would be that — ”

Mr. Hamilton: ”1 think you had better put it down on paper. ”

Mr. Southard: ‘‘I will do that.” Said offer to prove was then reduced to writing and submitted to opposite counsel and the court, and was as follows: ‘‘By these questions I expect to show that they were frequently together, or riding and otherwise, and that they were at times in the fields and woods together.”

The Court: ‘‘As an answer to the question as put,I will exclude it.”

It will be observed that the question related to that same period, to-wit: from a period of six months or a year prior to the 8th day of July, 1892, and that Was the reason the court gave for excluding it, that it was too remote.

It is urged on the part of the plaintiff in error -that the court erred in this respect, in thus denying them the privilege of showing — an opportunity of showing — that these persons had been frequently together, out riding and otherwise, and that they were out in the fields and woods together, • It is said that it is competent for the plaintiff in error to show, as a part of his defense a disposition upon the part of the relator to have illicit sexual intercours with other persons than the defendant and an opportunity to satisfy her desire,and that testimony of the character which they offered to produce would tend to show such disposition and opportunity. The evidence would’ be of no value, even if it tended to prove this, unless it was so followed up with other evidence as to tend to show’ disposition and opportunity at about the time when this girl came to be in the family way. To show opportunities at a time so remote we think was not allowable, and that the court was not wrong in excluding this kind of testimony. And we think the offer did not go to anything that would tend to show disposition. .The mere fact that they may have had opportunities to have illicit intercourse would not tend at all, we think, to show disposition, The fact that they had been together under circumstances that would afford such opportunities, standing alone as the offer to prove was made, would not tend to show disposition. And therefore, we are of the opinion that the court did not err in thus rejecting it. What the view of this court would have been had the offer gone so far as to show definitely not only opportunities, but a disposition, we need not say.

It is urged that the verdict of the jury is against the weight of the evidence. We have read the bill of exceptions very carefully, and some of the testimony more than once, and have discussed it; and I may say that it has given us a great deal of trouble. We feel bound to follow certain rules upon the subject of interfering with the verdict of a jury which are well known to the profession, and which are very well stated in the case of Dean et al. v. King & Co., 22 Ohio St. 134:

“The verdict of a jury should not be set aside by the court to which it is returned on account of any mere difference of opinion between the judge and the jury as to the weight of the testimony, but only when the verdict is unsupported by or is against the decided weight of the evidence. ”
“Motions for new trials, upon the ground that the verdict is against the weight of the evidence, are addressed to the discretion of the court, and if granted, the judgment will not be disturbed on error unless the case is so strong as to show an abuse of the discretion. And if the motion be overruled, a reviewing court should not reverse, unless the verdict (or finding of fact, if the jury be waived), is so clearly unsupported by the weight of evidence as to indicate some misapprehension, or mistake, or bias on the part of the jury, or a willful disregard of duty.”

A mere difference of opinion, it will be seen, upon the part of the trial judge or upon the part .of this court, would not justify a disturbance of the verdict. In order to authorize it, we must be fully persuaded that the verdict is manifestly and clearly against the weight of the evidence. It will be profitless in this case to enter into a discussion of this testimony. The testimony of something like fifteen or sixteen witnesses,covering about 225 pages of a closely written bill of exceptions, is in the record, We shall not attempt it, I will say briefly, that the occasion when this act of sexual intercourse was said to have taken place on the 8th day of July, 1892, was when the families of the defendant and the relator were together in front of their residences, and in and about their residences, which were situated on opposite sides of a public street or highway. There were some nine or ten persons, or perhaps twelve, present in the course of the evening at this time and place. It is said by the relator that while the children of the two families were playing together and some older persons were present, she and the defendant’s little sister went into the defendant’s house to get a drink of water in the kitchen; that after the defendant’s sister had obtained a drink of water she went out of the room, and the relator was taking a drink of water, when the defendant came in and took hold of her, threw her down upon the floor and ravished her. She and the witnesses on her behalf say this time referred to was late in the evening,after dark. There are about half a dozen of those witnessess all testiying to that state of facts, which would bring this occurrence after dark ' On the other hand, an equal number of witnesses on behalf of the plaintiff in error testified that they had all separated, and all this visiting and playing around the yard was over before darkness had set in; and if that is correct, this act must have taken place in broad daylight, and therefore it is said that the story of the relator is entirely improbable and unbelievable. After discussing this evidence, we are of the opinion that after all the case rests upon the positive assertion' of the relator that the defendant did as she testifies, and the equally positive denials of the defendant, which very little aid and support from the other testimony. Nothing really reliable can be derived from the testimony of these children and others who were in and about there, and whose attention was not brought to the occurrences of .this particular evening, so that they would be called upon to think about it or reflect upon it, or refresh their minds upon it, until at least six months afterwards. There are some things stated by the relator which are improbable. For instance, that under these circumstances the intercourse was entirely against her will or consent; that it was forcibly accomplished by the defendant. And we think her statement equally improbable that this intercourse never occurred except upon this one occasion. We think as a matter of common experience, that when these things come to be tried, while a plaintiff may be prevailed upon to tell the exact truth with reference to all the other parts of the occurrence, she cannot be prevailed upon to tell the truth or to admit the fact that the intercourse was with her free will and consent, and that it had repeatedly occurred, as is usually the case. The defendant appears to have testified in a very straightforward manner as to the occurrences of that evening, but not having had an opportunity to see the witnesses, and to observe their demeanor, appearances, etc., we are not prepared to say that the verdict is so manifestly against the. weight of the evidence as that we should be authorized to disturb it. We have considered this evidence without reference to the fact that the bastard child was present at this last trial, and was exhibited to the jury. We have considered it as if the verdict must be supported by the evidence as it appears in the bill of exceptions, and have come to our conclusion after giving that alone consideration. It appears, however, that upon the trial.of the case the child-was exhibited to the jury, and by a decision of our supreme court in the case of Crow v. Jordon, 49 Ohio St., 655, it is-not error to do that. Not only is that true, but the jury have a right to see the child and consider its appearance as bearing upon the question of its paternity. As said by the court:

“The circuit,court did not err; and there was no error: in permitting the child to be exhibited to the jury as evidence of alleged paternity, and in corroboration of the testimony of the prosecutrix. ’5

So the jury had in addition to this which is exhibited to us in cold type, an opportunity to see the witnesses, observe their manner, and besides that, an opportunity to observe, the resemblance, actual or fancied, between the child and its reputed father.

It is contended that an excessive amount was fixed to be paid by the defendant for the support of the child. The statute upon the subject — see 5626 — is as follows:

“If the accused, in person or by counsel, confess in court, that the accusation is true, or if, upon the trial,, the jury. find him guilty, he shall be adjudged the reputed father .of the bastard child, and shall stand charged with the maintenance thereof in such sum as the court shall order and direct, with payment of costs of prosecution.”

And the court is also to require bond in such sum as it shall direct. So that such authority as.we have to consider the verdicts of juries upon the question of their being excessive, does not. appear to be applicable to this provision of the law. We find some authority upon- the subject, however,' which seems to deny our right to interfere in a case like this — 41 Neb. 780, Clark v. Carey:

‘.‘Some discretion is allowed the trial court in fixing the amount in which the accused, upon conviction for bastardy, shall stand charged, and a judgment in such case will not on appeal be held to be excessive in the absence of a manifest abuse of discretion.

At the time this action was tried the child was about four years old. There is testimony tending to show that it had been weakly, and that it had required unusual attention; that there had been doctor bills, and nursing and attention required that would not have been required for a healthy child; and testimony tending to show that the defendant was amply able to pay the amount which he was adjudged to pay by the court. The court ordered him to pay $1800.' It is, according to our experience and observation, an unusually large amount; and yet wé cannot say that, under the circumstances, there was an abuse of discretion. The order was for payment of $250 down, $250 in one year, $150 in two years, $100 in three years, and then $100 a year until the balance was entirely paid. If the child should die in the meantime before these sums came due, it would not require these payments for its support,and (giving my own opinion on the subject, without discussing the matter with the other members of the court), the defendant might be relieved from the payment of the amounts not then due. But considering all the expense that has been incurred, and what would probably be required for the support and maintenance of that child, we are not prepared to say that $150 per year a part of the time, and $100 a year for the remainder of the time during the infancy of the child, and during the years when it would be unable to support itself, would be too’ large an amount to provide for its support. At least, we cannot say that there was such manifest abuse of discretion as would justify us in interfering.

Board & Beard, J. K. Hamilton, fox Defendant in Error,

J. H. Southard, for Plaintiff in Error.

I will say that we affirm this judgment with a very great deal of reluctance. We felt very serious doubts as to the correctness of the conclusion of the jury, but under the rules that I have referred to, we feel bound to enter a judgment of affirmance.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    MARCUS v. BARBOUR, et al. v. LEWELYN MILES.

      .Amendment of petition after trial to make it conform to facts proven—
    1. Where the defendant first enters upon the examination of a witness as to facts not involved in the issues made by the pleadings, and the case is submitted to the jury without any question or objection being made or raised as to the admissibility of such testimony, the court may,under sec. 5114 R„ S., after verdict and judgment, in furtherance of justice, permit an amendment of the petition by averment of such facts, where such amendment does not change substantially the plaintiff's claim, but does conform the petition to the facts proved.

      Employer and employe — Injury by defective machinery — Means of knowledge—
    2. In an action brought by a servant against his master on account of inj uries received while operating machinery for the master, where the petition contains averment that the servant upon discovering a delect in the machine making it dangerous for him to operate it as directed, informed the foreman of the fact; that the foreman subsequently .informed the servant that he had remedied the defect and directed the servant to resume the ' work with, and upon the machine, which the servant accordingly did, believing and relying upon this assurance of the foreman that the defect had not been remedied, and in consequence thereof the servant was injured ; and it appearing that the defect was not obvious or apparent to one working at the machine, and that the plaintiff was without fault in the premises: Held, that a further averment or proof that the plaintiff did not 'have equal means of knowing of said defect with the . defendant, is not required.

      Same — Proof of repair of machinery— _
    3. The defendant having introduced testimony tending to show that the machine had not been repaired since the injury to plaintiff, and the jury having viewed the machine, and it appearing that it was not then defective, the plaintiff had a right on rebuttal to show that the machine was defective, as alleged, at a time subsequent to the injury. _ -
    Error to tbe Court of Common Pleas of Lucas county.
   Parker, J.

The action below was brought by the defendant in error against the plaintiffs in error on account of alleged negligence on the part of the plaintiffs in error with respect to certain machinery furnished by the , plaintiffs in error, as master, to the defendant in error as their servant and employe, upon and with which he was required to perform certain work. The petition sets forth that the defendants — ■ the plaintiffs in error here, during the. time referred to in the petition, “owned and operated a large amount of dangerous and hazardous machinery, and ”h'ad in their’ employment a large number of workmen, among and one of whom was this plaintiff, in their said manufactory, engaged in running and operating said machinery for the profit and benefit of said defendants;’’ that during that time Frank J. Lehman was the foreman of^ the defendants below; “that among the machinery by said defendants, placed in their • manufactory, and used and employed by them in their said business, was a certain machine commonly designated as a double surface, which was used'for the purpose of planing at one and the same time both the upper and under surfaces of lumber or boards in the course of manufacture in their said manufactory. That in and as a part of said machine were certain revolving cylinders, rollers, cogs, and knives through and between which boards or lumber were run ' in planing or smoothing off the surfaces of the same, and which required the attention of two workmen, one in the feeding or running the lumber into said machine between said cylinders, rollers, cogs, and knives, and the other at the other end of the machine to take away said lumber or boards after they had passed through said machine. That on the dtth day of October, 1893, and for some three or four weeks prior thereto, this plaintiff had been directed and required by the said foreman to work, and he had worked, at said machine for the purpose of feeding or running said lumber into said machine' and between said cylinders, rollers, cogs, and knives. ” The petition sets forth that this machinery would become clogged from time to time by an accumulation of shavings in the cogs and meshes which operated these rollers, and that it became the duty- of the plaintiff below, when this occurred, to clean out these cogs and meshes so that the machine might operate properly; that he hád been directed to so clean the machine by the-foreman of the defendants below. It further says that machines of this kind . are usually so constructed “that when they are in proper repair and suitable condition to be run and operated, that a lever under the control of the workman feeding the said machine when thrown to a certain designated point, would stop the revolutions of said rollers and cogs, and enable the workmen to remove said shavings without receiving and injury.” He says that the lever and attachments upon this machine were out of order, so that when the lever was moved to a point where the result would be that it would stop the movement of these rollers, that it wouldn’t always have that effect, but they would continue to revolve, and that that was the defect in this machine, and that it therefore made it highly dangerous to one operating the machine in the performance of the duty of cleaning out these cogs and meshes. But plaintiff proceeds to say in his petition:

“That plaintiff notified the said'foreman of said defective condition of said machine, and the said foreman promised plaintiff to repair the same and correct the said defect. That the said foreman did undertake .to repair the said machine, and represented to plaintiff that he had repaired and adjusted the same so as to wholly remedy the said defect in the same, and that said rollers and cogs would thereafter stop and wholly cease their revolutions when said lever was thrown to said designated point, and ordered plaintiff to again resume work on said machine, and to run and operate the same m the manner above set forth. But plaintiff says that said foreman had not, in fact,properly repaired said machine, but that the said machine was then, and thereafter remained, in the defective condition herein before described, until plaintiff received the injury herein complained of; all of which was well known to said defendants, and was unknown to said plaintiff.”

Then follows an allegation which was inserted in this second amended petition after the verdict, and by leave of court, and the giving of this leave is "one of the alleged errors which is said to be prejudicial to the plaintiffs in error. The allegation is as follows: “And plaintiff further Says that he did not have equal means of knowing of said defect with the said defendants.” Then follow the allegations that were originally in the amended petition, before ■ the trial began:

“That the said foreman carelessly, wrongfully, and negligently continued to use the said machine in its said defective condition, and required the said plaintiff to work at and operate the same, and thereby exposed him to the danger of losing his hand by reason of the said defective condition of said machine. Plaintiff further says, that relying upon the said representations of said foreman, and believing that the said machine had been properly repaired, and that the said lever when properly set would hold the said cylinders and rollers stationary whenever it became necessary to remove the shavings therefrom, he again commenced work upon said machine, and continued to work in the position and in the way and manner in which he had been directed and required to work thereon by said foreman, until some time in the forenoon of the said 4th day of October, 1893, when it became necessary to stop the revolutions of said cylinders and rollers for the purpose of safely removing the said shavings. That the said plaintiff for the purpose threw the said lever to the said designated point where it should have held the said rollers stationary as aforesaid. That thereupon the said rollers and cogs ceased to revolve, and plaintiff, believing that the same were so stopped by the operation of said lever, sought to remove the said shavings in the usual and customary manner with a stick held in his hand; that he had so removed a portion of the shavings, and was damaged in removing the balance thereof, when, by reason of the defective condition of said machine as hereinbefore described, said rollers and cogs suddenly commenced to revolve, and by reason of the negligence of said defendants and said foreman in neglecting to properly repair the said machine and to inform plaintiff that it had not been repaired, and was in the same defective and dangerous condition that it had been theretofore, and by reason of the negligence of said defendants and said foreman in continuing to úse the said machine in its said defective and dangerous condition, and without any fault on the pa.rt of the ylainliff, plaintiff’s left hand was drawn into said cogs, his fingers torn from their sockets, and his hand crushed in such a manner that it became necessary to amputate a large part of it. Plaintiff says that he sustained the said injuries entirely by reason of the negligence of the said defendants and said foreman in failing to properly repair the said machine, in failing to notify plaintiff of the danger to which he was exposed, in continu-. ing to use the same in its said defective condition, and without any fault on his part.”

On account of these injuries the plaintiff asks damages in the sum of $20,000.

An answer was filed denying these- allegations of negli-. gence — -denying in fact that the machine was out of repair; that the foreman had been notified of the defects or want of repair of the machine; that he had promised to fix it; and, in fact, all of the material allegations of negligence upon which the plaintiff below based his right to recover. It also alleges that the plaintiff was guilty of contributory negligence in the premises.

The case proceeded to trial, and resulted in a verdict in favor of the plaintiff below for $2000, I believe. A motion for a new trial was made, and overruled, . and judgment entered upon the verdict.

A fair epitome of the plaintiff’s case, omitting all verbiage, is contained in the brief of counsel for plaintiff in error, which reads as follows:

“That the plaintiffs in error had a defective machine; that the defendant in error worked with the machine three or four, weeks; that he then knew of its defect and notified the foreman of the plaintiffs in error of its defects; that the defendnat in error after this notice ceased to work the machine; that the foreman promised to repair it, and represented to defendant in error that he. had repaired it, and defendant in error, relying upon this representation, again resumed work with the machine; that it had not been repaired as represented by the foreman; that it still remained in the same defective condition, and by reason thereof defendant in error was injured.”

In addition to that, the amended petition fairly states that after the foreman had represented that the machine had been repaired, the plaintiff below not, only relied upon this statement, but he had no knowledge then of the defect in the machine; and the amended petition also contains the averment that the accident and injury resulting were without any fault on his part.

• The first question we shall consider is: Did the court err in permitting the amendment of the second amended petition after verdict? It appears from the bill of exceptions that after the plaintiff below had rested his case in chief, the defendants, by their counsel, moved the court to direct the jury to return a verdict for the defendants, on the ground that the petition did not state a cause of action This motion was overruled, and the defendants excepted, and went into their defense. The defect in the petition which was then and is now insisted upon, was the omission of'this averment: “And plaintiff further says, that he did not have equal means of knowing of said defect with the said foreman.’’ It appears, as I have said, that after the case had been submitted to the jury and the verdict returned, and before the motion for a new trial came on to be heard, hut after it had been filed, the plaintiff below, by his counsel, asked leave of the court to amend the petition by inserting this averment, and leave was given, and the amendment accordingly inserted.

; Assuming that this was a material averment, was the plaintiff in error prejudiced upon the trial by its omission? It appears from the bill of exceptions that evidence was received upon the issue which appears to be made by this averment, the same as if that issue had been made in the written pleadings; that the plaintiff in error was not prevented from producing evidence on that point, unless on the.cross-examination of the plaintiff, where he was denied the privilege of enforcing answers to certain questions appearing on page 16 of the bill of exceptions, which I will discuss further on. And this issue was submitted to the jury by the court. At page 71 of the bill of exceptions, in his charge, the court said to the jury:

“It must be shown that the machine was in a defective condition; that the defect caused-the injury; that the defective condition of the machine was due to negligence upon the part of the defendants; and further, that the plaintiff did not know of the defect, and had not equal means of knowing it with the defendants.” . •

Again at page 72 — ■

“When, as in this case, it is alleged that a servant has received an injury from a defect in a machine which he was using, in order to charge the master with responsibility for the injury, it must appear, first, that the machine was defective; second, that the master had knowledge or notice of the defect, or that the defect was of such a character, or had existed for such a length of time that in the exercise of reasonable care the master ought to have known of it; and third, that the servant did not know of_the defect, and had not equal means of knowing it with the master.”

In view of the fact that it appears from the bill of exceptions that the case was tried and submitted to the jury by the court, under proper instructions, precisely as if this issue had been made in the written pleadings, we are of the opinion that it was not an abuse of power or discretion upon the part of the judge of the court of common pleas to allow this amendment after verdict, and that he was authorized to do so by sec. 5114 R. S., which reads as follows:

“The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved; and when an action or proceeding fails to conform to the provisions of this title, the court may permit the same to be made conformable thereto, by amendment.”

The supreme court of the state has passed upon this section and the section following — 5115—-and other cognate provisions of the statutes, several times; and it appears that in the interpretation of these provisions the court has authorized great liberality in the interest of justice in the amendment of pleadings. I read a paragraph from the case of Benninger v. Hess, which is reported in 41 Ohio St., 64, reading from pages 69 and 70: The case is not precisely in point, but it illustrates the views of the court as to the interpretation that ought to be given to this statute:

“As provided by section 4114 of the Revised Statutes, ‘The court may,before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding * * * by inserting other allegations material to the case, or, when amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. ’ And by section 5115, of the Revised Statutes, ‘The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be. reversed, or affected, by reason of such error or defect. ’
“These provisions are founded upon the principles of an enlightened justice. In Hoffman v. Gordon, 15 Ohio St., 211, the court say: ‘The evident object of the code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon the evidence, outside of the pleadings, and if objection be made, to allow the pleadings to be conformed to the evidence at once and without terms. ’ Where a judgment has been rendered, and there has been a variance between the pleading and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such case to conform the pleading to the facts proved, it will not be in furtherance of justice, to deprive the plaintiff of the fruits of the trial, by a reversal of the judgment on error.”

In the case at bar the objection did not arise upon an attempt upon the part of the plaintiff below to make such proof as would be authorized under an allegation of this kind, but it arose after the defendants below had themselves first entered into an investigation of this point by the cross-examination of the plaintiff.

I have said this much upon the assumption that this was a material averment; but was the allegation required? It is urged that it is required by rules laid down in Wood on Master and.Servant, quoted by Judge Minshall, and receiving the endorsement of the supreme court, as it is contended, in the case of Coal & Car Co. v. Norman, 49 Ohio St. 598. I read a paragraph in the opinion of Judge Minshall, that is relied upon, appearing at page 607 of the report:

“In Wood on the Law of Master and Servant, sec. 414,it is said: ‘The servant, in order to recover for defects in the appliances of the business, is called on to establish three propositions: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had. 3. That the servant did not know of the defect, and had not equal means of knowing with the master. ’ ”

Judge Minshall proceeds to say:

“It is elementary in the law of pleading that, whatever a party is required to prove in order to make out his claim, must be averred.”

We do not think that this general statement of what is ordinarily required to be established upon the part of the plaintiff applies to all cases where the plaintiff may have been injured by defects in machinery, and we are of the opinion that it was not intended to be so understood by the learned judge who announced the opinion. Indeed, we think it is quite apparent from that case, and from other remarks in the opinion, that the court did not mean to have it understood that in a case like that before the court, it devolves upon the servant to allege or establish that he had not equal means of knowing with his master of the defect which resulted in the injury to him. In that case the defects in the building or structure about which the plaintiff was employed, were open and apparent, and the petition did not contain an allegation that those defects were not known to the plaintiff. That was the fault of the petition in that case. And the court held that a general averment in the petition that the injury occurred without fault on the plaintiff’s part, was not sufficient,and that an averment that he had no knowledge of the defect was required. It is not averred in that case (as in this), that the plaintiff had knowledge of the defect, and notified the master of it, and called upon him to make repair or cure the defect, and then went to work, relying upon the promise that it would be repaired, or relying upon the statement that it had been repaired. In the last paragraph of the opinion Judge Minshall used this language:

“The precise point presented in this case, as to the sufficiency of a petition in an action by a servant against the master for an injury caused by negligence, has not heretofore been determined by this court. But in other states, where it has arisen, it has generally been held, that want of knowledge of the efficient cause of the injury,or facts excusing such knowledge, must be averred in the complaint. ’ ’

But it is held in Street R. R. Co. v. Nollheiuser, 40 Ohio St., 376, that:

“In an action for an injury alleged to have been caused by the negligence of the defendant, it is not necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, unless the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence.’’

Even where a servant has actual knowledge of the defect, he may, under certain conditions, proceed with his work, and if injury results, recover from the master. The syllabus of this case states what was decided by the court, and all that the court probably could have passed upon in the case:

“In an action by a servant against his master for an injury resulting from the negligence of the latter in furnishing appliances, or in the caring for the premises where the work is to be done, the plaintiff must aver want of knowledge on his part of the defects causing the injury; or, that, having such knowledge, he informed the master, and continued in his employment upon a promise, express or implied, to remedy the defects; an averment that the injury occurred without fault on his part is not sufficient.”

It is not intimated there that in any case, especially not in .a case like the one at bar, an averment in the petition that the servant did not have equal means of knowing the defect with the master, would be required. A servant is not required in all cases to allege, or to prove even, want o'f knowledge of defects, much less want of means of obtaining knowledge, as, for instance, where he calls the attention of the master to the defect, and the master promises to remedy the defect speedily, and directs his servant to proceed with his work. If he proceeds under such circumstances, even with knowledge - of the defect, he may hold the master responsible for injuries resulting from the defect. That is decided in Manufacturing Co. v. Morrisey, 40 Ohio St., 148 — a case which went up from this county — ■ the syllabus of which reads as follows:

“M,, while using a machine in his capacity of workman for a manufacturing company, acquired a knowledge of its defects and consequent unsafe condition. He complained of its condition to the foreman, under whose orders he was working, and whose duty it was to see that the machinery was kept in good order and repair. The foreman promised him to remedy said defects, and directed him. to go to work on the machine. The workman thereupon remained in the service of the company, and continued to use the machine, and in so doing was injured through its said defects before any steps were taken to remedy the same. Held. That the workman’s knowledge of the defects in the machnie was not, under the circumstances and as matter of law, conclusive of contributory negligence on his part; but it was a fact in the case to be taken into consideration by the jury, with all the other facts and circumstances, in determining the question, whether the workman’s own negligence contributed to the accident by which he was injured.”

Obviously it would have been absurd, in a case like that, to have averred that the plaintiff did not have equal means with the defendant of obtaining knowledge of the alleged defect. In this case the servant admits his knowledge of the defect before the foreman promised to repair the machine; but avers that he did not have knowledge of the defect after the foreman promised to repair it and. declared that he had repaired it; and says that he again went to work under the direction of the foreman, and relying on his statement that he had repaired it; and that he, plaintiff, was without fault in the pi’emises.

Was the further averment necessary that he did not then have equal means with the defendants of knowing of the defect? We think that the facts pleaded show an excuse for not making such examination or tests of the machinery, as he might have made, even with as much ease and facility, and with the same results as to discovery of the defect not having been remedied, as if made by the master.

Of course, he could not disregard apparent defects, but after this assurance from the foreman he was not bound to discredit the statements of the foreman and investigate on his own account to discover whether the foreman had stated the truth. If it had appeared in evidence that he might have discovered this defect as readily as his employer might have discovered it, that would not have affected his right to recover, unless, as I have said, the defect was obvious, apparent; in which case he would have been chargeable with knowledge, and his allegations of want of knowledge and that he was without fault, would not have been sustained.

It follows from this that the amendment was not required, and no prejudice could have resulted from its allowanee after verdict; and that the ruling of the court on the motion to take the case from the jury was right.

This brings us to a consideration of exceptions one, two, and three inclusive at page 16 of the bill of exceptions. In the cross-examination of the plaintiff below the following questions were asked and answers given:

“Q. If they were not in contact creating the friction, this thing, or roller, could not run, could it? A. If they were not tegether they could not.

“Q. So that, no matter how this lever stood, if you should cast your eyes, down, and see these wheels, couldn’t you tell whether they were in contact or not? A. Yes: if you got down far enough.

“Q. If they were not in contact, and were making no friction, this could not revolve? A. Couldn’t revolve: no, sir.

“Q. You knew on that day that by using this lever above your hand, and throwing the belts off the machinery, that it could stop the entire machinery ? A. I did: yes, sir. ’ ’

A model of the machine was in court, and it appeared, from some of these questions and answers that counsel and witness were referring to that model.

“Q. You knew that by doing that there would be no . danger of any kind in picking shavings from these depressions, didn’t you ? A. Yes, sir.”

It will be observed that these questions'and answers that I have just read refer to another applicance which is described by witnesses, whereby the whole machinery might have been stopped. Then this question is asked:

“Q. Will you tell the jury what other and different knowledge Barbour & Starr had, or their foreman had, than that?”

This does not appear to us to refer to the alleged defect in the .machinery. That was objected to, and the objection sustained, and the defendants excepted. • The record then says:

“The court stated to counsel for defendants that they might offer evidence of any facts tedding to show that the plaintiff had equal means of knowledge of the defects with the defendants.”

Then the examination proceeds:

“Q. You had the same means of knowing of the nature and character of the machine that Barbour & Starr had, or their foreman? A. No, sir.

“Q. Why didn’t you have? A. Because I was not around that day that I told him to look at it and see what was the matter. He says he would fix it.

“Q. You knew that the roller was operated by this friction? A. Certainly.

“Q. You knew this lever above your head would stop the entire machinery? A. Yes, sir.

“Q. You knew the purposes for which this was used? A. Yes sir.

“Q, Did Barbour & Starr have any other means of knowing of anything else than that, that you know of? A. Not that I know of.

“Q. Then you had the same means of knowing the nature and character of this machine that Barbour & Starr or their foreman had, didn’t you? (Objected to; sustained; defendants excepted.)

Mr. Seney: “I shall insist that he had equal means of knowing.

The Court: “It is a conclusion, I think. He can state any facts, and Barbour and Starr can state any facts they knew. It is for the jury to Bay: it is a conclusion.

“Q. You have the same means of knowing that Barbour & Starr had, or their foreman, on that day that you got hurt, as to whether the machine was defective or not? (Objected to; sustained; defendants excepted.)”

It appears that this objection was sustained by the court upon the ground, as stated by the court touching a preceding question, that it called for a conclusion upon the part of the witness. It seems so to us, that it calls for a comparison upon the part of the witness of his means of knowledge with the means of knowledge possessed by the employer, assuming that he knew what those means were, and a deduction upon his part from that, and a conclusion upon that; and we think upon that ground that the objection might well have been sustained to this form of inquiry. We are further of the opinion, from the reasons already stated, that this was not material; that even if an answer most favorable to the plaintiff in error had been given by the witness, viz: if he had answered “yes”: for the reasons stated in the petition and appearing by the evidence, that is because he had not only had the means of knowledge but actual knowledge of the defect before that, and had informed the foreman of it, and the foreman had informed him that lie had cured the defect, and that he was thereupon proceeding upon that assurance given to him by the foreman, the mere answer that he knew or. had equal means of knowing of this defect would not have been effectual to vitiate his right of recovery. (

An alleged error insisted upon strenuously appears in exceptions Nos. five to thirteen inclusive, which relate to the admission of testimony as to the condition of the machine at a time shortly prior to the time the injury occurred to the plaintiff below. We see no error in the admission of this evidence, since it devolved upon the plaintiff to show,as a part of his case, that the machine was defective at the time he gave notice to the foreman that it was defective. He would have fallen short in his proofs if he had simply shown that he gave notice to the foreman that the machinery was defective, and that the foreman promised to repair the machine, and stated to him that he had repaired it, and that he thereupon proceeded to use it. It devolved upon him to show that the machinery was defective at the time he so notified the foreman, and this testimony tended directly to show that fact. It • was contended in argument upon the part of plaintiffs in error that this was immaterial and prejudicial, but we are of the opinion that it was competent

It was also competent upon another ground, (as stated in the case of Brewing Co. v. Bauer, 50 Ohio St., 560), namely, as tending to show, independently of the information given by the servant to the foreman, that the master had knowledge or ought to have had knowledge of the defect in the machine. It was necessary to show that the master had knowledge, either by the information given to the servant or otherwise, of the defect, as well as to show the promise to repair it.

Exceptions fifteen to twenty-four inclusive relate to testimony admitted as to the defective condition of this machine long after the time of the injury. It is very clear that this would not have been admissible in chief. The question is, was it admissible in this case fairly, in rebuttal of anything that had been admitted or had been attempted to be shown on the part of the defendants below? It appears that the case had been partly tried once before, and that on that occasion the jury had viewed the machine. At the time of this lastjtrial the jury, before the taking of testimony was entered upon, went to the factory and viewed the machine, and it appears that at that time the machine was in perfect working order, and that there was no such defect in the machinéis that alleged by the plaintiff and testified 'to by him and his witnesses. When the defendants entered upon their defense, Frank J. Lehman, the foreman, was called as a witness^for the defendants, and in the course of his direct examination by counsel for plaintiff in error, at page 47 of the^bill of exceptions, this appears:

“Q. From February, ’92, .to October, ’93, the date at which Mr. Miles was injured, state to the jury what repairs, if any, were made by you or the defendants, to your knowledge, upon this machine? A. Well, there was no repairs made on the machine.

“Q. Were there repairs made upon th3 machine at any time? A. There were no repairs made to that machine until the fall of 1895.”

Taking it to a date long after the date of the alleged injury.

“Q. Do you remember during those times these other witnesses, Mr. Heinecke and Mr. Roscoe — did they call upon you to make repairs upon the machine? A. There was no repairs made on the machine at no times.

The Court: “Q, The question is whether either of these witnesses asked you to make repairb — told you that the machine was out of order? A. No; there was no repairs made.

Mr. Seney: “Q. How was this lever on yesterday when the jury were there and saw the machine, in comparison to the machine when it was being operated by Mr. Miles? A. Very same shape.

“Q. Tell the jury whether or not this lever, in moving to the right or to the left, or placing it in the center, required any more exertion on yesterday than it did when Mr. Miles was operating the machine? A. No, sir.”

As I have said, it appears that when the jury examined the machine it was in perfect, working order. The witness upon behalf of the defendants proceeded to state to the jury in answer to interrogatories directed to that point by defendants’ counsel, that the machine at the time the jury viewed it was in precisely the same condition as when the plaintiff was injured, and that no repairs had been made upon the machine in the meantime. He. does state that some sort of repair was made in the fall of 1895. He explains that further in his testimony by saying that those repairs consisted in an overhauling of the machine, and did not relate to or affect the particular alleged defect in the machine which resulted in the injury to the plaintiff,

We think that this testimony, brought into the case by the defendants, authorized an inquiry upon the part of the plaintiff by way of rebuttal as to whether or not the machine had been in that condition since the time of the injury, and up to the time the jury had viewed it, and whether there bad been repairs made upon the machine in the meantime; and that the plaintiff was authorized to call these other jurors — they are the witnesses called — who had viewed the machine upon the other occasion, to show that at that time the machine was in the condition which the plaintiff alleged it was at the time he received the injury.

Seney, Johnson & Friedman, and Doyle & Lewis, for Plaintiffs in Error.

Charles C. Wilson, and Harvey Scribner, for Defendant in Error.

It is contended that the verdict is not sustained by sufficient evidence, and that the allegations and proofs do not authorize a recovery. After a careful consideration of all the points urged by counsel for the plaintiffs in error, we are of the opinion that the allegations and proofs, even before the amendment which was made after verdict, justified the verdict of the jury.

We find no prejudicial error in’ the record, and the judgment will be affirmed.


text:
    (Sixth Circuit — Wood Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.'
    SAMUEL E. NIECE v. JAMES R. ROGERS, JOHN L. ROGERS, THE FIRST NATIONAL BANK OF NORTH BALTIMORE, OHIO, AND JEFF. RICHCREEK.

      Cosureties — Indemnity given to one inures to benefit of cosurety—
    Where N. .signed a promissory note as surety, with the understanding that the principal should obtain another surety thereon, and R., with knowledge that N. signed with such understanding, afterwards signed said note as surety, but before signing and as a condition precedent thereto, and without the knowledge of N., required the principal to give him indemnity.
    Held: 1st. — That N. and R. were co-sureties.
    2nd. — That N. was entitled, as against R.,to share such indemnity equally with him.

      Error to the Court of Common Pleas of Wood county.
   Parker, J.

On the 17th day of January, 1891, the defendant, James R. Rogers as principal, and the defendant, Jess Richcreek and the plaintiff as sureties, made and gave to the defendant, the First National Bank of North Baltimore,Ohio, their promissory note of that date for three thousand dollars, payable ninety days after date, with interest at 8 per cent, per annum. The plaintiff says in his amended petition, that he signed said note as co. surety of the defendant Richcreek; and wholly without consideration, It is not controverted that James R. Rogers was the principal debtor, and the plaintiff and Richcreek were his sureties, and that on the 22nd day of February, 1892,said Bank obtained judgment on said note against Rogers, Richcreek and plaintiff for $2134.21, and caused execution to issue thereon. Because of the insolvency of Rogers, the plaintiff was compelled to and did pay upon said judgment one-half thereof, and the other half was paid by said Richcreek.

It is claimed in the petition that the bank held certain property or securities belonging to the principal debtor, upon which it had or should have realized something to be applied in satisfaction of this claim, but the controversy arising upon that is not submitted to us for our consideration.

The petition further sets forth that the defendant Rich-creek has received from the principal Rogers, by way of indemnity on account of his suretyship, certain shares of stock of said bank of the value of about eleven hundred dollars, and the plaintiff seeks to require Richcreek to share this indemnity with him as his co-surety.

Richcreek,in his separate answer,denies that he signed as co-surety with the plaintiff, and avers that the bank stock .referred to, was transferred to him alone by Rogers before he, Richcreek, became surety upon this note, and for his sole indemnification; that he required this indemnity as a condition precedent to his signing said note, and he says that therefore he is not required to share the proceeds of this indemity with Niece.

It appears that at the time this note was given Niece was the president of said bank, Richcreek was its vice president, and Rogers was a stockholder therein, and a member of the discount committee that had submitted to it questions relating to loans applied for. That Rogers desired to borrow from the bank three thousand dollars; that a rule of the bank with which all the parties were acquainted, provided that upon a loan being made upon a note, as in this instance, the borrower should be required to sign and also procure the signatures of two sureties. There is some testimony tending to show that before this loan was made, but after Niece had spoken to the cashier of the bank about it, a conversation was held in the bank between Richcreek, Niece,’ and the cashier on the subject, in which Niece and Rich-creek agreed that they would become sureties for Rogers upon the note to be given for the proposed loan. Niece testifies to this conversation and agreement, but it is denied by Richcreek, and not remembered by the cashier, so that we do not base any of our conclusions of fact upon this testimony, but base them upon the testimony which is given by Niece, Richcreek and Rogers, each testifying to a part, but neither controverting or disputing that testified to by the other, nor testifying to anything inconsistent therewith. In other words, the following facts are uncontroverted: The note in question was prepared at the bank, and signed by Rogers, who afterwards applied to Niece to sign as surety, which Niece did. At the time Niece signed,he inquired of Rogers who Rogers expected to have sign as the other surety, and was informed by Rogers that he expected to have Rich-creek sign, though Rogers now testifies that he thought at the time that he might procure his father as a surety instead of Richcreek, This he does not seem to have communicated to Niece. At all events it appears that Niece understood that the rule of the bank requiring two sureties upon the note would be complied with, and that he would share the burden of this obligation with another, either Richcreek or somebody else. Later on the same day, Rogers applied to Richcreek to sign as surety. Richcreek seemed to have been reluctant about signing, and said something to Rogers to the effect that he did not care to sign so large a note, and Rogers informed him that he expected to pay a thousand dollars upon this note within a few days, which, by the way, he did. Richcreek then said that if Rogers would assign to him'his stock in said bank, the value of which was nearly equal to one-half of the amount of the note after being reduced by the payment of the one thousand dollars proposed, he, Richcreek, would sign as surety.

This conversation occurred in the place of business of Richcreek. Rogers, thereupon, went to the place where he had his bank stock deposited, and procured it and brought it to Richcreek, signed his name to the blank assignment printed thereon, and delivered the stock to Richcreek, who thereupon signed the note under the name of Niece as surety, This stock has ever since been held by Richcreek exclusively, The blanks in the printed assignment were subsequently filled in with the name of Richcreek and a date, but we find that the assignment was made immediately before Richcreek signed the note, and that it was the intent and purpose of both Rogers and Richcreek, that this bank stock should be held by Richcreek as his exclusive indemnity.

Upon this state of facts, we have found that Richcreek and Niece were co-sureties for Rogers upon this note. It does not appear that Richcreek suggested or thought of going upon the note as surety for Niece. It is doubtful whether, under the circumstances, he could have thus limited his liability without the knowledge of Niece.

He knew the rule of the bank requiring two sureties upon this class of paper. He knew that Niece signed with knowledge of this rule of the bank. In the absence of any agreement or understanding between him and Niece to the contrary, he must have known therefore that Niece expected to' share this responsibility with another, and that therefore that other would be his co-surety with all the rights and obligations arising out of that relation.

In the case of Marlin Oldham v. Daniel Broom, in 28 Ohio St. Reports., at page 41, it is said in the third syllabus: “As between accommodation makers of a promissory note, the presumption is that they are co-sureties, and as such liable to each other to contribution.” We find nothing in the facts of this case to overcome this presumption. It is also said in the syllabus in that ¿ase in the fourth paragraph:

“Where a joint note is signed by the principal and by one as his surety, and is entrusted by a surety to the principal without limit on his authority, such surety thereby, impliedly authorizes the principal to obtain such additional sureties or guarantors as may be required to make the paper available for the purposes intended by the original makers, and the sureties or guarantors so obtained may stipulate the terms of their liability, as between themselves and prior parties.”

This must be understood with the qualification that the rights and just expectations of one who has already signed as a surety that those subsequently signing it will be co-sureties with him, shall not be defeated by such subsequent signers who sign with knowledge that the surety first signing expects those subsequently signing to become co-sureties with him. This qualification is implied in the language of Johnson, J., delivering the opinion, in the last paragraph thereof, at page 55. But, I repeat, that there is nothing in this case to show that Richcreek signed as surety for Niece, and the question here is, whether a co-surety may secure to himself indemnity,and not share it with his co surety. The general rule upon the subject is well stated in sec. 268 of the second edition of Brant on Suretyship and Guaranty, as follows.

“If one of several sureties, after all have signed, and before the debt has been paid, and without any agreement to that effect before he became liable, obtains from the principal anything for his indemnity, such indemnity inures to the benefit of all the sureties, and the surety obtaining it immediately becomes the trustee of it for the benefit of all the sureties, even though he obtained it by his own exertions, and it was intended for his sole benefit. In such case, as all the sureties are alike liable for a common principal, it will be presumed that the surety taking the indemnity takes it for the benefit of all the sureties, or if he does not, then his taking from the effects of the common principal for his sole benefit is a fraud on the other parties, and he will not be permitted to have the benefit of the indemnity alone, but must share it with the others. Where, after two sureties become bound, one received indemnity from the principal with which he paid more than one-half the debt, and the. other surety paid the remainder, it was held that the latter might recover from the former one-half the amount which he had paid It has also been held that the surety who has partial indemnity in his hands, and pays all the debt, can only recover from his co-surety one-half the sum which would remain after applying the amount of the indemnity on the sum paid.”

Counsel for Bichcreek lays some stress upon the words “and without any agreement to that effect before he became liable’’, appearing in the paragraph just quoted,and insists that this states, or implies, an exception to or qualification of the rule, and that where the indemnity is taken, as was done in this case, before the surety signs, and is required as a condition precedent to his signing, he should not be required to share it with his co-surety. This suggestion of ah exception to the rule appears in other sections of Brant on Suretyship, and also appears in vol. 1 of Leading Cases in Equity, at page 171, in note to Deering v. Earl of Winchelsea.

We have carefully examined all the authorities cited by Brant and in The Leading Oases in Equity upon this proposition, and a great many others, and we have not found any authority in which it is held that the rule as to sharing the indemnity is different if the indemnity is required be^ fore and as a condition precedent to signing, unless it is so done with the knowledge and consent of the other co-surety. In the case of Moore v. Moore, 4 Hawks, 358 (reported in 15 Am. Dec., 523) the law is stated in the syllabus as follows:

“If indemnity be taken by a surety to secure him from loss and as a condition precedent to his becoming surety, his co-sureties are not entitled to the benefit of the indemnity until after he, for whose benefit it was given, is fully repaid, Indemnity taken by one surety cannot be reached by his co-sureties, unless it was taken for their benefit, or in fraud of their rights.”

But in looking into the facts in this case, we find that the co-surety who took the indemnity, did so with knowledge and in the presence of the complainant, his co-surety, who required none. In fact, the complainant was a witness to the contract which gave his cosurety this indemnity, and as is said by Henderson, J., in the course of his opinion, “the facts negative all idea that the defendant was acting for their joint benefit,” and he continues, “he has therefore no claim, either on the ground of fraud or intention.”

We are not advised how the syllabus was made up in the Supreme Court of North Carolina in this case, but assume from the fact that this syllabus does not fairly state the propositions of law enunciated by the court, that it was made up by a reporter, and not by the judges. The language of Henderson, J.,in this opinion is frequently quoted in support of the general rule that co-sureties may be required to share the indemnity given by the principal, though given for the benefit of one or more, and not for all, and a part of it seems to be applicable to the case in hand. Speaking of indemnity taken by one surety for his own benefit, the learned judge says:

“In such cases courts of equity convert him into a trustee, not permitting him to allege his own turpitude or selfishness as a protection, for they enter into the agreement under a belief of perfect equality, trusting, apparently, to the same laws of indemnity, and to the united exertions of each other to avoid harm severally; therefore, to take an indemnity is a fraud upon the rest, and more especially, as it lessens the liability of the principal to indemnify the others, and if taken without such secrecy, it is presumed to be designed for the benefit of all, and an indemnity fairly obtained.”

It will be seen that- this opinion is quite as appropriate, applied to one who takes the indemnity before he signs, as to one who takes such indemnity after he signs, provided,of course, that it is done without the knowledge or consent of one who expects that others signing will become co-sureties with him, and as such share all the chances of their undertaking, That the fact that the consent of the co-surety to the taking of the special indemnity by his co-surety with his knowledge and consent was the controlling fact influencing the decision of the court in this case; and that the case has been so understood by our own supreme court, is made apparent by the reference of Chief Justice Johnson, to this decision, in the course of his opinion in the case of Leggett v. McClelland, 39 Ohio St., 624, where he says:

“In Deering v. Earl of Winchelsea, 1 Lead. Cas. in Equity, 103, Lord Ch. Barn Eyre says ‘That contribution is bottomed, and fixed on general principles of justice, and does not spring from contract, though contract may qualify it.’ See notes to above case, p. 171, 4th edition. An instance of such qualification is found in Moore v. Moore, 4 Hawks (N. C.) 15 Am. Dec., 532, where one co-surety, in consideration of his becoming such, stipulated for and re-’ ceived, with the consent of his co-sureties, separate indemnity from the principal. It was held that the co-sureties; could only share in the surplus after such surety had been fully indemnified. Such indemnity was not in fraud of the rights of co-sureties. The general rule however is as stated, and the reason on which it rests is, that one who takes indemnity from the principal is, in equity, a trustee for all who are equally bound. As the taking of such indemnity from the principal lessens his ability to pay, it would be a fraud on his co-sureties to allow him to convert it to his sole use in the absence of their consent.”

In the case of Williams H. Titcomb v. John McAlister, 17 Maine, 353, the facts were as follows: Plaintiff being an accommodation endorser upon a de mand note of one thousand dollars, and subsequently becoming co-surety with tne defendant upon another note of the same principaltfor sixteen hundred dollars, at the time of signing the last note secured himself on both notes by taking a mortgage upon certain property of the principal. It was held that the plaintiff might recover from his co-surety one-half of the amount which he might be • required to pay in discharge of the obligation upon which they were co-sureties after applying thereto the amount realized from such security and applicable thereto,

It will be readily seen that if the court had been of the opinion and had held that the co-surety receiving this indemnity might apply it all on his own account, it would not have so limited his recovery. The rule required him to share the indemnity with his co-surety, and this, notwithstanding the fact that he took this indemnity in the first instance for his own exclusive benefit and at the time he signed the obligation upon which his co-surety was bound. But a clearer case, and one in the conclusions of which we fully concur, and which seems to us to be decisive of this case,is that of Cannon et al. v. Connaway and Willen, 5 Del. Chancery, 559, decided in 1884. After diligent search and an examination of many authorities,we find no casein which the law as laid down in this case, is qualified or doubted. In this case Cannon and others were co-sureties with Connoway on the bond of one Kollock. At the time Connoway became surety, Kollock executed to him a bond for his indemnity. The co-sureties were obliged to pay the debt for which they were so bound as suretisq'ior Kollock. Connoway received the indemnity secured to him by the indemnifying bond given him by Kollock. His co-sureti^ sued to compel him to share this indemnity. In the course of his opinion the Chancellor says:

“A co-surety cannot, at the time he signs an obligation with his co-sureties, take an indemnity from the principal which shall inure for his sole benefit.
“If an indemnity be so taken,it shall inure to the benefit of all the sureties; and if that benefit be denied and refused, equity will afford relief. * * * One surety may agree that the principal may give a separate indemnity to a co-surety for his individual benefit to induce such co-surety to become such in a bond or obligation; but, without such consent by the surety he will be entitled equally to share the indemnity. * * * The taking of an indemnity security for the benefit of one or a part of the sureties is a violation of good faith.
“All the sureties believe, and have a right to believe, that all who sign as sureties are equally answerable for the burdens and liabilities which suretyship imposes.
“The very instrument signed warrants the belief of a common obligation; and any act done by a co-surety, intended to defeat the just expectations of another, and to impose on that other surety greater liabilities than himself in the suretyship, is a fraud in equity, and, if permitted to be successful, the principle which lies at the very basis of suretyship would be destroyed.” * * *
“It was contended in the argument in this cause that the indemnity which Connoway took,was executed and delivered to him before he became surety. The proof as to the exact moment when he took,it does not appear. This fact is manifest — that he took it with the intention of becoming one of the sureties, if the indemnity should be given. If not taken after the bond was signed by him, it was taken on the same day and immediately before signing the bond, and when he signed with his co-sureties, he did not disclose the fact that he then possessed this personal indemnity.
“Under such circumstances, all the other co-sureties, relying upon the good faith, not only of Robert H. Kollock, but of all his sureties on the bond, trusted, as said by Henderson, J., in Moore v. Moore, 4 Hawks, 358, apparently to the same laws of indemnity, and to the mutual exertions of each other to avoid harm severally.
“What would have been the consequence of permitting the defendants to take an indemnity, the benefits of which would inure only to themselves, and from the benefit of which their co-sureties would be excluded? If such should be the operation and effect of the indemnities taken by them, then the taking of them lessened the ability of Robert H. Kollock to indemnify the other sureties.
“The same principle I have announced would equally apply if it was distinctly proved that Connoway’s indemnity was taken before he signed the bond. The time of signing the bond is immaterial. The equities of the sureties will not thereby be affected; they all have equal equities which are enforceable in the court. ’’

Following and relying upon the doctrine of this case, which seems to us to be reasonable and just and consistent with the general principles governing the rights and relations of co-sureties, we hold that the defendant Richcreek is bound to share the bank stock, or proceeds thereof, by him received from Rogers as before stated, with his co-surety, the plaintiff Niece.

It appearing that Richcreek has, with the consent of Rogers, treated the stock as his own ever since it was so assigned to him, whereby he has received whatever dividends and profits may have accrued thereon, and that the stock now is of greater value than it was when so assigned to Richcreek, but that it was of the value of eleven hundred dollars when so assigned, we hold that Richcreek must account to Niece for five hundred and fifty dollars, with interest thereon from the date of such transfer, to-wit: the 17th of January, 1891. A decree will be entered accordingly and against Richcreek for the costs.

W. M. Molhoaine, for Plaintiff.

Frank Taylor, for Defendants.


author: Hale, J.

text:
    (Eighth Circuit-Cuyahoga Co., Circuit Court
    Oct. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    DWELLING HOUSE INSURANCE CO. v. DANIEL GARVEY.

      Insurance — Adjustment agreement — Implied promise—

    Where, after a loss, the insured and an adjuster of the company enter into an agreement in writing, fixing the amount of the damage, and providing in the contract that “said sum as agreed, is binding and conclusive upon said parties, as to the amount of the loss and damage, and this agreement and the examination by said special agent, do not in any respect waive formal proofs of loss, or any of the conditions of said policy, nor a breach thereof, whether known to- the said company at the date of the execution of this agreement or otherwise, ’ ’ there is no implied agreement that the^company will pay the adjusted amount, nor can an action be sustained on such agreement alone, independent of the policy.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J.

Prior to August 26, 1891, there had been issued by the insurance company, the plaintiff in error, to Garvey, the defendant in error, an insurance policy covering a dwelling-house and certain personal property specified in the policy. On the 26th of August, a portion of the property was destroyed by fire. Subsequent to the loss an. agent of the company investigated the loss, and in behalf of the company entered into a contract with the policy-holder, which reads:

“It is hereby mutually agreed between the Dwelling House Insurance Company, by its special agent, and Daniel Garvey, that the total amount of loss and damage by'fire on the 26ht day of August, 1894, to the property mentioned by this policy No. 749,972, of said insurance policy, issued at its Akron, Ohio, agency to said Garvey, is, after a full examination, agreed upon and determined by - compromise at the sum of $483.80, as follows” — then follows the items- — ■ “and said sum, as agreed,’ is binding and conclusive upon said parties as to the amount of loss and damage only, and this agreement and the examination by said special agent, do not in any respect waive formal proof of loss, or any of the conditions of said policy, nor a breach thereof, whether known to the said company at the date of the execution of this agreement or otherwise. The total insurance on said property is $2,400.00 as per list below. In testimony whereof the said parties have hereunto set their hands this 4th. day of September, 1894. Daniel Garvey. Dwelling House Insurance Company, per F. L. Parsons, Special Agent.”

The action was brought to recover the amount of loss agreed upon in this agreement, ignoring the policy. Not-upon the policy, but to enforce the payment of the amount thus adjusted.

The petition alleges that prior to the making of the written agreement, this special agent agreed that if the policy holder would enter this contract, he should have his money within thirty or sixty days.

Looking to the petition we are satisfied that no case is made for a recovery upon the verbal promise. If recovery is to be had at all, it must be had upon the written agreement between the special agent and the policy holder.

It is no doubt true that where the policy holder sustained a loss, and an agreement is made between him and the insurance company as to the amount of that loss, and nothing else, a promise may be implied on the part of the insurance company to pay that loss, and an action maintained on such agreement independent of the policy. It is because that the law implies under those circumstances an agreement to pay. But that implied promise must be gathered from the entire contract made between the parties, and where the contract, in express terms or by necessary implication, specifies that no such implied promise shall arise from such agreement, we think none does arise. And it was only upon an implied agreement growing out of this contract that I have read to pay this insurance, that an action can be maintained in the shape that it now comes before the court.

Dickey,Brewer & McGowan, for Plaintiff in Error,

Francis J. Wing, for Defendant in Error.

And we hold that under this contract no such implied promise exists, and that no action can be maintained upon this contract independent of the policy.

That disposes of what there is of merit in this case. Substantially, when the plaintiff was through with his evidence, he relied upon the implied promise contained in this contract for recovery. A motion was made to take the case from the jury and direct a verdict for the defendant, which was refused. Testimony was then offered further, and the court charged the jury, construing the contract m favor of the plaintiff below, the policy holder, saying, in substance, that recovery could be had upon this contract, notwithstanding its terms. And the charge is in that language and in that form, that he might as well have directed a verdict for the plaintiff below.

Now, without going further into the case, we feel compelled to reverse this judgment, holding that the action cannot be maintained upon this agreement as it appears in this record.

The ground of reversal may be stated, as error in the charge of the court in construing this contract, and because the verdict is against the evidence.


author: Summers, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court,
    Oct. Term, 1897.)
    Before Shearer, C. J., Summers and Wilson, JJ.
    STATE EX REL. HARNED v. SMILEY.

      Appeal — Mandamus—
    1. Mandamus is not a civil action, and is not appealable.

      Same — Township trustees must give appeal bond—
    2. Township trustees do not act in a trust capacity within the meaning- of sec. 5226, of the Rev. Stats., and are not thereby exempt from giving bond on appeal.
    Error to the Court of Common Pleas of Franklin county.
   Summers, J.

The relator applied to the court of common pleas for a writ of mandamus commanding the defendants, the trustees and clerk of Sharon township, Franklin county, to issue an order for one hundred dollars and interest thereon, from September 10, 1896, to pay the bounty claim of defendant, or to issue a bond therefor as provided by law. The facts stated in the petition showed that the relator had such a claim, that he had presented it to the defendants, as such officers,on the 10th day of September 1896, and demanded ’ payment or a bond, and that the trustees, defendants, at their meeting on said date, disallowed and refused to pay the claim.

An alternative writ issued, and the defendants answered denying the allegations upon which relator based his claim, and for a second defense pleaded payment.

At the April term the case was tried to a jury. The jury made a special finding of facts, and found the allegations of the petition to be true, that the relator had not been paid, and that there was due him one hundred dollars and interest.

A motion for a new trial was filed and overruled, and the court found and adjudged that the relator was entitled to a peremptory writ,and one was allowed accordingly. Thereupon, on June 8, 1897, the defendants entered notice of their intention to appeal to this court, and [the amount of the appeal bond was fixed at one hundred dollars, and an appeal bond was filed July 14, 1897.

The case is before us upon relator’s motion to dismiss the appeal. Three grounds are assigned. 1'. The cause is not appealable. 2, No sufficient appeal bond has been filed, and 3. said pretended bond was noUexecuted within the time required by law.

In argument counsel for relator asserts that the motion should be sustained, first, because mandamus is not a civil action; second, because the right to trial by jury existed,and third, because the bond was not filed in time.

Counsel for defendants, in-support of the claim that the cause is appealable, rely upon the decision of this court in State ex rel. Widner v. Bowersock, 1 O. C. C., 127,and assert that section 5228, of the Revised Statutes, relieved the defendants from giving bond.

Chinn v. Trustees, 32 Ohio St., 236, was an application by Chinn to the district court for a writ of mandamus to compel the defendants, township trustees, to deliver him a bond in payment of his bounty claim. The trustees answered setting up the statute of limitations as a- bar. The plaintiff demurred, the court overruled his demurrer and dismissed the case. Chinn prosecuted error to the supreme court. The question was whether mandamus was a civil action; if it was, the statute of limitations applied, and the decision of the district court was correct. The supreme court held, second syllabus:

“The civil action of the code is a substitute for all such judicial proceedings as were previously known, either as actions at law or suits in equity, and does not embrace proceedings in mandamus.”

Upon the authority of tbis decision, this court had held that mandamus is a special proceeding, and not a civil action; but, in the case relied upon by defendants’ counsel, 1 O. C. C. R., 127, the same court, while re-affirming the reasoning upon with its former decision had been based, felt called upon to hold to the contrary in deference to the decision in Dutten v. Village of Hanover, 42 Ohio St., 215.

We are of the opinion that mandamus is a special preceding, and not a civil action. The reasons for this opinion are so much better stated in State ex rel. Widner v. Bowersock, supra, 1 O.C. C. R., 127,than we can state them,that we shall not attempt to re-state them, but merely direct attention to the opinion in that case.

It is true that in the case of Dutten v. Village of Hanover, supra., the question of the appealability of the case was raised; but it is very apparent that the only ground upon which it was claimed that it was not appealable, was that the issue in the case was one of right triable by a jury, and this was the only question considered, and the case is authority only on that point.

Professor Wambaugh says:

“A case is not a precedent for any proposition that was neither consciously nor unconsciously in the mind of the court. It is the duty of the court to deliberate. Otherwise decisions could not be conceived to have any authority whatever, for they would be arbitrary or accidental, and could not be reduced to a scientific system, though, to be sure, persons interested in lotteries and other games of chance do believe that accident can be reduced to a science. What makes decisions of value as precedents, is the fact that they aTe based upon reasoning, and not upon chance. If it can be shown that there was no deliberation, it follows that the case is of no authority for any proposition whatever. Further, if it can be shown that, although there was deliberation, a particular point was wholly absent from the consideration of the court, then, even through that point is conceivably an important one, the connection of the decision with that point is not a connection of effect and cause, but is purely accidental, and as to that point the decision is no authority whatever.”

Wambaugh’s Study of Cases, sec. 17.

H. R. Wilson, for the Relator.

J. H. Dyer, E. D. Howard and O. W. Aldrich, for Defendants.

• It is not sufficient that the question was raised by the assignments of error; it must appear that the adjudication involved a consideration of the question. The State v. Pugh, 43 Ohio St., 98, 122, and cases there reviewed.

The dictum in State ex rel. v. Crites, Auditor, 48 Ohio St., 142, 175, has not been overlooked, and we may add to what is said in State ex rel. Widner v. Bowersock, supra, as to the changes in the statutes evidencing a legislative intent to transfer the proceeding into a civil action, that the act of 1878, to revise the code is entitled: “An act to revise and consolidate the laws relating to civil procedure in courts of common pleas and superior courts, and also, the laws relating to procedure m error, mandamus, and quo warranto.” 75 O. L. 597

The appeal bond was not given within thirty days after the entering of the judgment, but the appellants claim that under the provisions of sec. 5228 of the Revised Statutes, they are not required to give bond. This section provides that: “A party in a trust capacity, who has given bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal.”

At an early day this provision named executors, administrators and guardians, 50 O. L., 94, and it is trusts of that character, and not public offices th,at it embraces.

Motion to dismiss the appeal sustained. •