text:
    LIABILITY FOR. SHOCK OF TELEPHONE LINEMAN BY CURRENT LEAKING FROM HIGH TENSION RAILWAY WIRES.
    Circuit Court of Lorain County.
    The Cleveland, Southwestern & Columbus Railway Co. v. Katherine Crandall, Administratrix.
    Decided, December 28, 1909.

      Electric Wires — Joint Use of Poles by Telephone and Electric Railway Companies — Lealcage from Railway Wires Causes Death of Telephone Lineman — Pleading—Charge of Oowrt — Assumption of Rislc.

    1. Where poles are occupied by the wires of a telephone company and an electric railway company, and an action is brought on account of the death of an employe of the telephone company by reason of a shock received through leakage from the high tension wires of the railway company, it is not error to admit evidence against the railway company, notwithstanding an allegation in the petition that the telephone company had knowledge of the situation and of the danger (if there was danger) to its employe.
    2. The allegation in the answer of the railway company, that as a matter of fact neither that company nor the telephone company had knowledge of the leakage and dangerous situation, left the question as to the possession of such knowledge open, and would have rendered a judgment in favor of the railway company on the pleadings erroneous.
    3. A charge of court which relieved the railway company from the exercise of any care for the safety of employes of the telephone company while at work on poles used in common by the two companies, with full knowledge by the railway company that through its negligence employes of the telephone company were being placed in a place of danger, would be erroneous.
    4. A special charge to a jury is erroneous, where the question of contributory negligence has been raised and the word “might” is so ' used with reference to the danger encountered that it could be understood to mean a possibility of danger.

      5. An employe can not be held to have assumed the risk growing out of negligence not of his own employer, but of another corporation.
    6. A refusal to give a special charge which properly states the law applicable to the case can not be cured by substituting words more satisfactory to the court than those used in the request.

      A. V. Andrews and Q. A. Gillmore, for plaintiff in error.

      Herrick & Hopkins and Ingersoll & Stetson, contra.
    Marvin, J.; Henry, J., and Winch, J., concur.
    Error to the court of common pleas.
   ' The relation of the parties to each other here is the reverse to that in which they stood in the court below. The terms plaintiff and defendant, however, used in this opinion, will refer to the parties as they stood in the original case.

Suit was brought by the administrator to recover .for the alleged wrongful death of Hubert Crandall, which occurred on the 3d day of August, 1906. At that time Crandall was in the employ of the Elyria Telephone Company, hereinafter spoken of as the telephone company, and the suit was brought against both the Cleveland, Southwestern & Columbus Railway Co., hereinafter spoken of as the railway company, and the telephone company. The telephone company, however, was dismissed out of the case, and the action was proceeded with against the railway company alone, resulting in a verdict and judgment for the plaintiff.

The petition sets out that the railway company operated an electric railroad from the city of Elyria to Grafton, and that' upon the poles of the railway company the telephone company had, by an arrangement with the railway company, its wires stretched. The wires of the railway company carried on said poles consisted of four high tension wires, so-called, on which it transmitted an electrical current of about 22,000 volts for the purpose of propelling its cars. There were three of these high tension wires which were insulated by means of glass or porcelain placed on cross-bars attached to the tops of the poles. The railway company also carried on said poles wires known as dispatcher wires; these were also carried on insulators which were fastened to the pole close to the sides, one beneath the other, and some six or seven feet below said high tension wires. These dispatcher wires were used for telephone purposes by the railway- company, and between, in altitude, said high tension wires -and said dispatcher wires, the telephone company maintained a cable.

On the 3d day of August, 1906, the decedent, pursuant to instructions from the telephone company, went out along the line from Elyria towards Grafton, for the purpose of ascertaining, if possible, the cause of some trouble which -the telephone company was experiencing in the use of the cable. ITe climbed a pole of the railway company on which wires of both companies were maintained, as already described, and he there received a shock of electricity which caused him to fall to the ground, and resulted within a few hours in his death.

The petition further states that the location of these wires of the railway company and the cable of the telephone company was such that if the current from said high tension wires leaked over or through said insulators and passed down the poles toward the ground, there was great danger and probability that it would pass into the dispatcher’s wires, and the msesenger wires forming said cable, and render the same highly dangerous to the lives of linemen working on such poles, and that these facts were well known to both of the defendants.

The petition further states that for several days preceding the 3d day of August, 1906, the railway company negligently and recklessly permitted said high voltage current to leak from said high tension wires into the poles and down and into said messenger or dispatcher wires, or both, and that the plaintiff’s decedent met his death through such negligence on the part of the railway company in permitting said leakage to take place, when it well knew of the same, and that said leakage was likely to cause such injuries as those suffered by thé plaintiff’s decedent.

The answer of -the railway company admits the employment of the decedent by the telephone company; admits that it maintained wires on its poles, and that the -telephone company also maintained wires on said poles, under an agreement with it, and admits that the decedent met his death at the time alleged in the petition, and denies all other allegations of the petition.

The defendant claims that there was error on the part of the court in admitting any evidence, as against it, over its objection under the petition; and for ground for this claim says that the allegation in the petition that the decedent’s employer (the telephone company) had knowledge of the situation and danger, if there was danger, at the place where the decedent was injured, relieved the railway company from any obligation of care to the decedent. It of course admits that if the decedent had been in its employ it would have been required to exercise due care for him, but that its obligation is different to the employes of the other company using with it these poles. In support of this claim there is cited to us the case of The Cincinnati Gas & Electric Company v. Archdeacon, 80 Ohio St., 27. We do not understand that the doctrine announced in that ease sustains the position claimed for it here. The first clause of the syllabus reads:

“When two companies engaged in enterprises calling for the use of wires to carry electricity arrange for the joint use of a pole to sustain them, each company is, with respect to such use, charged with the same duty toward employes of the other as to its own; and the correlative duty of the employes to exercise due care for their own safety is the same'as to both companies.”

There was no error on the part of the court in admitting evidence under the petition.

The defendant then moved for judgment in its favor on the pleadings. This was properly overruled, for even if the claim made, to which attention had just been called, were correct, the railway company’s answer denying, as it did, that either the railway company or the telephone company had knowledge of the dangerous situation at the place where the decedent was injured, the pleadings left this an open question.

It is further urged that the verdict was not sustained by the evidence. We are not prepared to say that this claim is true, and without undertaking to review the evidence we reach the conclusion that the jury might well have believed, that without any negligence on the part of the decedent, and because of the negligence of the railway company, he received the electric shock which either directly caused his death or which caused him to fall with such force upon the ground as to cause his death.

Complaint is further made that the court erred in refusing to give in charge to the jury certain requests which the defendant asked to have given in writing before the argument to the jury. The first request made was given. The second, which was refused, reads:

“If the Elyria Telephone Company knew that there was constant and continuous danger of a leakage of current over or through the insulators and down the poles of the Cleveland, Southwestern & Columbus Railway Company, on the Grafton line here in question, before the injury and death of said Hubert Crandall, then it owed the duty to Hubert Crandall to notify him of such conditions, unless he-by the exercise of ordinary care should have known of such dangers; and the Cleveland, Southwestern & Columbus Railway Company was not required, in the exercise of ordinary care, to give notice either to said the Elyria Telephone Go., or to said Hubert Crandall of such conditions. ’ ’

There was no error in refusing this request. If this had been given the railway company would have been relieved of the exercise of any care for the safety of the employes of the telephone company while they were working on the poles used in common by the two companies, and with full knowledge on the part of the railway company that the employes of the telephone company were being put in a place of danger on their poles which were rendered dangerous by their negligence.

We think the Archdeacon ease, supra, fully justified the court in refusing this request.

The third request reads:

‘‘ If Hubert Crandall knew or by the exercise of ordinary care for his own safety should have known or foreseen that the dispatcher’s wires here in question might be charged with a dangerous current of electricity, when he climbed the pole at the time in question, and if he cordd have avoided said wires by the exercise of ordinary care, your verdict should be for the defendant. ’’

This was refused, and properly.

It must be remembered that when a request is made in writing, to be charged in writing before argument, the court must refuse to give such request, unless without modification or explanation the request properly states a proposition of law applicable to the ease. If this request had been given it would have in effect instructed the jury that if the deceased by the exercise of ordinary care would have known that the dispatcher’s wires might by possibility have had a dangerous current of electricity upon them, it would be negligence on his part not to test them before using. It will be noticed that the words are “might be charged with the dangerous current.” The words “might be,” as used in the sentence asked to be charged, are susceptible clearly of the meaning “were possibly,” and so it would have been said to the jury that if Crandall knew that these wires “were possibly” charged, that is that they “might possibly” be charged with the electricity, surely the proposition charged in those words would have been erroneous.

It is true that the words “might be” as here used, are susceptible of the meaning “were probably” or “were likely to be,” but they are susceptible of the other meaning also, and so to have given the charge, as requested, would have been likely to mislead the jury, for we may as well suppose the jury would have been as likely to give the meaning first suggested as that last suggested to these words.

Surely it can not be said of one that he is negligent because he takes a cup of coffee at a hotel dinner without first testing or having it tested. If he knew facts which authorized the belief that there “might” be poison in the coffee, using the word “might” in the sense of probability, then he would be negligent in drinking the coffee without testing it, but if he only knew what we all know, that the coffee “might” have-poison in it, in the sense that it was possible that there was poison in it, then he would not be negligent in drinking it without first testing it. If this be not true, then all of us who partake of food or drink, without first testing it, are negligent.

The same reason for refusing to give request No. 3 would justify also the refusal to give Nos. 4, 6, 9 and 11.

The refusal to give No. 5 is justified because it puts upon the decedent the burden of assuming risks growing out of the negligence not of his own employer but of another 'Corporation, which is putting a greater burden upon him than the law requires.

No. 7 was properly refused for the. reason given in saying that the petition stated a cause of action, and is justified, as we think, by the Archdeacon case, supra,. This would also justify the refusal to give No. 8. Request No. 10 was properly refused because it would require of Crandall that he should have avoided the dispatchers wires independently of any knowledge on his part that they were dangerous.

No. 16 was properly refused under the Archdeacon ease.

Before the argument-the court gave in charge to the jury the following:

“It is not charged in the petition that the defendant railway company was negligent in failing to warn or give notice to 'Hubert Crandall or his employer of the condition of its wires along the Grafton line at and before the .accident, and therefore such failure, if such there was, can not be considered by you as a negligent act or omission on the -part of said defendant railway company.”

Although this was not given upon request of anybody, and though the court was not at liberty to refuse to give any request which was made in writing before argument which properly stated the law applicable to the case, a refusal to give any such request would not be cured by substituting words more satisfactory to the court than those used in the request. However, we have already pointed out that the court Avas justified in refusing the request made and the matter might well have been left there until after the case was argued, but as what was said by the court here could surely not be complained of by the defendant, because it stated the law on the point as favorably for the defendant as it could be stated, the defendant was not prejudiced by this language of the court, though given before argument.

The charge given by the court at the close of the argument of the case was an admirable statement of the law applicable to the ease. We think, in every respect, it was not only fair bnt clear, so that if the result reached was not what it should have been, it was not because of the charge of the court.

Other errors complained of have been examined, but none .are found which would justify a reversal of the judgment, and such judgment is affirmed.

Charges Considered by the Court in the Above Case but not Incorporated in the Opinion.

Request No. 4:

The burden of proof is iipon the plaintiff to show, by a preponderance of the evidence that Hubert Crandall did'not know, at the time he climbed the pole in question on August 3, 1906, that the. wires called dispatcher’s wires were in constant danger of being charged with a dangerous current of electricity or might be so charged. [Refused.]

Request No. 5:

If you find from the evidence that Hubert Crandall was ah experienced lineman and had for about four years worked, from time to time in «lose proximity to wires conveying dangerous electric currents, he will be presumed to have known and assumed the risk of all dangers incident to his employment, which arose from conditions likely to be encountered. [Refused.]

Request No. 6:

If Hubert Crandall' was an experienced telephone lineman, and knew, or by the exercise of ordinary care should have known that, by coming in contact with the dispatcher’s wires in question on the occasion alleged in the petition he might receive an electric shock, then it was his duty to avoid said wires, and if he under such circumstances came in contact with either of said wires, and was injured thereby on the occasion in question, the ■plaintiff is not entitled to your verdict. [Refused.]

Request No. 7:

There is no claim in the petition that at the time in question the dispatcher’s wires in question were charged with any different voltage or current of electrictiy or in any different way than was a common occurrence and was likely to occur at any time, and it is alleged by the plaintiff that the constant danger of such an occurrence was well known to the Elyria Telephone Co. in whose employ said Crandall was working when injured. Under such circumstances, the Cleveland, Southwestern & Columbus Railway Co. owed no duty to either the Elyria Telephone Co. or Hubert Crandall that required special notice to either of them of any special occasion when its said dispatcher’s wires were charged with a dangerous voltage of electricity. [Refused.]

I

Request No. 8:

If you find from the evidence that the dispatcher’s wires here in question were so located that only its own linemen, or linemen of a telephone company which was fully aware of all the risks and dangers involved, would come close enough to said wires to create any danger, then the Cleveland, Southwestern & Columbus Railway Co. was not required to give any notice that said wires were, or might be charged with a dangerous current of electricity at the time here in question and is not liable for the injufy resulting in the death of Hubert Crandall here sued for. [Refused.]

Request No. 9:

If, in the conduct of its business with ordinary care, the dispatcher’s wires in question were likely, at frequent and irregular intervals, and from various causes to become charged with a dangerous voltage of electricity, then it was the duty of Hubert Crandall to exercise ordinary care for his own safety, in view of these conditions, and he assumed the risk of any dangers arising from the fact that said dispatcher’s wires might be so charged, when he climbed said pole on the occasion here in question. [Refused.]

Request No. 10:

If Hubert Crandall could, by the exercise of ordinary care, have avoided the dispatcher’s wires while climbing said pole, your verdict should be for the defendant. [Refused.]

Request No. 11:

If Hubert Crandall was an experienced lineman, and was warned to look out for danger before he climbed the pole in question, and failed to take such precaution as ordinary care required to avoid wires which might be dangerously charged with electricity, then your verdict should be for the defendant. [Refused.]

Request No. 16:

If the Elyria Telephone Co. saw fit to place its messenger and cable upon poles owned by the defendant trolley 'company, and which poles at the time carried high voltage wires and a trolley bracket and exposed dispatcher’s wires, it was the duty of said telephone company to conduct its business with reference to the dangers of such a situation, reasonably to have been anticipated; and the defendant traction company was not obliged to change or vary the conducting of its business or to exercise any greater degree of care because telephone linemen might climb said poles, not knowing the dangers of such a situation. [Refused.]

       For further requests to charge, which are not incorporated in the opinion, see end of opinion.


source: Caselaw Access Project

license: Public Domain

text:
    PROSECUTION FOR. KEEPING A PLACE WHERE INTOXICATING LIQUORS WERE SOLD IN DRY TERRITORY.
    Circuit Court of Greene County.
    State of Ohio v. John H. Berry and State of Ohio v. Michael R. Killeen.
    Decided, June 23, 1910.

      Violation of County Local Option Law — Prosecution for — Proof that an Election had been Held — Documentary Evidence in a Criminal Trial — Barkeeper not Liable to Prosecution, When — Section 13195, General Code (6942, R. S.).
    1. The admission of documentary evidence showing the result of a county local option election does not violate the provisions of the Bill of Rights giving to an accused person the right to confront the witnesses.
    2. It is not error to admit in evidence in a prosecution for keeping a place where intoxicating liquors are sold in "dry” territory the certificate as to the result of the local option election previously held.
    3. An information under Section 6942, will not lie against a barkeeper for keeping a place where intoxicating liquors are sold in violation of law, if it appears that the owner of the place was in control and present and the barkeeper was without authority and subject to the direction of the owner.

      W. F. Orr, Prosecuting Attorney, for plaintiff in error,
    j?. C. Armstrong, contra.
    Allread, J.; Dustin, J., concurs.
   The defendant in each of the cases was convicted under Section 6942, Revised Statutes, of keeping a place where intoxicating liquors were furnished in violation of law, and was sentenced to pay a fine of $500 and costs.

It was contended by counsel for the defendant in the mayor’s court that the' affidavits charging the offense are insufficient.

This contention is met and answered by the cases of Weaver v. State, 74 O. S., 53, and Lynch v. State, 12 C.C.(N.S.), 331 (affirmed without report, 81 O. S., 489).

It is also clear that the affidavits do not charge a second offense.

Upon the trial of the cases the charges were supported by evidence showing a violation of the county local option law. No other statute was shown to have been violated as a foundation of the offense here charged.

It is contended that the magistrate erred in admitting as evidence the certificate of the clerk as to the result of the county local option election.

We are of the opinion that the admission of documentary evidence of this character does not violate the section of the Bill of Rights guaranteeing the accused the right to confront the witnesses.

A more serious question arises as -to the right to use the certificate of election as evidence in a case not strictly under the county local option act. The provision of that act is that “in all trials for a violation of this act,” the entry of a certified copy shall be prima facie evidence, etc.

It is true that the prosecution is under Section 6942, but the offense so prescribed is founded as well upon some other section claimed to have been violated. In every prosecution under Section 6942, it is apparent that the specific statute defining the law violated is to be read into and made a part of Section 6942. So- that when the evidence offered in a prosecution under Section 6942 tends to show a violation of the county local option act, the act must be looked to and read into the Section 6942 under which the prosecution is had.

It is asserted that this does not apply to the method of proof prescribed.- We are, however, of the opinion that Section 6942 includes by reference and recital not only the elements of the offense, but the means of proof.

Still if we are wrong in this, we find in the oral evidence ample proof of the county having voted “dry.” And such evidence was evidently accepted as sufficient proof in the case of the State v. Lynch, supra. The admission of the certificate was therefore not prejudicial.

The evidence as against John IT. Berry is sufficient to justify the conviction is undisputed, and no prejudicial error is found.

The court of common pleas therefore erred in reversing the judgment of the magistrate as to Berry and in discharging him. Under force of Section 7367, enacted subsequently to the decision of Mick v. State, 72 O. S., 388, we are required to reverse the judgment of the common pleas court, vacate the judgment of discharge and affirm the magistrate’s conviction and sentence.

Killeen appears from the evidence to have been the bartender and to have made the sales shown in the evidence. Berry, the owner, was present and in control of the business. He was also present at other times referred to in the evidence when Killeen was acting. It is also shown by stipulation thait Berry was the sole owner and that Killeen had no interest except as employe of Berry, and was without authority and subject to the order and direction of the owner.

This stipulation in connection with the'other evidence brings the case within the dictum of Judge Day in Schultz v. State, 32 O. S., on page 276, in which it is intimated, if not asserted, that the term “keeper” does not include a mere clerk or servant without managerial authority.

We are, therefore, constrained to hold that no case was made out against Killeen, and that the court of common pleas correctly reversed the magistrate’s conviction of Killeen and directed his discharge.

The judgment of the court of common pleas in respect to Killeen is, therefore, affirmed.


text:
    INJURY FROM THE FALLING OF AN ELEVATOR. BLOCK.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Co. v. Edward Wm. George.
    Decided, February 4, 1910.

      Negligence — Employe Operating Elevator — Injured Toy Falling of Block and Pulley — Amendment of Pleadings During Trial Not Ground for Oontinuance, When — Proximate Cause — Sections 621/2 and 11363, General Code.

    1. Where the block and pulley connected with the operation of an elevator are fastened in place by nails only, a finding by the jury that the insecure fastening was the proximate cause of the falling of the appliance, and injury to the plaintiff employed underneath, will not be disturbed.
    2. Section 6242, General Code (R. S. 4238o), is declaratory of the general principle of the law of negligence in the operation of defective machinery and appliances, and it is not error to give to the jury the substance of this section as the law of the case, notwithstanding the defense of negligence on the part of a fellow-servant was not interposed.
    3. A judgment of $8,000 for injuries to an employe who was receiving only $1.75 per day at the time of the accident, and who some months thereafter returned to work at $8 a week, and two years later was advanced to $10 a week, and four years after the accident was again receiving his old pay of $1.75 a day, is excessive and in this case is reduced to $5,000.

      Joseph Wilby and George P. Stimson, for plaintiff in error.

      Cogcm & Williams and Thos. L. Michie, contra.
    Gifebn, P. J.; Swing, J., and Smith, J., concur.
   The particular negligence relied upon at the trial is charged in the petition as follows:

“That the block which held the pulley connected with the operation of the said elevator, which was fastened to a beam above the second floor of the said factory building, in the said elevator shaft, was carelessly ,and negligently attached to said beam by nails which were liable to rust and to work out and that the same should have been bolted so as to secure the said pulley safely and prevent it from falling, and that the defendant wrongfully, willfully and negligently, caused, suffered and permitted the said elevator to become worn and defective, and unfit and unsafe to be used by continuing to use the said elevator with its pulley nailed instead of bolted as hereinbefore alleged, and by failing to inspect the condition of said pulley and the nails which supported it, and that such inspection, if properly made, would have disclosed that the said nails were not sufficient to keep the said pulley in place and prevent it from falling; and that the defendant was negligent in allowing the said elevator to be used when the said pulley was nailed as aforesaid, and was not secured in its position by bolts, and in continuing the use of the said elevator when the said pulley was nailed as aforesaid, and that by reason of the aforesaid negligence of the defendant the said pulley fell as hereinbefore alleged, and struck the plaintiff.”

There is an averment also of knowledge on the part of the defendant of such defective appliance or the means of knowing; but no averment of want of knowledge or of equal means of knowing of the defect on the part of the plaintiff.

Soon after the trial began the court permitted an amendment of the petition supplying this omission. This is clearly sanctioned by Section 11363, General Code (5114, Revised Statutes), and the only ground of complaint by the defendant was the refusal of the court to withdraw a juror and continue the case. It does not appear that the defendant was taken by surprise or otherwise unprepared to meet the issue tendered by the amendment, hence there could be no prejudice.

The error, if any, in refusing to give the second and fourth special instructions requested by the defendant, is cured by the last special instruction given at the request of the defendant before argument to the jury, because it pertains to the same subject-matter and presents it to the jury in language more appropriate to the' evidence.

The court in its general charge submitted to the jury certain issues which,, although raised by the pleadings, were eliminated from the case not only by the undisputed evidence, but by the special instructions given before argument. A careful consideration of the whole charge convinces us that the jury were not misled thereby. In one instance, at least, counsel for defendant invited the error by requesting the court to charge upon the question of negligence in the construction of the block and pulley when the undisputed evidence was that they were originally constructed, not by the defendant, but by its predecessors.

The reference by the court to the “negligent operation” of the elevator by the defendant, was evidently intended to apply, not to the manner of using it at the time of the accident, but to its continued use, without repair, after being aware of the defect.

The most serious objection urged is the refusal of the court to instruct the jury to return a verdict for the defendant, it being contended that the failure to fasten to the post with bolts the wooden block, holding the pulley, was not the proximate cause of the same falling; but that the only cause was the unusual strain on the shifting cable resulting from the sudden fall of the south end of the platform (which was over 31 feet in length) to the floor below. This theory of the case receives less support from the defendant’s evidence than from that of plaintiff, because it proved not only that the shifting cable was not attached to the platform of the elevator, but that its own superintendent of the mechanical department was, after a full investigation, unable to tell what caused 'the platform or the sheave wheel to fall.

The testimony offered by plaintiff tended to prove that the block of wood was fastened to the upright timber by four or five wire nails, ten-penny in size, and that they were insufficient for the purpose. It is significant that the iron frame of the pulley was not severed from the wooden block to which it was fastened by two lag screws, but that the block parted from the timber to which it was fastened by the nails. It is true that the lag screws extended into the post also about three inches, and it may be that the inferior quality of the timber prevented it from holding securely either the nails or the lag screws, in which case there would be all the more reason for using bolts. The defendant would not have performed its duty toward plaintiff by maintaining tbe pulley, directly over his head, at the minimum of safety. To afford security from accident, it is customary to estimate the working load as only one-third, one-fourth, or in some cases, only one-tenth part what would be required to produce fracture, because the material of whatever kind is liable to be imperfect. Besides, the strain, although slight in each operation of the elevator, would after years of continued use tend to loosen the nails until an ordinary pull would draw them out. The motion was properly overruled. Under the instructions given to the jury it is evident that they found the proximate cause of the accident to be, not the dropping of the south end of the elevator, but the defective manner in which the block and pulley were attached and maintained. We are not prepared to hold that the jury were wrong in this finding.

It is claimed that the court erred in giving to the jury as the law of the case what in substance is Section 6242, General Code (4238o, Revised Statutes), because there was no defense made of negligence of a fellow-servant. While this section was intended to avoid such a defense, it is declaratory also of a general principle of the law of negligence, which is .applicable to this ease, and the court did not err in stating it to the jury.

Although a jury has twice fixed plaintiff’s damages at $8,000, we think the amount'excessive. He was receiving as wages at the time of the accident $1.75 per day. He lost seven .months time, then commenced work at $8 per week, and continued for about two years, then received $10 per week until the fall of 1907, when he received and at the time of trial was receiving the same wages he did of the defendant. The evidence of any permanent disability to perform manual or mental labor or of any continuous pain and suffering is uncertain and speculative. We think the sum of $5,000 will afford ample compensation for injury, suffering and expenses incurred as well as time lost, and unless the plaintiff will consent to a remittitur of $3,000 the judgment will be reversed.


text:
    CAPACITY IN WHICH A SHERIFF RECEIVES MONEY.'
    Circuit Court of Columbiana County.
    George P. Ikert, as Administrator of the Estate of Jacob J. Ikert, v. Robert Wells, as Sheriff of Columbiana County.

    Decided, April, 1909.

      Sheriff — Receives Money Paid in Court Cases — In the Capacity of Bailee —Not 'Liable to Amercement for Money Lost in a Bank Failure, When — Section 12039, General Code.

    1. A sheriff who receives money in his official capacity is a bailee, and his liability for the loss thereof is to be determined by the law of bailment.
    2. W, as. sheriff, received a sum of money from the sale of lands-made under an order of court in a partition case. Pending an order of distribution he deposited the money in a local bank of good standing and credit. Before the fund was paid out the bank, failed. The money was deposited in a separate account to the credit of W as sheriff, and was not mingled with his private funds; and no negligence or bad faith was charged or shown on the part of the sheriff.

      Held: The sheriff is not liable to amercement for the money.

      W. H. Spence, for plaintiff in error.

      C. S. Speaker and G. T. Farrell, contra.
    Metcalfe, J.; Laubie, J., and Cook, J.,- concur.
    Error to tbe Common Pleas Court of Columbiana County.

       Affirmed without opinion, 82 Ohio State, 401,

   This action originated in the common pleas court by the filing of a motion to amerce the sheriff. The defendant, as sheriff of Columbiana county, sold certain real estate on the order of the court in a partition case. The money received from the sale was deposited by the sheriff in the bank of the Lisbon Banking Company to his account as sheriff, no part of it being mingled with his private funds. Pending an order of distribution the bank failed. The Lisbon Banking Company, at the time the deposit was made, was a banking institution in good standing and credit, and no negligence or bad faith is charged or shown on the part of the sheriff. The question is presented: Is the liability of the sheriff to be determined by tbe law of bailment or is he, by virtue of his officé, or by the' terms of his bond, held to a stricter accountability than that of a bailee for hire ? In effect an insurer of the money that came into his hands in the performance of his duties.

We are aware that there is a considerable amount of respectable authority which seems to sustain the latter view of the question. The case of Slate v. Harper, 6 O. S., 607, is cited as sustain ing the contention of the plaintiff. The treasury of Wyandotte county had been broken into and the .money stolen, and action was. brought on the official bond of the treasurer. It was held that the felonious taking of the money did not excuse the treasurer from the payment thereof. The decision was put entirely upon the basis that of the contract made by the treasurer when he executed his bond, which ran to the effect that he should pay over all moneys coming into his hands as treasurer. Of course it can not be disputed that a public officer may not be made liable by statute or by the provisions of his bond to pay over moneys which come into his possession by virtue of his office, even though they may be lost without his fault. But it hardly seems consonant with sound principles of equity and justice to hold over a public officer a rule so strict unless the statute or the bond of the officer require it. The sheriff is made by the law the custodian of the fund. The fund belonged to the parties who owned the property from the sale of which it arose. Section 5767, Revised Statutes, prescribes the duties of the sheriff with reference to it, and makes him liable for a misapplication or misappropriation of it, but does not of itself hold him otherwise accountable.

In U. S. v. Thomas, 15 Wall., 337, Mr. Justice Bradley in delivering the opinion of the court said:

“ The basis of the common law rule is founded on the doctrine of bailment. A public officer having property in his custody in his official capacity is a bailee; and the rules which grow out of that relation are held to govern the case. But the Legislature can undoubtedly, at its pleasure, change the common law rule of responsibility.”

And again:

. “Where, however, the .statute merely prescribes the duties of the officer as that he shall faithfully keep money or property reeeived or collected and shall pay it over when called upon to do so by the proper, authority, it can not, without more be regarded as enlarging or in any way affecting the degree of his responsi-' bility. The mere prescription of duty has nothing to do with the question as to what shall constitute the rule of responsibility in the discharge of those duties. ’ ’

We think the right rule is stated by Mr. Meacham in his work on public officers, Section 301. After discussing the various views expressed in 'the different authorities he says:

“But another view less stringent, and in the opinion of the writer more consonant with reason and justice, has also met with favor, although the cases which maintain it are few. By this view the officer is regarded as standing in the position of a bailee for hire, and bound virtute officii, to exercise good faith and reasonable skill and diligence in the discharge of his trust, or, in other words, to' bring to its discharge that prudence, caution and attention which careful men usually exercise in the management of their own affairs, but not responsible for any loss occurring without any fault on his part. The statute may, of course, impose or the officer may himself assume, a more onerous responsibility, but in the contemplation of this theory, a greater liability does not result from a simple undertaking to faithfully discharge the duties of the office.”

The following authorities also recognize this view: U. S. v. Thomas, 82 U. S., 337; 107 N. Y., 483; 33 L. R. A., 467; 31 Am. Rep., 284; 56 Am. Rep., 59; 120 Ill., 619.

The bond of the sheriff in this case does not provide for the unconditional payment of any moneys which might come into his hands by virtue of his office, but simply provides that he shall faithfully discharge the duties of his office. Nor do we think that the statute imposes upon him an unconditional liability. The statute defines his duty with reference to the money, but does not attempt to fix any liability except for a misapplication or misappropriation of the fund, and we think his liability is to be determined by the rules of the common law as to bailees for hire.

Judgment of the court below is affirmed.


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    SUPPRESSION OF NUISANCE BY ORDINANCE.
    Circuit Court of Hamilton County.
    Charles Brown v. Village of St. Bernard.
    Decided, June 18, 1910.

      Municipal Corporations — Power of, to Suppress Nmsances — Remedy Against Nuisance not Limited to Prosecution under the Criminal Statutes — Section 3650, General Code.

    Relief from a nuisance is not limited to a criminal prosecution under Section 6921, Revised Statutes, but may be effected under a prohibitory ordinance passed by virtue of the general powers conferred upon municipalities in that behalf; and such an ordinance will be held valid where it is of a general nature and its manifest purpose is to prevent injury and annoyance to the public.
    * Affirming Brown v. St. Bernard, 9 N.P.(N.S.), 296.

      D. 8. Oliver, for plaintiff in error.

      Samuel B. Hammel, for the village.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
    The plaintiff in error was charged with violation of an ordinance of the village of St. Bernard, tried, convicted and sentenced to pay a fine of $100. Section 2 of the ordinance, being the one under which the affidavit was made, is as follows :
    ‘ ‘ That it shall be unlawful for any person, whether he be owner, manager, superintendent, foreman or employe, within the limits of said village to manufacture, or produce, or assist in the manufacture or production of any fertilizer, or other product from which in the process of manufacture, or production, offensive or unwholesome odors arise or are given off. ’ ’
   It is claimed that the village council had no power .to pass the ordinance, because the acts prohibited were made unlawful by Section 6921, Revised Statutes, -which furnished the exclusive remedy.

It is evident, however, that the Legislature did not intend to limit the remedy to this section only, as it conferred general power upon municipal corporations by Section 7, Sub. 3 of the municipal code, ‘ ‘ to prevent injury or annoyance from anything dangerous, offensive, or unwholesome; to cause any nuisance to be abated, ’ ’ and it was under authority of this section that the ordinance was passed.

The objection that the ordinance is not legislation against a public nuisance, is apparently though not really sound, the argument being that the statute empowers municipal corporations ‘ ‘ to prevent injury or annoyance ’ ’ presumably to the public, and not to prevent the creation or maintenance of “anything dangerous, offensive or unwholesome” regardless of its effect upon the public.

It being conceded by counsel for both parties that a municipality can legislate against a public nuisance only, the ordinance should be construed with this limitation of power in view, and thereby avoid the absurd consequence of a literal construction. It is not reasonable to suppose that the village council intended to punish by fine every person who manufactured or assisted in manufacturing an article that gave off an offensive odor 'in the factory but in nowise affected the public.

In the case of Clark v. Fry, 8 O. S., 358, a similar ordinance was before the court, and it held in the third proposition of the syllabus:

“ A city ordinance imposing in general terms a penalty on any person for incumbering or obstructing any part of any street, lane, or alley, etc., rationally construed, has manifest reference to nuisances — in other words, to incumbrances or obstructions which, but for some special license, would be unlawful. ”

The same reasoning applied to the ordinance before us leads to the conclusion that it was intended to make unlawful such offensive odors as would cause injury or annoyance to the public. The affidavit upon which the warrant issued contained the statement “to the annoyance of the public,” so that the plaintiff in error was fully advised of the nature of the charge. It would no doubt have been better, in framing the ordinance, to conclude with the words “to the injury or annoyance of the public,” or other words of like import as in Section 6921, Revised Statutes; but the omission seems not fatal.

The ordinance is not restricted in its application to the business of manufacturing fertilizer, but was intended to prevent offensive or unwholesome odors in the manufacture of any product, and hence the rule stated in the case of Schultze v. Cambridge, 38 O. S., 659, does not apply.

In excepting to the exclusion of evidence offered in chief, counsel for thé defendant failed to state what the expected proof would be, and hence it can not now be said that the ruling of the court was prejudicial. No such statement is required on cross-examination; but the evidence thus excluded was either inadmissible or without prejudice.

The report of the committee of the state board of health tended to prove the 'charge made in the affidavit and the exclusion therefore was not prejudicial to the defendant.

There being no substantial error in the record the. judgment will be affirmed.

The ease of Andrew Schueler vs the Village of St. Bernard was tried upon the same record and the judgment in the case will also be affirmed.


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    ASSESSMENTS FOR. SEWERS.
    Circuit Court of Lucas County.
    Edward A. Kirk et al v. The City of Toledo et al.
    Decided, March 25, 1910.

      Local Drainage — Property Provided with, by Construction of a Sewer —Not Subject to Assessment for a Second Sewer.

    Where a sewer has been constructed which provides certain property with facilities for local drainage and the property has been assessed therefor, the fact that the property owner has not availed himself of the benefit of the sewer by connecting his property therewith, does not warrant the levying of a second assessment against the same property for a second sewer, so located that the property might be connected with it also for purposes of local drainage,
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   This is an action brought to restrain the collection of a sewer assessment placed upon certain property to cover the benefits of local drainage. Two sewers were constructed, sub-main sewers, one known as No. 199 and the other known as 1018,' constructed very nearly at the same time. No. 999 runs in Parkwood avenue and in front of some of the property, two pieces being on one side of the street and the other two on .the other side, so that all four lots abut upon sewer 999. The property has been assessed its proper assessment for the construction of this sub-main sewer, and in addition to that all these four pieces have been assessed for local drainage. Since then the other sewer that was constructed at practically the same time and across Parkwood avenue at right angles between two of the lots and with a branch running back of two of the other'lots, and the cost of this other sewer, so far as the benefits arising from local drainage are concerned, has been assessed upon this same property.

This is an action brought to restrain the collection of the assessment for local drainage of sewer 1018 on two grounds: first, that the property does not need it, and second, that it is already provided with local drainage. The position taken is that being already provided with local drainage, of course it does not need additional local drainage.

The case is here upon the pleadings and upon an agreed statement of facts, and by the agreed statement of facts it is shown that if connections were permitted .to be made and were made to sewer 999 those connections from this property to that sewer would afford this property, all of it, complete local drainage. It is said by the city that the property is not provided with local drainage so long as the man who owns the property has not made the connection and availed himself of the local drainage that he has been provided with and assessed to pay, and that so long as he does not connect with it and take advantage of this benefit that has been extended to him, the city has.a right to construct another sewer and find that that is a benefit to him as local drainage; and the same reason would continue if they went around the four sides of his property and put .a sewer on every side, and answered his complaint that he had local drainage by saying the property is not provided with local drainage; it is simply so circumstanced as that you might provide it with local drainage if you connected it, but you haven’t connected it, and therefore you haven’t been provided with local drainage, and consequently we may find that the last of the four sewers surrounding the property affords you benefits for local drainage and assess you accordingly.

We think this position can not be maintained at all. If the first sewer constructed for which a man is .assessed for local drainage is so located that the. man may connect with it and thereby secure local drainage, we think so soon as it is constructed that he is provided .with local drainage, and certainly his property thereafter does not need any additional provision except what he shall put in himself to furnish him such local drainage. We think that the position taken by the city in this matter is entirely untenable, and that the position taken by the plaintiffs here, Kirk and TIeffelbauer, should be sustained, and that the city should he restrained from collecting the assessment on sewer 1018 for local drainage for the property described in the petition.


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    VALIDITY OF PAYMENTS TO A BANKRUPT.
    Circuit Court of Hamilton County.
    W. L. Mersfelder, Trustee, v. Peters Cartridge Company.
    Decided, April 9, 1910.

      Bankruptcy — Payments ~by a Dehtor to Bankrupt After Filing of Petition, are Valid, When.

    Payments made by a debtor to a bankrupt in good faith after the filing •of the petition in bankruptcy but before the adjudication thereon, and payments made for services rendered after the filing of the petition, and payments made subsequent to the adjudication where based upon an uncompleted contract for personal services involving tbe exercise of skill «upon which reliance was had, are not recoverable by the trustee in bankruptcy from the debtors by whom such payments were made.

      Kelley & Hauck, for plaintiff in error.

      Morse, Tuttle & Harper, contra.
    G-iefen, P. J.; Swing, J., and Smith, J., concur.
   The first payment made by defendant in error to Anton Mill, a bankrupt, and which the trustee in bankruptcy seeks to recover, was made the day after the petition in bankruptcy was filed, and long before adjudication. The payment having been made in good faith, the trustee in bankruptcy under the law of 1898 can not recover it from the defendant in error, the debtor.

The second payment, made subsequent to adjudication, was for services rendered after the petition in bankruptcy was filed, and hence not the proceeds of property transferable or seizable at the time of filing, and did not vest in the trustee.

The third payment, although made after adjudication, was based upon an uncompleted contract for personal service, involving the exercise of skill, upon which reliance was had. Such contract did not pass to the trustee. 1 Remington on Bankruptcy, Sections 991, 1132 and 1131.

The judgment will be affirmed.


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    ATTORNEY’S FEES IN CERTAIN RAILROAD CASES.
    Circuit Court of Harrison County.
    B. F. Rowland v. The Baltimore & Ohio Railroad Company.
    Decided, May, 1910.

      Constitutional Law — Provision for Allowance of Attorney’s Pees in Certain Cases Against Railroads is Class Legislation — Section 789S, General Code.

    Section 3365-7, Revised Statutes, which provides for the taxing of an attorney fee where an appeal is. taken in certain actions for damages on account of fires caused by railroads is unconstitutional . and void.

      Perry & Rowland, for plaintiff.

      Hollingsworth & Worley, contra.
    Metcalfe, J.; Laubie, J., concurs; Cook, J., not sitting.
    Error to the Court of Common Pleas of Harrison County.
   The plaintiff in error brought this action originally before a justice of the peace to recover for damages to his property caused by fire originating in the railroad company's right-of-way. The case was tried before the justice and appealed to the common pleas court, where a verdict and judgment were rendered in favor of the plaintiff. The plaintiff thereupon moved the court to include in the judgment an attorney fee, which the court refused to do, and such refusal is the only ground of error assigned here.

The plaintiff claims the right to an attorney fee to be taxed against the defendant under favor of Section 3365-7, Revised Statutes (91 O. L., 187), and the defendant resists it on the ground that the statute which permits it is unconstitutional. The section reads as follows:

“In case either party appeal from the judgment of the court in which an action under this act is originally begun, or may carry the case to a higher court on error, the party in whose favor judgment is finally rendered shall have included in his bill of costs against the adverse party, an attorney fee of fifty dollars ($50) in case an appeal or error is not carried beyond the circuit court, and in case such appeal or error is carried to the Supreme Court of this state, there shall be an attorney fee of one hundred dollars ($100) included in his said bill of costs.”

In the case of Coal Company v. Rosser, 53 O. S., 15, a statute (Section 6563a, Revised Statutes) which authorized the taxing of an attorney fee in favor of the plaintiff in suits on certain claims for labor was held unconstitutional on the ground that it was class legislation. But it is urged that this holding does not apply to Section 3365-7, inasmuch as the latter section permits an attorney fee to be taxed in favor of the winning party, whether plaintiff or defendant, and against the loser. In our judgment the provision making the fee assessable against the loser- does not relieve the statute from its objectionable features. It is still class legislation. Those who are so unfortunate as to have litigation over fires caused, or claimed -to be caused, by railroads are singled out as a class by themselves and the one who wins is granted a favor which is denied to all other litigants, and the loser has inflicted upon him an added burden of costs which is not imposed upon any others. In the Rosser case, supra,, it was not the fact that one of the parties only was given the right to have his attorney fee charged against his adversary that made the statute unconstitutional. It was the fact that a class of litigants was separated from all others and favors granted or burdens imposed which other litigants were not obliged to bear.

“All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.” Article I, Section 16, Constitution of Ohio.
“No state shall * * * deny to any person within its jurisdiction the equal protection of the laws.” 14th Amendment Const, of U. S.

Every person has an equal right with every other person to invoke the action of the courts of the state for the protection of his person or property and it is not “due course of law” or “equal protection of the laws” where those who have property destroyed by fire caused by a railroad are put in a class by themselves and are offered a reward in the shape of an attorney fee if they win their cases and are required to pay one to their adversary if they lose.

Judgment affirmed.


author: Per Curiam.

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    INDEFINITE DESCRIPTION IN CHATTEL MORTGAGE.
    Circuit Court of Hamilton County.
    Stephen J. Burke v. L. C. Linkmyer.
    Decided, January 15, 1910.
    A chattel mortgage covering “one registered Jersey bull” is void for uncertainty, where it appears that at the time the instrument was executed the mortgagor was the owner of three registered Jersey bulls.

      Charles W. Hoffman, for plaintiff in error.

      J. C. Smith, contra.
   Per Curiam.

The judgment in this ease should be reversed and judgment rendered for the plaintiff in error, for the reason that the property mortgaged, to-wit, “one registered Jersey bull,” is too indefinite, the mortgagor at the time having three registered Jersey bulls.

The mortgage itself should have contained some words of description which would have enabled one to have ascertained which of the.three Jersey registered bulls was intended to be mortgaged, there being on the farm of the mortgagor three registered Jersey bulls, each one answering the description contained in-the mortgage. No one is described in particular, and the description is void for uncertainty. 81 Mo., 532; 57 Miss., 89; 40 Mich., 203; 62 Vt., 206; Jones on Chattel Mortgages, Section 56a; Cobby on Chattel Mortgages, Section 15-9.


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    PROXIMATE CAUSE OF AN ACCIDENT AT A RAILROAD CROSSING.
    Circuit Court of Hamilton County.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Hannah H. Dooley, Administratrix.
    Decided, July 23, 1910.

      Negligence — At a Railway Crossing — Failure of Watchman to Lower the Gates — Bad Condition of the Crossing — Decedent’s Wagon Breóles Down — And He is Struclc and Killed by a Train — Proximate Cause — -Charge of Court — Evidence—Rights of Railway Trains and the Public at a Crossing — $10,000 for Death Not Excessive, When.

    1. Where it is admitted, in an action growing out of a crossing accident, that the watchman failed to lower the gates upon the approach of the train, his negligence in that respect must he regarded as the efficient cause of the collision which followed between the train and the wagon which the decedent was driving; and minor errors of judgment subsequently committed by the decedent during the moment of great peril and excitement, after he had gone upon the track and before he was struck, do not warrant the setting aside of a finding by the jury against the railway company.
    2. The testimony on cross-examination of witnesses called by the railway company, to the effect that other wagons had broken down on that crossing as did the one which the decedent was riding, was competent as tending to prove knowledge on the part of the railway company of the defective condition of the crossing, and also for the purpose of testing the credibility of other witnesses who had testified in chief that the crossing was' in fair condition.
    3. It is not error for a trial judge, in a special charge to a jury, to assume as a fact a matter which was to be determined by the jury, where the matter was an undisputed fact as to which the jury could reach but one determination. .
    4. An award of the full statutory amount of damages for a wrongful death is not excessive, where the age of the decedent was forty-five, his health good, his earnings $700 a year, and seven children were left surviving him.

      Maxwell & Ramsey, for plaintiff in error.

      Littleford, Frost & Foster and H. B. McClure, contra.

      Giffen, P. J.; Swing, J., and Smith, J., concur.
   The decedent was driving a horse and wagon over defendant’s railroad at a point in Eastern avenue, known as Rookwood Crossing, and the negligence averred as a first cause of action is as follows:

‘ ‘ Said gateman conducted himself so negligently and carelessly that he failed to lower said gates in time to warn the said decedent of a rapidly approaching passenger train of said defendant. ”

And as a second cause of action as follows:

“That the defendant corporation carelessly and negligently failed to maintain said crossing as a safe and sufficient crossing . and to keep the same in a safe and proper condition; that by reason of this carelessness and negligence of the defendant, the wagon which the said decedent was .driving on or about the 10th day of July, 1907, was broken down, and the decedent without any fault or negligence on his part was thrown upon the ground, where he was struck and killed by-the aforesaid train of the defendant. ’ ’

The defendant denied the negligence charged and averred that “if the decedent met with the accident alleged, the cause of the same was his own negligence, first, in failing to discover the train which struck him, and secondly, in failing to stop after he was warned of the approach of the train. ’ ’

As we understand the evidence the gateman failed to lower the gates when it was his duty to do so, and that such failure was the proximate cause of the accident, although the condition of the track and the haste of the driver to get over after being warned of the danger, contributed to the result. It is no doubt true that the accident would not have happened had he heard the warning and heeded it; but he did not hear or see it until he was in a position of extreme peril, when in the excitement of the moment he did what he deemed best and what an ordinarily prudent person would likely do to save himself.

The defendant had the benefit of a charge on contributory negligence, which was presented by the evidence, rather than the answer, and the jury found against the defendant on that issue, and we think rightly.

The testimony of witnesses called by the plaintiff that the gateman waved frantically to the driver “to hurry and come across the track” and like statements when considered in connection with their description of the manner and direction in which he motioned to him, was competent under rule No. 4 in the case of Railroad Co. v. Schultz, 43 O. S., 270, at 282.

The testimony on cross-examination of the defendant’s witnesses that other wagons had broken down at the same place on former occasions was competent as tending to prove knowledge on the part of the defendant of the defective condition of the crossing, and to test the credibility of the witnesses who testified in chief that the crossing was in fair condition.

The following special instruction was requested by the defendant before argument, but refused:

“The mere fact that a railroad company maintains gates at a crossing where there are but two tracks and that a traveler upon approaching such crossing sees that the gates are open, will not of itself absolve the party so approaching from looki-ng to see where a train is approaching.”

The use of the phrase “where a train is approaching” is rather indefinite and might' mislead the jury to assume that he heard the train or by some means other than that of sight knew of its approach and was therefore not excused from looking to reassure himself that it was approaching. If however the meaning is that the traveler can not rely upon the fact that the gates are open, but must under all circumstances look to see whether a train is approaching, then it is opposed to the rule stated in the case of Railroad v. Schneider, 45 O. S., 678.

It is claimed the court erred in giving the following special instruction at the request of the plaintiff:

“In determining whether the decedent acted with reasonable care and prudence in driving forward as he did after he became aware of his danger you should take into consideration the situation in which the decedent was placed at the time, where his position was one of great danger, what time he had for deliberation and all the other conditions and circumstances immediately attending the accident,”

The objection urged is that the clause “where his position was one of great danger” assumes a fact which should have been determined by the jury; but it was an undisputed fact, and there could be no error in so treating it.

The definition of the preponderance of the evidence is erroneous; but what is said in the next sentence concerning the iveight of evidence relieves it of any prejudice.

The relative rights of the railroad company and the public at the crossing are stated substantially as they are in the case of Railroad Co. v. Maurer, 21 O. S., 421. The definition of negligence is faulty in the use of the word ought for would; but taken in connection with the definition of ordinary care is not misleading. Many of the errors relied upon relate to the defective condition of the track and the conduct of the watchman after the decedent had passed the gates onto the track, and were not prejudicial unless the decedent himself was negligent in driving forward after seeing the train. We are of the opinion that if all such errors were eliminated the jury must have found that under the circumstances of great peril and excitement he was not chargeable with negligence.

It' is admitted that the watchman failed to lower the gates, and the jury must have found that such failure was negligence and the proximate cause of the accident. It was the efficient cause that set all others in motion. While there are two grounds of negligence stated in the petition they constitute but one cause of action.'

The damages awarded being the full amount allowed by statute are claimed to be excessive. The decedent was 45 years of age and left surviving him seven children. His health was good, and his income about $700 per annum. Besides his care in their training and education has a pecuniary as well as a moral value.

Upon the whole record we think that no substantial error has been shown and the judgment ought to be affirmed.


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    INSURANCE ON THE LIFE OF A MANAGING DIRECTOR.
    Circuit Court of Coshocton County.
    The Northwestern Mutual Life Insurance Company et al v. The Coshocton Glass Company.
    Decided, May Term, 1910.

      Life Insurance — Only the Insuring Company May Interpose the Objection of Lack of Insurable Interest — What Constitutes Insurable Interest — In the Absence of Fraud the Insured May Designate any Beneftciairy — Corporations may Carry Insurance on the Lives of Officers or Employes, When — Termination of the Employment Does Not Invalidate the Policy.

    1. Only the company issuing a policy of life insurance can take advantage of the fact that the payee named in the policy is not within the class which by the constitution of the company is entitled to take the benefit; and where a policy of life insurance was valid at its inception and was procured in good faith, the beneficiary or an assignee may hold or enforce the policy, as against the claims of the executor, notwithstanding neither of them had any interest in the life of the insured.
    2. The fact that the interest in the life of the insured of the beneficiary under a valid policy ceased before the death of the insured is immaterial, unless such be the necessary effect of the provisions of the policy itself.
    3. One having an interest in the continuance of a certain life and an expectation of benefit to arise therefrom, whether founded upon a contractual relation or upon blood or affinity, has an insurable interest in that life.
    4. The right of a corporation to insure the life of an officer or employe of the corporation depends upon the conditions existing at the time the policy was issued and the good faith of the transaction.
    5. Where a corporation has a pecuniary interest in a continuance of the life of one of its officers or employes, due to the fact that he alone has a full knowledge of the business and is experienced in its conduct and is giving his whole time to its superintendence, and the corporation is obtaining credit by reason of the fact that its management is in his hands, and an application is made by him for a policy of insurance upon his life made payable to the company and the premiums upon which are to be paid by the company, an insurable interest is shown and the good faith of the transaction must be upheld; and in such a case the fact that the insured left the service of the corporation some time before his death occurred, and his executor is contesting the claims of corporation to the proceeds of the policy, is not sufficient to defeat the title of the corporation thereto.
    In February, 1904, the Coshocton Glass Company was a corporation under the laws of Ohio, engaged in manufacturing glass bottles and wares, with its office at Coshocton, Ohio. Its capital stock was $60,000, of which $35,000 was common stock and $25,-000 was preferred. The common stock was owned by said Thomas J. Gainor, then living, and one E. K. Sober and E. G. Van Horn, they having a controlling interest in the corporation. The preferred stock was sold to citizens of Coshocton county to obtain working capital. During the summer and fall of 1904, in addition to selling the preferred stock to provide funds for operating expenses the company was, borrowing largely from banks in Coshocton. The managing officers of the company were: president, E. K. Sober; vice-president and general manager, Thomas J. Gainor; E. G. Van Horn was secretary and treasurer. These three men with Dr. H. R. McCurdy and Louis Brendel constituted the board of directors. Thomas J. Gainor was the only one of these officers who had any practical knowledge of the glass bottle business. He was a man of wide experience in that regard. Stock was sold and credit extended to the company by reason of Gainor’s position as manager.
    Prior to August 26, 1904, at the request of some of the stockholders and creditors of the company, Sober, Van Horn and Gainor arranged and agreed to procure insurance on their lives in the sum of $10,000, for the benefit of the corporation, the Coshocton Glass Company. In pursuance of such arrangement, Mr. Gainor made application to the defendant, the Northwestern Mutual Life Insurance Company, for the policy sued on in this ease, naming the said the Coshocton Glass Company as the beneficiary therein. The policy was issued September 13, 1904, and was one of two policies, each for the sum of $5,000 taken in pursuance of said arrangement, and was delivered to said company, said company paying the first, as well as all subsequent premiums on. the policy, during the lifetime of Thomas J. Gainor, he paying no part thereof.
    About January 12, 1906, said Gainor, Sober and Yan Horn sold all their stock and interest in said company to Hyppolyt and Charles A. Liewer, and from that time ceased to have any financial interest in said company; but Gainor continued in the employ of the company as its vice-president and superintendent until about September 1, 1906, when on account of ill health he resigned and moved from Coshocton to Newark. From September 1,1906, until his death which occurred April 11, 1908, he had no connection with said company. The policy was continued in full force by the payment of the premiums by the glass company. When Gainor, Sober and Yan Horn in January, 1906, sold their stock and interest in the glass company to the Liewer Bros, the policy in this case was assigned to them as collateral security for loans made by them to the plaintiff company. Said Thomas J. Gainor and his wife, Mary M. Gainor, joined in said assignment. Afterwards, and in November, 1906, said glass company having-liquidated the loans for which said policy was assigned as collateral security, said glass company desiring to have said policy released, said Thomas J. Gainor and Mary M. Gainor, his wife, for a good and valuable, consideration executed and delivered to said the Coshocton Glass Company the written instrument attached to the bill of exceptions in this case and made a part thereof, marked plaintiff’s Exhibit No. 2.
    Gainor died testate; his will was probated in Licking county and plaintiffs in error were appointed as executors thereof.
    After Gainor’s death the glass company gave notice and proof of death to the insurance company, and demanded payment; the executors did the same. The insurance company refused payment because of the conflicting claimants.
    This suit was brought by the glass company to enforce payment; the insurance company filed its answer and cross-petition admitting its liability on the policy, but alleging its ignorance of the respective rights of the claimants, and asked permission of the Gourt to pay the full amount into court and to be' discharged. The prayer of the insurance company was granted, and the amount, to-wit, $5,000, was paid into court, and the cause proceeded to trial upon the issue joined between the plaintiff company and the executors, to the court without the intervention of a jury, and resulted in a finding and judgment in favor of the plaintiff, the Coshocton Glass Company.
    Error is prosecuted to this court, and a petition in error was duly filed by the executors of the estate of Thomas J. Gainor, deceased, for the purpose of reversing the finding and judgment of the court of common pleas, assigning numerous errors therefor.

      Flory & Flory, for plaintiff in error, cited:
    Ryan v. Rothweiler, 50 O. S., 595; Insurance Co. v. Smith, 44 O. S., 157; Fraternal Insurance Co. v. Applegate, 7 O. S., 292; Eckel v. Renner, 41 O. S., 233; Evans v. Moore, Administrator, 28 C. C., 1; Schott & Sons Co. v. Security M. L. Ins. Co., 7 N. P. (N.S.), 548; Security Mut. Life Ins. Co. v. Schott, 11 C.C.(N. S.), 401; Va. M. Aid Assoc. v. Gonser, 43 O. S., 1; Warwick v. Davis, 104 U. S., 775 (26 L. E., 924); Crotty v. Insurance Co., 144 U. S., 621 (36 L. Ed., 566); Mut. Life Ins. Co. v. Richards, 72 S. W., 484 (Mo.); Strode v. Meyers Drug Co., 74 S. W., 379 (Mo.); Quim v. Sup. C., 41 S. W. (Tenn.), 434; Norris v. G. L. & S. B. Co., 34 S. E. (Ga.), 378; Roller v. Moore, 10 S. E. (Va.), 241; Tate v. Com. Bldg. Ass’n, 97 Va., 74 (33 S. E., 382; 45 L. R. A., 243) ; Trinity College v. T. Ins. Co., 18 S. E., 175 (22 L. R. A., 291); Widiman v. Hubbard, 88 Fed., 806; Cammack v. Lewis, 82 U. S., 643 (21 L. Ed., 244); Chuns v. Anders, 28 S. W. (Texas), 274; Mayher v. Mut. Life Ins. Co., 27 S. W. (Texas), 124; Mut. L. Ins. Co. v. Bledgett, 27 S. W. (Texas), 286; Weigelman v. Zunger, 28 S. W. (Ky.), 334; Biard v. Sharp, 38 S. W. (Ky.), 1057; Rince v. Rince, 31 At. (Pa.), 347; Lanonette v. Laplante, 36 At. (N. H.), 981; Ex. Bank v. Loh, 31 S. E. (Ga.), 459; Irons v. U. S. Life Ins. Co., 108 S. W. (Ky.), 904; Bendet v. Ellis et al, 111 S. W. (Tenn.), 795; Mut. Life Ins. Co. v. Lane, 151 Fed., 276 (affirmed 157 Fed., 100a); 1 Cooley on Insurance, pp. 270, 274, 278, 298, 300, 301, 302, 308, 309, 315; Wilton v. N. Y. L. Ins. Co.., 78 S. W., 403; Bramblett v. Hargis, Exr., 94 S. W., 20; Dugger v. Mut. L. Ins. Co., 81 S. W., 20; Sections 3628-3629, Revised Statutes.

      Pomerene & Pomerene, for defendant in error, contended for the points and cited authorities thereon, as follows:
    An insurable interest is not necessary where one causes his own life to be insured for the benefit of a stranger: Ryan v. Rothweiler, 50 O. S., 601; May on Insurance, Section 756; Bloomington Mut. v. Blue, 121 Ill., 121; Martin v. Stubbings,. 126 Ill., 387; Kerr on Insurance (1902), pp. 679-680; Milner v. Bowman, 119 Ind., 448 (21 N. E., 1094); Langford v. Freeman, 60 Ind., 46; Campbell v. New Eng. Life Ins. Co., 98 Mass., 381; Scott v. Dixon, 108 Pa. St., 6 (56 Am. Rep., 192) ; Hill v. United Life Ins. Co., 35 A. S. R., 807; Fairchild v. N. E. Mut..Life Ins. Co., 51 Vt., 613; Aetna Life Ins. Co. v. France, 94 U. S., 561; Allen v. Hartford Life Ins. Co., 72 Conn., 693 (45 Atl., 955); Albert v. N. Y. Mut. Life Ins. Co., 122 N. C., 92 (65 A. S. R., 693); Van Cleve v. Union Cas. Co., 82 Mo. App., 668; Ashford v. Mutual Life Ins. Co., 80 Mo. App., 638; Croswell v. Conn. Indem. Assn., 51 S. C., 103 (28 S. E., 200) ; Goodrich v. Treat, 3 Colo., 408; Classey v. Mut. Life Ins. Co., 84 Hun. (N. Y.), 350; Tucker v. Mutual Ben. Life Ins. Co., 50 Hun. (N. Y.), 50 (121 N. Y., 718; 24 N. E., 1102); Prudential Insurance Co. v. Hunn, 69 Am. St. R., 380; Olmstead v. Keyes, 95 N. Y., 593; Hess’ Admr. v. Segenfelter, 105 S. W., 476; Vance on Insurance, Section 49; Heinlein v. Imperial Insurance Co., 101 Mich., 250 (45 A. S. R., 409) ; Morrell v. Trenton Mutual, 10 Cush., 282 (57 Am. Dec., 92) ; Conn. Mutual v. Schaefer, 94 U. S., 457; May on Insurance, Section 112; Bliss on Insurance, Section 76; Bacon on Insurance, Section 729; Beach on Insurance, Section 861; Joyce on Insurance, Section 729; Bloomington Mutual v. Blue, 120 Ill., 121 (11 N. E., 331); Union Fraternal v. Walton, 109 Ga., 1(77 A. S. R., 350) ; Prudential Ins. Co. v. Hunn, 69 A. S. R., 380; N. W. Masonic Aid Co. v. Jones, 154 Pa., 99 (35 A. S. R., 810) ; Albert v. Mutual Life, 122 N. C., 92 (65 A. S. R., 693).
    The glass company had an insurable interest in the life of Gainor at the time the policy was issued: Elliott on Insurance, Section 57; Warnock v. Davis, 104 U. S., 775; Bliss on Life Ins., Section 21; Trenton, etc., Ins. Co. v. Johnson, 24 N. J. L., 586; State v. Willett, 86 N. E., 68; App. of Corson’s Exr., 113 Pa. St., 446; Conn. Mut. Life Ins. Co. v. Schaefer (1876), 94 U. S., 457 (4 Otto, 457) ; Mechanics Nat. Bank v. Comins, 101 A. S. R., 650-653 (72 N. H., 12; 55 Atl., 191).
    Did its interest therein lapse when the insurable interest ceased: Elliott on Insurance, Section 19; 1 Joyce on Insurance, Sections 25 and 26; Nye v. Grand Lodge, 26 N. E., 429; Mut. Life Ins. Co. v. Allen, 138 Mass., 24; Trenton Mut. Life Ins. Co. v. Johnson, 24 N. J. L., 576, 585; Ralls v. Am. Mut. Life Ins. Co., 27 N. Y., 282 (84 Am. Dec., 280) ; Olmstead v. Keyes, 85 N. Y., 593; Scott v. Dixon, 108 Pa. St., 6 (56 Am. Rep., 192); Sides v. Knickerbocker Life Ins. Co., 16 Fed., 650; 1 Cooley’s Briefs, page 311; Conn. Mut. Life Ins. Co. v. Schaefer, 94 U. S., 457; Manhattan Life Ins. Co. v. Hennessy, 99 Fed., 64; Ritter v. Smith, 70 Md., 261 (16 Atl., 890); Mutual Life Ins. Co. v. Allen, 138 Mass., 24 (54 Am. R., 245); Rawles v. Am. Life Ins. Co., 27 N. Y., 282 (84 Am. Dec., 280) ; Wright v. Mutual B. L. A., 118 N. Y., 237 (23 N. E., 186; 16 A. S. R., 749) ; Grattan v. Nat. Life Ins. Co., 15 Hun. (N. Y.), 74; Scott v. Dickson, 108 Pa. S., 6 (56 Am. R., 192); Appeal of Corson, 113 Pa., 438 (6 Atl., 213); Mowrey v. Home Life Ins. Co., 9 R. I., 346 (25 Cyc., 711); Joyce on Insurance, Section 902; Elliott on Insurance, Section 60; Conn. Mut. Life Ins. Co. v. Scheafer, 94 U. S., 457 (Oct., 1876); Rawls v. Am. Life Ins. Co., 36 Barb., 357; Am. Employer’s Liability Co. v. Barr, 68 Fed., 873 (32 U. S. App., 444); Langdon v. Union Mut. Life Ins. Co., 14 Fed., 272; Robinson v. U. S. Mut. Acc. Ass’n, 68 Fed., 825; Provident Life & Ins. Co. v. Baum, 29 Ind., 236; Pac. Mut. Life Ins. Co. v. Williams, 79 Tex., 633; Elliott on Insurance (1902), Section 63; Elliott on Insurance, Section 60; Joyce on Insurance, Section 902.
    The executors of Gainor’s estate can not raise the question of lack of insurable interest, if the insurance company does not: Chicago Title & Trust Co. v. Haxton, 129 Ill., App., 626; Standard Life & Ac. Ins. Co. v. Catlin, 106 Mich., 138 (63 N. W., 897); Johnson v. Van Epps, 110 Ill., 552; Hosmer v. Welch, 107 Mich., 470 (65 N. W., 280) ; Gross v. Mut. Life Ins. Co., 92 Ill., App. Ct., 207; Langford v. Freeman, 60 Ind., 55; Diffenback & Roemer v. N. Y. Life Ins. Co., 61 Md., 370. (This policy or contract was not a wager.)

      Voorhees, J.; Taggart, J., and Donahue, J., concur.
    Error to the Court of Common Pleas of Coshocton County.
   There is practically no conflict in the testimony as to the facts in this ease, and the main contention of the plaintiffs in error is that the plaintiff below, the glass company, had no insurable interest in the life of Mr. Gainor at the time the policy was issued, and therefore the contract of insurance was a wagering one and was void in its inception; or if the company had an insurable interest in Mr. Gainor’s life when the policy was issued, the interest lapsed and was lost when he, Gainor, ceased to belong to the company or to be an employe thereof.

These contentions raise the important legal questions involved in the case, and they may be summarized as follows:

1. Is an insurable interest necessary where one causes his own life to be insured for the benefit of a stranger?

2. Did the glass company have an insurable interest in the life of Mr. Gainor at the time the policy was issued?

3. If the glass company had an insurable interest in Gainor’s life at the time the policy was issued, did its interest lapse when that interest ceased?

4. Can the executors of Gainer’s estate raise the question of lack of insurable interest, if the insurance company does not ?

Considering the questions in the order named: It may be stated at the threshold of the inquiry that the undisputed facts are that Gainor personally conducted the negotiations with the insurance company for the policy, signed the application and designated and had named therein the glass company as the bene7 fieiary, causing his own life to be insured for the benefit of the company. In such case it is immaterial whether the company had an insurable interest in his life or not. When one. causes his own life to be insured for the benefit of a stranger, the want of an insurable interest in the stranger will not invalidate the policy. Ryan v. Rothweiler, 50 O. S., 595, 601; May on Insurance, Section 75b.

When a person effects insurance on his own life, and designates another as payee in the policy, without any fraud being practiced upon the insurer, the person named may maintain an action upon the policy without showing an insurable interest in the life of the insured.' No one except the insurer can take advantage of the fact that the payee named in the policy is not within the class which by the constitution of insurer is entitled to take the benefit. Kerr on Imurance (1902 Ed.), pp. 679, 680; Milner v. Bowman, 119 Ind., 448.

The weight of authority is; or seems to be that in the absence of bad faith or fraud, the insured may have the policy made payable to any one.

When a persqn takes out a policy of insurance upon his own life, and the amount is made payable to another having no interest in the life, or where the insured assigns his policy to one having no such interest, the beneficiary, or the assignee may hold and enforce the policy, if it was valid in its inception, and was procured or the assignment made in good faith. Olmstead v. Keyes, 85 N. Y., 593.

Had the glass company an insurable interest'in the life of Thos. J. Gainor at the time the policy was issued?

This involves a question of fact as well as of law. The right of a corporation to insure the life of an officer of the corporation, or an employe in its service, depends upon conditions and the good faith of the transaction on which the insurance was obtained.

The record in this case shows that the glass company was engaged in a business of established lines of skilled workmanship; a large amount of capital was invested in the plant and its stock, and liabilities were outstanding for loans. Only one of its officers, namely, Thos. J. Gainor, had experience and specialized knowledge and skill in the business in which he was engaged. He was its vice-president and general manager, and was devoting his time and energies to the building up, establishing and superintending the enterprise. To him, creditors and stockholders alike looked and largely depended for the success of the company’s business. Mr. Gainor’s life by reason of his skill and ability in the business was a valuable asset of the company, and his death would be correspondingly a loss to the company financially. For these reasons, at least, if no other the company was financially interested in the life and the continuance of the life of Mr. Gainor.

We are conscious of the difficulty of defining with absolute precision what will in all cases constitute an insurable interest in the life of a person, so as to take a contract of insurance out of the class of wager policies. But we believe the test to be that where there is a reasonable ground, founded upon the relations of the parties to each other contractual, or by blood or affinity, whereby any pecuniary interest arises in the continuance of the life or expected benefit, or advantage from the continuance of the life of such person, there is an insurable interest in his or her life.

Elliott on Insurance, Section 57, and Warnock v. Davis, 104 U. S., 775, seem to favor and support this principle.

Bliss on Life Insurance, Section 21, says:

‘‘ The tendency of the American decisions, especially the more recent ones, is to'hold that wherever there is any well founded expectation of or claim to any advantage to be derived from the continuance of a life, there is an insurable- interest in that life, though there may be no claim that can be recognized in law or equity.”

The interest required need not be such as to constitute the basis of any direct claim in favor of the plaintiff, the glass company, upon the life of the insured, Gainor; it is sufficient if an indirect advantage may result to the plaintiff from the continuance of his life.

This principle is recognized and sustained by authority: Trenton Ins. Co. v. Johnson, 24 N. J. L., 586; State v. Willett, 86 N. E., 68; App. of Corson’s Exr., 113 Pa. St., 446.

Did the' glass company’s interest terminate or lapse when Gainor ceased to be an officer or employe of the company?

It is contended by plaintiff in error that Gainor, having left the services of the glass company on September 1, 1906, the company could not suffer any loss by his death in April, 1908, and therefore it could claim nothing under the policy. We do not agree with this contention,.but on the contrary believe the rule to be that if a policy is valid at its inception because based on either an adequate insurable interest, or the policy was taken out by Gainor on his own life, the existence of such an interest at the maturity of the policy is immaterial. This doctrine is recognized and held to be law by the great weight of authority in the United States, as will appear by 1 Cooley’s Briefs, p. 311, wherein the author cites many authorities, among them Conn. Mut. Life Ins. Co. v. Scheafer, 94 U. S., 457.

The fact that such interest ceased before the death of the assured is immaterial on the question of plaintiff’s right to recover, unless such be the necessary effect of the provisions of the policy itself. Joyce on Insurance, Section 902; Elliott on Insurance, Section 60.

If the insurance company does not raise the question as to want of insurable interest of the glass company in the life of Gainor at the time the policy was issued, can the executors of his estate do so?

The insurance company recognized its liability on the policy, and paid the full amount into court to be distributed under its order. The insurance company does not question the right of the glass company to recover for want of an insurable interest in the life of Gainor, but recognized the contract as a valid one and enforceable. Under these conditions, can the executors of Gainor’s estate defend against the claim of the glass company, when the insurance company waived it ?

No one but the insurer is entitled to interpose a defense of lack of insurable interest in the beneficiary named in the policy. We' think the weight of authority in this country is to this effect, as shown by the following cases: Chicago Title & Trust Co. v. Haxton, 129 Ill. App., 626; Standard Life & Ac. Ins. Co. v. Catlin, 106 Mich., 138; Johnson v. Van Epps, 110 Ill., 552; Hosmer v. Welch, 107 Mich., 470; Graff v. Mutual Life Ins. Co., 92 Ill. App., 207; Langford v. Freeman, 60 Ind., 55; Diffenback et al v. N. Y. Life Ins. Co., 61 Md., 370; and Mechanics Nat’l Bank v. Comins, 101 Am. St. Rep., 650.

It is not contended that the policy was void in its inception, or when taken out by Mr. Gainor on his own life, and the record does not show or tend to establish any bad faith on the part of the glass company in accepting this policy, or in consenting to be named as the beneficiary therein. In short, the policy was applied for- by Mr. Gainor on his own life in good faith and not for the purpose of speculating upon his life. The insurance company in issuing the policy also acted in good faith and raised mo question as to the bona fides of the transaction, when the policy became payable upon the death of Mr. Gainor. These facts all appearing in the record show that no gambling element entered into the contract of insurance.

“Public policy is that principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good.”

It may be true as an abstract proposition of law that á corporation has no insurable interest in the lives of members of its board of directors who are not indebted to it, but very different is the situation in this case. Mr. Gainor, it appears from the record, possessed practical skill and knowledge of the business in which the corporation was engaged; he was its general manager, on whose life and the continuance of his life at the time the policy was taken out by him depended the success of the enterprise, a situation very different from that of an ordinary director who usually serves without compensation.

Suppose we are wrong 'as to our third proposition of law, namely, that the glass company’s interest in the policy did not lapse when Gainor’s interest in and employment with the company ceased; yet, if the policy taken out by Gainor on his own life was in good faith, and there is nothing shown to the contrary, he could dispose of the policy by sale or transfer in the absence of prohibitory legislation or contract stipulation. Eckel v. Renner, 41 O. S., 232.

The sale and transfer made by Gainor and his wife of the policy in this case, as evidenced by plaintiff’s Exhibit No. 2 attached to the bill of exceptions, divest both he and his wife of all interest in the policy. Under these conditions neither Gainor, at the time of his death, nor his executors or his wife have any interest in the policy or the fund which the insurance company has paid into court.

Without pursuing the discussion further, we are unanimously of the opinion that there is no error in the record of this case and the judgment is affirmed with costs, without penalty, costs to be paid out of the fund arising on the policy-; exceptions are noted; and the cause is remanded to the common pleas court for execution.