text:
    ACTION FOR. FALSE IMPRISONMENT.
    Circuit Court of Lucas County.
    Edward R. Sly et al v. Ogle Robinson.
    Decided, December 9, 1911.

      Larceny — Taking Goods From Store Without Paying for Them — Arrest on Loose Form of Affidavit — Attorneys Fees Not an Element of Damage, Unless.

    1. It is larceny if a person engaged in a cash purchase take away from a store, over the protest of those in charge, and convert to her own use goods which have not been paid for and which have been purchased under circumstances which led the clerk to believe it was to be a cash transaction.
    2. An affidavit for arrest for larceny is loosely drawn where the thing taken is described only as “merchandise,” but a justice of the peace acting in good faith in the issuing of a warrant upon such an affidavit is not liable to an action for false imprisonment.

      3. An instruction to the jury in an action for false imprisonment tbat they may, if they cboose, include attorney’s fees as a part of the compensatory damages, is erroneous where the qualification is not added that such an award can only be based on a finding that the defendant acted through fraud or malice or for purpose of insult.

      L. M. Murphy and B. F. Ritchie, for plaintiffs in error.

      Files & Paxson, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to Lucas County Common Pleas Court.
   This is a proceeding in error to reverse a judgment rendered in the common pleas court. Mrs. Ogle Robinson, who was plaintiff in the common pleas court, brought an action against Edward R. Sly, L. W. Black and Henry S. Bradley to recover damages for false imprisonment. Sly was a justice of the peace at Whitehouse in this county, and Henry S. Bradley was constable, and L. W. Black was engaged in the mercantile business at that village. Mrs. Robinson was a tenant of Black and had voluntarily turned out to him on account of rent which she owed a certain rug and a chair. It developed later that the rug was of sufficient value to pay the rent due so that Black held the chair thereafter, subject to her order, with the information that it might be sold to one Demuth. The chair was valued by the parties at $7.50.

While it so remained in the possession of Black, Mrs. Robinson and her sister conceived the plan of securing from the store conducted by Black a sufficient amount of dry goods to equ'al the value of the chair and to compel Black to retain the chair as owner in payment for the dry goods so to be obtained by her. Thereupon, she wrote the following note:

“Mr. Black: I will just take the goods in payment for that chair if you want it so bad. If you had not told me Mr. Demuth wanted it, I would have brought it up home when I moved. Hereafter when anybody is square with you, go thou and do likewise.
“Sincerely yours,
“Ogle Overmver Robinson.”

The same evening that this note was written Mrs. Robinson and her sister and one Helstern took the note to Black’s store in Whitehonse. Mrs. Robinson fearing that she would be identified and unable to carry out the scheme, sent her sister into the store with Helstern. The sister ordered of the clerk, who was a son of Black, certain dry goods designated by Mrs. Black, being careful to see that the value did not exceed $7.50; the actual value of the goods so ordered being $7.42. When the goods were wrapped up she threw on the counter the note written by Mrs. Robinson to Black and proceeded to depart with the goods. The clerk undertook to prevent her carrying away the goods without paying for them but she held on to the goods and departed. The clerk followed them to the door and said in the presence and hearing of Mrs. Robinson that they would all be arrested for taking the goods. Thereupon L. W. Black went to the justice of the peace, E. R. Sly, and informed him fully of all the facts and Mr. Sly drew an affidavit which was signed and sworn to by Black in which it is charged as follows:

“That Ogle Robinson and unknown man and woman on or about the 27th day of September, 1909, at the county of Lucas, did unlawfully steal, take and carry away merchandise to the value of seven dollars and forty-two cents, the property of the said L. W. Black.”

Upon the filing of this affidavit with the justice he issued a warrant directed to any constable of the eounty reciting substantially the language of the affidavit and commanding the arrest of the parties. Constable Bradley reached the home of Mrs. Robinson not long after she and her sister arrived there and arrested them and Helstern, and detained Mrs. Robinson and her sister at his own residence in Whitehouse until the following morning, when he took them before a justice of the peace.

The foregoing facts are not controverted by any of the parties to the transaction. When the parties reached the office of the justice of the peace the defendants were arraigned and the affidavit read to them. Mrs. Robinson testified that she then stated to the justice of the peace that she took the goods but did not steal them. The justice treated her statements as a plea of guilty and proceeded to. sentence the defendants. He, however, suspended the sentence, except the costs, which were subsequently paid by Mrs. Robinson’s mother.

The trial in the common pleas court resulted in a verdict of $550 against all of the defendants and in favor of Mrs. Robinson; that court, however, granted Black a new trial and the plaintiff being required so to do remitted $200 from the verdict against the other defendants, and judgment was rendered accordingly.

We are unanimously of the opinion that the transaction as testified to by Mrs. Robinson herself, constitutes the offense of larceny. The authorities are quite uniform and are collected in 25 Cyc., 25. The rule as so stated is:

“Where parties are engaged in a cash sale, the whole transaction is incomplete until the payment is completed, and possession of the goods remains in the seller and that of the money in the. buyer until they are simultaneously exchanged. If in such case the buyer gets control of the goods and makes off "with them without paying for them, he is guilty of larceny. And conversely, if the seller gets the money and refuses to give up the goods, it is larceny.”

I cite also Hildebrand v. The People, 56 New York, 394. The rule just mentioned is peculiarly applicable in Ohio in view of the language of our uniform sales law as contained in Section 8422, General Code.

It is strenuously insisted in argument that the affidavit which undertook to charge larceny is wholly insufficient for that purpose and was so defective that the justice acquired no jurisdiction to issue the warrant. This contention is based largely upon the decision of our Supreme Court in Redmond v. State, 35 O. S., 81, in which “a certain lot of dry goods” was held to be an insufficient description when the indictment is assailed by a demurrer.

We need not determine in this case whether this affidavit would or would not be vulnerable if so assailed. The only question we have here, so far as the affidavit is concerned, is whether it is absolutely void or whether it was sufficient in form to give the justice jurisdiction. It must be remembered that the justice of the peace had jurisdiction generally over this class of offenses as an examining magistrate, and that in the exercise of that jurisdiction he held the affidavit sufficient. While not recommending the charging of offenses íd such general language as is used in this affidavit in employing the word “merchandise, ’ ’ yet we are clearly of the opinion that under the circumstances in this case the justice of the peace had jurisdiction, and if acting in good faith would not be liable in an action for false imprisonment. This rule has hpen laid down in many cases and we can only stop to cite a few: Gardner v. Couch, 137 Michigan, 358; Smith v. Jones, 16 South Dakota, 337; Rush v. Buckley, 70 L. R. A., 464.

On the trial of the case in the common pleas court the judge directed a verdict in favor of the plaintiff, leaving to the jury the assessment of damages only. For the reasons given, this action of the trial court was erroneous. In charging the jury the trial court instructed them that they might, if they chose, include as a part of the compensatory damages, attorneys’ fees. This instruction was given to the jury without any qualification that attorneys’ fees could only be allowed in the event that it appears in the case that the defendants had acted maliciously. It has, however, been the rule in Ohio as laid down in Roberts v. Mason, 10 O. S., 278, Diehl v. Friester, 37 O. S., 473, 478, and The United Power Company v. Matheny, 81 O. S., 204, that attorneys’ fees may be included in actions of this kind as a portion of the compensatory damages, but that it can only be so done when it appears that the defendants have acted through fraud, malice or insult.

As a result of a careful examination of the record, we are all of the opinion that the verdict is not sustained by the evidence. For the errors indicated the judgment will be reversed and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    ASSUMPTION OF RISK IN ATTEMPTING TO BOARD A MOVING CAR.
    Circuit Court of Cuyahoga County.
    W. R. Smillie v. The Cleveland Railway Company.
    Decided, June 10, 1912.

      Negligence — Boarding Moving Car — Charge—Concrete Rule Correct, But General Langxiage Erroneous.

    1. In a personal injury damage case if a correct concrete rule of conduct applicable to the facts of the particular case is given in charge to the jury, it is of no importance whether the observance of the rule is ascribed to the exercise of reasonable care or of the highest degree of care.
    2. In an action for damages for injuries resulting from negligently starting a car which plaintiff was about to board as a passenger, it is proper to charge that one who undertakes to get on a moving car, assumes such risks as are incident thereto, and if injured thereby can not recover.

      A. W. Damson, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
    Niman, J.; Marvin, J., concurs; Winch, J., not sitting.
   The action in the court below was for the recovery of damages on account of injuries claimed to have been sustained by the plaintiff in being thrown or jerked from the step of a street ear operated by servants of the defendant, as he was mounting the platform of the car.

The verdict was for the defendant and the plaintiff in error seeks by this proceeding to reverse the judgment rendered thereon, after the overruling of his motion for a new trial.

The errors complained of relate to the charge of the trial court to the jury. Not all the evidence is before us, but only so much as counsel for the plaintiff in error considered necessary to disclose the alleged errors in the charge.

The petition charged that the car on which the plaintiff attempted to get, had come to a full stop for the purpose of receiving the plaintiff and other passengers, and while the plaintiff was in the act of boarding the ear, it was started suddenly forward with a great jerk, with such force and violence that it threw the plaintiff backward and over and around the rear of the car and thereby broke his hold from the same and threw him to the ground.

From such evidence as is before us, and from the charge of the jury, however, it appears that the car had not come to a full stop, and the case was tried and presented to the jury upon the theory that the ear had not fully stopped when the plaintiff attempted to get on.

One portion of the charge claimed to be erroneous is in the following language:

“And this brings me to the duty of the defendant company in this instance, and the correlative duty of the plaintiff, for the right to recover for injuries received must rest upon the fact that the defendant violated some duty it owed to the plaintiff. The duty of the 'defendant in this respect to the plaintiff was, if it stopped the ear or brought it to such a slow rate of speed as to lie an invitation for the plaintiff to board, or attempt to board the car, then it was the duty of the defendant, in the exercise of reasonable care, to keep the car in that condition long enough so that the plaintiff, in the exercise of reasonable care, might with safety board the car.”

One objection urged against this part of the charge is that it might and did lead the jury to believe that after holding the car the length of time sufficient to permit the plaintiff, with ordinary care, to get safely on the car, without regard to any position of danger he might be in at the time, it would not be negligence to start the car and throw him off.

If the evidence were such as to show knowledge of a dangerous position on the part of the plaintiff, chargeable to those operating the car, this argument would have greater weight than in this case, with such evidence as is before us. We do not think the jury could have been misled in the manner suggested by the language quoted.

Another objection to this part of the charge, in connection with other language in which the court defined negligence, is that the duty of the defendant company toward the plaintiff, and the degree of eare required of the defendant are not correctly stated.

The definition of “negligence,” to which exception is taken, - follows the court’s instructions concerning what acts of the plaintiff could render him guilty of negligence so as to defeat any recovery. The language of the definition is as follows:

“I have used the words ‘negligence’ and ‘negligently.’
“Now, ‘negligence’ means simply the want of ordinary care under the circumstances surrounding that particular case and the transaction in question, and ‘negligently’ simply means doing an act in such a manner that it lacks the care which men of ordinary prudence and foresight use in their everyday affairs of life under the same or similar circumstances. ’ ’

This definition, immediately following the court’s discussion of what would be negligence in the plaintiff, refers to that negligence and is a correct definition.

Even if this were not so, the court, in the other part of the charge' first quoted, in clear terms instructed the jury, that it was the duty of the defendant, if it stopped the car, or brought it to such a slow rate of speed as to be an invitation for the plaintiff to board, or attempt to board the car, to keep the car in that condition long enough so that the plaintiff, in the exercise of reasonable eare, might with safety board the car.

This instruction was a correct statement of the defendant’s duty toward the plaintiff, and the inclusion of the words “in the exercise of reasonable care,” does not in any way modify the duty as charged.

I f a correct concrete rule of conduct is laid down to govern the particular case, it is of no importance whether the observance ol the rule is ascribed to the exercise of reasonable care or the highest degree of care. The jury were properly instructed on the subject of the defendant’s duty toward the plaintiff, and the exercise of the highest degree of care by the defendant required the observance of no other or greater duty than that laid down by the trial court in the instructions under consideration. There was therefore no error in this regard.

Complaint is also made of the instructions to the jury on the subject of the effect of the act of one who attempts to get on a moving car.

On this subject the court said:

‘' The fact that a car does not stop at a regular stop is not an act of negligence upon which recovery can be had, and if one undertakes to get on a moving car, he assumes such risks as are incident thereto, and if he is injured, he can not recover. ’ ’

Again the court said:

“So if the plaintiff has failed to prove by a preponderance of the evidence that this car, at this time after it came around the corner at East 9th street and Prospect avenue, slowed down to a standstill or to such a slow rate of speed that one standing there ready to get on the car would, in the exercise .of ordinary care, reasonably have supposed that the ear was stopped or just on the point of stopping, for the purpose of letting him on, or in other words, inviting him to get on the car, he can not recover, and your verdict must be for the defendant. ’ ’

In one of the requests of the defendant given by the court, it was said:

“If you-find that the car was going at the rate of from four to five miles an hour at the time the plaintiff attempted to board the same, there can be no recovery in this case and your verdict must be for the defendant. ’ ’

The objection urged against these instructions is that they leave out the question of negligence on the part of the defendant and the question of proximate cause.

Both the defendant’s negligence and the subject of proximate cause are, however, dealt with in other parts of the charge.. The instructions embody correct principles of law and must be read in connection with what was said by the court in other places on the subjects mentioned. They are sustained by The Ohio Central Traction Co. v. Mateer, 12 C.C.(N.S.), 327, affirmed without report in Mateer v. The Ohio Central Traction Co., 81 O. S., 494, where it was held:

“A judgment for damages in favor of an intending passenger who was .injured in an attempt to board a car is not supported by the evidence, where it appears that the attempt to board the car was made and the injury occurred before the car had been brought to a standstill.”

The charge in this ease considered as a whole, in our opinion, properly instructed the jury as to the rights and duties of the parties to the action, and correctly stated the law applicable to the facts.

We find no error in the record prejudicial to the plaintiff in error, and the judgment of the court of common pleas is affirmed.


text:
    ACTION ON BOND TO SECURE PERFORMANCE OF CONTRACT.
    Circuit Court of Summit County.
    J. B. Waight v. J. F. Adamson and T. H. Clark.
    Decided, April 15, 1912.

      Fraudulent Representations — Knowledge of Plaintiff as to Falsity.

    In an action on a bond where a defense is that the defendant was induced to sign the bond by reason of false statements made by plaintiff or by another with his knowledge and acquiescence, it is error to charge the jury that in order to make good his defense the defendant must prove not only that the statements were made, were false, were believed and acted upon by the defendant, but also that the plaintiff at the time he made them or acquiesced in their being made, knew them to be false.
    Marvin, J.; Winch, J., and Niman, J., concur.
   The issues in this case are admirably stated in the charge made on the trial in the court of common pleas.

From this charge we read:

“This action is against the defendants to recover the sum of $1,531.63 on a certain bond, which is in evidence in this case, which was given to secure the performance by the defendant Clark of the terms of a contract of sale made between the plaintiff and said Clark.
“This contract is also in evidence. The defendant Clark, though duly served with process, has failed to answer or otherwise plead, and has thereby confessed the truth of plaintiff’s allegations so far as he is concerned, and your verdict will necessarily be for plaintiff as against Clark.
“The defendant Waight admits the execution of the bond, but defends against liability therein upon two grounds, namely:
“1. That the bond was put into the custody of Clark upon the express stipulation and condition that it was not to be delivered to plaintiff until certain parties had been secured by contract to put the capital into the business in which Clark and the plaintiff were then engaged, necessary to run the same, otherwise Clark was to hold the bond and destroy the same or return it to Waight, and the plaintiff knew of these stipulations and conditions and received the bond when Clark wrongfully and without right and authority delivered the same to him.
“2. That he was induced to execute said bond by the false representations and statements made by plaintiff and said Clark, as to the condition of the business then conducted by them, their assets, debts and profits.
“Now, the admissions in the pleadings and undisputed facts show that plaintiff and Clark were carrying on a lumber and coal business in Akron as partners under the name of the Peoples Lumber & Coal Company; that on August 27, 1910, Clark bought the plaintiff’s interest in said partnership and said purchase was evidenced by the written bill of sale and contract in evidence; that by said agreement Clark was to pay plaintiff $1,351.63 on or before September 12, 1910, to assume and pay the liabilities of the firm, except one debt especially mentioned, and to furnish a bond to secure the performance of his part of that contract of sale; that the bond in evidence in this case was delivered by Clark to the plaintiff.
“Among other things the bond, by its terms, bound the two signers thereof, the defendants in this cause, to the payment of the said $1,351.63.
“The admission of the execution of the bond and the plea of the defendant Waight of avoidance of liability thereunder, puts the burden upon him of showing by a preponderance of the evidence that he is not liable for the reasons alleged in his answer. ’ ’

This is followed in the charge by a true statement of the law as to the first defense.

As to the second defense, the court used this language:

“Under the second defense, in order to avoid liability it has been essential that the defendant Waight shall have proven by a preponderance of the evidence, that plaintiff made false statements and represntations, or allowed Clark to make them to defendant in his presence and with his acquiescence and consent, as to the condition of the business being conducted by them under the firm name of the Peoples Lumber & Coal Company, tlieir debts, assets, profits and other matters affecting the finaneial condition of the firm and its rhembers, that there were material facts bearing directly upon the transaction culminating ultimately in the giving of the bond in question, that plaintiff knew the statements to be false, that defendant Waight believed the statements and i’epresentations to be true and acted upon them, and that the plaintiff made the representations with intent that they should be acted upon, or acquiesced in and consented to the making of the same by Clark, with intent that Waight should act upon them. Failing to prove these by a preponderance of the evidence, defendant Waight must fail on his second defense. If he has established them by a preponderance of the evidence, then upon that defense you should not return n verdict against Waight.”

Again the court said:

“There is fraudulent intent if a man, either with a view of benefitting himself or misleading another into a course of action, makes a representation which he knows is false or does not believe to be true.”

We regard this part of the charge as containing error prejudicial to the plaintiff in error.

The evidence tended to show that Adamson knew what the statements contained in the contract, attached to the bond, were. Indeed, when he accepted the bond, he accepted it with the contract attached — the contract signed by both himself and Mr. Clark — and he knew, therefore, at the time he accepted the bond, what representations had been made to Clark as to the property which Clark was buying and the indebtedness of the company which was being assumed by Clark. If these representations as contained in that contract were not true, even though Adamson did not know that they were not true, if they were relied on by Waight and he was induced by them to sign the bond, which he would not have signed but for such representations, he was entitled to his second defense. This is borne out by the case of Mulvey v. King, 39 O. S., 491. The syllabus reads:

“Where a person by means of false representations of facts materially affecting the identity and value of certain real estate, induces another to enter into a contract for the purchase thereof, upon the faith of such representations, and upon which he was justified in relying, the purchaser may, in an action brought by the vendor for the purchase price, recoup the damages which he has sustained by reason of such false representations, although the vendor believed them to be true when made, and had good reason for so believing. ’ ’

Judge Upson, in the opinion in this case at pages 594 and 595, uses this language:

‘ ‘ It may be considered as well settled in this state by the cases above cited, that an action for damages caused by misrepresentation can not ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles can not be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it.”

. We find no other error in the proceeding which would justify a reversal.

The claim made that the giving of a note by Clark to Adamson for $250 as an additional amount to be paid for Adamson’s interest in the business might raise doubt in our minds, were it not for the case of Stuts, Admr., v. Strayer, Admr., 60 O. S., 384. That case seems exactly in point, 'and it was there held that the giving of the additional note was not an alteration of the contract on which the party became a surety.

We reach the result that the judgment must be reversed for error in the charge, as hereinbefore .pointed out.


text:
    BREACH OF DUTY OF MASTER TOWARD SERVANT.
    Court of Appeals for Lucas County.
    Brown, Administrator, v. Dusha.
    Decided, January 11, 1913.

      Employer and Employee — Furnishing Viscious Horse — Resulting in Death of Its Driver — Verdict Finding One Not an Employee Will Not he Reversed, When — Inference that Deceased Was Not an Employee Raised hy the General Verdict.

    1. In an action to recover damages for the death of one who is alleged to have been in the employment of the defendant and to have met his death by the negligence of the defendant, the claimed breach of duty being the furnishing the employee with a viscious horse to drive in the performance of his work without informing him of its dangerous character, the action is based on the breach of a duty which the master owes to his servant as such, and it is not a duty owing to a mere volunteer.
    2. Where, in such case, the bill of exceptions contains all of the evidence and would justify a finding by the jury that the deceased was not an employee, and the charge of the court is free from error on that branch of the case, a judgment for the defendant will be affirmed on the authority of Sites v. Haversticlc, 23 Ohio St., 626, and McAllister v. Hartzcll, 60 Ohio St., 69, whether error does or does not exist in a matter relating exclusively to another issue.
    3. In such an action, where the answer denies that the deceased was an employee and alleges contributory negligence, and the jury returns a general verdict for the defendant, the inference arises that the jury found that the deceased was not an employee.

      A. G. Duer, for plaintiff in error.

      Friedman, Taylor & Foster, contra.
    Richards, J.; Wildman, J., concurs; Kinkade, J., concurs in the judgment.
   In the court of common pleas the plaintiff, Joseph Brown, brought an action as administrator of the estate of Phillip Zielinski to recover damages by reason of the death of Zielinski, alleged to have been caused by the negligence of the defendant. It appears that Zielinski, who was seventeen years of age, was driving a horse and wagon, the property of James Dnsha, in the city of Toledo on August 28, 1911, working as a huckster. On the date named Zielinski was kicked in the abdomen by the horse and died soon thereafter. The case was tried to a jury and resulted in a general verdict in favor of the defendant. The petition alleged substantially that the defendant was the owner of a horse and wagon which he used in delivering vegetables and other products as a huckster and that he loaded the wagon on August 28, 1911, with fruit and vegetables and employed Zielinski to drive the horse, which was attached to the wagon, for the purpose of selling and delivering said vegetables and other products to the customers of the defendant. The plaintiff alleges that the horse, as defendant knew, was vicious and dangerous to drive and that it was dangerous for any person to sit on the wagon at the place provided by the defendant, after the wagon was so loaded, and that Zielinski did not know that it was dangerous for him to sit in the place provided for him by the defendant. The petition charged that defendant was aware of Zielinski’s ignorance of such fact, failed to inform him or provide a kicking-strap for the horse and failed to provide Zielinski with a safe place in which to sit while driving the horse.

The defendant in his answer denies that Zielinski was in his employment on the occasion in question, denies all negligence and avers that Zielinski himself was guilty of negligence which directly contributed to his death.

Numerous errors are assigned by the plaintiff, but in the view we take of the case it will not be necessary to consider in detail all of them. It will be seen from the pleadings that there were at least three issues in the case, namely, a denial that Zielinski was on the occasion in question in the employment of Dusha, the negligence of Dusha and the contributory negligence of Zielinski. The verdict, being general in form, amounts to a finding on all the issues in favor of the defendant, Dusha. "We are authorized, therefore, to infer that the jury found from the evidence that Zielinski on the occasion in question was not a servant of Dusha. The trial court in the general charge said to the’ jury in substance that if they found that Zielinski was not at the time a servant of Dusha and was not working for Dusha then the plaintiff could not recover, and this charge, it is insisted, is such prejudicial error as requires a reversal of the judgment. It is argued on behalf of the plaintiff that the averment of the employment of Zielinski by Dusha is an immaterial allegation, and that other allegations of the petition are sufficient to warrant a judgment in the plaintiff’s favor if those allegations are sustained by the evidence.

A careful examination of the allegations' of negligence contained in the petition disclosed the following: First, that the defendant owned a vicious horse which he used in delivering vegetables and other products, by reason of which it was unsafe to sit on the wagon in the place provided; second, that defendant knew the horse was vicious, or would, by the exercise of ordinary care, have known it, and that the decedent did not know that fact; third, that the defendant failed to inform Zielinski that that horse was vicious or that it was dangerous to sit on the wagon, failed to provide a kicking-strap and failed to provide a safe place to work. Of course, if the jury found from the evidence that Zielinski was not employed on the occasion in question, by the defendant, then it is clear that the defendant owed him no duty to give him information of the vicious character of the horse or that it was dangerous to sit on the wagon, and owed him no duty to provide a safe place to work. The whole case, as set forth in the petition and as developed by the evidence offered by the plaintiff, rests on the breach of duty to use ordinary care for the safety of an employee. The breach of duty which is alleged is the breach of that duty which the defendant owed to Zielinski, if Zielinski were his servant, that is, to inform him that the horse was vicious, that it was unsafe to sit on the wagon in the place provided and the duty to exercise ordinary care to provide a safe place for the servant to work. It will be noted that no application to amend the petition was at any time made, and whatever might be the law, if the petition had been amended in any respect, it is certain that the right of the plaintiff to recover can only be based upon the allegations of negligence as contained in the petition. The duty mentioned is not one owing to a stranger, a mere volunteer. The petition contains no charge of negligently keeping a vicious animal in a pub-lie place or in a highway where people were accustomed to pass, as in Hayes v. Smith, 62 Ohio St., 161, nor does it contain allegations sufficient to bring the case within the rule laid down in Pennsylvania Rd. Co. v. Snyder, 55 Ohio St., 342. It is simply a case where the pleader charged Dusha with the breach of certain duties which he owed as master to his servant Zielinski, and therefore it was highly important that the evidence should establish the fact that Zielinski was in truth on this, occasion an employee of Dusha. The case is controlled by the same principle that was applied in B. & O. S. W. Ry. Co. v. Cox, Admr., 66 Ohio St., 276. The court in that case, speaking through Shauck, J., say, on page 288:

“There being in the present case neither allegation nor evidence that the fatal injuries were inflicted wilfully or intentionally, there can be no recovery unless there existed between the decedent and the company a relation which imposed upon it the duty of exercising care toward him. Although it was alleged in the petition that he was at the time of the accident in the service of the company and traveling on a freight train in obedience to its orders, the allegation was denied in the answer and refuted by the testimony of the plaintiff herself.”

In the case at bar the allegation was denied in the answer and the denial was evidently sustained by the jury in its general verdict in favor of the defendant. The case but illustrates the principle so often announced that in the absence of wilfulness there can be no actionable negligence unless the duty is one which is created by contract or by operation of law. We find no error in the charge of the court upon the matter to which reference has just been made.

The case is one which is peculiarly within the rule applied in Sites v. Haverstick, 23 Ohio St., 626, and McAllister v. Hartzell, 60 Ohio St., 69. Tn the latter ease the court say, on page 95, that:

“It is the settled law in this state in a case where the issues are such that a finding of either in favor of the successful party entitles him to the judgment rendered, the judgment should not be reversed for error in the instructions to the jury relating exclusively to the other issue. ’'

It is insisted by the plaintiff that the court erred in other portions of the general charge, particularly in the charge relating to contributory negligence, and in failing to charge the jury on the law of comparative negligence in accordance with Sections 6243 to 6245-1, inclusive, General Code. It is not necessary to determine whether the sections to which reference has been made are applicable to this case, nor whether the court erred in failing to charge the jury on the law of comparative negligence, for if any such error were committed it would justify a reversal in view of the law as stated in the cases just cited.

It is further claimed that the trial- court erred in failing to grant a new trial on the ground of newly-discovered evidence. It is sufficient to say on this subject that the newly-discovered evidence set forth in the bill of exceptions is not of such a character as would have required a different verdict, and for that reason it is insufficient as a basis on which to grant a new trial.

Finding no error justifying a reversal, the judgment of the court of common pleas will be affirmed.


text:
    INJURY SUFFERED AFTER ACCEPTING EMPLOYMENT BUT BEFORE BEGINNING WORK.
    Court, of Appeals for Stark County.
    Robert K. McDowell v. Thora Kathryn Larson.
    Decided, February Term, 1914.

      Master and Servant — Relation Held to Exist Although WorTc Had Hot Begun — Plaintiff Relieved of Negligence by Action of Defendant’s Agent.

    A young woman was sent for to take a place in a laundry and begin work at once. Slie donned ber working clotlies and accompanied the messenger back to the laundry. They entered the premises through the engine room, where the young woman stepped into a sunken barrel filled with boiling water, which was uncovered and of the existence of which she had no knowledge. The proprietor of the laundry provided medical attendance for her and after her recovery took her back into his employ. Held:

      1. That the relation of master and servant existed and she was not a trespasser.
    2. That the verdict of the jury in her favor was not inconsistent with their answer of “yes” to interrogatory as to whether a safe and convenient entrance was furnished employees of the laundry.
    3. That the burden of proof as to the circumstances existing at the time of her injury was upon the plaintiff below, and the jury having found in her favor, judgment should not be disturbed.

      Bow, Amerman & Mills, for plaintiff in error.

      J. A. Jeffers and J. W. Craine, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.
   This is a proceeding in error brought to reverse the judgment of the court of common pleas, rendered in an action brought by Thora Kathryn Larson, defendant in error, plaintiff below, for personal injuries caused as she claims by the negligence of the plaintiff in error, defendant below.

In her amended petition filed in the court below the plaintiff alleged, in substance, that on the 19th day of December, 1912, she was employed by the defendant as an operative in his laundry in the city of Canton, Ohio, and after entering said laundry for the purpose of beginning her duties therein and while in the course of her employment she was passing over a brick walk intended for the use of the employees of the defendant in said laundry, and when at a point near the boiler room thereof she stepped with her left foot and leg into an uncovered barrel filled with boiling water, which said barrel was sunken into the earth at said point in said walk so that the top thereof was practically even with the surface of said walk. She further alleged that in so doing she was seriously and permanently injured as is more particularly described in said petition. That at the time of the happening of said accident she did not know of the existence of said barrel of water in said walk, and that said accident occurred by reason of the carelessness and negligence of the defendant in not having said walk properly lighted where said barrel was located, and not having a suitable covering over the top thereof, and in placing said barrel in said walk at the place and in the manner described and in failing to notify the plaintiff of the existence of said barrel.

It is further alleged that at said time the defendant employed five or more workmen, or operatives, regularly in his said laundry business, and that he had not at said time paid into the state insurance fund the premiums provided for in what is known as the employers’ liability act, passed by the Legislature of Ohio, May 1, 1911, and found in Ohio Laws, Yol. 102, pages 522 to 533 inclusive.

The plaintiff averred that by reason of said injuries so received she suffered loss of wages in the sum of $56, and that in the future she will be unable to earn more than half what she would have been able to earn but for said injuries; all to her damage in the sum of ten thousand dollars, for which she prays judgment.

To this amended petition the defendant filed an amended answer, admitting that the plaintiff, on the 19th day of December, 1912, stepped into a barrel of heated water in the boiler room of his place of business known as the Columbia Laundry, and that as a result thereof she sustained some injuries, but denies that she was injured to the extent claimed by her in her said amended petition. Pie further avers in said amended answer that at the time when plaintiff stepped into said barrel of hot water she was not in his employment in his said laundry, and had no right whatever to be in said engine or boiler room where said barrel of water was located, and avers the fact to be that said plaintiff was a trespasser at said time and whatever injuries she sustained were caused by her carelessness and negligence in coming into said boiler room and in stepping into said barrel of water after she had been warned of the existence and presence of said barrel of water.

The defendant denies that the act passed by the Legislature of Ohio, May 31, 1911, known as the employers’ liability act, was in force and effect at the time when the plaintiff received her said injuries, and that he is entitled to all of the defenses he had previous to the passage of said act. The defendant denies all the other allegations in said amended petition not expressly admitted to be true.

Upon the issues thus made by the foregoing pleadings, said cause was submitted to a jury, resulting in a verdict in favor of the plaintiff for the sum of $800. A motion for a new trial having been overruled, judgment was entered on said verdict. A bill of exceptions was taken, containing all the evidence offered upon the trial, including the charge of the trial court, and said cause was brought before this court upon a petition in error for review and for the reversal of said judgment of said court of common pleas.

Said petition in error contains numerous grounds of error alleged for the reversal of said judgment, and while not waiving any, counsel for plaintiff in error specially urged upon this court the following grounds of error:

1st. That the court below erred in overruling the motion of plaintiff in error for a judgment in his favor notwithstanding the verdict of the jury.

2d. That said court erred in overruling the motion of the plaintiff in error to arrest said cause from the jury and direct a verdict in favor of the plaintiff in error at the conclusion of plaintiff’s ease and at the conclusion of the entire case.

3d. That said court erred in its refusal to give certain requests made by the plaintiff in error in its charge to the jury, and in giving certain requests on the part of the plaintiff in error in its charge to the jury.

4th. That said court erred in its charge to the jury.

5th. That the verdict of the jury is against the manifest weight of the evidence and is contrary to law.

Was the general verdict inconsistent with the special findings? It appears that the defendant moved for judgment in his favor upon the special findings of the jury, notwithstanding the general verdict, which motion was overruled by the court, and this action of said court is the first assignment of error complained of.

Tbe interrogatories submitted, by tbe defendant below to be answered by the jury, and which were answered, were the following:

“No. 1. Question: Did the defendant furnish to his employees a reasonably safe and convenient way of entering his laundry ? ’ ’ Answer: “ Yes. ”
“No. 2. Question: If you answer the above interrogatory in the affirmative, then was plaintiff pursuing the way so furnished when she met with the injury complained of ? Answer: “No, the agent did not take her that way.”
“No. 3. Question: Was plaintiff an employee of defendant at the time of the injury?” Answer: “Yes.”
“No. 4. Question: If you answer the interrogatory last above in the affirmative, then was she engaged in the due course of her employment when injured?” Answer: “Yes.”
“No. 5. Question: If you answer the last above interrogatory in the affirmative, then what employment was she engaged in when so injured?” Answer: “She was answering their call.”

Section 11464 of the General Code, provides that:

“When a special finding of facts is inconsistent with the general verdict, the former will control the latter and the court may give judgment accordingly. ’ ’

It is claimed that the foregoing special findings of the jury are not consistent with the general verdict, and that therefore the court below erred in overruling the defendant’s motion for a verdict in his favor. The evidence in this case shows that the employees in said laundry entered therein in more than one way; hence the answer by the jury to the interrogatory submitted would not necessarily mean that the entrance to said laundry through the boiler room was a reasonably safe and convenient way.

In David v. Turner, 69 O. S., 101, it is held:

“To be inconsistent with the general verdict, as contemplated by Section 5202, Revised Statutes, it must appear that the special findings are irreconcilable in a legal sense with the general verdict; and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings, the conflict must be clear and irreconcilable.”

Are the special findings disclosed in this record inconsistent with the general verdict under the rule laid down in the foregoing ease? We can not say that they are, and for this reason the contention of the plaintiff in error in this respect is not sustained.

It is argued that the court below erred in overruling the motion of the plaintiff in error at the conclusion of plaintiff’s case, and renewed and overruled at the conclusion of the entire case, to arrest said cause from the jury, and direct a verdict in favor of the plaintiff in error. In view of the argument made by counsel for the plaintiff in error to this court, said motion was undoubtedly based upon the theory that the defendant in error was not in the employ of the plaintiff in error at the time she was injured; or to state it in legal phrase, the relation of master and servant did not then exist. That she was injured in the boiler room of the laundry, at the time, in the manner and to the extent alleged in her petition, is fully borne out by the evidence; but the plaintiff in error claimed that she was no.t in his employ and that she was a trespasser in said boiler room at said time; that her injuries were due to her own carelessness and negligence, and that he is, therefore, in nowise liable for her injuries. Was she a trespasser?

It appears that one of the girls in the employ of the plaintiff in error left his service the morning of the accident, and this fact having come to the knowledge of William Larson, a brother of the defendant in error, who was then employed in said laundry, he at once applied to the wife of the plaintiff in error, who was authorized to and did employ laundry help, for a position for his sister, the defendant in error, as shown by the following testimony of said William Larson, on page 10 of the bill of exceptions :

“Question: And. what was said between you and Mrs. McDowell relative to the employment of your sister, if anything?
“Objection. Overruled. Exception.
“Answer. There was a girl quit that morning and I went up and asked Mrs. McDowell if she’d give my sister a job now. Mrs. McDowell said ‘Yes; when will she come in?’ ‘Monday morning.’ She said: ‘No, go and bring her up right away to go to work;’ which I did.”

Carrying out Mrs. McDowell’s instructions, it appears that the witness, William Larson, at once went to the home of the defendant in error and reported to her what Mrs. McDowell had said, and after changing her apparel, or, stating it in the language of the defendant in error, “I put on working clothes, so I could start to work as soon as I got there,” she then accompanied her brother, to the laundry, going in a rear entrance, as the evidence showed, on a brick walk, used by the employees in going to said laundry, and stepping into an uncovered barrel of hot water received her said injuries. Under these circumstances, Avas she a trespasser? The jury undoubtedly found that she was not, and in our judgment they "were justified in so finding, for her conduct shoAved that she had accepted the position tendered her by the Avife of the plaintiff in error through the latter’s delegated agent, William Larson, AA'ho it appears Avas conducting her to the place of her employment at the time she received her said injuries. The plaintiff in error contends that the defendant in error wrongfully entered said boiler room, but the jury undoubtedly found, and we think properly, that she Avas in charge of and under the direction of the agent of the plaintiff in error.

But it is further contended by the plaintiff in error that the defendant in error Avas not in his employ at the time the latter received her injuries. Employment is one of contract, express or implied. If the jury found that the defendant in error accepted the proposition made to her by an agent of the plaintiff in error to enter the latter’s employment and prepared to enter upon said employment, and at the time when she received her said injuries she was upon the premises of the plaintiff in error, and Avithout fault or negligence on her part she Avas then and there injured as alleged in her said amended petition, then the jury, under the instructions given by the court below, were warranted in finding that the relation of master and servant did then exist between the plaintiff in error and the defendant in error, and that the plaintiff in error owed to the defendant in error the duty of exercising ordinary care in protecting her from danger and injury while in and upon his premises. She was then subject to his order and direction under the contract for hire already made, and if she was then injured through the carelessness and negligence of the plaintiff in error, and without fault on her part, the plaintiff in error would be liable for such injuries.

Before leaving this feature of the case, let us inquire how the plaintiff in error regarded the alleged employment of the defendant in error. What was his conduct as shown by the evidence as to how he considered the defendant in error, whether as an employee or otherwise? When the defendant in error was injured he procured medical attention and aid for her and continued to furnish such attention and aid during her entire illness and disability, and paid for it; and when she recovered so as to -be able to resume work, she ivas taken back into his employment without any further or renewed contract, and placed upon the payroll of his laundry employees. We think this circumstance furnishes its own comment. So we think that the court below, in overruling the motion of the plaintiff below at the close-of the plaintiff’s case, and renewed at the close of the entire ease, to arrest the testimony from the jury and direct a verdict for the defendant.below, did not err.

But the existence of the relation of master and servant would not alone authorize a recovery by the defendant in error. The burden was upon her to show the existence of the conditions stated in her amended petition, and that by reason of these comditions she was injured. These were questions of fact which the jury alone were called upon to solve.

Among the assignments of error in said petition in error is that the court below erred in refusing to give certain requests by the defendant below in his charge to the jury, and that said court erred in giving certain requests on the part of the plaintiff below in its charge to the jury. An examination of the record shows that three requests in writing were submitted by the defendant below, before argument, to be given by said court to the jury, and that they were so given verbatim, and that no other requests, in writing or otherwise, were submitted by said defendant during the trial of said ease. Of the requests in writing submitted by the plaintiff below to be given by said court to the jury, before argument, we think that those which were given are not open to the objection made.

It is also argued by the plaintiff in error that the court below erred in its charge to the jury. We have examined said charge and we not only think that it was exhaustive in its treatment of all the different and many phases of the law arising out of the issues and evidence in the case, but that it correctly states the law in reference thereto. . It is not too much to say that said charge is an able and thorough exposition of the law as applied to this case. If further or more explicit instructions were desired by the plaintiff in error, they were not requested.

It is also contended by the plaintiff in error that the verdict in this case is manifestly against the weight of the evidence and contrary to law. We have already expressed an opinion as to the effect of the evidence bearing upon certain branches of this case, and as to the remaining facts it is sufficient to say that it was the province of the jury to pass upon them, and having passed upon them we see no good reason as a reviewing court to disturb their finding. It is the judgment of this court, therefore, that said verdict is not against the manifest weight of the evidence, nor is the same contrary to law.

We have also examined the bill of exceptions in reference to the other assignments of-error set out in said petition in error, and we find no error prejudicial to the legal rights of the plaintiff in error in the record as to justify a reversal of the judgment of the court below.

The judgment of the court of common pleas will, therefore, be affirmed, at the costs of the plaintiff in error.


text:
    WHAT CONSTITUTES REJECTION OF A CLAIM BY AN ADMINISTRATOR.
    Circuit Court of Summit County.
    The Bronson-Kalamazoo Portland Cement Company et al v. The Second National Bank of St. Clairsville, Ohio.
    Decided, April 12, 1912.

      Administrator — Rejection of Claim — Relay in Bringing Suit, While Claim Was Under Consideration — Notice of Rishonor of Recedent’s Note.

    1. To constitute a rejection of a claim by an administrator there must be something said or done by him which shows clearly that he does not intend to pay the claim; merely saying that he does not want to pay the claim and requesting that others jointly liable with his decedent on the claim be made to pay it, is not sufficient.
    2. Delay in bringing suit on a .laim against an estate during which delay the administrator has not refused to allow the claim, is no i-efense to an action thereon against an estate, though meanwhile others jointly liable with the estate on the claim have become insolvent.
    3. Notice of dishonor of a note endorsed by one who died before maturity of the note, should be given to the administrator of such deceased endorser, and if notice sufficient to identify the note is so given to the administrator it will be held good though the notice says the note was “endorsed by you,” instead of “endorsed by your decedent.”

      Musser, Kimber & Huffman, for plaintiff in error.

      Q. II. Eichelbevgcr and S. D. Ken field, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties in interest in this proceeding are Harvey Musser, as administrator of the estate of Henry Robinson, deceased, who is the real plaintiff in error, and the Second National Bank of St. Clairsville, which is the defendant in error. Tn this opinion they will be spoken of as “the administrator” and “the bank” respectively.

The bank brought suit against the Bronson-Kalamazoo Portland Cement Co., a corporation, hereinafter spoken of as “the cement company,” John F. Townsend and the administrator on a promissory note, which reads:

“$5,0.00.00. Akron, Ohio, August 30th, 1906.
“Four months after date we, or either of us, promise to pay to the order of J. F. Townsend & Henry Robinson five thousand & 00/100 dollars payable at the Second National Bank of Akron, Ohio. Value received, with interest at 8-per cent, after maturity.
“No. 271. The Bronson-Kalamazoo Portland
Cement Co.,
“Due Dec. 30, 1906. “By W. E. Wheeler,
“Secretary.”
(Indorsements.)
“J. F. Townsend,
“Henry Robinson.”
(Credits on said note.)
“March 21, 1909, paid $1,000.
“June 29, 1909, paid $600.”

The petition properly alleges the appointment and qualification of the administrator; that the note was made by the cement company, which is a corporation, the indorsement of said note by Robinson and Townsend, and that it was delivered to the bank by the endorsers, whereby the bank became the holder of the same in due course; that the note was presented for payment on the day it became due, at the Second National Bank of Akron, where, by its terms, it was to be paid; that payment was refused; that the note was duly protested for non-payment, and due notice thereof given to Townsend and to the administrator; that nothing has been paid on the note except as shown by the indorsements thereon; that on the 7th day of February, 1907, the bank presented the note to the administrator for allowance as a claim against the estate of Robinson, and that the same was then allowed as.a valid claim against said estate; that thereafter on or about the 7th day of August, 1909, said administrator rejected said claim.

The suit below was brought on the 8th day of October, 1909. No service was made on Townsend or on the cement company. Proper service was made on the administrator, and he answered admitting his appointment and qualification as administrator, and that on August 7th, 1909, he rejected said note as a claim against the estate, and he avers that he rejected said claim "long before said last-named date, and that much more than six months before suit was brought he notified the bank that he refused to allow the samé as a valid claim against said estate, and, so he says, the statute of limitations bars the bank from'maintaining its suit.

He further says that the cement company and its alleged officers and agents attempted to make and deliver the said note without any authority to do so; that the note was and is without any consideration whatever and constitutes no valid obligation against any of the parties sued; that all of said facts were well known to the bank.

He further says that the bank knew, at the time said note became due, that Eobinson received no part of any consideration for said note, if any consideration was paid to anybody, and that the bank knew that Eobinson was but an accommodation indorser on the same, and that by reason of its long delay to pursue its claim against the principal debtors on said note, after it had been notified to do so, it can not now maintain its suit against him.

He further says that the bank, by accepting payments of interest and a part of the principal on said note after it became due, extended the time of payment of the same, whereby he is released from liability thereon.

To this answer the bank replied, denying all parts thereof except in so far as it admitted the allegations of the petition.

The case was tried to a jury, resulting in a verdict for the bank. The administrator filed a motion for a new trial, which was overruled and judgment entered on the verdict, to which the administrator duly excepted, and by proper proceedings the case is here for review upon petition in error filed by the administrator.

On behalf of the administrator it is urged that the verdict is contrary to and not supported by the evidence.

The facts disclosed by the evidence are that J. F. Townsend was largely interested in the cement company and that Eobinson was also interested in the same company; that this, company borrowed money from various parties, one of which was the Seeond*National Bank of St. Clairsville; that there was a custom for notes to he prepared made payable to J. F. Townsend and TIenry Robinson, as this was; these notes were indorsed by Townsend and Robinson and left in the hands of Lorenzo' D. Brown, who was then assistant cashier of the Second National Bank of Akron, and was authorized by both Townsend and Robinson to fill in dates and amounts, have the note signed by the cement company, and use them for borrowing money for the company, or as renewals of notes already outstanding against the company.

The note sued on in this action was one of such notes; it was indorsed by both Townsend and Nobinson; it was probably not signed by the secretary of the company until after the indorsement, although the evidence is not clear on that point. Mr. Brown leaves it entirely uncertain, not from any apparent unwillingness on his part, but because counsel on neither side put questions, the answers to which might have made it clear ;, the note was not dated, nor was the amount probably written in when the indorsements were made. It was, however, subsequently dated, the amount, $5,000, written in, and if it had not already been signed by the secretary of the cement company, it was then signed by him and left with Brown, who at once forwarded it by mail to the bank at St. Clairsville, which bank either remitted a draft for the avails, or used it in renewal of a former note of the same kind. There is a little confusion about this, but in any event, it took the place of a former note of the same parties, whether drafts were sent each way or not. At its maturity it was presented for payment at the proper place by a notary public; payment was refused, the notary protested it for non-payment, sending notices by mail to Townsend and other indorsers, and sending a notice to the administrator in these words:

‘ ‘ Notice oe Protest.
“Akron, 0., December 31, 1906.
‘ ‘ Take notice that a promissory note for five thousand dollars, dated Akron, Ohio, August 30, 1906, payable Four Months after date, at Second National Bank, Akron, Ohio, signed by the Bronson-Ealamazoo Portland Cement Co., payable to J. F. Townsend and Henry Robinson, endorsed by you, was this day presented for payment, which was refused, and the same was therefore this day protested by the undersigned notary public for nonpayment. The holder therefore looks to you for payment thereof together with interest, costs, damages, etc., you being the indorser thereof.
“Francis Seiberling,
“Notary Public.
‘ ‘ To Harvey Musser, Admr.,
“Estate of Henry Robinson, Dee’d.”

The note was afterwards presented to the administrator for allowance, and on the 7th day of February, 1907, he mailed a letter to the bank notifying it that he allowed the claim. Later the administrator and the bank had correspondence back and forth about the claim, in which the administrator urged the bank to get pay from the cement company and Townsend, if possible, and on the part of the administrator it is claimed that the letters written by him to the bank constitute a rejection of the claim. He says, too, that he had a talk with Mr. Slabaugh or Mr. Seiberling, of the firm of Slabaugh, Seiberling & Huber, who represented the bank, in July, 1908, in which he says that he said to Mr. Slabaugh or Mr. Seiberling (hé says that he thinks the conversation was with Mr. Slabaugh), he gave notice that this claim was rejected. He says what he said to Mr. Slabaugh (if it was Mr. Slabaugh, and if not, to Mr. Seibterling) was:

‘ ‘ They wanted this note paid. I said that it was a debt of the Bronson-Kalamazoo Company and John F. Townsend, and that they were abundantly able to pay. J. F. Townsend had security from the new corporation, the Chanute Cement & Olay Product Company, bonds, and that I should insist upon Townsend and 1 he'Kalamazoo Company paying the note.”

Then follows this question:

“Didn’t you say to him you wanted him to try and get the money out of the Bronson Portland Cement Company and Townsend if he could?”

To this he answered:

“Yes, I told him he could; I said the money was passing through the hands of his bank, the Second National Bank, and they could. They were selling bonds right along, as I understood, and he could get the pay, insist upon Mr. Brown and Mr. Brunner, perhaps, who was the treasurer of the company at that time, paying the note; I so wrote Townsend a day or two before.
“ Q. You told him, did you not, you did not want to pay this note unless you had to? A. Well, I can’t say I told him those exact words.
.“Q. That was the substance of it, wasn’t it? A. I think I repeated what I said; I said I didn’t propose to pay this note because the company and Townsend were good and could collect out of Townsend and the company and in any event we were simply sureties on the note for Townsend.
“Q. You said you were surety on the note for Townsend? A. Yes.”

We think this is very far from constituting a rejection of thclaim by the administrator. Mr. Slabaugh says that he had no conversation with Mr. Musser on the subject, and Mr. Musser says it may be that the conversation was with Mr. Seiberling. Mr. Seiberling’s recollection of the conversation is different from that of Mr. Musser, but if the recollection of Mr. Musser is correct, still it failed to constitute a rejection of the claim. On the contrary, it seems to recognize the liability of the administrator, but to insist that as Robinson was only a surety, the fair thing for the bank tq do would be to get the money out of the principal debtor, which he said he supposed they could do. This was practically in accord with what Mr. Musser wrote to the bank on the 15th of October, 1907. In that letter he said:

“This note, as I believe I wrote you upon a former occasion, is primarily a note of the cement company, secondarily that of Mr. Townsend, and lastly the debt of Mr. Henry Robinson, the latter being purely an accommodation indorser. You will readily see that as long as the cement company and Mr. Townsend are able to pay this note, it is entirely natural that I should insist upon the obligation being liquidated by the persons directly and primarily liable.”

On the 23d of May, 1908, Mr. Musser wrote the bank, saying:

“Messrs. Slabaugh, Seiberling & Huber asked me to write to jmu consenting to the payment, on my part, of the interest for a long time unpaid upon your $5,000 note against the Bronson-Kalamazoo Portland Cement Company and J. F. Townsend, and upon which Mr. Henry Robinson is surety. I cheerfully write this letter, and assure you that I not only consent, but it is my wish that the interest should be paid and that you should take it and make the necessary indorsement upon the note. I believe that if ,/given a chance Mr. Townsend will be able to dispose of all the bonds of the Chanute Cement & Clay Product Company, or at least enough thereof to pay all of its debts, including your note, and to complete the plans now in process of construction.
‘‘ I trust the foregoing will be satisfactory, and that you may receive a prompt remittance of this long unpaid interest. ’ ’

It seems clear that until Mr. Musser finally rejected this claim on the 7th day of August, 1909, nothing had been said by him either orally or in writing which could fairly be construed by the bank as a notice that the claim was rejected. On the contrary, it is all consistent with the position which he took at the outset, that the estate of Robinson was liable upon this claim, but that in fairness to the estate, every effort should be made first to obtain payment from the cement company and Townsend; and this disposes of the complaint made as to the charge of the court as found at pages 115 and 116 of the bill, where the court uses this language:

“What is a rejection of a claim! Claims are presented to administrators, executors and assignees very often, and the administrator, executor or assignee may take the matter under advisement, may give some conditional affirmance or rejection, but leave the matter open for further consideration. That would not be a rejection, nor would it be an allowance of the claim. The matter would be simply held under advisement until all the facts and circumstances upon which action ought to be based could be ascertained, and then final action come later, so that the rejection of a claim means the final, absolute, unequivocal dis-allowance or rejection, refusal to pay it, refusal to recognize it as a just claim against the estate, and that, as the court has said, must be a finality without conditions or restraint, or without any disposition to consider the matter further as final action of the parties. If there was such rejection, the jury will determine the date of that rejection, and then it would be incumbent upon the plaintiff to bring his suit within six months thereafter. The burden of proof that the suit was brought at that time would be upon the plaintiff.”

Whether this language is stronger than it should have been, it was not prejudicial to the administrator. The court would have been entirely justified in saying to the jury as a matter of law, that there was no rejection of this claim by the administrator until the final rejection which is conceded by the bank, and which was less than six months before the suit was brought.

But, was the bank a holder in due course in such wise that it was entitled to recover without reference to the way in which the note was made ? It is -provided by General Code, Section 8157:

“One is a holder in due course who has taken the instrument under the following conditions:' first, that it is complete and regular upon its face. Second, that he became the holder of it before it was overdue, and without notice that it had previously been dishonored, if such was the fact.”

There is no claim here that this note had ever been dishonored before it was received by the bank, and it was certainly received before it was overdue.

“Third, That he took it, in good faith and for value.”

In this case, as already pointed out, the bank took this note in renewal of a former indebtedness of the maker to the bank,, or had remitted a draft for the avails of the note, having received payment of the note which preceded this one, and. of which practically this was taken in renewal.

“Fourth. That at the time it was negotiated to him he had not notice of any infirmity in the instrument or defect in the title of the person'negotiating it.”

Certainly there is nothing in the evidence in this case to indicate that the bank had any notice of any infirmity, if there was any such, in this note before it took it. Se we hold that under the evidence, the bank was a holder of the note in due course. ,

By Section 8119 of the General Code it is provided as to negotiable paper in these words:

“When the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it np as such, for any amount. In order, however, that such an instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if such an instrument after completion is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.”

From the evidence in this case, we think this note, which was not completed when it was indorsed by Townsend and Robinson, was filled out by Brown, their agent, in exact accordance with the authority which they gave to him when they placed the instrument in his hands, but in any event, it was negotiated to a holder in due course, and, therefore, was valid and effectual for all purposes in its hands.

Attention has already been called to the fact that it is not clear from the evidence whether this signature of the secretary of the cement company was placed upon the note before or after the names of the indorsers were written thereon, but as we understand the law, this is indifferent. Section 8171, General Code, provides:

“Every indorser who indorses without qualification, warrants, to all subsequent holders in due course: the matters and things mentioned in paragraphs Nos. 1, 2 and 3 of the next preceding section.”

These provisions, which have already been read, are:

“1. That the instrument is genuine and in all respects what ii purports to be; that he has a good title to it, and that all prior parties had capacity to contract; and then, further quoting from Section 8171:
“That the instrument is at the time of his indorsement valid and subsisting. ’ ’

This section of the statute sufficiently established the ownership of this note and the right to sue upon it in the bank.

What we have said as to what constitutes a rejection of the claim by the administrator, we think is supported by Sections 559 and 560 of Rockel, and the authorities cited by him. It is possible that the rejection need not be as emphatic as the court said in its charge it must be, but there must be something done by the administrator to show that he does not intend to pay the claim at all, not simply that he does not want to pay it and urging that it be paid by somebody else, and that really is all there is in the evidence to show a rejection of this claim, except what Mr. Musser says as to his conversation with Mr. Eielielberger in 1908, when Mr. Eichelberger asked him if he was not mistaken as to the date, and whether he ever had a conversation with his firm until some time in 1909, that that would not be his recollection. It is clear from this that Mr. Musser did not intend to have it understood that he was certain that this occurred in 1908, and in view of the letters that he wrote after that, we think it clear that he was mistaken as to this date, and that, therefore, as already said, the court would have been justified in saying to the jury that the claim was not rejected prior to the time when it was admitted by the bank that it was rejected.

It is urged that the administrator should be relieved in this case because of the delay on the part of the bank in bringing suit against the other parties. We know of no lav/ that would sustain this position. It is manifest that the bank hoped to obtain payment from the cement company and Mr. Townsend; that the administrator was anxious that it should do so, and expressed such anxiety to the bank. Both partise hoped to avoid litigation as between themselves. Nobody, certainly not the administrator, suffered by reason of this delay, and the bank promptly brought this suit when the claim was rejected. The position of the administrator in this regard is not sound.

There remains a question in connection with the facts which is not discussed in the brief of the plaintiff in error, but which has been considered by the court with care, and that is the sufficiency of the notice of dishonor, given by the notary who protested the note for non-payment, to the administrator. It will be be observed that this notice reads “that the note protested was given for $5,000, dated August 30th, 1906, payable four months after date at Second National Bank, Akron, O., signed by the Bronson-Kalamazoo Portland Cement Co., payable to John F. Townsend and Henry Robinson, endorsed by you.” This is the language of the notice sent to Harvey Musser, administrator of the estate of Bienry Robinson, deceased. If the notary, instead of using the printed form which he had before him, had said ‘ ‘ Endorsed by Henry Robinson, now deceased,” we should have been relieved of the question which has somewhat perplexed us. Might the administrator simply ignore that notice and say, “I have never indorsed any such note, either personally or as administrator,” or was he bound to understand that what was meant was ‘ ‘ Indorsed by your decedent ? ’ ’ The court said nothing of this matter in its charge to the jury until attention was called to it by counsel for the administrator, when the court said: .

“The notice will be before you as evidence of what that notice was. The court will say to you that in making and presenting this note (which clearly means ‘notice’) it is not necessary for the party presenting the note (notice) to use any formal words or expressions in serving the notice that the note was dishonored; that is, not paid when due by the cement company, but it must appear that Mr. Musser’s attention was directed to this particular note and that Mr. Henry Robinson was claimed by the plaintiff bank to be liable on that note and his attention must have been challenged to it, but it was unnecessary in notifying Mr. Musser, if he were the administrator, and it is admitted that he was, that he was notified of that fact in the capacity or in the relation of administrator of that estate. Such formality and particularity as that would not be required if notice in fact was given to Mr. Musser as to this particular note in sufficient terms to identify the note.”

The last statement in this part of the charge seems to be justified by Section 8200 of the General Code, which reads:

‘‘A written notice need not be signed, and insufficient written notice may be supplemented and validated by verbal communication. A mis-description of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact mislead thereby.”

Section 8201 provides:

‘ ‘ The notice may be given in terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or non-payment. In all cases it may be given by delivering it personally or through the mails.”

This is borne out by the case of Townsend v. Bank, 2 O. S. R., 345. In the opinion, at page 361, this language is used:

“Information of the dishonor is as explicit a condition of his contract (the indorser’s) as presentment to the maker or acceptor, and often quite as important to him; and it can no more become absolute and be made liable by neglecting the one than the other. He has contracted to know, and has a right to know, that the paper has been presented to the party primarily liable for payment, and been refused ; and a right to demand that the information shall be so definitely given as to énable him to fix the liability, and upon taking it up, to coerce payment from those back of him on it; which can only be done when he is advised that demand was made at the time when the maker or acceptor was bound to pay, and when a failure to do so would dishonor the paper.
“This information need be given in no set form of words. Neither technicality nor formality belongs to the subject. The language used is good, not only for what it positively expresses, but also for what it fairly implies. Nor does the rule, as now settled, in the least infringe upon the doctrine laid down in numerous cases, that immaterial variances or mistakes in the description of the instrument, or other particulars not calculated to mislead the indorser, and which may be corrected by the facts within his own knowledge, will not vitiate the notice. ’ ’

To the same effect are the cases of Powell v. Bank, 12 O. D. Reprint, 615, and other cases cited in the 2d Encyclopedic Digest, at page 753.

Daniel on Negotiable Instruments, 2d Vol., Section 973, says:

“As to the form of the notice, no particular phrase or form is necessary. The objcet of it is to inform the party to whom it is sent, first, that the bill or note has been presented; second, that it has been dishonored by non-acceptance or non-payment, and third, that the holder considers him liable and looks to him for payment.
“In order that a notice should answer these conditions, and duly intimate dishonor to the drawer or indorser, it should therefore, either expressly or by just and natural implication, comprise the following elements; (1) A sufficient description of the bill or note to ascertain its identity. (2). That it has been duly presented for acceptance or payment to the drawee, acceptor or maker. (3) That it has been dishonored by non-acceptance or non-payment. (4) That the holder looks to the party notified for payment.”

Section 974 reads:

“The notice should describe the bill'or note in unmistakable terms; should state where the note is, that the party notified may find it; should state who the holder is and who gives the notice, or at whose request it is given. Such, at least in theory, are the requisites of a proper notice, and a good business man should never neglect to comply with them. But the courts are not strict in requiring this thorough description of the dishonored instrument, and the requirements of the law are considered as satisfied by any description which, under all the circumstances of the case, so designates the bill or note as to leave no doubt in the mind of the party, as a reasonable man, what bill or note was intended. ’ ’

From these authorities and other citations made in these authorities, we reach the conclusion that no prejudice came to the administrator by the charge of the court in this regard, and indeed, we think the court might, as pointed out in the ease of Townsend v. Bank, supra, have said to the jury that this notice being addressed to Mr. Musser as administrator of the estate of Henry Robinson, deceased, although it used the words “indorsed by you,” was a sufficient notice to him that the note referred to was one indorsed by Henry Robinson. This is especially true in view of the fact that as administrator Mr. Musser would have had no authority to indorse any note at all, and, therefore, he must have understood that this meant a note indorsed by Henry Robinson.

The complaint is further made in this case that the court erred in admitting evidence that other notes of a similar character had been presented to Mr. Musser. The administrator had himself brought out, through the witness Brown, that there was a large number of these notes placed with various banks and others by Brown, acting for the cement company. Of course, evidence that the administrator had paid other notes of this kind could not be admitted as tending to show that he ought to pay this one. This is forcibly pointed out in the case of Griffith v. Beecher, 10 Barb., 432, from the opinion in which the brief of counsel for the administrator has quoted. The evidence admitted over the objection of counsel for the administrator was practically the same as was brought out by the administrator through the witness Brown, and possibly was admissible as tending, to show that the administrator knew from the notice which he received from the notary that what was meant by the words “indorsed by you” was “indorsed by your decedent. ’ ’

This case is not without difficulties, but we have, as we think, carefully considered each of the questions arising in this proceeding in error, and we reach the conclusion that no error was committed to the prejudice of the administrator, that substantial justice was done and the judgment is affirmed.


text:
    DELAY AND FAULTY EXECUTION ON THE PART OF A BUILDING CONTRACTOR.
    Circuit Court of Summit County.
    F. E. Smith & Son v. John F. Hemington et al.
    Decided, April 12, 1912.

      Building Contract — Breach of — Damages for Inconvenience.

    Where the natural and direct result of the failure of the party to a building contract, "who has undertaken to erect a building for another, to perform his contract, is to cause the latter to suffer inconvenien'ce in the use and occupancy of such building, or where such result must have been contemplated by the parties to the contract as a probable consequence of its breach, compensation for such inconvenience may be awarded.
    Niman, J.; Winch, J., and Marviñ, J., concur.
   The order of the parties to this proceeding in error is the same as in the court of common pleas. The action below was brought to recover the balance claimed to be due the plaintiffs from the defendant, John F. Hemington, under a certain contract, and modifications thereof and additions thereto, for the construction of two dwelling-houses, and to foreclose a mechanic’s lien. The amount for which personal judgment was sought against said defendant was $199, with interest from October 10, 1910.

The defendant, John F. ITemington, filed a counter-claim in the action, based upon the alleged failure of the plaintiffs to construct the houses in the manner specified in the contract, and charging the use of defective material, and the doing of faulty work in numerous particulars in the construction of said houses. The amount of the counter-claim asserted was $400, $200 for each of the houses.

The jury returned a verdict for said defendant in the sum of $201, from which the court of common pleas ordered $13.35 remitted. 'Said defendant having remitted this amount, the plaintiff’s motion for a new trial was overruled, and judgment entered against the plaintiffs in said defendant’s behalf for $187.65.

The plaintiff's in error seek a reversal of this judgment on two grounds:

1. That the court erred in charging the jury; and

2. That the damages are excessive.

The trial court, after instructing the jury that in estimating the damage to said defendant by reason of the failure of the plaintiff's to build the houses in accordance with the agreement between the parties they had a right to take into consideration how much it was fairly and reasonably worth to place the houses in the condition they Avould have been in had the contract been kept, used this language:

“You have a right also to take into consideration the inconA'enienee to the defendants, if any there would be, because of the I allure of the plaintiffs to build according to their contract.”

Tt is contended on behalf of the plaintiffs in error that there was no evidence offered on the subject- of any inconvenience arising out of the failure to construct the houses according to agreement, and that it was, therefore, error to instruct the jury that they might consider such inconvenience in assessing the damages.

There was, however, evidence showing the condition of the houses, and the work necessary to be done to correct the defective workmanship employed on the houses, and to remedy conditions due to inferior material used in their construction. It would follow as a matter of necessity from this evidence, that inconvenience would result. No evidence was offered, it is true, as to the value of such inconvenience. It is doubtful if such evidence would be competent. The jury were as capable of determining the amount to be allowed for inconvenience, When the facts were before them, as any witness would.

We think the court committed no error in giving that portion of the charge above quoted, and that it is consistent with the principle laid down in Goldsmith v. Hand, 26 O. S., 99, where the measure of recovery under a building contract, which had been substantially but not strictly complied with, was under discussion. In the opinion, on page 106 it is said:

“We think that where parties have dealt with each other as these parties respectively had in reference to the contract and the mode of its performance, and the owner of the lot has chosen to go into occupancy and use of the building erected upon it, thereby appropriating to himself the fruits of the contract, he ought to, on the plainest principles of justice, pay for them as the contract price, less such sums for delay, defective work or inferior materials, etc., as the owner is in equity entitled to have deducted.”

It will be noticed that the court in that case did not attempt to enumerate all of the items of damage which might properly be taken into account in determining the amount to be set off against the contract price, but merely indicated the general character of such items..

Where the natural and direct result of the failure of the party to a building contract, who has undertaken to erect a building, or buildings for another to perform his contract, is to cause the latter to suffer inconvenience in the use and occupancy thereof, or where such a result must have been contemplated by the parties to the contract as a probable consequence of its breach, we think that compensation for such inconvenience may be awarded.

The law of damages for breach of contract is practically founded on the case of Hadley v. Baxendale, 9 Ex. Rep., 341. It was held there:

“Where two parties have made a contract which one of them has broken, the damages which the other ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties as the probable result of the breach of it.”

The instruction given by the trial court was, in our opinion, within the spirit of this well recognized principle.

The other contention of the plaintiffs in error, that the damages awarded the defendant, John F. Hemington, are excessive, is based upon the assumption that the jury could consider only the cost of placing 'the houses in question in the condition they would have been in had the plaintiffs performed their contract strictly according to its terms, and that the evidence does not show such cost to have been as great as the amount of damages allowed by the jury. We have, however, indicated our approval of that portion of the charge which authorized the jury to consider also, as an element of damage, the inconvenience suffered by said defendant by reason of the condition of the houses.

In view of the estimates given by various witnesses of the cost of placing the houses in condition to conform to the requirements of the contract, and in view, also, of the fact that something might properly be allowed for said defendants ’ inconvenience in accordance with the instruction of the court, we are unable to say that the verdict was excessive.

The judgment of the court of common pleas is affirmed.