author: CARPENTER, J.

text:
    NEGLIGENCE.
    [Cuyahoga (8th) Court of Appeals,
    October 15, 1917.]
    Carpenter, Grant and Lieghley, JJ.
    Pennsylvania Co. v. Michael Hart.
    Last Chance Doctrine not Extended Beyond Actual Knowledge.
    The doctrine of last chance has not been extended beyond actual knowledge of a person charged with inflicting the injury upon which a cause of action is based; hence, an instruction extending the application of the doctrine to include those who by ordinary prudence might have had notice of injured's predicament is erroneous.
    Error to Cleveland Municipal Court.

      Squire, Sanders & Dempsey and Ellis B. Diehm, for plaintiff in error.

      Gaughan & Collins and Anthony Gaughan, for defendant in error.
   CARPENTER, J.

Michael Hart filed his petition in the Municipal Court, stating that he, as an employe of Fred Preston, was riding with said Preston, in his automobile truck; and: as they approached the tracks of the defendant railroad company which crosses the highway upon which they were riding, said Preston was driving his said car and was seated on the right-hand side of the driver’s seat, and that the plaintiff was sitting on the left; that before driving over said tracks, plaintiff looked to the left to watch for approaching trains and said Preston undertook to look to the right. No trains were observed by plaintiff and so Preston drove his machine onto said crossing, when a rapidly moving train struck the truck and injured plaintiff.

The principal allegation of negligence was that the defendant’s servants operating the approaching train failed to stop the said train in time to avoid hitting the said automobile truck, although the crew in charge of said train saw or could have seen, by the use of reasonable care, the automobile on said railroad crossing in a helpless and dangerous position, in time to stop said train and avoid said collision.

There is evidence that the fireman on the engine, when about one-half mile away, saw the auto approaching the track, but his duties demanded his attention to firing the engine, and when he returned, he saw the truck at a distance of about sixty or seventy feet ahead, approaching the rail. He said he shouted to the engineer, “We are going to hit that fellow and he, the engineer, applied the brakes immediately and sounded the whistle before he applied tbs brakes immediately after the whistle was blown.” The train was going at the rate of about fifty miles per hour. Inasmuch as the plaintiff-in-error complains that the court erred in improperly charging the doctrine of the “last chance,” we Cull confine ourselves to this proposition alone. Without quoting further in the charge, it will be sufficient, in presenting the question, to note that the court, at the request of plaintiff, gave the following charge:

“It is not necessary that the defendant should actually know of the danger to which plaintiff is exposed; it is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precautions as a prudent man would take under similar notices. ’ ’

It may he conceded that the doctrine of “last chance” has undergone modification by relaxation of the rigid rule which denies a plaintiff, under all circumstances, any recovery for tbe negligence of the defendant; but, so far as we are aware, from a careful examination of the authorities in this state, that modification has not been extended beyond actual knowledge of a person charged with inflicting the injury.

In the case of Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. 282; 16 L. R. A. 674], the court in its opinion says that the trial court properly instructed the jury that the employes operating the train which ran over Kassen were without fault; they had no notice that he was on the track and we axe not required to anticipate his presence there. Until they discovered him, they were justified in running the train as if the track was clear.

In the case of Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. 571], Mr. Justice Shauek, in the course of his opinion, says:

“The doctrine of the case (last clear chance) can have no application when neither the company nor its employes operating the train by which the injury is inflicted' may be charged with actual knowledge. The rule of liability applies only when there is actual knowledge of those operating the train inflicting the injury, which knowledge is imputed to the company, or the actual knowledge of the company derived through other means, with opportunity to communicate it to those operating the train.
“By introducing into the instruction given the phrase — ‘if the engineer in charge of the train ought hy the exercise of ordinary care to have seen the deceased in his perilous position,’ and hy other expressions in the charge involving the same conception, the Court gave to the jury an erroneous view of the law.”

And this doctrine is expressly incorporated in the syllabus of the ease. Judge Davis says in his opinion in the ease of Drown v. Traction Co. 76 Ohio St. 234, 247 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844] :

“The doctrine of the ‘last chance’ has been clearly defined by a well-known text-writer as follows: ‘Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so.’ ”

To the same effect are the cases of Cincinnati Traction Co. v. Edwards, 38 O. C. C. 436 (22 N. S. 539); and Cleveland, C. C. & St. L. Ry. v. Gahan, 24 O. C. C. 277 (1 N. S. 205).

Thus far the foregoing eases have not been overruled’. We are not unmindful of the opinion rendered in the ease of West v. Gillette, 95 Ohio St. 305 [116 N. E. 521], While the discussion there is made of the last chance, we are of the opinion it is not in this case, or if it is, the facts are the other way; and the syllabus fails to express further extension of the doctrine of “last chance.”

It follows that the court erred in refusing to grant th« motion of defendant below to direct the jury as requested.

The judgment of the Municipal Court is reversed.

Grant and Lieghley, JJ., concur.


source: Caselaw Access Project

author: SHIELDS, J.

license: Public Domain

text:
    HOMICIDE.
    [Stark (5th) Court of Appeals,
    September Term, 1917.]
    Powell, Houck and Shields, JJ.

       Joseph W. Jones v. State of Ohio.
    Verdict of Assault and Battery on Indictment for Manslaughter from Negligent Operation of Automobiles, Sustained.
    The isolated fact of death resulting from a collision of automobiles does not determine the verdict upon an indictment charging manslaughter, but the court properly may instruct the jury; that conviction may be had for assault and battery as a lesser degree of the offense; especially since the proximate cause of death was not the collision but rather excessive speed, negligent and reckless operation of accused’s automobile caused the collision and injury charged. State v. Vancak, 99 Ohio St. 211 and State v. Schaeffer, 96 Ohio St. 000, distinguished.
    [Syllabus approved by the court.]

      Webber & Turner and Wendell Harbruch, for plaintiff in error.
    ' Frank N. Sweiizer, Pros. Atty., and Thos. H. Leaky, Asst. Pros. Atty., for defendant in error.

       Motion to certify record overruled. Jones r. State, 62 Bull. 528.

   SHIELDS, J.

At the September (1916) term of the court of common pleas of Stark county, Ohio, the plaintiff in error was indicted by the grand jury of said county for the crime of manslaughter and upon trial had the jury returned a verdict of not guilty of manslaughter but guilty of assault and battery. Thereupon a motion was filed to discharge the defendant below from further custody on the ground that a verdict and judgment of assault and battery did not lie under said indictment, under the evidence in the case, which said motion was by the court overruled and thereupon the said defendant was sentenced according to law.

It appears that after a petition in error was filed in this court a motion was filed by the defendant in error to strike the same from the files for the reason that no motion for a new trial, or a motion in arrest of judgment, was filed in the court of common pleas after said verdict, and for other reasons therein stated, which said motion was by this court overruled. No cross petition having been filed on behalf of the defendant in error, the sole question presented on the record for consideration, is, therefore, the question made by the motion of the plaintiff in error to discharge him after verdict, as stated.

We do not feel .called upon to review all the evidence in this ease, nor is it necessary for a solution of the question presented, except to bear in mind such portions of it as have 'been referred to and regarded as material by counsel, for the contention made involves a question of law mainly, if not "wholly.

It appears that on August 29, 1916, the plaintiff in error owned what is termed a seven-passenger Buiek automobile, and that in the afternoon of said day while .driving said automobile on the streets of the city of Canton he invited two girls, Gladys Crawford and Fay Carnes, one of whom he had met before that time and the other was unknown to him, to take a ride, which invitation was accepted by them. That in returning from Massillon to Canton in said automobile on the Canton-Massillon road, going eastwardly, said automobile was driven by the said Gladys Crawford and the plaintiff in error who was riding in the front seat of said automobile by 1he side of the said Gladys Crawford; that at the same time on said day one B. L. Thomas was driving westwardly on said road a Dodge automobile with his wife and son and one Thomas Ellis, his father-in-law, therein; that at a point near to what is called Calvary Cemetery on said road said two automobiles traveling in opposite directions collided when the plaintiff -in error was assisting the said Gladys Crawford in operating his said automobile; that at the time of said collision the said Thomas was driving his car at the rate of about fifteen miles per hour and that the plaintiff in error was driving his said automobile greatly in excess of said rate of speed and in violation of Sees.12603 and 12604 G. C., and that as a result of said collision the wife and son of said Thomas and the said Thomas Ellis were seriously injured, and that as a result of. said collision and the injuries received by him through the alleged negligence, carelessness and recklessness of the plaintiff in error the said Thomas Ellis on said day died.

Said Secs. 12603 and 12604 G. C. were enacted by the legislature in the interest of public safety on public highways, and it requires no close analysis of the evidence in this record to show that the automobile of the plaintiff in error at the time of said accident was being operated in violation of the provisions of said sections. It appears that the speed said automobile was traveling at said time was not only unreasonable and unlawful but that said automobile was being recklessly driven, hence it is laid .down as a wholesome and sound proposition of law that “one who is engaged in the performance of an unlawful act must take the criminal consequences of whatever happens to third persons as a result of that act.” The necessity for the application and enforcement of this rule for the protection of life and limb- is apparent when applied to the modern mode of travel upon the public highways and elsewhere. Automobiles may be employed as a means of travel and they have become recognized as the popular means of travel upon the public highways and elsewhere, but like all other agencies thus employed, proper card and discretion should be exercised in their use. It requires no sophistry to persuade us that these high-powered machines were never intended to render life and limb secure upon the public highways when under the control of an inexperienced novice, nor that the safety of others, perhaps traveling upon the same highway in an opposite direction, is rendered any more secure thereby. Regard for the safety of human life requires that automobiles when traveling upon the public highway, where people have the right to travel in their own way, should be under the control of persons capable of managing them and that they should be held to the observance of speed not in excess of that prescribed by the sections referred to. Commenting upon the need and propriety of legislation to be found in these two sections of our statutes, and of the urgent necessity of proper protection being afforded to life and limb against the indiscriminate and reckless operation of automobiles on the public highways and elsewhere, Judge Wanamaker maker, speaking for the court in the case of State v. Schaeffer, 96 Ohio St. 245 [117 N. E. 220], says:

“The first year for which official statistics are available as to the number of automobiles operated on the public highways of this state is 1908, when 18,000 were in operation. To day the total number is over 300,000. If there was need for some such statute in 1908, there is more than ten times the need of it today.
“Statisticians have calculated that when you vest the average men with large power, you make either a tyrant or fool out of ten per cent, of them. ■ The estimate is very conservative. Indeed, if it err at all, it is upon the ground that it is too low, and it may well be doubted if the ratio is appreciably reduced in the case of putting 300,000 automobiles, with their tremendous speed, power and impact, under the direction and control, or lack thereof, of the usual drivers. Ten per cent, of the 300,000 would make 30,000 that are in the hands of tyrants, fools, incompetents, speed-maniacs, that are a constant menace and danger to the safe and conservative 90 per cent. of automobile drivers, to other vehicle drivers, and to the millions of foot passengers.
“ ‘Safety first’ must not be sacrificed for ‘speed first.'

The daily press is full of hairbreadth escapes and casualties, from slight injuries .on the one hand to instant death on the other. It may well be said, ‘that the railroad locomotive has killed its hundreds, but the automobile is killing its thousands/

“The day has long been here when the authorities should exercise every power under every law of the state to protect the safety of the public, its life, its limb; and in order to meet every possible situation of danger, some such general, comprehensive and elastic statute as Section 1260B is absolutely necessary.
“The careful, conservative driver need have no fear of it. The reckless, wanton speed-maniac needs to be kept in fear of it. The life of the humblest citizen must be placed above the gratification of the motor-maniac who would turn the public highways into a race course. Mere civil liabilities are not sufficient to protect the public. Five dollars fine and costs is a joke in most cases.
“Some statutes have undertaken to fix a rate of speed which would be prima facie dangerous, but a rate of speed dangerous in one situation would be quite safe in another situation, and if the rate of speed were definitely fixed, naturally it would have to be the minimum speed at which cars might be safely driven, because that speed would have to be a safeguard against every possible situation which would be perilous even at a speed of six or eight miles an hour.
“There is no place in all the public grounds and parks where a situation is not constantly changing from comparatively no traffic to a most congested traffic; from no foot travelers to a throng of them; from open and clear intersections, private drives and street crossings, to those that are crowded; from free and unobstructed streets to streets- filled with crowds Of foot travelers and others getting off and on street cars and other vehicles. In order to meet these varying situations and impose upon the automobilist the duty of anticipating them and guarding against the dangers that arise out of them, this statute was evidently passed in the interests of the public safety in a public highway.”

Here as claimed by the state, and as we think the evidence shows, the plaintiff in error was engaged in an unlawful act prohibited by the statute law of Ohio at the time of said collision when Thomas Ellis was injured, from the effects of which, he died. His unlawful act was the violation of said sections. He was afterward indicted for manslaughter and found guilty of assault and battery only and sentenced therefor. It is contended in his behalf that the trial court erred in instructing the jury, that they were authorized to return a verdict for assault and battery, if the facts warranted such verdict, and further, in overruling the motion for his discharge from further custody after said verdict, and that the judgment and sentence upon said verdict of the jury for assault and battery is therefore a nullity. Error is prosecuted to reverse said judgment.

Under our statutes criminal homicide consists of different degrees, and murder in either the first or second degree may be reduced to manslaughter, or even to an assault and battery or an assault, in a proper case, upon the theory that the lesser is included in the greater of the crime charged. This theory at an early day found its way into the criminal jurisprudence of this country and has since been generally if not universally recognized and adopted as a sound and safe principle to apply in the administration of the criminal law.' Citation of authorities is not necessary to show that in this state it has been so recognized and repeatedly declared by the courts. While admitting that the principle is sound as applied to cases generally, it is urged on the part' of counsel for the plaintiff in error that under the evidence in this case the crime here committed, if any was committed,was manslaughter and that only, and that the element of assault and battery was entirely foreign to the case. It appears that no objection was made or special exception taken to the charge of the trial court at the time said charge was given to the jury, except a general one, including an exception to the refusal of the court to give certain special requests submitted on behalf of the defendant below before argument. In passing, and by way of referring to the contention of counsel, it may be said that if the deliberation of the jury had been controlled by the logic of the evidence and the charge of the court, another and different verdict might have been returned by the jury, but we are admonished by the repeated holdings of our Supreme Court that the jury are the sole judges of the facts, when a case is presented to them, under proper instructions by the court. Not that it necessarily follows that the jury are always right and that their action may not be reviewed and corrected by the court, in a proper case, but it goes unchallenged that their latitude of inquiry and judgment upon the facts, under the issues raised, is not circumscribed by the limitations of any rule. True, the issue raised should be kept in mind and not lost sight of by the jury when considering the evidence, and that a verdict unsupported by any evidence should not be allowed to stand, but in a case “where the evidence justifies it,” with the jury acting under express instructions of the trial court, will it be said that the action of the jury in returning a verdict of guilty of assault and battery in a manslaughter case, should be disregarded and ignored? Scarcely, in view of past precedents resting upon adjudications crystallized into recognized law since the organization of courts, There may be cases where courts have refused to disturb verdicts because the character of the case forbade the submission of a lesser degree than that charged in an indictment, but not so, under the investigation we have made, when without objection a lesser degree is expressly and properly authorized by the charge of the trial court.

Section 13692 provides that “when the indictment eharges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree.”

As if acting under the authority conferred by this statute tlie trial court, among other things, charged the jury as follows:

“So that if you fail to find from the evidence beyond the existence of a reasonable doubt that the defendant is guilty of the crime of manslaughter, you may then go forward and find whether or not the evidence satisfies you beyond the existence of a reasonable doubt that defendant is guilty of the offense of assault and battery, or of assault. Therefore, if you find beyond the exisetnce of a reasonable doubt that the defendant, Joseph W. Jones, at the county of Stark and in the state of Ohio, on or about the 29th day of August, 1916, unlawfully committed an assault and battery upon Thomas Ellis, then and there being, then you should return a verdict of guilty of the offense of an assault and battery. If the evidence fails to so show, then you should return a verdict for defendant, to wit, not guilty of an assault and battery. If the evidence fails to show beyond a reasonable doubt that defendant on or about the date named in the indictment committed unlawfully an assault upon Thomas Ellis, then and there being, then you should return a verdict of guilty of assault. If you fail to so find, your verdict should be not guilty of assault. If the evidence fails to satisfy you beyond the existence of a reasonable doubt of the offense of manslaughter, assault and battery, or assault, your verdict should be for ihe defendant, to wit, not guilty.” ® * * *
“The indictment for manslaughter includes within its terms the lesser offense of assault and battery, and under Sec. 13692 G. C. of Ohio, the jury may find a defendant guilty of such inferior and lesser offense, if the evidence warrants, and only warrants such conviction. But notwithstanding such right of the jury, it is the duty of the jury to receive the law as given to it by the court, and if the facts proved are such as to make the offense manslaughter as hereinbefore defined and explained to you and warrants a conviction thereof under these instructions, it is the sworn duty of the jury to make such finding, without reference to their power to find a lesser offense to which they might be influenced, by something extraneous to the real facts as found by them. The law does not include these lesser offenses of assault and battery and assault in order to relieve the jury from the performance of what might otherwise be a disagreeable or unpleasant duty, or to reach a compromise verdict and enable them to evade their sworn duty by finding a lesser offense simply because they may, but it is held proper so that there may not be a failure of jstice if the evidence did not sustain the offense" charged in the indictment, but would support a finding of guilty of a lesser offense than the one charged in the indictment.”

Here the jury were duly cautioned against losing sight of the material issue in the case and of their obligations as sworn jurors to fearlessly meet and discharge duty. That the admonition thus given was both direct and pertinent admits of no question, but how the facts in the case were regarded and treated by the jury in the jury-room we do not know, except as shown by the verdict. It cannot be said that the jury acted contrary to the instructions of the court, if in their judgment a verdict of assault and battery was warranted by the facts, because the court expressly so instructed them. But counsel on behalf of the plaintiff in error argue that the death of Ellis was caused by the collision and therefore the crime was manslaughter, if anything, relying in support of their contention on the cases of State v. Vancak, 90 Ohio St. 211 [107 N. E. 511], and State v. Schaeffer, 96 Ohio St. 245 [117 N. E. 220]. It appears that the first case mentioned involved the defense of self-defense. Logically and legally the defendant in that case was either guilty of the crime charged — manslaughter — or not guilty of any other crime. There was no pretence of any claim made but that death, resulted from the blow struck, and indeed the killing was admitted by the defendant. The rule of law announced in that ease is far from being applicable to the facts in the case before us for review, in our judgment. In that case there was no issue raised as to the cause of death. In the Schaeffer case, there too, the killing of the child was admitted, but the defendant contended that he was not criminally liable because he was not violating the speed ordinance at the time. Unlike the case before us, where the plaintiff in error claims that the death of Fifia was caused by the unlawful conduct of Thomas in not observing the rules of the road, which was denied by the state. While the plaintiff in error denied that his car was being driven recklessly or in excess of a lawful rate of speed at the time of the collision, the state contends that it was so driven. So here was an issue and here was a conflict of evidence on the question as to how the collision occurred and who was responsible for it — a question of fact to be determined by the jury. In the cases cited the killing and the facts and circumstances leading up to the death were admitted, but not so here. While the fact that death was the result of the collision is admitted, the facts causing the collision are disputed. The isolated fact of death resulting from the collision does not answer or satisfy the question at issue, but the question remains, who and what caused the collision? Leaving out the evidence that Ellis’ body was placed on the side of the highway after the collision and there suffered to remain until it was placed in an automobile and later transferred to an ambulance to be conveyed to the Massillon Hospital several miles distant, and that death resulted en route, leaving out these circumstances which were before the jury and the effect of which were for the determination of the jury, it would seem that the finding of the jury was referable to the manner of driving the automobile of the plaintiff in error and its speed at the time of said collision.

In his behalf counsel for plaintiff in error also refer to the case of Marts v. State, 26 Ohio St. 162. In this case the defense was self-defense, and it appears that the defendant requested the trial court to instruct the jury that they might return a verdict of assault and battery, if the- facts warranted it, which request was refused, but the Supreme Court says ‘‘ that the court should have instructed the jury as requested, that it was competent if in their opinion the evidence justified it, to find the defendant guilty of assault and battery only, and that the refusal of the court to give such an instruction was error to the prejudice of the defendant.”

While juries sometimes differ in their judgments and reach different conclusions upon the same state of facts, as do courts, but whatever the judgment of this court of the merits of this case and of the verdict of the jury, we are not unmindful that facts are the exclusive property of the jury to deal with and that the constitutional right of trial by jury is still “the great safeguard of life, liberty and property.” Discussing the institution of the trial by jury, Judge Ranney fittingly refers to it as “the glory of the English law,” and as an important and integral part of our system of jurisprudence. In Gibbs v. Girard, 88 Ohio St. 34, 47 [102 N. E. 299; 1914c Ann. Cas. 1082], Judge Wanamaker also says:

“So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions.”

For the reasons stated, we think the trial court was authorized to submit to the jury the question whether or not the defendant below was guilty of manslaughter or assault and battery, under the evidence in the case, and in so instructing the jury said court did not err, nor did said court err in overruling the motion to discharge the said Jones from further custody after said verdict of assault and battery was rendered.

While the requests made before argument to the jury' were not argued to this court, nor even referred to, it is sufficient to say that we have examined all the grounds of error assigned, and keeping in mind the uniform rule of the courts in this state that judgments of conviction are not to be set aside except “in cases where the grounds of error are clear and the error manifestly prejudicial, ’ ’ we find no such prejudicial error in the record as to require a reversal of the judgment of the court of common pleas, and said judgment of said court will therefore be affirmed, and said cause will be remanded to said court for execution.

Powell and Houck, JJ., concur.


author: GORMAN, J. Jones (O. B.) J., dissenting.

text:
    NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    July 6, 1916.]
    Jones, Jones and Gorman, JJ.
    David H. Scott, Admr. v. George Wingenberg.
    1. Accident Resulting from Violation of a Municipal Ordinance la Negligence per se.
    Leaving of heavy movable article on or over the sidewalk, in violation of a municipal ordinance, from which injury results to a child is negligence per se.
    2. Doctrine of Res Ipsa Loquitur Applies to Case of Child Killed by Fall of Mortar Box on the Sidewalk.
    The doctrine of res ipsa loquitur applies when a child two years old is killed by the falling of a heavy mortar box, left leaning against a building, with the lower end resting on the sidewalk and at such an angle as to probably create a condition of unstable equilibrium, and in the absence of any explanation as to how the box happened to fall, it is error, in an action for death of the child, to direct a verdict for the defendant.
    3. Attempting to Show Contributory Negligence by Cross-Examination of Plaintiff's Witness Held Erroneous.
    Since it is not incumbent upon plaintiff to show contributory negligence, counsel for the defendant has no right to cross-examine plaintiff’s witness in such a manner as to tend to establish such negligence, however, as the court arrested the case from the jury the error was without prejudice.
    Error to superior court.

      Gasser & Scott, for plaintiff in error.

      Coleman Avery, Constant Soutkworth and Harry L. Linch, for defendant in error.
   GORMAN, J.

The action below was one to recover damages by the plaintiff, as administrator of the estate of Edward George Naas, deceased, a minor child two years of age, for the alleged wrongful death of said child by reason of the negligence of the defendant.

The record discloses that on the 13th day of March, 1915, at ten o’clock in the morning, the decedent, Edward George Naas, was killed by the overturning of a heavy mortar box belonging to the defendant, George Wingenberg, which had been left on the sidewalk of Campbell alley, or Campbell street, in the rear of his premises, 1618 Logan street. The box had been left there the night before by an employee in the usual course of his employment. Campbell street, or alley, where the mortar box was placed, was one of the public streets of the city of Cincinnati, about twenty feet wide, with a thirty-four inch sidewalk upon the side towards the defendant’s property. This street was paved, and so was the sidewalk. The record of the evidence .showed that a great number of children were accustomed to congregate in the alley, or street, and play there, and this fact was known to the defendant. The mortar box was slanting up against the wall of his stable, or barn, and was about six feet long and thh’ty-nine inches in width and about twelve inches in depth. The box was.found overturned in the alley, and the child with a crushed skull was found under it. There was no evidence as to how the box fell; whether it fell of its own weight or was pushed over by someone or by the child does not appear. There was evidence tending to show that this box was leaning up against the wall, one witness testifying that the angle made by the box was 85 degrees, which would make the box stand almost parallel with the wall of the stable. There was also evidence tending to show that the box was in a state of unstable equilibrium. It weighed in tide neighborhood of two hundred pounds. The child was found under this box within a very few minutes after it had been killed.

There is an ordinance of the city of Cincinnati prohibiting any person from keeping or permitting to remain any box, barrel, crate, etc., or other movable article on or over any street, sidewalk or thoroughfare in the city, longer than a reasonable time necessary in the' transaction of business loading and unloading, to remove said articles. This ordinance was passed under the grant of power given to the councils of municipalities by See. -3714 G. C., which imposes the duty upon municipalities and the councils thereof to have the care, supervision and control of public streets, avenues, alleys, sidewalks, etc. and shall cause them to be kept open, in repair and free from nuisance. This ordinance was passed manifestly for the protection and safety of the public in using the streets and sidewalks.

At the close of plaintiff’s evidence, upon motion of defendant, the court instructed the jury to return a verdict for the defendant, which was accordingly done.

Several errors are complained of by the plaintiff in error as a reason for asking this court to reverse the judgment of the superior court.

It is claimed that the court erred in arresting the case from the jury and in instructing a verdict for the defendant. We are of the opinion that the evidence in this case discloses a case of res ipsa loquitur. The evidence discloses that this box fell; but whether it fell of its own weight because it was in a state of unstable equilibrium or was pushed over by the child or someone else does not appear. The rule of res ipsa loquitur invoked is stated as follows in 1 Jones’ Commentaries, Evidence, (Blue Book), Sec. 15a:

“There is another class of cases in which it is held that where the thing is shown to be under the management of the defendant or his agent, and where an accident in the ordinary course of events does not happen when the business is properly conducted, the accident itself raises a presumption of negligence in the absence of any explanation. The English ease where a passer-by in a street was hurt by a barrel of flour falling from a warehouse window is an illustration of this group of eases. (See Byrne & Boadle, 2 Hurl & C. 722.) The same principle is illustrated by a New York case, in which it was held that since the owner of a building adjoining a street is under obligation to take reasonable care that the same shall not fall upon the passers-by, if such an accident happens without any proof of explanatory circumstances, negligence will be presumed. (Mullen v. St. John, 57 N. Y. 567.) In such cases the facts are said to speak for themselves res ipsa loquitur. But in all such cases the cause of the accident must be clearly connected with the defendant, as being by his act or under his control, before negligence can be presumed.”

Now in the case under consideration the evidence discloses that this box belonged to the defendant and that it was under his control and management, and was placed by him or his servant in the street on the sidewalk the night before it fell upon this child. It is manifest to ns that this box could not have fallen on this child unless it were either pushed over upon him by someone, or was in a state of unstable equilibrium; and it appears to us that the fact that it fell upon the child raised a presumption of negligence which was encumbent on the defendant Wingenberg to rebut and to show that he was not guilty of any negligence which proximately caused the death of this child.

This court, in the case of Roth Packing Co. v. Williams, 36 O. C. C. 280 (20 N. S. 362), held that the fact that an automobile truck came out of the garage or premises of the Roth Packing Co. and ran over and killed a boy, without showing what caused the truck to move out upon the street, presented a case in which the rule of res ipsa loquitur should be applied. This court in that case approved the following language embodied in the charge of the lower court:

“No direct evidence has been offered of any particular and specific act of negligence of the defendant that caused the automobile to come out of the building * * * but it is claimed by the plaintiff in this case that the fact that the automobile came out in the way it did is itself evidence of negligence, and I will state to you that it is the law that when a thing which causes the injury is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords evidence in the'absence of explanation that the accident arose from want of care.”

We are of the opinion, therefore, that when the plaintiff in this ease established the fact, as it did, that this mortar box had fallen upon this child and killed it in the street, a case was presented which required the defendant to explain how it happened and to show that it did not fall because of any negligence on the part of the defendant. Furthermore, we think the evidence in this case tended to show that the box was in a state of unstable equilibrium and likely to fall. The fact that it might fall upon a person in the street was a circumstance which should have been taken into consideration by the defendant when he placed the box in this street. We are of the opinion that the falling of this box, whether by reason of the fact that it was in a state of unstable equilibrium or because it was pushed over by some one in the ordinary course of things was an event which should have been contemplated as not entirely improbable, and that the defendant who placed the box in the street should have anticipated the reasonable and probable consequences which might arise from the falling of this box either of its own weight or from being pushed over.

In Earl v. Crouch, 40 N. Y. St. 847, a case is presented where plaintiff’s administrator brought an action to recover damages for the death of the deceased by the negligent act of the defendant. The defendant caused to be placed near the sidewalk upon one of the streets of the city of Rochester a pile of lumber five feet wide and three feet six inches high. The lumber was piled by placing one piece over another in tiers. Nothing was used to bind the tiers together. The tier nearest the sidewalk leaned about two inches from a perpendicular away from the remainder of the pile. The deceased was a child four years and eleven months old, residing upon the street near the pile. He went from his home and was found dead under the lumber which composed the tier next the sidewalk. All this tier except the three lower pieces had fallen out towards the sidewalk upon the child. The pos:tion of the deceased’s body and arms indicated that he had taken hold of the lumber with his hands with a view probably of climbing upon the pile, and thereby caused the lumber to fall. There was a recovery had in the case, and the appellate division of the supreme court in passing upon the case, said:

“The appellant does not claim that the child was sui juris, or that its parents were guilty of negligence contributing to its death.' At the close of the testimony defendant’s counsel asked the court to direct a verdict for the defendant.
“The request was refused, and defendant duly excepted. There was abundant evidence that the lumber was piled in a negligent, careless manner instead of piling it so that the tiers would rest against and support each other; the tier that fell was so piled that the slight force applied to it by the child toppled it over. Fixing such a trap upon a street in an inhabited part of a city, with the strong probability that children would be playing about it at all hours of the day was reckless, culpable negligence. ’ ’

In the ease just cited there was no evidence to show how or why the lumber pile had fallen upon this child. The court evidently held that the accident itself furnished evidence of negligence.

In the case of Holly v. Bennett, 46 Minn. 386 [49 N. W. 189], a child was injured by the falling of lumber from a. pile while it was in the street. A recovery was had in the ease. The Supreme Court of Minnesota in passing upon the case, p. 387, says :

“Upon a careful examination of the record we find that the only other assignment of error of sufficient importance to merit attention is as to the sufficiency of the evidence to establish the alleged negligence of the defendants. Upon this issue the evidence is not strong or persuasive, but we think there was enough to go to the jury. It was the duty of the defendants to exercise reasonable care in- erecting their lumber piles along a street where children or others were likely to pass or congregate, and the measure of their responsibility was the extent of danger to be apprehended, under the circumstances of the case. The evidence tends to show that the boy was found between two lumber piles (which were built over into the street) under a stick of timber which had fallen on him .and broken his leg. Witnesses familiar with the locality stated that the top timbers were carelessly piled, and that the ‘ inside pile was piled very carelessly. ’ ’ ’

In the case at bar the defendant knew many children were accustomed to pass along this street and to make it a playgiound. He should, in the exercise of ordinary care, have anticipated, when placing this box on the public street in violation of the ordinance and in the manner in which it was placed, that it was likely to result in injury to some one passing along the street. Of course, in this case there can be no negligence imputed to this two-year-old child, and while contributory negligence of the parents was pleaded in this case, this was a matter of substantive defense which could not be made out or evidence tending to establish it produced until after the plaintiff had rested his case.

Another error complained of is that the trial court refused to admit in evidence the ordinance of the city of Cincinnati prohibiting the piling of boxes and materials upon the sidewalk. Upon what ground the court refused to admit this ordinance we are unable to learn from the record. We are of the opinion that it was admissible for the purpose of showing that the defendant in this case violated an ordinance of the city passed manifestly for the safety of the public traveling upon the streets, when he left th's box upon this street and sidewalk without any reasonable excuse for leaving it there. But aside from the question as to whether or not the court should have admitted this ordinance in evidence, we are of the opinion that the trial court should have taken judicial notice of this ordinance. The superior court of Cincinnati is a court.of the city of Cincinnati, and it has been held that that court, as well as every other court of the city of Cincinnati, will and should take judicial notice of the ordinances of Cincinnati. The court of common pleas does not take judicial notice of the ordinances of the city of Cincinnati because it is not a court of the city, and therefore in trials before that court ordinances of the city of Cincinnati must be offered and admitted in evidence.

We think that the violation of the ordinance by the defendant in this case established a case of negligence per se, as was held in the case of Schell v. Dubois, 94 Ohio St. 93 [113 N. E. 664], in which the court says in the syllabus:

“The violation of a municipal ordinance passed in the proper exercise of the police power in the interest of the public safety, and not in conflict with general laws, is negligence in itself, and where such act of negligence by a defendant is the direct and proximate cause of an injury, not contributed to by want of due care on the -part of the injured person, the defendant is liable.”

The question of whether or not the violation of this ordinance by the defendant in leaving this box upon the sidewalk was the proximate cause of the death of this child, is one which should have been submitted to the jury under the evidence and proper instructions from the court. There'was evidence tending to show that the falling of this box upon this child was the proximate cause of this child’s death, and as we have said that the accident itself raises a presumption of negligence, it was for the defendant to explain and show that the box did not fall through his negligence. Where there is a scintilla of evidence in support of the plaintiff’s claim the cause must be submitted to the jury, and a motion to arrest the case from the jury should be overruled.

Furthermore, it is claimed that the court erred in permitting counsel for the defendant on cross-examination of two of the plaintiff’s witnesses to go into the question of the contributory negligence of the parents of this dead child in permitting it to run out on this street, in view of the fact that it is a dangerous place. It is claimed that the rule laid down in Legg v. Drake, 1 Ohio St. 286, was violated when the court permitted counsel for defendant by his cross examination of plaintiff’s witnesses to go into the substantive defense to show contributory negligence. Many of the questions asked by counsel for defendant were proper. As we understand the rule laid down in the ease of Legg v. Drake, supra, it is that counsel on cross examination may not only interrogate the witness on matters which have been brought out on direct examination, but may go further and interrogate the witness upon all matters which the party who called the witness might have gone into in order to establish his case or defense. Now it was not incumbent on the plaintiff to show contributory negligence, and we think that in so far as the court permitted counsel for defendant to ask questions which tended to show that the parents of this boy were guilty of contributory negligence, the court erred. But this error was not prejudicial to the plaintiff in error, because the jury were not permitted to pass upon the evidence, to weigh or consider it, or to consider the question of negligence or contributory negligence. The jury were instructed to return a verdict in favor of the defendant, and under such circumstances it was not material what the rulings of the court were with reference to the admission or exclusion of evidence, unless it be that the court arrested the case from the jury under the belief that the plaintiff’s own evidence tended to show contributory negligence upon the part of the child’s parents which he had failed to remove when he rested his case.

We find no other errors in the record prejudicial to the plaintiff in error.

But for the reasons stated we are of the opinion that the judgment of the court below must be reversed and the cause remanded ior a new trial.

Jones (E. EC.) J., concurs.

Jones (O. B.) J., dissenting.

In my opinion the judgment below should be affirmed. The body of Edward George Naas, a two-year-old child, was found in the middle of - Campbell alley under a mortar box belonging to the defendant in error. There is no evidence whatever of liow this unfortunate condition was brought abo'ut. In the absence of proof, there can be no guessing by either the court or jury to supply missing evidence. Connelton v. Loeb, 38 O. C. C. 494 (22 N. S. 15) ; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. 26] ; Cleveland, T. & V. Ry. v. March, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142].

There is no question but that the mortar box which was found upon the child was the property of the defendant and that it had been left out in the alley by his1 employee, but no negligence on his part is shown by the record, nor is there any evidence to show that he violated any duty with respect to said child w-alking or playing upon said alley.

The opinion of the majority of the court is based upon the idea that the box was placed upon the sidewalk of the alley in an unstable condition and for that reason fell upon the child, or that it was pushed over by some one. In the latter case, the defendant clearly could not be held, unless it was so placed that as a natural consequence of its position defendant might reasonably apprehend that some one would push it over.

This finding by the majority of the court, however, in my mind is not supported by the evidence. The evidence shows that the box was five or six feet long, about thirty-nine inches in width and from eight to twelve inches in depth; that it was used for hauling mortar in a wagon from defendant’s stable to places where he might use it in his trade of plastering. James Malley, the only witness who testified as to the position of the box before the accident, and who was in the employ of the defendant, described its position as lying lengthwise on the narrow sidewalk of the alley and leaning against the stable, the lower part fitting into the curb of the alley, which the evidence shows was one or two inches higher than the brick pavement of the sidewalk. This curb is clearly shown in the photographs which are exhibits in the case. The defendant, George Wingenberg, and George Klug, who was the father of the child who found the body, both testify as to the position of the box after it had been taken off of the child and replaced at the side of the alley. James Malley testifies that this latter position was the same as the position in which he left it before the death of the child. Wingenberg and Klug both say that the box lay lengthwise with its bottom up, its lower edge resting inside against the curb of - the narrow sidewalk and its upper edge resting against the stable.

Taking the dimensions of the sidewalk and of the box as given, a mathematical calculation will show that the box would practically reach a point between two and three feet above the level of the sidewalk upon the side of the stable, and that the angle of the box made both with the sidewalk and with the side of the stable would be in the neighborhood of forty-five degrees, depending upon the exact width of the sidewalk and of the box. These dimensions vary in the testimony of different witnesses. Taking any given dimensions having the hypotenuse and the base of the triangle known, it requires a simple mathematical calculation to determine the length of its third side — which would be the distance from the sidewalk up the side of the stable to the point at 'which the upper edge of the box rested. When this is determined, the angle at which the box lay can also be found. Just what each of these dimensions may be is not material, but taking any testimony that is given by the witnesses, they fail to show any position of unstable equilibrium on the part of the box, but instead show that the box was firmly placed, whichever witness is relied upon.

The only testimony that in .any way supports the finding of the majority of the court that the box was in a state of unstable equilibrium is that of J. T. Scanlon, in the following words:

“Q. Show the jury how that box stood there on the sidewalk, use this pencil and show us. A. Well, it stood about that way (illustrating) about 85 degrees leaning against the wall, and the sidewalk was only about three and a half feet wide, so that there would not be room to pass outside of it at all. ’ ’

From the use of the words “85 degrees,” the majority of the court have reached the conclusion that the box was almost perpendicular and nearly parallel with the side of the stable. It will be observed that it is not stated whether the 85 degrees is the angle with the level of the sidewalk or with the side of the building, but the rest of the sentence stating that the box was leaning against the wall (not upright, parallel to it) and that there would not be room to pass outside of it at all, shows that the witness intended to convey the idea that the box practically covered the entire width of the sidewalk — for, as he states, the sidewalk was three and a half feet wide and the box only one foot deep. To rely entirely upon a statement that the box was at an angle of 85 degrees and put it nearly parallel with the stable wall, would leave about two feet of the sidewalk free, which would be inconsistent with the rest of the sentence. An examination of the testimony of this witness will show that he was not accurate in his statements, and in my opinion this statement does not conflict with that of the other witnesses that the box covered, practically the entire sidewalk and was placed in a firm and stable position and not in a position of unstable equilibrium.

Such being my conclusion drawn from the record, as to the position of the box, it could not have fallen upon the child merely by its own weight, nor could the young child have pulled the box over upon itself, but the interposition of some other considerable force was necessary in order to bring the box into the position in the alley on top of the child. What that force was is not disclosed by the record.

I can not agree that this record shows a case of res ipsa loquitur. It is not a case of a box moving or falling out of a building of defendant which would require an explanation from him, as the electric truck in Roth Packing Co. v. Williams, 36 O. C. C. 280 (20 N. S. 362), or the falling of the trolley pole in the case of Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379, 386 [78 N. E. 529; 6 L. R. A. (N. S.). 300; 13 Am. St. 980].

"While it is admitted that the box was the property of the defendant, it was not at the time of the accident either on his premises or under his direct management and control, but had been left by his servant on the public street. This was a violation of the city ordinance, but was not the proximate cause of the injury to the plaintiff’s intestate. The purpose of the ordinance was to prevent the obstruction of the street, as stated in its own terms, “so as to prevent citizens from passing along such sidewalk.” The accident was not caused because of the fact that the box obstructed the street, but because through some unknown agency the box was'thrown upon the child.

To my mind, this does not make a case of negligence per se under the rule laid down in the recent case of Schell v. Dubois, referred to by the court in the majority opinion. It should be controlled rather by the case of Wilde v. Ohio Knife Co. 28 Dec. 320 (18 N. S. 373), which was recently affirmed by this court without opinion.

This question of liability for injuries to a child arising from a nuisance is fully discussed and the authorities reviewed in the two cases of Wheeling & L. E. Ry. v. Harvey, 11 Ohio St. 235 [83 N. E. 66; 19 L. R. A. (N. S.) 1136; 122 Am. St. 503; 11 Ann. Cas. 981], in which attention is called to Friedman v. Snare & Triest Co. 71 N. J. L. 605 [70 L. R. A. 147; 2 Ann. Cas. 497; 108 Am. St. 764], where a child was injured while playing upon iron girders left piled upon the street.

The rejection of the ordinance by the court below, when offered in evidence, did not constitute prejudicial error for the reasons stated in the majority opinion that the superior court of Cincinnati takes judicial notice of general ordinances of the same city, and for the further reason, as I think, that, the violation of the ordinance in this case was not negligence per se.


author: KUNKLE, J.

text:
    INSURANCE.
    [Franklin (2nd) Court of Appeals,
    November 30, 1917.)
    Kunkle, Allread and Ferneding, JJ.
    Edward C. Turner, Atty.-Gen., on Behalf of Frank Taggart, Supt. of Ins. v. Union Casualty Ins. Co.
    1. Deposit of Foreign Insurance Company Administered on Insolvency for Ohio Policy Holders.
    By virtue of Sec. 641 G. C. the deposit made by a foreign insurance company with the state superintendent of insurance as a prerequisite to doing business in Ohio should be administered, in the event of the insolvency of the insurance company, by said superintendent of insurance under the direction of the Ohio court to Ohio policy holders directly, instead of being turned over to the legal representatives of the insurance company in the state of its domicile.
    2. Claims not Filed within Statutory Period not Barred as Limitation.
    Section 642 G. C., fixing a time within which claims may be filed
    in such a case, is not a statute of limitations, but merely fixes a time when the court may proceed with their consideration and distribution of the fund; hence, it is within the discretion <5f the court in a proper case to open up a default and permit a tardy claimant to file his claim for consideration on its merits.
    3. Recommendations of Administrative Officials as to Statutory Amendments Not Conclusive in Determining Legislative Intention.
    Recommendations made by state administrative officials as to statutory amendments proposed to the legislature are not conclusive in determining the legislative intention in the adoption of such amendments.
    [Syllabus approved by the court.)

      Vorys, Setter, Seymour & Pease, for appellants.

      Joseph McGhee, Atty. General, L. D. Johnson, White, Johnson, Cannon & Neff, W. L. Parmenter, Gordon, Morrill & Ginter, Morton, Irvine, Turner & Blanchard, Halfhill, Quail, & Kirk, Aaron A. Ferñs and L. H. Shipman, for defendants.
   KUNKLE, J.

The attorney-general of the state of Ohio, on behalf of the State Superintendent of insurance brings this action under Sec. 641 G. C., for the purpose of determining the rights of the policy holders of the Union Casualty Ins. Co. of Philadelphia in and to a certain deposit of $50,000 made by said company with the superintendent of insurance of the state of Ohio, as required by Sec. 9510 G. C.

It is conceded that the said insurance company is insolvent, and the controversy arises between the receiver appointed in the state of Pennsylvania, the domicile of said company, and also a certain policy holder of Pennsylvania, upon the one hand, and upon the other hand by various policy holders of said insurance company, residents of the state of Ohio, who claim the said fund by virtue of contrácts made within the state of Ohio.

We have carefully considered the very helpful briefs which have been filed by counsel. We shall not undertake to discuss iri detail the authorities and statutes cited therein, but will merely announce the conclusion at which we have arrived, after an examination of such authorities and statutes.

In brief, the questions which are presented for determination are:

(1): Has the insurance commissioner of Pennsylvania, acting as receiver of said company in the state of its domicile, any right to the fund in question ?
(2). Should the funds realized from said deposit of $50,000 be applied primarily to the payment of the liability in favor of the Ohio policy holders, or should it be applied to the payment of the liability of all policy holders, irrespective of where they may reside ?

The deposit in question was required by See. 9510 G. C., and the provisions of said section, in so far as they are pertinent to the questions in issue, are as follows:

“A company may be organized or admitted under this chapter to * * * guarantee the performance of contracts other than insurance policies, and execute and guarantee bonds and undertakings required or permitted in all actions or proceedings, or by law allowed; make insurance to indemnify employers against loss or damage for personal injury or death resulting from accidents to employees or persons other than employees and to indemnify persons and corporations other than employers against loss or damage for personal injury or death resulting from accidents to other persons or corporations. But a company of another state, territory, district or county admitted to transact the business of indemnifying employers and others, in addition to any other deposit required by other laws of this state, shall deposit with the superintendent of insurance for the benefit and security óf all its policy holders, fifty thousand dollars in bonds of the United States or of the state of Ohio, or of a county, township, city or other municipality in this state, which shall not be received by the superintendent at a rate above their par value. The securities so deposited may be exchanged from time to time for other securities. So long as such company continues solvent and complies with the laws of this state it shall be permitted by the superintendent to collect the interest on such deposits.”

Sections 641, 642 and 643 G. C. define the procedure which shall be had in case of the insolvency of the company making the deposit. These sections are as follows:

“Section 641. If any company, corporation, or association required by law to make a deposit with the superintendent of insurance, or other state officer, to secure the contracts of such company, corporation or association, or for any other purpose, fails to pay any of its liabilities upon such contracts, or other obligations, according to the terms thereof after the liability thereon has been determined, or if such company, corporation, or association, having ceased to do business within this state, leaves unpaid any such liability or has become insolvent, the attorney-general of the state, on behalf of the superintendent of insurance, or such other officer, and upon the application of any person entitled to participate in such deposit, or the proceeds arising therefrom, shall commence a civil action in t>.« court of common pleas of Franklin county, making the cor >any, corporation, or association, a party defendant, to determine the rights of all parties claiming any interest in such deposit, to subject the deposit to the payment or satisfaction of all liabilities and to distribute such fund among the persons entitled, thereto.
‘ ‘ Section 642. Upon the filing of the petition in such case, the superintendent of insurance, or other officer, shall cause to be published for six consecutive weeks in three papers of general circulation within the state, one of which shall be published at the seat of government, a notice containing a succinct statement of the object and' prayer of the petition in such action, and the time within which persons claiming to have an interest in such fund shall be required to answer.
Section 643. The clerk of such court shall forward a copy of such notice tel the last known address of such company, corporation or association. The code of civil procedure shall govern such proceedings in so far as it is applicable, and upon the hearing of the cause, such order, judgment or decree shall be entered by the court as is deemed just and equitable. ’ ’

- Section 656 G. G. reads as follows:

“Section 656. When any insurance company or corpora-lion other than life, which has made a deposit with the superintendent of insurance, intends to discontinue its business in this state, the superintendent, upon application of such company or corporation, shall give notice at its expense of such intention at least once a week for six weeks in three newspaper's of general circulation in the state. After such publication, the superintendent shall deliver to such company or association its securities held by him, if he is satisfied by the affidavits of the principal officers of the company and on an examination made by him or by some competent, disinterested person or persons appointed by him, if he deems it necessary that all debts and liabilities which are due, or may become due, upon any contract or agreement made with any citizen or resident of the state of Ohio, are paid and extinguished.”

From a consideration- of the said statutes and the authorities, we think the law of this state is that the said fund so deposited should be administered by the superintendent of insurance of this state, under the direction of the court and should be distributed directly to the policy holders entitled to share therein.

The fact that the fund is claimed by an assignee or other representative of an insolvent corporation does not supersede the jurisdiction of the court to order the distribution made by the superintendent of insurance directly to the policy holders.

In the case of State v. Matthews, 64 Ohio St. 419 [60 N. E. 605], the syllabus is as follows:

“1. Where securities have been deposited with the superintendent of insurance, by an insurance company, to be held by such superintendent in trust for the benefit and protection of, and as security for, the policy holders of such company, the assignee of such company, under our insolvent laws, can not recover such securities from such superintendent without first showing that such company is no longer liable to any of its policy holders.
“2. It is the official duty of such superintendent, in the event that such company becomes insolvent, to act, and perform his trust, by distributing the funds so deposited with him, pro rata among the several policy holders, and when their just claims shall all be satisfied, to pay the balance, if any, to the company, or its assignee or other successor.” See also Falkenbach v. Patterson, 43 Ohio St. 359 [1 N. E. 757].

In view of the above decisions, we are clearly of the opinion that, as previously stated, the fund in question should be administered in the present proceedings, and should be distributed directly to the policy holders entitled thereto, and that the same should not be paid to the representative of the insurance company appointed in the state of Pennsylvania.

In regard to the claim of James L. Stewart, the policy holder residing in the state of Pennsylvania, we are of opinion that his failure to file his claim within the time fixed by the public notice of the superintendent of insurance does not bar a consideration of the merits of his claim.

We £hink the provision fixing the time for filing claims, merely fixes a “rule day” and that the same was subject to be opened up, in a proper’case, at the discretion of the court having jurisdiction in the ease, and under the rules of civil procedure. We do not think this provision was intended as a statute of limitation, but that it merely fixed a time when the court might proceed to the consideration of the claims and the distribution of the fund.

This brings us to the question as to whether the foreign policy holder is entitled to participate in the distribution of the «aid fund so deposited.

This court formerly had before it for consideration, in the case of Hogan v. Empire State Surety Co. (not reported), the question now presented. . In that ease this court stated:

“It is evident, howaver, that the deposit provided for in See. 9510 was intended to be held for the benefit of the policy holders whose rights grow out of contracts made and business transacted in the state of Ohio. ’ ’

We have carefully considered Secs. 9510, 641, 642, 648 and 656 G. C., as they existed at the time .the rights of the Ohio claimants to this fund accrued, and have also examined other sections of the statutes in pari materia with the sections above quoted, and after such consideration, we can not escape the conclusion that the said sections of our code, when read together, reflect in intention upon the part of the legislature to require said deposit to be held for the primary benefit of Ohio policy holders. Where the legislature provides for a deposit as a condition precedent to the right of a foreign corporation to do business within the state, we think the primary inference is that such deposit was required for the purpose of protecting the policy holders whose policies were issued within the state, and in order to extend the benefit of such deposit to the general policy holders of the company, we think the statute should clearly express such intention.

It is urged that the amendment of Sec. 9510 G. C., of date April 25, 1904, striking out the provisions as to the policy holders residing in this state and inserting the provision “for the benefit of all its policy holders, ’ ’ clearly shows an intention upon • the part of the legislature to extend the protection of the deposit to all. the policy holders of the company irrespective of the state wherein such policies may have been issued.

If Sec. 9510 G. C., was the only section to be considered, then there would be much force in this contention, but when all the statutes relating to such deposit, and the distribution or discontinuance of business are considered, then we think it does not appear that the legislature intended to extend the benefit of such deposit to policy holders generally.

Counsel for appellants call attention to the recommendations of certain administrative officers of the state, in favor of the amendments in question, to the various statutes under consideration. We are of opinion that such recommendations are not conclusive, but that the real intention of the legislature must be deduced from the various acts of the legislature relating to the deposit under consideration.

Entertaining these vieivs, the demurrer should be sustained.

Allread and Femeding, JJ., concur.


author: POLLOCK, J.

text:
    HUSBAND AND WIFE.
    [Jefferson (7th) Court of Appeals,
    December 20, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Francis B. Clutz v. Charles H. Hess, Exr.
    1. Husband Entitled to Recover for Services Rendered by his Wife.
    Sections 7995 to 7999 G. C., inclusive, do not deprive a husband of his common law right to maintain an action for the services of his wife, when such services were performed in furtherance of her husband’s business and in connection with her domestic duties, notwithstanding a third party had agreed to compensate her therefor, and especially, when by her conduct she waives her right to the compensation for such services as her separate property.
    2. Husband Bringing Action for Services of Wife Against Executor May Call Wife as Witness.
    Section 11495 G. C. does not prevent the husband, in an action to recover for services rendered by his wife, to which the adverse party defends as an executor, from calling his wife as a witness and introducing her testimony as to facts which occurred prior to the death of the testator.
    [Syllabus approved by the court.]
    Error.

      John D. Gardner, for the plaintiff in error.

      Mansfield & Merry man, for defendant in error.
   POLLOCK, J.

Francis B. Clutz brought an action in the court of common pleas of this county against Charles H. Hess, as executor of the estate of John A. Cunningham, to recover on an account which lie claims was due him from the estate. The case was tried in the court below, resulting in a verdict and judgment in favor of the plaintiff, and this action is prosecuted to reverse that judgment.

Clutz, the plaintiff below, is a married man, and the fourth item of the account reads:

“For wages due my wife, Crete Clutz, for services performed for John A. Cunningham at his special instance and request. ’ ’

All the errors complained of relate to this item of the account, and can be considered under two heads. First, could the plaintiff below maintain the action for the amount of the wages due for services performed by his wife? And, second, if he could, is she a competent witness in behalf of the plaintiff below?

In the fall of 1911 John A. Cunningham and Francis B. Clutz entered into a partnership to conduct a dairy on the farm of Cunningham, who lived in the village of Amsterdam, this county, the farm being some distance from that village. Cunningham was engaged in the banking business in that village. Just what each of the partners were required to do in furtherance of the partnership business, and how the business was conducted does not very distinctly appear from the record. Mrs. Clutz is the only witness who testifies in regard to the partnership agreement, and the employment of herself, for which her husband is now claiming compensation. This partnership continued until the death of John Cunningham.

Mrs. Clutz testifies that in the fall of 1912 Cunningham was at the dairy, and she and he had a conversation, which she claims to have been as follows:

“We had about forty-five cows we were milking at that time. It was more work than I could do; Mr. Cunningham spoke that way it was more work than I could stand; that he would hire the girl if we would board her, which we agreed to do; if we boarded her, he would pay the wages. ’ ’

She testified that following this conversation Audrey Mason was employed at $3 per week; that she continued in this employment for a number of months, and when she left a sister of Mrs. Clutz was employed at the same amount per week. She testifies as to this employment as follows:

“They needed a hand and Mr. Cunningham was to pay the wages if we would board her. He said: ‘Is it satisfactory to you to do the cooking?’ I said: ‘Anything to help along with the work’; I was willing to do my share.”

The testimony further shows that these two girls during their employment worked in this dairy, milking cows, attending to the milk and such other work as was required about the dairy, and that they did some of the work of the house-keeping at the Clutz home. Mrs. Clutz testified that she, during the time that these girls were employed, worked in the dairy doing the same kind of work as they did.

We refer to this testimony, and the work which these girls did because of its reflection upon the employment of Mrs. Clutz. After the second girl left, Mrs. Clutz claims that then she was employed to do the work that these girls had severally been doing at the dairy. She testifies as follows:

“When Miss Clutz left, my sister-in-law, he wanted to get another girl. I said, ‘Mr. Cunningham,’ — I called him John, if he was satisfied ‘I will work for $3 a week and do her share of the work.’ He said he was willing for me to have the money if I could stand the work. It v;as satisfactory to Mr. Cunningham and his mother to have me do that. Of course, Mrs. Cunningham is dead now. ’ ’

This is the substance of the testimony in the record in regard to her employment. She testifies that after this arrangement stated above she continued to do the work that she had 1 een doing and also that which these two girls had done prior b) her employment, until the dissolution of the partnership.

The question now arises, can the husband recover the wages due from this estate for the services performed under this agreement by his wife ? It is urged that she was working there with her husband, and doing such work as a woman ordinarily would do for her husband, under similar circumstances in a dairy or on a farm, and we may concede that that is correct. But this was not the dairy of Clutz, but the work was performed in the dairy of Cunningham and Clutz. These girls and Mrs. Clutz were employed because the dairy needed additional help aside from that of the husband, and the arrangement between the partners was that Cunningham was to pay the wages and Clutz to board the girls.

Under the common law the husband had the sole right to recover for the services of his wife, but that rule has been changed by the provisions of Secs. 7995 to 7999 G. C., inclusive; and under the provisions of these sections the Supreme Court of this state in the case of Bechtol v. Ewing, Admr. 89 Ohio St. 53 [105 N. E. 72], recognized the right of the wife to recover for ¡ her services performed under a contract with a third person. It must be conceded that under the principle announced by the Supreme Court in this case, Mrs. Clutz could have recovered in an action in her own name for these services. The question remains whether she has the sole and only right to recover.

Under the provision of Sec. 7995 G. C., the husband and wife contract toward each other obligations of mutual respect, fidelity and support.

The following section provides that the husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.

Then by Sec. 7997 the husband must support himself, his wife and his minor children out of his property or by his labor. If he is unable to do so the wife must assist him so far as she is able.

As noted in the opinion in the case of Baltimore & O. Ry. v. Glenn, 66 Ohio St. 395 [64 N. E. 438], there is little change from the common law rule of the relation of husband and wife so far in the statute.

Then follows Sec. 7998, which provides that neither husband nor wife have any interest in the property of the other, except as mentioned in the next preceding section, etc.; and the following section provides:

“A husband and wife may enter into any engagement or transaction * * * with any other person, which either might do if unmarried. ’ ’

The Supreme Court in the case of Baltimore & O. Ry. v. Glenn, supra, held that the sections just referred to did not abridge or affect the right of the husband to recover against one who wrongfully or negligently injures his- wife, for loss of her services and for her necessary medical and other expenses in healing her injuries.

Then the court said in the case of Bechtol v. Ewing, supra, that the wife could recover compensation for her services rendered outside of the home of her husband, when such services were not in the discharge of her household or domestic duties, and not in interference therewith.

Mrs. Clutz testified that the services she performed in the dairy did interfere with her domestic duties in the home; she says she neglected these duties in order to do the work in the dairy— at least to a certain extent. Prior to her contract with Cunningham Mrs. Clutz was performing, with some assistance from the girls employed, her domestic duties at home, and working the remainder of her time in the dairy with her husband. The only change that was made in the services which she rendered at the dairy after the contract with Cunningham was that in addition to the work which she had been doing previous to that time, she did the work which these girls had been doing.

In the opinion in the case of Bechtol v. Ewing, supra, Newman, Justice, refers to the New York statute in regard to the rights and liabilities of married women as being similar to the Ohio statute.

The court of appeals of New York in the case of Birbech v. Ackroyd, 74 N. Y. 356 [30 Am. Rep. 304], in construing their statute, say:

“The provision of the act of 1860, concerning the rights and liabilities of married women, which authorizes any married woman to perform any labor or services on her sole and separate account, does not wholly abrogate the rule of common law entitling the husband to the services and earnings of the wife; she may still allow him to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her own account, or of circumstances showing her intention to avail herself of the privilege conferred by the statute, the husband’s common law right is unaffected. Where, therefore, the husband and wife are living together and mutually engaged in providing for the support of themselves and their family, and there is nothing to indicate an intention on the part of the wife to separate her earnings, the husband may maintain an action in his own name to recover them. ’ ’

And in the opinion on page 359:

“The duty still rests upon the husband to maintain and support the wife and their children and it is not necessary, in order to give the wife protection intended by the statute to hold that, irrespective of her intention, her earnings, in all cases, belong to her and not to the husband, and the language of the act does not admit of this interpretation.”

Again this court, in the case of Porter v. Dunn, 131 N. Y. 314 [30 N. E. 122], announces the same principle in construing this statute.

The mere fact that the wife performs some service under a contract with a third person, by which he was to pay therefor, does not necessarily imply that the compensation was her own separate property, but she can devote her time and services while so employed to her husband, and allow him to receive the benefit of her labor.

If the labor is performed in the furtherance of the business in which the husband is engaged, and they are mutually engaged in laboring for their common benefit, the statute does not deprive the husband of his common law right to recover for the services of his wife, when she does not elect to avail herself of her right under the statute, but assists her husband in collecting the fruits of her services. If she acquiesces and assists her husband in his effort to recover the value of her services rendered in advancing the enterprise in which he is engaged, the debtor can not defend on the ground that the husband can not maintain the action.

Mrs. Clutz, both before and after this contract with Cunningham, was doing work in this dairy in connection with her household duties. She was working along with her husband and advancing the business in which he was engaged. There is no indication that she ever’ asserted or intended to assert any right to the benefit of these services as her separate property; the exact opposite appears from the record. She is here testifying in behalf of her husband, both to the contract and to the services •rendered.

We think that notwithstanding that the work for which recovery is sought was performed under a contract made by Mrs. Cltuz with Cunningham, the husband is not deprived by the statute of his common law right to recover the compensation due for the services of his wife.

The remaining question is, was the wife a competent witness on behalf of the plaintiff below ? Section 11495 of the General Code provides that a party shall not testify where the adverse party is an executor, etc., except as to facts which occurred after the appointment of the executor.

Mrs. Clutz was not a party to this action, and does not come under the direct provisions of this section. If she is prohibited from testifying on behalf of her husband it is under the following provision contained in the section:

“When a case is plainly within the reason and spirit of the next three preceding sections, though not within the strict letter, their principle shall be applied.”

The only question is, does she come within the reason and spirit of the section? If the husband could maintain this suit under his common law right for the services of his wife, she was not a necessary party, and he would not claim through any assignment or transfer from her to him, but through his own legal right to maintain the action under the circumstances already stated.

As was announced in the opinion in the case of Byan v. O’Connor, 41 Ohio St. 368, 372:

‘ ‘ He was, therefore, not a necessary party to the action, and the reason and spirit of the statute which excludes the testimony of a party when the adverse party claims or defends as heir of a deceased person, should not apply so as to exclude his testimony. ’ ’

A somewhat similar question was passed upon by our Supreme Court in the case of Shaub v. Smith, 50 Ohio St. 648 [35 N. E. 503]. And the court of appeals of New York, in construing their statute in a like case, held that the wife was a competent witness. Porter v. Dunn, supra,

Under these authorities we think the objection to the wife of Clutz testifying was not tenable. The judgment of the court below is affirmed.

Metcalfe and Farr, JJ,, concur.


author: ALLEEAD, J.

text:
    COURTS — DIVORCE AND ALIMONY.
    [Licking (5th) Court of Appeals,
    March Term, 1917.]
    Houck and Allread, JJ.
    Judge Airead of Second District Sitting by Designation.
    George Graff v. Louisa Graff.
    1. Court of Appeals Has Continuing Jurisdiction on Appeal of Alimony Case Appealed to Fortner Circuit Court

    The constitutional amendment creating the courts of appeals clothed them with jurisdiction, not only over active cases which were pending in the circuit courts on January 1, 1913, but also with any continuing jurisdiction which the said courts had over judgments theretofore rendered by them; and the fact that alimony oases are not now appealable in nowise affects the jurisdiction of a court of appeals over a case properly appealed to the circuit court and now coming on for consideration by the court of appeals as the successor of the circuit court.
    .2. Decrees in Alimony Case in Circuit Court Making Monthly Allowance to Wife Continues Jurisdiction in Appeals Court, Even Though Payments Were Division of Property.
    In an action to modify the allowance made to a divorced wife and in the absence of anything in the petition to indicate that the divorce was granted to the plaintiff on the aggression of the wife, the court is hound to assume that the allowance was in the nature of alimony and therefore subject to the continuing jurisdiction of the court, rather than that it was in the nature of a division of the property under the provisions of Sec. 11993 G. C. But regardless of whether the judgment was technically one for alimony or otherwise, the fact that it directed the payment of a specified amount per month to the wife during her life or until further order of court creates a continuing jurisdiction, which in the present case is now in the court of appeals.
    3. Alimony Payments not Abated by Death of Husband.
    An order for payment-of alimony to a divorced wife of a specified sum each month during her life or until further order of court, is not abated by the death of tho former husband.
    [Syllabus by the court.]

      Stasel & Cornell and Flory & Flory, for plaintiff.

      Kibler & Kibler, Fitzgibbon, Montgomery & Black and Phil. B. Smythe, for defendant.
   ALLEEAD, J.

Elizabeth Mary Graff, executrix of the last will and testament of George Graff, deceased, seeks by a petition filed in this court to vacate or modify a judgment rendered by the circuit court on appeal at the March term, 1900, ordering the plaintiff, George Graff, now deceased, to pay as alimony for the support of said Louisa Graff the sum of $25 per month during her natural life or until the further order of said court.

The defendant first objects to the jurisdiction of the court of appeals. It is contended that final judgment having been rendered in the circuit court when the amendment providing for the court of appeals became effective, that this court is without jurisdiction to disturb the original judgment.

The judicial amendment creating the court of appeals provides that:

“The court of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit court shall proceed to judgment and be determined by the respective courts of appeals, * * * and the circuit courts shall be merged into, and their work continued by, the court of appeals. ’ ’

The first clause treats of the work of the circuit court and the disposition of pending eases and proceedings, in the conjunctive. The new court was to continue the work of the circuit court as well as to dispose of pending cases.

The draftsman of this section, with a view evidently of securing a broad interpretation, added the second paragraph above quoted. By such paragraph the circuit courts were not in a legal sense abolished, but were merged into the courts of appeals. The courts of appeals, therefore, represents the circuit court not only as to active cases pending on January 1, 1913, but as to all jurisdiction which the circuit court had over judg ments theretofore entered.

This we think is the reasonable and natural interpretation of the terms employed in the constitutional amendment and is in line with the decision in the case of State v. Harmon, 87 Ohio St. 364 [101 N. E. 286]. The fact that alimony cases are not now appealable does not affect the jurisdiction of the court of appeals over a ease properly appealed to the circuit court and coming up for consideration by the court of appeal as successor of thecireuit court.

It is next contended that the judgment of the circuit court in 1900 was not one for alimony, but was for a division of the property under Sec. 11993 G. C., and, therefore, not subject to the continuing jurisdiction of the court in which the judgment was rendered. Counsel for defendant cite the case of Hassaurek v. Markbreit, Administrator, 68 Ohio St. 554 [67 N. E. 1066].

Counsel for plaintiff cite the case of Olney v. Watts, 43 Ohio St. 499 [3 N. E. 354], There will probably be no conflict between the Hassaurek ease and the case of Olney v. Watts when the exact judgment sought to be modified comes before the court. The case of Olney v. Watts was disposed of on demurrer to the petition, wherein it was alleged that the judgment was one for alimony and there was nothing in the petition to indicate that it was not a judgment for alimony. That is the condition of the present case when we consider only the petition. It does not appear in the petition that the divorce was granted to the plaintiff upon the aggression of the wife, and consequently the court will have to assume at this stage that the judgment is what the plaintiff claims, to-wit, a judgment for alimony and subject to the continuing jurisdiction of the court. Furthermore, the original judgment directing the payment of $25 per month to the defendant during her life or until the further order of the court, amounts, by implication, to a reservation of the jurisdiction of the court over the original judgment. Independent, therefore, of the question whether the judgment of 1900 was technically a judgment for alimony, the court would have continuing jurisdiction under the reservation in the entry.

It is next contended by the administratrix of the plaintiff that the fact of plaintiff’s death alone terminated the liability of his estate. "We can not, however, agree with that contention.

The former judgment expressly provides that the payments shall continue during the life of the defendant or until the further order of the court. Until, therefore, the administratrix obtains an order from the court modifying the former judgment, the liability of the estate to pay the amount provided for remains.

The court has, therefore, reached the opinion that the case should proceed to trial upon the evidence.

Houck, J., concurs.


author: POWELL, J.

text:
    VENDOR AND PURCHASER.
    [Licking (5th) Court of Appeals,
    March Term, 1916.]
    Powell, Houck and Shields, JJ.

      John L. Hughes et al. v. Samuel Forsythe et al.
    Purchaser not Entitled to Rents Belonging to Vendor at Time Rent Becomes Due.
    Rent payable in advance, which accrues after a contract for sale of the premises has been entered into but before the execution and delivery of the deed, belongs to the grantor and cannot be recovered from him by the grantee after consummation of the sale.

      S. L. James and Flory & Flory, for plaintiffs in error. Smythe & Smythe, for defendants in error.

      Motion. to certify overruled by the Supreme Court, Hughes v. Forsyth, 61 Bull. 229.

   POWELL, J.

The parties to this case stand in the same relative position in this court that they did in the court of common pleas. Plaintiffs filed their petition in the court of common pleas setting out that on January 14, 1909, they entered into a contract with the defendants in error for the purchase of certain real estate, which is described in the petition, by the terms of which they were to pay to the said defendants the sum of $12,500 for the land described, and that the. defendants were to convey the same to them on or before April 1, 1909, by a good and sufficient deed of general warranty, free from encumbrances, except as against a gas lease mentioned and described in said contract of purchase. The sum of $2,000 was paid at the time of the making of said contract, in January, 1909, and the balance of the purchase money to be paid was paid at the time of the delivery of the deed, which was April 1, 1909.

It is further alleged that by the terms of the gas and oil lease, which by the contract was to be conveyed to plaintiffs at the time the deed for said premises was to be delivered, the Columbus Natural Gas & Fuel Co. had obligated itself to pay, as rental for said farm, the sum of $200 per annum, in advance, payable semi-annually. The first payment, by the terms of said gas and oil lease, became due and payable in advance on March 3,1909, and which payment was in satisfaction of the rent under said gas and oil lease from March 3, 1909, to September 3, 1909; and it is then alleged that said sum, under the terms of said contract, and the deed from defendants to plaintiffs, was payable to the said plaintiffs, but in violation of the terms of said contract, the defendants, without authority of law, and without authority from the plaintiffs, and without their knowledge and consent, drew the sum of one hundred dollars from the said Columbus Natural Gas & Fuel Co., and converted the same to their own use, and refused to pay the same to these plaintiffs, and thereby kept an incumbrance upon said land, in violation of the covenants of warranty in their deed, from March 3, 1909, until September 3, 1909. By reason of the premises, they ask judgment against the defendants for said sum of $100, with interest from March 3, 1909.

A second cause of action is set out in the petition, in which it is alleged that a certain wire fence had been removed from the posts to which it was attached, and that the same was taken away by the defendants without the knowledge or consent of plaintiffs, and to. their damage in the sum of $20, for which they ask judgment.

A demurrer was filed to the amended petition on the ground that there was no cause of action stated in the first cause of action set forth in such amended petition, and that by reason of the insufficiency of said first cause of action, the court was without jurisdiction over the second cause of action, the amount not being sufficient to give jurisdiction to the common pleas court.

The question for determination is as to whether or not the defendants were entitled to receive as their own the installment of rent due on the gas lease March 3, 1909, a contract for the sale of the premises covered by said lease having been executed by them prior to that date, but the deed for which was not to be delivered until the first day of April following the date on which such installment of rent fell due. '

It is contended on the part of the plaintiffs that by the terms of the contract of sale entered into in January they became entitled to such rents; that otherwise it would be *a violation of the covenants of warranty contained in their deed, which was afterwards executed by said defendants on the 1st day of April, but which had been agreed to be executed in said contract of sale. The defendants claim that they are entitled to such rent because the same accrued before said contract of sale was consummated.

The payment of rent under this lease, as alleged in the amended petition, was in advance of the term during which the same accrued. An installment became due and payable on March 3, 1909, but the tcim for the accrual thereof extended from' March 3, 1909, to September 3, 1909. Defendants claim that because the same became due before the contract entered into by them with the plaintiffs for the sale of said land was to be carried into effect, such rent thereby became their property, and was not due and payable to the plaintiffs.

It is a general principle of law that rents are not apportionable as to time except by virtue of a contract to that effect, and that rents are the property of the owner of the reversion in the lands for which rent is due.

Under this rule, we think that until the contract was carried into effect the real estate was the property of the defendants, and that by reason of such rule, the rents falling due prior to the execution of such contract of sale were also the property of the said defendants. For this reason, the court is of the opinion that the demurrer to said first cause of action was well taken, and that there was no error on the part of the court in sustaining the same, and that the judgment of that court should be affirmed.

The first cause of action having failed for want of sufficient averments, it follows that'the court was without jurisdiction over the second cause of action; and the judgment of the court of common pleas sustaining the demurrer to each of said causes of action will be affirmed.

Shields and Houck, JJ., concur.