text:
    REGULATION OF AUTOMOBILES.
    Court of Appeals for Cuyahoga County.
    Margaret Henry v. City of Cleveland.
    Decided, July 2, 1917.

      Vehicles Causing Injury—Invalid Features of Ordinance Stipulating What Driver Musi Do—Requirement as to His Identification Not Open to Objection—Notwithstanding in Giving the Information he Becomes a Witness Against Himself—Requirement Applicable Only to Driver Having Knowledge of Accident—Giving of Reasonable Assistance to the Injured Can Only be Required, When.

    An ordinance providing that the driver of a vehicle, which has been in collision with person or property upon any street or public place within the municipal limits, shall stop and give such reasonable assistance as can be given and upon request give the name and address of the owner of the vehicle, is invalid where pains and penalties are provided in case of violation, and there is a failure to limit its application to drivers who have knowingly- caused injury, or requirement is made that assistance be given without provision for compensation, or there is a failure to fix the standard as to what shall constitute reasonable assistance.

      Dawley, Ewing, Counts & Terrell, for plaintiff in error.

      Jas. L. Lind, contra.
   Lieghley, J.

Error to the municipal court.

For convenience the parties will be named in the order they stood below.

Margaret Henry, the defendant, was arrested upon an affidavit charging her with the violation of sub-section 27 of Ordinance No. 1341 in the following language: ‘ ‘ That she did unlawfully fail to stop and render such reasonable assistance as could be given after her said automobile had knocked down one Arthur Zipser.” The defendant was found guilty as charged and sentenced, from which judgment error is prosecuted to this court to reverse the same.

The language of said ordinance is as follows:

“In case of accident to or collision with person or property upon any of the public streets, parks or parkways of the city of Cleveland, due to the driving or operating thereon of any vehicle, the person so driving or operating’ such vehicle shall stop and give such reasonable assistance as can be given, and shall, upon request of the person injured or any other person, give such person his name and address, and, if not the owner, the name and address of the owner together with the registered number of such vehicle in case such vehicle is motor-proppelled.”

Many errors are assigned for review by defendant, but we shall confine our consideration to one only, the validity or invalidity of the ordinance under which this prosecution was had.

If the language of the ordinance required the driver of an automobile to do only such things or perform such acts as would tend to identification, we would have very little difficulty with this question. For identification is essential for the proper exercise and control of traffic. Statutes that require the driver of an automobile to stop when an accident occurs and give his name upon request, have been held constitutional. Commonwealth v. Horsfall, 213 Mass., 232. A statute of the state of California; the language of which was very similar to the language of this ordinance, was considered by the appellate court of that state in the case of People v. Diller, 142 Pac., 797. However, the question presented here was not considered directly by the court. The inquiry there was whether the requirement that the driver give to the injured person his name, etc., was obnoxious to Section 13, Article I of t]re Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself.

Likewise other cases were cited which dealt with kindred sub-., jects, but not the exact question here. Some of them were decided at a time when the automobile industry was in its ineipiency and proceeded upon the theory that the Legislature had the power to deny entirely the right of the automobile upon the public highways. That therefore any restrictions placed upon.. their use were lawful. At the present date, in view of the uni-.. versal use of the automobile, it will hardly be contended that the Legislature has now that power. At least, if exercised, it would fall somewhat short of popularity.

Attention is called, however, to the language of the ordinance, which reads, “shall stop and give such reasonable assistance as can be given.” What does that language mean? Does it mean aid the injured party to the curb stone? Does it mean convey him to a hospital, hiring a nurse, securing a doctor, paying the doctor’s bill? Does it mean render assistance at the point of accident or when taken away by the emergency ambulance at the hospital? It is apparent that different minds would reach different conclusions in respect to the meaning of that phrase. It at least does mean that it requires the driver of the machine to give his time to the injured party, whatever the- circumstances of the accident may have been. It will be noticed that no distinction is made between a driver who is blameless and one who may be solely at fault. It does not distinguish between one who knows or does not know that another has been injured. Some heedless individual may dash from a side street into the rear of a passing automobile and receive injuries’ entirely from his own carelessness and without the knowledge of the driver, yet if the driver does not stop and render such reasonable assistance as can be given, he is amenable to the provisions of this ordinance.

While the defendant was charged with a failure to stop and also with a failure to render such reasonable assistance, etc., the proof was directed more particularly to the failure in the latter respect. 'The ordinance does not provide for nor was she charged with knowingly doing either. It is claimed that this is error. ' ■

The law is well established that in cases such as violations of the food laws, the sale of skimmed milk and the sale of intoxicating liquors, etc., knowledge is presumed, but it will be observed that in all such cases the subject-matter about which some act is done by the defendant, is peculiarly within his knowledge and under his control, or the circumstances surrounding the transaction are such, as he is bound to know. One who removes journal brasses from a railroad ear is bound to know whether he has permission. If a public officer converts public funds in his hands as such officer to his own use, the act of taking sufficiently characterizes the intent. In this case the driver unfortunately in a collision may or may not know. The impact of a human being striking the side of a large motor truck or struck by the rear fender of such a vehicle, is so slight as to thereby render knowledge thereof improbable.

An act making it a crime to remove journal brasses or any attachments from the rolling stock of a railroad was judicially interpreted by the Supreme Court in the case of Kilbourne v. State of Ohio, 84 O. S., 247. The section of the statute made the removal a crime, and in the latter part of the section it was provided that whoever buys, receives or unlawfully has in his possession any of said articles shall be .punished. Knowledge was not made an element of the crime of receiving. It was a case where the purchaser may or may not know that the goods were stolen or removed from railroad property. Likewise in this case, the driver may or may not know that another was injured, for the acts charged to be eriminal.are subsequent to the point of time of inquiry. The fact of being in a collision is not made a crime, but the parties therein are left to solve their relative rights in a civil action. By this ordinance, however, the acts of a driver are made criminal without any reference to his responsibility in the matter. “Knowingly,” or words of equivalent meaning, are necessary words in this ordinance.

Next, the driver is required to perform service regardless of his culpability or non-culpability and regardless of the culpability or non-culpability of the injured.

In the case of the State v. Boone, 84 O. S., 347, an enactment requiring a physician or midwife in attendance upon a case of confinement to inquire and acquire certain statistics relating to the age and color or race, ligitimacy or illigitimacy of the child, etc., and report the same, was held invalid and an unnecessary, unreasonable and arbitrary exercise of the police power. Quoting from the opinion at page 359, the court says:

“We have thus briefly indicated the reasons for oúr belief, that the Great Charter of the Northwest Territory is still under, and above, and before, all laws or constitutions which have yet been made in the states which are parts of that territory; and that under its guaranties the state has not the right to draft a citizen into particular service without substantial compensation. At least, it is clear to us that the provisions of this statute which require a professional man to search out nón-professional information and certify it to state authorities, is unnecessary, unreasonable and arbitrary, and is not, therefore, a valid exercise of police power.”

An act making railroad companies liable for all expenses of the coroner and his inquest, and the burial of all persons who may die on its cars or who may be killed'by collision or other accident, was held unconstitutional and void in so far as the act attempted to make said companies liable in eases where they have violated no law or have been guilty of no negligence on their part. In the case of Ohio & Miss. Ry. Co. v. Lackey, 78 Ill., page 55, quoting from the opinion on page 57:

“It may, very pertinently, be asked, why this distinction? On what principle is it that railroad corporations, without any fault on their part, shall be compelled to pay charges which, in other cases, are borne by the property of the deceased, or, in default thereof, by the county in which the accident occurred?

“An examination of the section will show that no default or negligence of any kind need be established against the railroad company, but they are mulcted in heavy charges if, notwithstanding all their care and caution, a death should occur on one of their cars, no matter how caused, even if by the party’s own hand.”

In this case the time required to do the things exacted by the ordinance is property. The service required, whatever that may be, is property. Any expense incurred made necessary by the ordinance, whatever that may be, is property. We will all agree that if a driver, who knows of a party being injured,, stops and returns and renders assistance, he is performing a very commendable humanitarian act, but we are not called upon to pass upon that question. What constitutes a crime and whether or not the charge here meets the inhibition of the Constitution concerns us.

Further, it will be noticed, repeating, that the language of the ordinance is “give such reasonable assistance as can be given,” and that the ordinance sets no standard of what is reasonable assistance.

“Reasonableness” has been considered by courts in other states, but mostly in civil proceedings. In Chicago, Burlington & Quincy Ry. Co. v. People, 77 Ill., 443, and Chicago, Burlington & Quincy Ry. Co. v. Jones, 149 Ill., 361, what constitutes a reasonable rate was discussed. The same of Burlington, etc., Ry. Co. v. Dey, 82 Ia., 312. The statute or the railroad commission of the state for the most part fixed the standard, however. See 33 L. R. A., 209, and note.

The Supreme Court of Ohio considered in two eases a statute empowering a railroad to fix a reasonable rate for a haul less than thirty miles. It was held the question of reasonableness was a question of fact for the jury. Both were civil cases, and in neither was the constitutionality of the act made a subject of inquiry. Smith v. Ry. Co., 23 O. S., 10; Peters, Rocker & Co. v. Ry. Co., 43 O. S., 275.

The fact that it is a jury question, whereby one jury would declare a given set of facts reasonable, and another jury find the same set of facts a violation as unreasonable or falling short of reasonable, leaves the ordinance without- a standard. The individual does not know, and can not know, what in fact constitutes the crime—-not until the verdict of the jury is read.

In the further discussion of this subject we shall take the liberty to paraphrase the language of the court in the case of Louisville & Nashville Ry. Co. v. Commonwealth, 99 Ky., 132, at page 136. In this case the court had under consideration a statute which provided that if any railroad corporation shall charge, collect or receive more than a just and reasonable rate of toll, etc., it shall be guilty of extortion. In a discussion of the legal effect of this phrase “reasonable rate” this court adopts, in substance, the following language:

“That this statute leaves uncertain what shall be deemed a reasonable rate can not be denied, and that different juries might reach different conclusions on the same testimony as to whether or not an offense lias been committed, must also be conceded. The criminality of the driver’s act, therefore, depends on the jury’s view of the reasonableness of the assistance given; and this latter depends on many uncertain and complicated elements. Under this statute it is still a crime, though it can not be known to be such until after an investigation by a jury, and then only in that particular ease, as another jury may take a different view, and, holding the assistance reasonable, find the same act not to constitute an offense. 'There is no standard whatever fixed by the statute or attempted to be fixed by which the driver may regulate his conduct; and it seems clear to us to be utterly repugnant to our system of laws to punish a person for an act, the criminality of which depends, not on any standard erected by the law which may be known in advance, but on one erected by a jury. And especially so as that standard must be as variable and uncertain as the views of different juries may suggest, and as to which nothing can be known until after the commission of the crime.

“If the infliction of the penalties prescribed by this ordinance would not be the taking of property without due process of law and in violation of both state and federal Constitutions, we are not able to comprehend the force of our organic laws.”

Many authorities are cited by the court in this opinion in support of the absolute necessity of the ordinance fixing the standard of reasonableness, and establishes as settled law that in criminal proceedings it is an indispensable essential. This ease is cited in Leading Case Law, and is controlling on the subject.

We therefore have reached the conclusion that this ordinance is invalid for three reasons: First, that by reason of the acts aimed to be punished, it fails to use the word “knowingly,” or words of similar import. Second. That it drafts the time and services and perhaps money of a citizen without substantial compensation, whether he is to blame or blameless for the injury. Third. That the ordinance fixes no standard of what constitutes reasonable assistance—an indispensable requisite in criminal law.

The judgment of the court below is therefore reversed as being-contrary to law, and the defendant is discharged.

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


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    EMERGENCY ORDINANCES FAILING TO RECEIVE A TWO-THIRDS VOTE.
    Court of Appeals for Licking County.
    City of Newark v. James Richter.

    Decided, October Term, 1916.

      Municipal Corporations—(Emergency Ordinance Not Receiving a Two-Thirds Vote—Does Not Take Life and Become Effective as a General Ordinance After the Lapse of Thirty Days.

    An ordinance introduced as an emergency ordinance, but failing to receive the votes of two-thirds of the members of council, does not thereafter become a valid general ordinance upon expiration of thirty days after its passage, but is and remains without force or effect.

      Ralph Norpell, City Solicitor, and Fitzgibbon, Montgomery & Blade, for plaintiffs in error.

      Phil. B. Smythe, S. L. James and L. C. Russell, contra.

      Motion to require the Court of Appeals to certify its record, in this case overruled by the Supreme Court, February 13, 1917.

   Houck, J.

This is an error proceeding and comes into this court from the Common Pleas Court of Licking County, Ohio. The parties here stand in the reverse order from where they stood in the court-below. The petition of the plaintiff below is as follows:

“On the 28th day of March, 1916, and for a long time prior thereto, the plaintiff was a duly appointed, qualified and acting policeman of the city of Newark, Ohio.

“On the 28th day of February, 1916, certain members of the council of said city and the above named defendants unlawfully conspired together to unlawfully discharge certain members of the police force of said city and to defeat the provisions of the statutes of the state of Ohio relating to civil service, and unlawfully conspiring to defeat the operation of the statutes of Ohio relating to the referendum of ordinances, caused to be introduced for passage in the council of said city two certain-ordinances entitled, respectively, Ordinance No. 2570,' fixing the number and salary of the police department, and Ordinance No. 2569, repealing Ordinances Nos. 2135, 2196 and 2291, and portions of Ordinances Nos. 2171 and 2031. Said ordinances are hereto attached and made a part of this petition.

“Said ordinances were introduced as and purported to be emergency ordinances, but the plaintiff says that said ordinances did not receive the necessary number of votes to be legally passed, yet notwithstanding the same, defendants caused said ordinances to be published and thirty days after the passage thereof the above named defendants attempted to put said ordinances into effect.

“Plaintiff says that, relying upon the authority of said pretended ordinances, and without any charges of misconduct being filed against him, and contrary to the provisions of the law relating to the referendum of ordinances, said above named defendants have attempted to discharge plaintiff from his said position as policeman, and from that time hitherto have refused to permit him to perform the duties of his said office and have refused to pay him the salary due him as such policeman.

‘ ‘ Plaintiff says that said pretended ordinances are wholly unlawful and invalid and not effective in this, that although the same purport to be emergency ordinances the same did not receive a sufficient number of votes to be passed as such. That the same are not valid as general ordinances or ordinances other than emergency ordinances for the reason that under the law of Ohio all general ordinances are subject to referendum, but when declared to be emergency ordinances they are not subject to referendum.

“That the plaintiff has no adequate remedy at law.

“Wherefore, the plaintiff prays that said two pretended ordinances be declared unlawful, invalid and of no effect. That his pretended discharge as such police officer be set aside and held for naught and that defendants be required to reinstate him as such officer and be enjoined and restrained from interfering with him in the proper performance of his duties as such officer, and he prays for all proper relief.”

The defendant filed the following answer:

‘ ‘ Now comes the defendants and for their answer herein says that they admit that plaintiff was on the 28th day of March, 1916, duly appointed, qualified and acting police officer of the city of Newark, Ohio. That said defendants deny each and every other allegation contained in said petition.

“Further answering said defendants say that on the 28th day of February, 1916, the council of said city of Newark, state of Ohio, duly passed an ordinance by the terms of which the number of authorized patrolmen of said city was reduced from sixteen to eleven; that said ordinance was in full force and effect March 30th, 1916, and still is in full force and effect; that when said ordinance went into effect there were fourteen patrolmen in the service of said city.

“On the 20th day of March, 1916, in order to comply with said ordinances the services of three patrolmen, to-wit, Martin L. Shively, the plaintiff, James Richter, and John Jones were dispensed with in accordance with the civil service law of the state of Ohio, said three men having at that time been the most recently appointed policemen on the police force of said city.

“■Wherefore, said defendants pray that said petition be dismissed at costs of plaintiff and for all proper relief, to which said answering defendants are entitled to in law and equity.”

Upon these pleadings and the evidence the cause was submitted to the trial judge, who found for the plaintiff below, the defendant in error. Error is prosecuted to this court, seeking a reversal of the judgment below, and while a number of alleged errors are complained of, as set forth in the petition in error, yet counsel for plaintiff in error in oral argument urged but one ground of error, namely, that the judgment is against the evidence and is contrary to law.

From an examination of the record in this ease we are of the opinion that only one question is presented for decision by this court, which will determine the proper solution of the questions raised by the issues made in the pleadings and the evidence offered in the cause, namely: Was the ordinance in question properly and legally passed by the city council of Newark, Ohio?

Section 4 of said ordinance provided as follows:

“That this ordinance is hereby declared to be an emergency ordinance for the reason that the amount of money collectible for use in the year 1916 for the department of public safety is insufficient to pay the salaries and expenses of said department on its present basis.”

It is admitted by the parties to this controversy and as a matter of fact the testimony also shows that the city council of the city of Newark consisted of nine members and that the ordinance in question on final passage received five votes for its passage and four against it.

The evidence also shows as contained in Journal No. 16 of the minutes kept by the city clerk of the city of Newark, as to proceedings had when said ordinance was on its final passage as follows:

“By Alexander, Curry, Adams.

‘ ‘ Fixing the number and salaries of the members of the police department.

' ’ On motion of Alexander, seconded by Curry, that the rules be suspended and the ordinance passed on second and third reading and final passage was lost by the following vote: Yeas: Adams, Alexander, Curry, Keyes, Knauber, five; nays: Seward, Shirer, Stasel, three.”

The ordinance under consideration was an emergency ordinance and was introduced as such, and in order that it be legally passed it was necessary for it to receive upon a yea and nay vote two-thirds of all members elected to the city council, which is not the ease here, there being nine members of the city council, and the ordinance on final passage received five votes for and four against it and therefore the minutes of the city clerk properly show that it was lost.

The minutes further show at the regular meeting on February 21st, 1916:

“Ordinance No. 2570.

“By Alexander, Curry, Adams.

“Fixing the number and salaries of the members of the police department.

“Note—Vote was taken by the council that is on page 227.”

The minutes further show that at a special meeting held on February 28, 1916, regularly called, all members notified under sworn statement for the purpose of transacting general business. Ordinance on third reading:

“Ordinance No. 2570.

“By Alexander, Adams, Curry.

“Fixing the number and salaries of the members of the police department.

‘ ‘ On motion of Adams, seconded by Curry, the ordinance was passed by the following vote: yeas, Adams, Alexander, Curry, Keyes, Knauber, five; nays, Beadle, Seward, Shirer, Stasel, four.

“Passed by a majority vote, five to four.”

But it is contended by counsel for plaintiffs in error that.it could and did become a valid ordinance as a general ordinance after thirty days from the time it was filed with the mayor of said city, notwithstanding the fact that as an emergency ordinance it only received five votes on final passage.

"We do not think this claim is sound because the ordinance was introduced as and for an emergency ordinance and it does not seem to us proper or reasonable to claim that after it failed to pass, under favor of the statute as an emergency ordinance, that it then could take life and become effective under the statute as a general ordinance. To us this appears to be a clear evasion of the plain provisions of Sections 4227-2 and 4227-3 of the General Code, as found in supplement No. 2 of Page & Adams General Code of Ohio.

It is strongly urged by counsel for plaintiff in error that the decision in the case of County of Miami et al v. State of Ohio, ex rel Duncan, Prosecuting Attorney, 92 Ohio State, page 215, is decisive of the case at bar.

We can not agree with learned counsel in their claim in this respect. We have examined the opinion in the ease cited by counsel and hold that the doctrine laid down in that case is not applicable to the case at bar for the reason that the mode and manner necessary for the enactment of a measure into a law by the Legislature of Ohio is entirely and wholly different from the proceedings necessary to pass an ordinance by a city council.

In view of what we have already said and upon an examination of the entire record in this case we find no error in the record prejudicial to the rights of the plaintiffs in error, and therefore hold that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

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


author: Powell, J.

text:
    VALIDITY OF THE NEW LAW OF LIBEL.
    Court of Appeals for Franklin County.
    Samuel Heimlich v. The Dispatch Printing Company.

    Decided, July 18, 1917.

      'Constitutional Law—Ohio Statutes Modifying the Rule as to Liability for Libel—Not in Contravention of any Constitutional Provision— Publication of Court Documents and Proceedings Privileged.

    Sections 11348-1 and 11343-2, making privileged a fair and impartial report of proceedings before state or municipal boards or officers, or of the return of an indictment or issuance of a warrant, are not in such conflict with either the federal or state Constitution as to render them void when applied to the publication of the contents of an affidavit filed in a criminal action then pending in a court of competent jurisdiction.

      J. L. Stern, for plaintiff in error.

      Bennett & Westfall, contra.
    Heard by Judges Shields, Powell and Houck of the Fifth District, sitting in place of Judges Allread, Ferneding and Kunkle of the Second District.

       Affirming Heimlich v. Dispatch. Printing Co., 17 N.P.(N.S.), 161.

   Powell, J.

This is an action for the recovery of damages for an alleged libel published by the defendant of the plaintiff.

Three separate causes of action are set forth in the petition for three separate publications made on different days, all of which are charged to be libelous. Plaintiff claims damages in the sum of $100,000.

By its amended answer the defendant makes four separate defenses :

1. It admits its corporate capacity and that it published a daily newspaper known as “The Columbus Evening Dispatch”; it admits the publication of the articles complained of and makes some other minor admissions, and denies each and every allegation set forth in the petition and not admitted by said amended answer to be true. The admissions made practically leave only the question of damages to the plaintiff as the issue.

2. Defendant claims the publications made and on which the action is founded are fair and impartial reports of certain judicial proceedings in the police court of the city of Columbus, Ohio, in a cause entitled “State of Ohio vs Samuel Heimlich,” and of'an official investigation then being made by and before the Governor, the Secretary of State and the Attorney-General; that said publications were made in good faith and without malice toward plaintiff, who never made any demand or request that a retraction be made.

Wherefore it is claimed that said publications were privileged.

3. The third defense is the same as the second above set forth, excepting only that it belongs to and is made a defense to the second cause of action, while the second defense above set forth is a defense to the first cause of action only.

4. The fourth defense is a defense to the third cause of action only and pleads the same matter as the said second defense, save that the three publications were on different days, which are set out; and it is alleged that they were made without malice and without information on the part of the defendant that the same were not true.

A demurrer was filed to the second, third and fourth defenses of said amended answer and the same were overruled. A motion to strike out was also made and overruled. A reply was then filed denying that said publications, or any part of them, were fair and impartial reports of any police reports in the city of Columbus, or of any investigations that were being made by said officers; denies the good faith of the defendant in making said publications, and denies that defendant was without information that the same were not true or that defendant had reasonable grounds for believing that plaintiff was guilty of perjury, or that any of the matters set forth in said publications were true; and denies that said publications were made without malice. The same reply, in substance; is made to the second, -third and fourth defenses.

Upon the issues thus made trial was had, resulting in a verdict for defendant on each of said three causes of action. A verdict for the defendant was directed by the court on the third cause of action, while the verdict for the first and second causes of action was returned upon the submission of said causes to the jury.

A motion for a new trial was made and overruled, and a ■ bill of exceptions was taken showing all of the evidence and the charge of the court, as well as all other questions of admission of evidence or otherwise, made on such trial, and the ruling of the court thereon, and the ease was brought to this court on error for a review of the judgment below.

The issues, while somewhat complicated, can be simply stated as follows:

Plaintiff claims that certain publications made of him by the defendant were libelous per se and asks damages.

The defendant denies malice on its part in making such publications and sets out such facts from which it claims that the publications complained of were privileged..

Plaintiff by reply denies the want of malice on the part of defendant and denies that said publications, or any of them, were privileged.

The claim of privilege on the part of the defendant is based on Sections 11343-1 and 11343-2, General Code, and defendant’s whole case depends practically on the construction and validity of said statutes.

The plaintiff contends that' said sections, and each of them, are in conflict with both the federal and state Constitutions and therefore furnish no defense to said defendant.

Upon these respective theories the case is presented to us upon eighteen assignments of error, each of which is ably argued in the briefs filed by plaintiff in error and all of which, together with the entire record, we have examined with care with reference to each and every assignment of error made. Upon such examination of the record and briefs of counsel, both of plaintiff in error and defendant in error, we have arrived at the conclusion that the judgment of the court of common pleas should be affirmed. There is no such manifest error shown by the record as would justify a reversal of said judgment.

Without entering into a discussion of the merits of the case we think that Sections 11343-1 and 11343-2 of the General Code are not in such conflict with either the federal or state Constitution as to render them, or either of them, invalid or void as applied to such a case as shown by the record herein; and that the case was fairly submitted to the jury upon the evidence offered that was pertinent and material, and the law, as we find it to be, and the verdict of the jury as returned is not against the evidence or the weight of the evidence and is not contrary to law. We do not say there were no errors made on the trial of the ease, but we do say that in our opinion, there were none that were sufficiently prejudicial to the plaintiff in error to justify us, as a reviewing court, in reversing said judgment, and we content ourselves with the simple statement of the conclusions reached without attempting to add anything to what has been said by counsel in their briefs and in the published opinion of the trial court. 17 N.P.(N.S.), 161.

It follows that the judgment of said court should be affirmed.

Judgment affirmed.

Shields, J., and Houck, J., concur.


author: Chittenden, J. Kinkade, J. Chittenden, J. Kinkade, J.

text:
    BREACH OF CONTRACT TO GIVE EMPLOYMENT TO PURCHASER. OF CORPORATE STOCK.
    Court of Appeals for Lucas County.
    H. W. Buschmeyer v. The Advance Machinery Company.

    Decided, July 10, 1916.

      Contracts—Intention of Parties to Written Agreement—Determined iy Evidence as to Surrounding Circumstances—Stock Purchased in a Going Concern on Condition of. Being Given Employment—Remedy of Purchaser Upon Termination of Employment.

    1. While the terms of a written contract may not be varied or altered
    by parol evidence, evidence may be introduced-to show the surrounding circumstances at the time of making the contract, the situation of the parties, .its subject-matter, and the purpose of its execution, to enable the court to better determine the intention of the parties and the meaning of the terms they used.
    2. Where stock in a corporation in being and at the time operating
    its manufactory is purchased only because of an agreement to employ the purchaser, and the corporation is guilty of a breach of the contract to give employment, the purchaser may treat the contract • as terminated and rescind it and pursue the.remedy to which such rescission entitles him. . '

      Smith, Beckwith & Ohlinger, for plaintiff in error.

      Tracy, Chapman & Welles and E. W. Kelsey, contra.

      Motion for order directing Court of Appeals to certify its record in this case overruled November 21, 1916

   Chittenden, J.

Error to the court of common pleas.

This action was brought in the common pleas court and was based upon the rescission of a contract involving the purchase of sixty, shares of the capital stock of the defendant company. The prayer was for the recovery of the amount paid for such stock. There was included in this action a claim for some unpaid salary and an amount claimed to be due for salary, representing the difference between the amount that had' been- paid to the plaintiff under the terms of his employment, and what he alleges to be the reasonable value of sueb services. This latter feature of the action is not of great importance in disposing of the ease.

Upon the trial, at the conclusion of the plaintiff’s evidence, the court directed the jury to return a verdict in favor of the defendant, which was accordingly done and judgment was entered upon such verdict. The principal question presented upon the error proceedings is whether the court was right in directing á verdict in favor of the defendant. A disposition of the ease calls for a construction of the written contract entered into by and between the plaintiff and the defendant. This contract is as follows :

“Toledo, Ohio, October 28, 1914.

“Mr. H. W. Buschmeyer,

“Chicago, 111.

“Dear Sir:

“You are to start in about November 9th, 1914.

“You are to be a director and to be elected treasurer at the earliest possible moment, consistent with our by-laws.

‘ ‘ For the first month your salary is to be $.100. For the balance of the year, not less than $110 per month.

“Thereafter your salary shall be arranged by the board of directors but shall be increased to $150 per month as soon as you can relieve Miss Gill and Mr. Gaughen of their work and handle it with the help of Mr. A. B. Taggart.

“You are to buy at par six thousand dollars ($6,000) worth of the stock of the Advance Machinery Company, five thousand dollars of which is to be turned over to the Advance Machinery Company, the balance, one thousand dollars ($1,000) to be turned over to Miss Gill.

‘ ‘ The above stock to be surrendered by P. P. Hunter $2,500 and J. A. Taggart $3,500..

“Yours very truly,

“The Advance Machinery Co.,

“Per J. A. Taggart, Pres.

‘ ‘ Accepted. ’ ’

It is urged in the first place that certain evidence sought to be introduced is incompetent because of the rule that the terms of a written contract may not be varied by parol evidence. This rule is elementary, but its application does not preclude the application of another fundamental rule for the construction of contracts, namely, that the court shall view such contract as nearly as possible from the standpoint of the parties to such contract, .so that the intention of the parties may be more clearly obtained from the words of the written instrument. The importance and purpose of this rule are well stated by Judge Sanborn in Kauffman v. Raeder, 108 Fed., 171, 175, where he says:

“It will be conducive to brevity and perspicuity to obtain a clear idea of the relations of the parties to the agreement to be considered, their respective covenants therein, and the moving consideration which induced them .to make their stipulations, before entering upon the discussion of this issue. This conception must be secured by the light of the fundamental rule that the situation of the parties when the contract was made, its subject-matter, and the purpose of its execution are material to determine the intention of the parties and the meaning of the terms they used, and that when these are ascertained they must prevail over the dry words of the stipulations.”

Or, as is said by the Supreme Court in Bank v. Cole, 83 O. S., 50:

“® ® * 'The surrounding circumstances may be proven not to contradict or vary the terms of the writing but to enable the court to put itself in the place of the parties the better to understand the terms employed in the writing and to arrive at the mutual intention of the parties.”

Cases might be cited in support of this proposition from all the states in the Union and the federal courts. . We. will add only the following citations: Carnig v. Carr, 167 Mass., 544, 547; Rock Island, Ry. Co. v. Rio Grande R. F., 143 U. S., 596, 609; Cambria Iron Co. v. Keynes et al, 56 O. S., 561, 513.

Evidence was sought to be introduced tending to show the relations of the parties just prior to and at the time of entering into the above contract, and conversations had between the president of the company and the plaintiff, for the purpose of enabling the court to ascertain the intentions of the parties in the execution of this instrument. Some of this evidence was ex-eluded and we think its exclusion was error, but such errors were very largely, i£ not entirely, cured by the fact that the court afterwards admitted substantially all the evidence that was sought to be .introduced upon the subject. The evidence shows substantially the following facts:

The plaintiff at the time of entering into this contract was about fifty years of age. He was born in the city of Chicago and had lived there all his life up until about November, 1914, when he moved with his family to Toledo. Pie was a bookkeeper by profession and had during all his life occupied office positions. For about fourteen years, namely, from 1899 to 1918, he had been bookkeeper for a large manufacturing company. During the last six or seven years of that time he had also held the position of secretary of that company, and for the last eight years had been head bookkeeper. He had been out of employment approximately a year when he observed an advertisement of the defendant company in a Chicago paper, which he answered. As a-result thereof he came to the city of Toledo and had a conference with the president of the defendant company, which finally resulted in the execution of the contract above quoted. Pursuant to this contract he came to Toledo on about the 8th of November, 1914, and he was on. the following day elected acting treasurer for the company. 'The minutes of the meeting of the directors of November 9th contain the following paragraph:

"It was moved by James Taggart and seconded by E. N. Gill that Mr. Buschmeyer be appointed acting treasurer to hold such office for the balance of the year at the end of which he is to be elected treasurer of the company in accordance with the contract under which he invested in the company.”

„ Mr. Buschmeyer entered upon the performance of his duties and sixty shares of the capital stock of the company were issued to him'in accordance with the terms of the contract, for which he paid six thousand dollars. On the 19th day of January, ' 1915, at the annual meeting of the company, Mr. Buschmeyer was "elected treasurer for the ensuing year,” as shown by the minutes of that meeting. He continued in the perform; anee of his duties and, as he claims, assumed the duties of Miss. Gill and Mr. Gaughen as contemplated by the contract.

At a meeting of the board of directors on June 28, 1915, one J. S. Clark was employed to perform all the duties that had theretofore devolved upon the plaintiff, and it was ordered that the plaintiff’s salary should cease on and after June 30th. The plaintiff refused to concur in this action of the board of directors. At or about the same time the president of the company informed the plaintiff that his connection with the company would cease on and after July 1, 1915. Plaintiff continued his services until the evening of June 30, 1915, and thereafter presented himself at the office of the company and offered to continue the performance of his work, but he was not permitted to do so. On July 13, 1915, the plaintiff wrote the defendant advising them in effect that he considered their action a repudiation of his contract and he returned, therefore, to the defendant with his letter the certificates of stock representing the sixty shares that had been issued to him, together with his resignation as director and treasurer of the company, and demanded of the defendant that they repay to him his six thousand dollars which he had paid for the stock. The defendant at a special meeting of its board of directors on July 20th, accepted the resignation of the plaintiff but declined to accept the return of the stock, and returned the certificates to the plaintiff with a refusal to repay the six thousand dollars or any part thereof. Subsequent proceedings with reference to the stock are not material. Thereafter in August this suit was begun.

Reverting for a moment to the conversations between the plaintiff and the president of the defendant prior to the execution of the contract, it is found that at those conferences the plaintiff related to the president of the company his previous business experience and advised him that he was at that time out of employment; that he had accumulated some capital from the savings from his salary; and that he was desirous of investing in some company, but only upon condition that he would be given employment that would enable him to make a livelihood, and that his employment should be in such a position as would permit him to watch his investment and have an opportunity to make a success of the business. The language of the plaintiff as shown in the bill of exceptions is as follows:

‘ ‘ I said that I would not make any investment in the company unless it was understood that I would permanently be connected with the company and in such a position where I could watch my investment and have an opportunity to make a success of the business.”

'This condition seemed to be entirely satisfactory to the president of the company. The evidence shows that at this conversation the plaintiff was informed that the stock had never paid a dividend. It will be observed that the written contract is silent as to the length of time the employment was to continue. It only states when the employment was to begin, namely, on or about November 9, 1914.

We think it entirely clear from the facts as above related that the plaintiff was not a capitalist who was seeking a profitable investment in the capital stock of a corporation, but that he was a professional office man who had reached an age where it is common knowledge it is not easy to obtain employment in competition with equally capable younger men; and that he was willing to purchase with his savings stock in a company which would insure him employment that would enable him to earn a reasonable salary, and where at the same time he might watch the investment of his savings. We conclude, therefore, that the clause of the contract providing for his employment at the salaries named in the contract was the most important and vital provision in the contract, so far as the plaintiff was concerned, and that the purchase of the stock would not have been made except for such agreement for employment; that the purchase of the stock was so dependent upon the agreement to employ that they become dependent provisions of an entire contract; and that a breach of the agreement for employment would be the breach of such an important member of the contract as to go to the root of the contract and amount to a discharge of the same if so treated by the other party thereto. We think that where there is such a breach of a material and vital condition of a contract the other party thereto may either treat the contract as terminated and rescind it and pursue the remedy that such rescission entitles him to, or he may sue for damages for a breach of the contract. Page on Contracts, Sections 1569, 1596 to 1599; Wellston Coal Co. v. Franklin Paper Co., 57 O. S., 182.

Acting upon this right of rescission the plaintiff asks recovery for the amount paid for the capital stock, after having made tender of the certificates. It remains to be determined whether the evidence tends to show such a breach of the contract on the part of the defendant as justifies a rescission on the part of the plaintiff. The defendant by its answer alleges that the plaintiff was incompetent and incapable of performing the duties that he undertook to perform. The record, however, is silent upon the claims of the defendant in this respect for the reason that it never became necessary, in view of the action of the court, for the defendant to introduce any evidence. The evidence on behalf of the plaintiff tends to show that he was capable and was performing all the duties that had devolved upon him as treasurer and director of the defendant company, and that his discharge was without any fault or failure upon his part to properly perform such duties.

It is contended that the term of employment being indefinite in character the defendant might rightfully discharge the plaintiff at any time. As has been stated, the written contract is silent as to the duration of the employment, but on the trial the plaintiff offered competent evidence tending to show that it was contemplated by both parties to the contract that the employment was to be permanent in character. It does not become necessary in disposing of the case to determine the exact meaning of that term. It at least must mean that the employment was to be for a reasonable length of time. The plaintiff had invested a large amount of money in the defendant company for the purpose of securing such employment. He removed with his family from the city where they had always theretofore lived, to a strange city, and it must be held that the parties contemplated more than a mere temporary employment.

He was to be elected a director and treasurer of the company, the latter office carrying with it the duty of taking charge of all the books of the company. The by-laws of the company provided that such office was to be for the term of a year. The board of directors in electing the plaintiff acting treasurer on November 9, 1914, set forth that he was, at the annual meeting, to be elected treasurer “in accordance with the contract under which he invested in the company,” and on January 19, 1915, he was elected treasurer “for the ensuing year.” These facts show an interpretation put upon the contract by the defendant to the effect that a reasonable time would be not less than one year from-January 19, 1915, the date of the annual meeting, and we hold that he could not be discharged, except for cause, before January 19, 1916. The contract, so far as the plaintiff was concerned, had been fully performed on his part up to the time of his discharge, as shown by the bill of exceptions. He had paid in the money required of him to be paid and had proceeded in the discharge of his duties. When a contract has been executed on one side the law will not permit the injustice of the other party retaining the benefit without fully performing the obligations upon his part to be performed. We find no such indefiniteness in the contract as presents .an insuperable difficulty in adjusting the rights of the parties. Silver v. Graves, 210 Mass., 26, 30; Wellston Coal Co. v. Franklin Paper Co., 57 O. S., 82.

It is claimed by defendant in error that the decision of the common pleas court is in accord with the case of Stunt v. The Newark Weldless Tube & Steel Company, 22 C. C., 120, affirmed, without opinion, 67 O. S., 555. What the facts before the court in that case were is not made entirely clear by the opinion of the court, but it seems quite certain from the statement of the court, and their discussion, and from the cases cited as .the authority upon which they rested the decision in the case, that the capital stock involved in that action was what might be denominated initiatory or organization stock. The rule as to such stock is, without exception, we think, that it is against public policy and fair dealing among the subscribers thereto to permit any condition to be attached to the subscription. However, the court found under the facts in that case that the condition of employment was a separate and distinct stipulation in the contract of subscription, and that the subscription was not dependent thereon, and the breach of such a stipulation would give rise only to an action for damages. We find under the facts in this case that the transaction between the plaintiff and the defendant was not a subscription to organization stock containing a stipulation, but that it was a conditional sale of stock by a corporation in being and at the time owning and operating its manufacturing plant, and that upon a breach of the condition which we find to be material and vital, the plaintiff might rescind and maintain an action to recover the price paid.

The court excluded evidence as to the expense incurred by the plaintiff in removing from Chicago to Toledo. We think that this was purely an item of damage arising out of the breach of the contract, and this action is distinctly asserted by the plaintiff not to be founded upon damage but upon reeission and the right to recover the amount paid for the stock under the contract. We think the court was not in error in excluding this evidence, nor in excluding evidence as to the difference between the amount paid for salary in accordance with the action of the board of directors and the amount which plaintiff asserts such services to be worth.

We find that the court was in error in directing a verdict in favor of the defendant, for the reasons hereinbefore stated, and the judgment will be reversed and the cause remanded for new trial.

Richards, J., concurs.

Kinkade, J.

I concur in the judgment of reversal. The written contract between the parties being entirely silent as to the duration of the employment, the law will write into the contract the omitted member, to-wit, that the employment was for a reasonable time, and what constitutes a reasonable time is a question of law for the court when the facts are admitted or when they are found by the jury from the evidence. It is competent for the parties to a contract of employment which is entirely silent as to the duration of the employment to establish by evidence the facts and circumstances incident to the making of the contract, with the omitted member as stated, in order that the court may determine-from the contract and the facts associated with the making thereof,. what constitutes a reasonable time.

On Application for Rehearing.

Chittenden, J.

The application for a rehearing assumes that the court imported into the written contract between the parties a new term derived from the parol evidence. One phrase in the main opinion may have been so worded as to give that impression, and that phrase has been corrected so as to avoid any such misconstruction of its meaning.

That the terms of a written contract can not be varied or contradicted by parol evidence is so elementary that no one would think of questioning it. When a contract of employment does not specify the time it is to remain in force evidence can not be introduced to show that it is to be continued for a specific time, •and, ordinarily, in a case of a simple contract of employment, it would be terminable at will. The contract between the parties to this action, however, is more than a simple contract of employment. Inseparably coupled with it was a purchase by the plaintiff of $6,000 of the capital stock of the defendant company. The facts surrounding the making of this contract were sufficiently reviewed in the opinion rendered on the decision of the ease. 'That a contract shall be construed in the light of surrounding circumstances is fully sustained by the authorities, some of which are cited in the opinion. We call attention, in addition to those authorities, to the ride as stated in 9 Encyclopedia of Evidence, 374, and also to the statement of the law in paragraph C as to what facts are excluded in the application of the rule. Also Hildebrand v. Fogle, 20 Ohio, 147. We quote from the opinion by Judge Ranney on page 157, as follows:

“To enable the court and jury to be as wise as the parties, and so to arrive at and give application to the words they have used, and thus carry out their intentions, the law permits them to hear a full description, from evidence, of the subject-matter of the contract, and of the circumstances that surrounded the parties at the time it was made; and to learn what were the motives and inducements that led to the contract, and the object to be attained by it.”

Construing the contract in the light of the circumstances attending its execution, as shown by the evidence, this court did not hold that the employment was for any specific time. It was not even held to be for “permanent” employment, whatever that may mean. It was only held that the character of the employment was something more than a mere hiring at the will of the employer. To hold otherwise would be to place the plaintiff wholly at the mercy or caprice of the defendant.; The court must not in the application of a rule of evidence lose sight of fundamental rules of construction of contracts, and close its eyes to the facts and circumstances surrounding its execution. If the facts are as disclosed by the evidence for the plaintiff, it would be'most unconscionable to permit the defendant to obtain $6,000 from the plaintiff, under a pretense of giving him employment, and then, in less than a reasonable time, discharge him without cause. Surely the law is not so helpless as to be unable to afford relief against such a wrong. We have found from the facts in this ease that the legal effect of this instrument is that:the plaintiff was employed for at least a reasonable time, and that by its conduct the defendant has construed ■, such time to be not less than one year from January 19, 1915. Iiow much longer than that a court might find a reasonable time might extend is not necessary -toibe determined here in view of what occurred before the expiration of that time. The law upon this proposition is well stated in 17 Cyc., 570, as follows:

“The legal effect ¡of a written instrument, even though not apparent from the terms of the instrument itself, .but left to be implied by law, can no more be contradicted, explained, or controlled by parol or ¡extrinsic evidence than if such effect had been expressed. Thus where no time of performance is specified in a contract the legal effect is that it is to be performed within a reasonable time, ¡and parol evidence is not admissible to show an agreement that it shall be performed at a particular time. ’ ’

The portion of this section in Cyc. cited by counsel for plaintiff in error in their brief is not in conflict with the decision of this court in this case as is indicated by what has been said above.

See, also, Douglass v. Campbell, 24 C. C., 241.

This case having been given a most careful examination by the court, we are unable to find at this .‘time any reason why the application for a rehearing should be granted, and such application will therefore be denied.

Richards, J., concurs.

Kinkade, J.

What I said in a concurring opinion in the main case had reference, of course, to cases like the one under consideration and had no application to a simple contract of service carrying none of the features • embraced in the contract in the case at bar, even though such contract of service might be entirely silent as to the duration thereof. The following paragraphs from Parsons on Contracts (7th Ed.), Yol. 2, pages 666'and 794, need no further comment:

“Where anything is to be done, as goods‘to be delivered, or the like, and no time is specified in the contract, it is then a presumption of law that the parties 'intended and agreed that the thing should be done in a reasonable time. But what is a reasonable time is a question of law for the court.' They will consider all the facts and circumstances of the case in determining this, and if any facts.bearing upon this point‘are in question, it will be the province of the jury to settle those facts, although the influence of the facts when they are ascertained,‘upon the question of reasonableness, other than that of time, are questims of facts for the jury.

“If the contract specifies no time, the law implies that it shall be performed within a reasonable time, .and-will not permit this implication to be rebutted by extrinsic testimony going to fix a definite term, because this varies the contract. What is a reasonable time is a question of law.”


text:
    CONSOLIDATION OF VILLAGE SCHOOL DISTRICTS.
    Court of Appeals for Fairfield County.
    Dillon Fisher v. J. W. Whittus et al.

    Decided, April 28, 1917.

      Schools—Jurisdiction of County Boards of Education Over Tillage School Districts—Sections 4684, et seq.

    A county board of education bas authority to dissolve two village school districts and consolidate them into one, in the absence of procedure on the part of said districts under Sections 4688 and 4688-1, which would exempt them from such action.

      M. A. Daugherty and B. E. Shell, for plaintiff in error.

      James M. Butler and J. E. Fultz, Prosecuting Attorney, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 9, 1917.

   Houck, J.

The. plaintiff is an elector and tax-payer and the father of children of school age, who reside with him, in the Basil village school district of Fairfield county, Ohio.

' The. defendants are the members of the board of education of the Liberty union village school district of said county, the county board of education of Fairfield county, Ohio, and C. C. Miller, as clerk of said county board of education.

The amended petition of the plaintiff seeks to enjoin the defendants from taking any steps or doing any act towards the abolishment of two village school districts known as the Basil village school district and the Baltimore village school district, and from selling certain bonds and doing certain other things in the way of creating these two districts into a new one to be known as the Liberty union village school district.

These villages and school districts adjoin each other.

In February, 1916, the county board of education of Fair-field county united these two village school districts into one new district, appointed a provisional board of education for same, and authorized the issuance of $60,000 of bonds to purchase a site and to erect a new school building thereon.

The petition seeks to restrain the issuance of these bonds, the purchase of the school site, the erection of the building and to prevent the consolidation of these two village. districts into a new one.

A general demurrer was filed to the amended petition in. the" court below and was sustained, and error is here prosecuted seeking a reversal of .the judgment of the common pleas court.

Plaintiff in error relies upon the claim that the county board of education was wholly without authority or power, statutory or otherwise, to create a new school district out of the two village districts. In other words, learned counsel for the plaintiff in error contend that a county board of education has no jurisdiction to dissolve village districts and create a new district therefrom.

Section 4684 of the General Code clearly defines what constitutes a county school district:

"Each county, exclusive of the territory embraced in any school district and the territory in any village school district exempted from the supervision of the county board of education by the provisions of Sections 4688 and 4688-1, and territory detached for school purposes, and including the territory attached to it for school purposes, shall constitute a county school district. In each ease where any village or rural school district is situated in more than one county such district shall become a part of the county school district in which the greatest part of the territory or such village or rural district is situ-, ated.” ’ ■

We find no allegation in the amended petition that would warrant us in holding that the two village districts in question are within the exceptions found in the above statute, but we do find that they are not within the exceptions.

Therefore, if they are not exempted from thé provisions of General Code 4684 as provided in General Code 46&8 and 4688-1, then they are under the jurisdiction and authority of the county board of education as contemplated in and provided by General Code 4684, and the county board of education has full and complete power and authority to create a new district from the territory embraced in them.

No claim is made in the amended petition that advantage was taken by the electors of the new school district of the provisions of General Code 4736, “which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board file a written remonstrance with the county board against the arrangement of school districts so proposed.”

From a careful examination of Section 4736* General Code, which further provides, “The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof,” we are fully convinced that the county board of education has full power and authority over village districts and may create a new district by consolidating two village districts.

This language is clear, plain and explicit and certainly gives to the county board full and complete power in the premises, unless the village, district or districts are exempted from the jurisdiction of the county board of education as provided in Sections 4688 and 4688-1, General Code, which does not appear in the immediate case.

Section 4679, General Code, reads as follows:

‘ ‘ The school districts of the state shall be styled, respectively, city school districts, village school districts, rural school districts and county school districts.”

Thus it will be seen that we have four kinds of school districts: city, village, rural and county. unless village districts take advantage of the provisions of Sections 4688 and 4688-1, General Code, and thereby become exempt from such jurisdiction.

We think that a fair interpretation of the provisions of the new school code and the legislative intent, which must be ascertained from the language used therein, can lead to but one conclusion as to the jurisdiction of a county board of education over village districts, and that is, that it has such jurisdiction unless they become exempt therefrom' in the way provided by said law.-

In passing upon the question raised by the demurrer to the amended petition, we have put aside any technical questions that might be urged for it and looked wholly and entirely to the real question involved and the one urged and relied upon by counsel for plaintiff in error, namely: Has a county board of education jurisdiction to dissolve two village districts, which have not become exempt as provided by Sections 4688 and 4688-1, General Code, and create a new district from the territory embraced therein ?

We must and do answer this inquiry in the affirmative.

Thus holding, we find that the common pleas court was not in error when it sustained the demurrer to the' amended petition in this ease; and finding no prejudicial error in the record the judgment of the common pleas court must be affirmed.

Judgment affirmed.

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


author: Richards, J.

text:
    MANSLAUGHTER. IN CAUSING DEATH BY THE UNLAWFUL OPERATION OF AN AUTOMOBILE.
    Court of Appeals for Lucas County.
    Shirley Bell v. State of Ohio.
    Decided, June 29, 1917.

      Homicide—Death at a Street Crossing in a Collision Between Automobiles—Defendant, Exceeding the Speed Limit, is Convicted of Manslaughter—If the Speed Was Unlawful He Could Not be Guilty of Assault and Battery—'Validity of Naturalization—Charge of Court —Irregularity in Procedure Without Prejudice, When.

    1. It is not reversible error for tlie trial court to refuse to hear and decide a plea in abatement based on the alleged disqualification of a grand juror, until after the return of a verdict, no substantial right of the defendant being prejudiced thereby.
    2. By virtue of the jurisdiction conferred by Section 2165 of the Revised Statutes of the United States, on state courts of record having common law jurisdiction and a seal and a clerk, the probate courts of Ohio were authorized to grant naturalization to aliens, prior to the amendment of said statute in 1906.
    3. Judgments granting naturalization should be liberally construed and a probate record is sufficient which is certified October 29, 1887, by J. W. Cummings, probate judge, by B. A. Case, deputy clerk, reciting that at a probate court held at the probate office in Toledo, Roger Sheehy, a native of Ireland, personally came and proved to the court that he had'arrived in the United States before he had attained the eighteenth year of his age, and made the requisite declaration of his intention to be naturalized and become a citizen of the United States and had behaved as a man of good moral character attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same; the record further reciting that Sheehy having fully complied with the laws of the United States in relation to the naturalization of aliens, and on being admitted by the court, took the oath to support the Constitution of the United States and to renounce allegiance to every foreign prince, potentate, state or sovereign, and particularly to the Queen of England, and certifying that he was thereupon admitted as a citizen.

      4. The record of a probate court granting naturalization to an alien prior to the amendment in 1906 of Section 2165, Revised Statutes of the United States, imports absolute verity and can not be collaterally impeached.
    5. One who operates an automobile in violation of the speed limit authorized by Section 12604, General Code, and by so doing directly causes the death of another, or, if his unlawful conduct in so operating the machine is one of the direct causes of the death of another, is guilty of manslaughter, and this is so even though the deceased was guilty of some negligence which contributed directly to the collision resulting in his death.
    6. On the trial of a case where the defendant is indicted for manslaughter it is not the duty of the trial judge to charge the jury on the included offense of assault and battery, when there is no evidence which would tend to justify the jury in returning a verdict of guilty of that offense.

      Marshall <& Fraser and Albertus Brown, for plaintiff in error.

      J. G. D’Alton, Prosecuting Attorney, contra.
   Richards, J.

Error to the court of common pleas.

Shirley Bell was tried on an indictment charging manslaughter and was convicted and sentenced for that offense. He prosecutes error to this court, relying chiefly on errors claimed to have been committed by the trial court on a plea in abatement filed by him and on errors in the charge of the court to the jury.

The defendant had entered a plea of not guilty but on leave of court he was granted permission to withdraw that plea and file a motion to quash the indictment and a plea in abatement, and he did in fact file the motion and the plea on February 20, 1917. The case was called for trial on March 6th and a jury impaneled. Immediately thereafter the motion to quash the indictment was, after consideration by the court, overruled. Thereupon the defendant stood mute and declined to enter a plea to the indictment, but the court entered a plea of not guilty for him, and the jury was again impaneled. After counsel had stated the case to the jury, and the witnesses had been called and sworn, counsel for the defendant inquired of the court what was done with the plea in abatement. The court replied that'he simply ignored it. It is apparent from the record that the plea in abatement, which had been lost or mislaid, had at this time been found, but it was not disposed of by the court until after the rendition of a verdict of guilty of manslaughter. It was, however, heard and decided by the court before the motion for new trial was disposed of.

The first objection made by counsel for Bell is the error of the court in failing to decide the plea in abatement prior to the impaneling of the jury. Certainly the orderly . administration of justice would require the court to dispose of such a plea prior to the commencement of the trial, but. a failure of the court so to do would not. justify a reversal of the judgment and sentence, unless the action of the court in deferring a disposition of the plea in abatement were prejudicial to the defendant. It is manifest that the rules of criminal procedure should be so construed as to effect the purposes for which they were intended, and the test is not whether all the legal formulas have been literally complied with, but whether anything has been done or left undone which prejudices, the substantial rights of the defendant. If the action of the court in delaying a hearing and decision on the plea in abatement prejudiced any substantial right of the accused a. new trial should be had. If it did not, then it is equally clear that it is the duty of an appellate court to decline to reverse the conviction on that ground. We are of the opinion that the action of the trial court in failing to hear and decide the plea in abatement until after the return of the verdict of guilty did not prejudice any substantial right of the accused. If the plea in abatement should have been sustained, the sustaining of it after the return of the verdict would protect the rights of the accused; and if the- plea in abatement should have been overruled it- can not prejudice the accused for the court to refrain from overruling it until after the return of the verdict. .

The plea in abatement sets forth in detail that one of the jurors serving on the grand jury which returned the indictment against the accused was Roger Sheehy, ydiq was a- native of. Ireland and claimed by the defendant never to have been naturalized. On the hearing of the plea, the record of the probate court was introduced in evidence, showing the action of that court on October 29, 1887, on the application of Roger Sheehy to be naturalized and to become a citizen of the United States; but it is urged on behalf of the accused that the probate court was without jurisdiction, under the federal statute in force at that time, to grant naturalization papers to aliens, and that the record introduced in evidence is insufficient to show that Roger Sheehy was in fact naturalized by the action of that court.

The question raised as to the jurisdiction of probate courts in Ohio to naturalize aliens is an important one. The statute giving jurisdiction to grant naturalization in force in 1887 was Section 2165 of the Revised Statutes of the United States, and that statute provided, in substance, that an alien could declare on oath before a circuit or district court of the United States or a district or supreme court of - the territories, or a court of record of any of the states having common law jurisdiction and a seal and clerk, etc., his intention to become a citizen of the United Státes. This statute was amended in 1906 so as to limit the jurisdiction of state courts in the granting of naturalization, to those which have jurisdiction in law or in equity in which the amount in controversy is unlimited. But the question of the naturalization of Roger Sheehy depends upon a construction of the statute as it existed in 1887. The limitation contained in the act governing the instant ease is to those courts having common law jurisdiction and a seal and a clerk. It is, of course, not necessary that the probate court should have had general common law jurisdiction in order to be empowered to act in such cases, and such is the rule announced in 2 Cyc., 112. That the probate court in Ohio is a court of record, is provided by Article IV, Section 7, of the Constitution of Ohio. Under the statutes of Ohio the probate court has a seal, and by General Code, Section 1584, the probate judge is authorized to perform the duties of clerk of his court and may appoint a deputy’clerk or clerks who shall take an oath of office before entering upon their duties, and when so qualified may perform the duties pertaining to the office of clerk of the court.

The question of the power and authority of the probate courts of Ohio to grant naturalization to aliens has been under consideration in various courts, but, so far as we are aware, has not been determined by the Supreme Court of this state or the Supreme Court of the United States. The courts which have been called upon to decide the matter have not always been uniform in their holdings. The earliest decision which we. have seen was rendered in 1858 in the Probate Court of Hamilton County, that court holding that probate courts in Ohio have power to admit aliens to citizenship. Ex Parte Downs, 3 Ohio Dec. Repr., 47. That decision, was, however, reversed in the district court of that county. In re Martin Downs, 3 Ohio Dec. Repr., 56.

In 1859 the subject was given careful consideration in the district court in Monroe county in Ex Parte Wingard, 2 Ohio Dec. Repr., 126, and a decision rendered by that court, holding that probate courts in Ohio do have power to admit aliens to citizenship.

Shortly thereafter the identical question came on for hearing in the Circuit Court of the United States in a ease entitled Ex Parte Matthew Smith, 3 Ohio Fed. Dec., Court of the United States in an opinion in that ease delivered by Judge McLean held that the probate courts of Ohio have common law jurisdiction in numerous instances, and a seal, provided by law, and are empowered to employ deputy clerks and have jurisdiction . to naturalize aliens. The rule thus announced by Judge McLean was in the placing of a construction by a federal court on a federal statute, and the rule as thus laid down has been followed generally throughout the state of Ohio until the amendment of the federal statute. The federal court gave critical attention to the phraseology of the statute, construing the expression “having common law jurisdiction and a clerk and a seal,” and after such consideration reached the conclusion already stated. The

cáse was cited in People v. Pease, 30 Barbour’s Supreme Court Rep. (N. Y.), 588, 603, that court saying that to hold that the court had no jurisdiction would be fruitful of mischief, creating doubt and uncertainty as to civil and personal rights, endangering titles to property, and in many instances perhaps destroying inheritances and changing the course of descent. The reasons thus given come now with added force for when the decision just cited was rendered the court then under consideration had been exercising the authority for only ten years, whereas the authority has been exercised by the probate courts of Ohio for a century, and until the amendment of the federal statute in 1906.

In 1910 the jurisdiction of the probate courts to grant naturalization was before the court of common pleas of this county, and a decision was rendered by Judge Johnson (State v. Metzger and Irish, 10 N.P.[N.S.],97) in which, after a thorough review of the authorities, the court reached the conclusion that such jurisdiction existed in that court.

The Surrogate’s Court of New York has been held to have such jurisdiction. See Matter of Harstrom, 7 Abbott’s New Cases, 391.

On a review of all these cases, and especially in view of the holding of the United States Court cited above and the following of that authority in general practice for a half century and more, we are clearly of the opinion that the Probate Court of Lucas County had jurisdiction in 1887 to grant naturalization to aliens.

Counsel for Bell insist that even though the probate court had jurisdiction to grant naturalization to Roger Sheehy, the record introduced in evidence does not show that it did so. The record is certified under date of October 29, 1887, by J. W. Cummings, Probate Judge, by B. A. Case, Deputy Clerk, and recites, in substance, that at a probate court held at the probate office in the city of Toledo on October 29, 1887, Roger Sheehy, a native of Ireland, personally came and proved to the court that he had arrived in the United States before he had attained the eighteenth year of his age, and made the requisite declaration of his intention to be naturalized and become a citizen of the United States; and also proved to the satisfaction of the court that he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same. The record further recites that Sheehy, having fully complied with the laws of the United States in relation to the naturalization of aliens, and on being admitted by the court, took the oath to support the Constitution of the United States of America and to renounce and abjure all allegiance and fidelity to every' foreign prince, potentate, state or sovereign, and particularly to the Queen of England. The record thereupon certifies that Roger Sheehy was admitted as a citizen of the United States. Attached to this record is a paper .purporting to be an affidavit of Roger Sheehy, an applicant for naturalization, but it does not bear the signature of Roger Sheehy.

It was unnecessary to have perpetuated the evidence on which the probate court acted. It was a court of record proceeding in a matter in rem over which it had jurisdiction, and its record imports absolute verity without setting forth the facts and evidence on which the judgment was rendered (Shroyer, Guardian, v. Richmond, 16 O. S., 455). Even though it were permissible to look to the affidavit made by Sheehy, for the purpose of determining the evidence on which the probate court acted, the absence of his signature to the affidavit is not sufficient to impeach the judgment of the court granting naturalization. The statute (Section 2165, Revised Statutes U. S.) provides that the applicant shall “declare on oath,” and the record of the court shows that it was found by the court that he had complied with the statutes and was entitled to be naturalized, and the judgment ordered that he be admitted as a citizen of the United States. While the judgment of the court is not perhaps technically regular in form, it can not be attacked in this collateral way. The judgments of courts in the granting of naturalization should be liberally construed, and we hold that the record introduced in evidence is sufficient to show that Roger Sheehy became a naturalized citizen of the United States in October, 1887, and was therefore qualified to sit on the grand jury which returned the indictment against the accused. It follows, therefore, that the trial court committed no error in overruling the plea in abatement.

On the trial of the ease the evidence disclosed that the defendant on the date named in the indictment, to-wit, November 7, 1916, was driving a seven passenger Hudson automobile north on Collingwood avenue in the city of Toledo. Ashland avenue runs into Collingwood avenue from the southeast, and at the point where these two avenues ’meet the car driven by Bell collided with a ear going south and driven by the deceased, Donald Fallon. As a result of this collision Fallon was killed. Bell himself took the stand and testified in his own behalf and in the course of his testimony stated that he was driving his ear at a rate of speed of from eighteen to twenty miles an hour, which would be in violation of General Code, Section 12604. The evidence, however, would justify the jury in finding that he was going at a very much higher rate of speed than testified to by him, some of the witnesses putting the speed at forty miles an hour or more. The bill of exceptions contains photographs of the two ears taken shortly after the accident, and their condition as there shown would indicate that they must have been proceeding at a very high speed at the time of the' collision. Bell contended that he believed that Fallon, the deceased, was about to veer to the left onto Ashland avenue immediately before the collision, and that the collision was caused by the fact that Fallon changed his mind and determined to proceed down Collingwood avenue instead of going down Ash-land as he had evidently first intended to do. He also claimed that the collision was caused by the high speed maintained by Fallon in driving his car, which Bell says was approximately twenty miles per hour. It is evident that the jury would be perfectly justified in finding that if Bell had been operating his car within the speed authorized by the statute the collision could have been easily avoided.

Under this state of the record numerous requests to charge the jury were submitted by the defendant which were refused and to which he excepted. Most of those requests are along the same line and, if given, would have required the jury to find a verdict of not guilty, unless they should find that a wilful violation of law by the defendant was the sole and only cause of the death of Donald Fallon. Substantially all of those requests were based upon the theory that if Fallon was guilty of any negligence which contributed directly to the collision that the defendant could not be convicted. The court committed no error in refusing to give these instructions. If the defendant was guilty of a violation of General Code, Section 12604, in operating his automobile at a greater rate of speed than is permitted by that statute, and if this conduct directly caused the death of Fallon or was one of the causes which directly resulted in his death, then the jury would be justified in returning a verdict of guilty.

It is further insisted that the trial court erred in refusing to charge on the subject of assault and battery. If the defendant was operating the car at a greater speed than was allowed by General Code, Section 12604, and if this resulted directly in the death of Donald Fallon, then the defendant was guilty of manslaughter. If the speed at which the defendant was operating the ear was not in violation of that statute, or if it was not the direct cause, or one of the direct causes, of the death of Donald Fallon, then he was entitled to a verdict of not guilty. We see no reason why the trial judge should have charged the jury on the subject of assault and battery. The ease appears to be directly within the holding of the Supreme Court in State v. Vancak, 90 O. S., 211, 214. The record discloses that Donald Fallon lost his life by reason of the unlawful conduct of the accused in operating his machine at a speed in violation of the statute.

In a careful examination of the record we find no prejudicial error and the judgment will be affirmed.

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


author: Jones, P. J.

text:
    WATER. RENTS NOT A PREFERRED CLAIM.
    Court of Appeals for Hamilton County.
    Edward G. Schultz, Receiver of the Warner Equipment Company, v. City of Cincinnati.
    Decided, June 18, 1917.

      Municipal Corporations—No Statutory Authority 'for Treating Water Rents as Preferred Claims—Receiver May Seek Review of an Ojder Made by the Court Appointing Him.

    1. A receiver may appeal or prosecute error to the order of the court appointing him in allowing a claim against the estate which he is administering.
    2, Water rents due to a municipality are not made a preferred claim on proceeds of personalty by Section 3958, and' a municipality can not enforce payment as such preferred claim by a receiver of water rent which accrued prior to his appointment.

      Burch, Peters <& Connolly, for plaintiff in error.

      Chas. A. Groom, City Solicitor; Saul Zielonlm, Assistant City Solicitor; Charles Tatgenhorst, Jr., Assistant City Solicitor, contra.
   Jones, P. J.

The question to be determined in this case is whether the city of Cincinnati is entitled to be paid a claim for water rent, which accrued prior to the appointment of a receiver, out of the proceeds of. personal property which was sold under the order of court and reduced to cash by the receiver. The claim of the city is that it has a first, valid and subsisting lien for the full amount of accrued water rent upon the money in the possession of the receiver. 'This claim was allowed in the trial court and the receiver ordered to pay the claim in full. To this order error was prosecuted in this court.

It is contended at the outset that the receiver has no power to except to the order of the court which appointed him, or to file proceedings to review that court’s order in regard to the payment of this claim. In Alderson on Receivers, Section 588, page 797, the law is thus stated:

“Every claim presented against a fund in the hands of a receiver, if contested before the court, becomes in effect a suit against the receiver, which is ended by a final judgment allowing or rejecting the claim, and any party to the contest dissatisfied with the result may have the proceedings revised on appeal. The receiver as a party defendant to an action has the same right to appeal from a judgment of the court affecting the interests of the estate represented by him that the party or corporation to whom the estate originally belonged would have had if the suit had been brought by them.”

If this claim had been prosecuted as an independent suit by the city against the receiver with leave of court, instead of by a motion in the nature of an intervening petition in the case where the receiver had been ¿^pointed, there would be no question as to the power of the receiver to secure a review of the judgment of the court. Smith v. Folsom, 80 O. S., 219; Webb v. Staesel, 80 O. S., 122. The power of a receiver to secure such an appeal was sustained in Felton v. Achermann, 9 U. S. C. C. A., 457. In the opinion of the court by Taft, J., it was said (p. 458):

“While it is true that the receiver is an arm of the court in the administration of the property, yet where persons intervene to obtain relief against him because they can not obtain full relief in any other forum, the issue raised by his answer to the petition makes the proceeding an adversary one, in which the receiver represents the interests of the owners of the property, of which he is temporarily in charge. If, as such representative, he feels aggrieved by an order of the court made in an adversary proceeding of this character, it is difficult to see why he should not be permitted to have the order of the court reviewed by the appellate tribunal to whom any other litigant may resort. Certainly, the owners of property, if aggrieved by the order against the receiver, might appeal, and there would seem to be no justice in preventing the temporary custodian of their property from doing so.” 1

See also Bosworth v. Terminal R. A., 26 U. S. C. C. A., 279. The rule is thus laid down in High on Receivers, 4th Ed., Section 264a:

“As to the right of a receiver to appeal from orders and - judgments entered in the course of the receivership proceedings, it is held that he has the same right of appeal from an adverse judgment for the recovery of funds pertaining to his receivership as the party over whom he was appointed would have had.”

See also Beach on Receivers, pages 295 to 296.

Under these authorities we hold that the receiver in this case was entitled to prosecute this error proceeding for the review of the order complained of.

The city claims that water-rents due it are a preferred claim under Section 3958, General Code, which is as follows:

“For the purpose of paying the expenses of conducting and managing the water works, such director may assess and collect from time to time a water rent of sufficient amount in such manner as he deems most equitable upon all tenements and premises supplied with water. "When more than one tenant or water taker is supplied with one hydrant or off the same pipe, and when the assessments therefor are not paid when due, the director shall look directly to the owner of the property for so much of the water rent thereof as remains unpaid, which shall be collected in the same manner as other city taxes.”

There is no question but that a municipality in Ohio can construct water works and supply water to its inhabitants, and the director of public service of a city is authorized to manage such water works and to make such by-laws and regulations as he may deem necessary for- such purpose, which regulations, under Section 3957, General Code, shall have the validity of ordinances. It is not, however, contended that any regulation of the city of Cincinnati has been made or attempted by virtue of which this claim for water rent would become a lien or first charge upon the assets of the Warner Equipment Company in the hands of its receiver, nor is any specific statute, ordinance or regulation pointed out by tbe city under which this claim would be' deemed a preferred claim as against the receiver. It is argued that water rents are in the nature of taxes and that as general taxes become a lien against real estate, in some manner this claim should be a lien against this fund. In Alter v. Cincinnati, 56 O. S., 47, the Supreme Court in its opinion by Burket, J., at page 67, said:

“Water rents are not, strictly speaking, taxes, and certainly not taxes on property to be regulated under article twelve of the Constitution.”

Even taxes are not a lien upon personal property, and become such only after judgment.

There is no question but that under proper regulations the city could protect itself in the collection of water rents by providing that the water be turned off and not turned on again, until all back rent had been paid. Mansfield v. Humphreys Manf. Co., 82 O. S., 216. No doubt other methods might be devised equálly efficacious to secure back water rents in cases of the appointment of a receiver for the management of manufacturing property, but no provision by law has been pointed out whereby this particular claim can be held a preference against the fund in the hands of this receiver.

The judgment below must therefore be reversed.

Gorman, J., and Hamilton, J., concur.


author: PlffUCK, J.

text:
    CDLLISI3N BETWEEN VEHICLE AND INTERURBAN CAR. AT COUNTRY CROSSING.
    Court of Appeals for Licking County.
    The Ohio Electric Ry. Co. v. Isaac Burkham.
    Decided, October Term, 1916.

      Negligence—Driver Injured by Interurban Gar—Averment that Gar Was Being Operated at Excessive Speed—Charge of Court With Reference to Duty of Motorman." ■ '
    1. In an action for injuries from being struck by an electric car which it is alleged was being operated over a crossing at an excessive and dangerous rate of speed, it is not error to give a-special charge^ to the jury before argument, to the effect that if the jury find that the. motorman might and by the exercise of ordinary care would - have seen plaintiff in time to have avoided striking him, a verdict' should be returned in his favor, unless the jury also find that the plaintiff was himself guilty of negligence contributing to his injury.
    2. The fact that some of the testimony of the plaintiff relating to material facts is unsupported is not sufficient ground of itself to warrant a reviewing court in setting the judgment aside on the ground of weight of the evidence.

      Fitzgibbon, Montgomery & Black, on behalf of plaintiff in error.

      J. W. Horner and Kibler & Kibler, on behalf of defendant in error.
   PlffUCK, J.

The plaintiff in error seeks a reversal of the judgment of the common pleas court in this case. The plaintiff in error was the defendant below, and the defendant in error was the plaintiff below. The suit below was one for personal injuries alleged to have been received by said Burkham while attempting to drive over the tracks of said railway company in a one-horse buggy at a point about four miles east of the city of Newark, Ohio, known as McClellan’s crossing; that said injuries complained of were caused by one of the interurban ears of the defendant-company which was being run at a reckless and dangerous rate of speed, at about sixty miles an hour, by the servants of the company, and that said injuries received by Burkham were in no way caused by any fault of his or negligence on his part, and that he in no way contributed to the same.

The cause was submitted to a jury and a verdict returned in favor of Burkham in the sum of $500. A motion for new trial was filed, heard and overruled, and a judgment was entered on the verdict..

Plaintiff in error seeks a reversal of this judgment for two reasons:

•1. That the court erred in giving to the jury before argument a certain written request which was given at-the instance of the plaintiff below.

2. That the verdict is against the manifest weight of the evidence.

When written requests are presented by counsel to be given before argument, it is the duty of the court to give same, if they, or any of them, are sound propositions of law and applicable to the facts established by the evidence, and are pertinent to the issue or issues raised by the pleadings, but if they or any of such requests are not, then, of course, the trial judge must-not submit same to the jury.

The request complained of is as follows •.

"If you find from the evidence that the motorman of the defendant, in the exercise of ordinary care on his part, in the running of the car, could or should have seen the plaintiff about to use said crossing,' both vehicle and car going in the same direction, in time to have slackened the speed of his car, or in time to have stopped the car and thus avoided the accident to the plaintiff, and that because of the failure of said motorman to. see the said plaintiff in that position, or that he was guilty of a want of ordinary care in not seeing the plaintiff in said position, your verdict should be for the plaintiff, -unless you find from the evidence that the..plaintiff was guilty of negligence contributing to his injuries.” ' '

It is urged by .counsel for plaintiff in error that the court below erred in giving the above to the jury for the reason that it is based upon the doctrine of last chance and that the petition is silent as to any such claim.

We have examined this request with much care and from our examination of it, and in the light of the authorities upon this question, we are free to say that we can not agree with the claim of counsel for plaintiff in error.

The law as embraced in this request is certainly sound as a general proposition of law and was peculiarly applicable to the facts as shown by the evidence in this case, and the court committed no error in submitting it to the jury.

The next question to be determined by this court is: Was the verdict against the manifest weight of the evidence ? We have read the testimony of the witnesses as contained in the bill of exceptions and while the testimony of the plaintiff below stands alone as to some of the material facts necessary to be established in order for him to recover, yet we are not able to say, as a reviewing court, that the jury was not warranted in giving the weight to his testimony which it certainly did give to same, as indicated by the verdict it returned.

A reviewing court will not and should not set aside and hold for naught a verdict of a jury for the alleged reason that it is against the weight of the evidence, unless, upon an examination of the whole record, it is fully satisfied that the verdict is manifestly and clearly against the weight of the evidence, and in the present case we are not so satisfed, and therefore, will not disturb the verdict of the jury on the alleged ground that it is not supported by the evidence.

We therefore hold, from an examination of the entire record in this case, that there is no prejudicial error therein that would warrant this court in reversing the judgment of the common pleas court. We therefore hold that the judgment of the lower court should be affirmed.

Judgment affirmed.

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