text:
    INJURY TO A BOY FROM A CABLE DRAGGING IN THE STREET.
    Circuit Court of Cuyahoga County.
    Frank Orlinkowski v. Bernard Glowik, an Infant.
    Decided, December 28, 1908.

      Expert Evidence — Witness Must First Qualify as Expert Before Giving Opinion Evidence — Error to Charge as to Issues Not in Case.

    1. It is error to permit a witness who has not qualified as an expert to express an opinion as to whether or not a certain appliance is dangerous.
    2. Where an action is for personal injuries to plaintiff while upon a highway caused by defendant’s alleged negligence, it is competent for the jury to consider the defendant’s mode of using the highway.
    3. It is error to charge that it is defendant’s duty to employ reasonably competent men and reasonably safe appliances when there is no allegation in the petition as to the incompetence of defendant’s employees, other than the allegation that they were negligent on this occasion.
    4. It is error to charge that the burden of proving contributory negligence is upon the defendant, when that issue is not raised by the pleadings and an averment in the answer that the injury was caused by plaintiff’s negligence is not an averment of contributory negligence.

      Form, Pearson <6 Powell, for plaintiff.

      T. J. Boss, contra.
    Henry, J.; Marvin, J'., concurs.
   Bernard Glowik, then ten years old, ivas injured October 6, .1905, by becoming- entangled in a new wire cable which was used by the plaintiff in error to help haul his wagons loaded with brick up a hill in an almost disused portion of old Pearl street'in Cleveland. The cable was rigged with pulleys in such a manner that a wagon going down hill would aid in pulling a loaded wagon going up. The boy had been sent for tobacco by one of the men employed in this work, and while alongside the cable, as it was dragging on the ground, after being detached from one of the wagons, he was caught by the hook at the swaying or coiling free end of it. He alleges that he was then in the exercise of ordinary care and that his injury resulted from the negligence of the defendant below. The answer avers that Gf-lowik’s injury occurred by reason of his own negligence and carelessness and not by the carelessness and negligence of said defendant or any of his employees. This averment is in terms denied by the' reply.

Upon the trial the defendant below introduced evidence tending to show that Q-lowik was taking hold of and playing with the cable and hook and that the men employed about the work were hallooing to him to keep away from it when he ivas injured; but the boy himself testified that his attention was called, by the man for whom he got’the tobacco, to the latter’s illustration of the way in which a Russian lights a cigarette and that while so preoccupied the hook caught him.

The jury returned a verdict for the plaintiff below, and after motion for new trial overruled and judgment entered on the verdict, a bill of exceptions exhibiting all the evidence was perfected and petition in error filed.

1. The first in order of the errors assigned is upon the re-, fusal of the defendant’s motion to withdraw from the jury the testimony given by one of plaintiff’s witnesses, George Patterson, upon his recall, upon the ground that the mode of his examination by plaintiff’s counsel was improper. The ruling was made on the statement by plaintiff’s counsel that what’was in form a cross-examination of his own witness was so “conducted upon the theory that plaintiff was taken by surprise in what he testified to and failed to testify.”

We find no error here.

2. The second assignment of error is upon the admission in evidence of an opinion offered by plaintiff’s witness, Frederick Fenstewald, who having testified that this new cable acted just like a snake” and whirled from one side of the street to the other, was asked, apparently as an expert in such matters, “What would you say, as you observed that cable and from your knowledge of cables and their .working in general as to whether or not the apparatus and contrivance that you saw in operation was dangerous or otherwise?” To this, over objection and exception, the witness answered: “Yes, sir, it was dangerous.” This we hold was error, upon the authority-of Baltimore & Ohio Railway v. Schultz, 43 Ohio St., 270, 282 and 283.

3. The- remaining assignments of error relate to the charge of the court,'to which a general exception was reserved sufficient, as we think, under the statute, to raise the questions made.. On the measure of damages the court charged:

‘ ‘ If you find for the plaintiff you will award such damages as will fairly compensate for the injury. You may consider the injuries and nature of them, the pain the boy has suffered, if any, and may suffer, and all the expenses the1 plaintiff has been put to, you may consider the effect of the injuries upon the boy’s bodily strength. The measure of damages is compensation and compensation only. ”

We do not reverse the judgment below for this possible assumption of permananey in regard to Glowik’s injuries, though it is nearly on all fours with the fatal error pointed ont in Weybright v. Fleming, 40 O. S., 52. The objectionable language there quoted is of the same kind, but more flagrant. We are not prepared to say here that the jury were misled, though we do not. commend the language used.

It is complained further that the court erred in charging the jury that:

“Simply obstructing the public highway used by the general public, without any legal right to do so, would not be sufficient in itself to establish'negligence. Although you. may consider that fact, if such it was, in measuring the defendant’s duty.”

It is urged that.this language implies that the defendant’s use of the otherwise almost disused highway was illegal contrary to the holding, in Higgins v. Grove, 40 O. S., 521, that no action can be maintained to recover the penalty provided for by Section 4748 of the Revised Statutes of Ohio unless the obstruction therein mentioned amounts to the actual hinderance or inconvenience of travelers, or of any person passing along or upon such road or highway.

We are not prepared to say, however, that the defendant’s mode of using this highway habitually did not constitute an illegal obstruction. Whether it was so or not, it was clearly proper for the jury to consider the mode of use on this occasion as one of the circumstances bearing upon the issue of defendant’s negligence, and this in substance is what the court below charged. If the defendant had desired an amplification of the law upon this subject, he should have specially requested the court to instruct the jury more particularly.

It is further complained that the court erred in charging the jury:

“It was the duty also of the defendants to employ reasonably competent men, and reasonably safe appliances for the prosecution of this work.”

There was no issue made by the pleadings in regard to the competency of the men employed as distinguished from their alleged negligence upon this occasion, and the court should not therefore have imported' this element into the case. To do so was clearly error.

The charge is further complained of in that the court permitted the jury to consider the pleadings for the purpose of determining the issues, without cautioning them that the allegations of the pleadings were not to be taken as evidence. Regarding this criticism we hold that if the defendant below desired this direction, he should have specifically requested that it be given.

The remaining objections to the charge relate to the subject of contributory negligence, and which, it is said, was not put in issue by the pleadings, and even if it were, was erroneously defined, as applied to infants, because it qualified the rule as laid down in Rolling Mill Company v. Corrigan, 46 O. S., 283, that “ordinary care for them, is that degree of care which children of the same age, of ordinary care and prudence are accustomed to exercise under similar circumstances.”

The charge imported other elements than age into the determination of the question of the plaintiff’s contributory negligence, such as his actual “knowledge, experience and capacity.”

This qualification seems, however, to be justifiable in view of the language employed in The Lake Erie & Western Railroad Company v. Nackey, 53 O. S., 370: Cincinnati Street Railway Co. v. Wright, Administrator, 54 O. S., 181; Light & Power Co. v. Bell, 26 O. C., 691 (affirmed without report, 70 O. S., 482). See also Traction v. Blackston, 27 C. C., 191, and Willis Creek Coal Co. v. Mary Jones, Administratrix, 30 C. C., 588.

We are, however, inclined to the opinion that the court erred in charging the jury that there was. any burden of proof upon the defendant in this case in regard to contributory negligence, and in charging that there was any issue of contributory negligence, properly so-called, in the case. It is true, of course, that in an action for an injury alleged to have been caused by the negligence of the defendant, though it be not ordinarily necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, yet where the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence, he must plead his freedom from it. Street Railroad Company v. Nolthenius, 40 O. S., 376.

It is also true that “even though the petition might, if the plaintiff were an adult, be construed as disclosing contributory negligence, an averment that the plaintiff was at the time a child of nine years of age, and of immature experience and judgment, is sufficient to rebut the presumption of contributory negligence.” The L. E. & W. Railroad Co. v. Mackey, supra.

The rule as to burden of proof is similar, so that in an action for an injury occasioned by negligence, where the circumstances require of plaintiff the exercise of due care to avoid the injury, and the testimony offered in his behalf does not disclose any want of such care on his part, the burden is upon the defendant to show such contributory negligence as will defeat a recovery; but if plaintiff’s own testimony, in support of his cause of action, raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption. Robison v. Cary, 24 O. S., 241, and Railroad v. Whittaker, 35 O. S., 627.

Whatever may be true, therefore, in regard to the fate of a case, where contributory negligence, though not an issue formally tendered by the answer, is nevertheless so clearly disclosed in plaintiff’s petition or in the evidence offered by him in support thereof as to raise a presumption that his own want of care directly contribute to the injury of. which he complains, it is certainly true in view of the decisions of the Supreme Court in The Cincinnati Traction Co. v. Forrest, 73 O. S., 1, and The Cincinnati Traction Co. v. Stephens, Administrator, 75 O. S., 171, that the defendant can neither claim advantage nor be subjected to disadvantage from instructions to the jury upon that issue erroneously imported into the ease.

Upon the authority of Cincinnati Traction Co. v. Forrest, supra, we think it was clearly error for the court, in the case now before us, to charge that there was any burden whatever upon the defendant in his maintenance of such a supposed defense. For the jury finding that the defense had failed would likely be misled to suppose that the defendant’s negligence with which the plaintiff’s alleged negligence was said to have contributed in producing the injury, was admitted. The doctrine of our Supreme Court is that contributory negligence on the part of the plaintiff pre-supposes negligence on the part of the defendant; hence the court below erred in charging that the defense of contributory negligence was made by the pleadings, implying that the defendant had thus conceded his own negligence.

For these errors in the charge and in the admission of the testimony to the effect that the apparatus was dangerous the judgment of the court of common pleas is reversed and the cause remanded for further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    AMENDMENT OF A VERDICT AUTHORIZED.
    Circuit Court of Cuyahoga County.
    The Standard Knitting Company v. Frank Van Wie.
    Decided, December 28, 1909.

      Trials — Jury May Amend Verdict.

    Where a jury has attempted to return a verdict in which they have included improper items of damage they may, upon the direction of the court, amend their verdict.

      Kerruish & Kerruish, for plaintiff in error.

      G. A. Groo l and G. A. Farquharson, contra.
    ITenry, J.; Marvin, J., concurs.
   The action below was brought to recover damages for alleged wrongful discharge from employment before the expiration of the term thereof as stipulated by written contract. The sole defense was that the discharge was for good cause, to-wit, drunkenness and neglect of duty. The verdict and judgment were for the plaintiff below.

The first of the two errors claimed here is that the verdict finally received was not the lawful verdict of the jury. The verdict first attempted to be rendered was for the full amount of wages that could accrue under the contract of employment, after the • plaintiff’s discharge. He had,'however, admitted upon the trial that a considerable amount had been earned by him in other employment during that period and therefore the court refused to receive the verdict presented by the jury and directed them to prepare another to cure their oversight in this respect, which they did accordingly. Although the counsel were not present during this episode, we think the rights of the defeated party were not prejudiced by this circumstance. The amendment of the verdict by the jury seems to be fully authorized in the premises by Sections 5198 and 5199 of the Revised Statutes of Ohio.

The only other error complained of involves the weight of the evidence.

The defendant in error upon his examination, admitted that he had done a good deal of drinking, but denied that he had been under the influence of intoxicants, and denied that he had neglected his duties. There was a great deal of evidence to the contrary, which, if we had stood in the place of the jury and were considering the matter, in the first instance might well have induced a finding contrary to that actually made by them. That is not, however, the criterion which must govern us in weighing the evidence at' this time, and we are not prepared to say that the verdict as rendered, is manifestly and clearly against the weight of the evidence.

Judgment affirmed.


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    SALE OF STOCK DEFEATED BY AN ALLEGED LIBELOUS ARTICLE.
    Circuit Court of Cuyahoga County.
    The Farmers Co-Operative Harvesting Machine Company of America v. The Lawrence Publishing Company.
    Decided, December 28, 1908.

      Libel and Slander — Corporation Can Not Recover Damages for Libel— When Sole Injury is in Sale of Stock.

    A corporation can not maintain an action for a libel where the sole damage shown is the hindrance of subscriptions to its capital stock, even though that may result in its being unable to carry out the objects for which it was organized.

      F. II. Marvin and J. J. McCormick, for plaintiff in error.

      Carr, Stearns & Chamberlain, contra.
    Henry, J.; Winch, J., concurs.
   The action below was a libel case wherein the court directed a verdict for the plaintiff in a nominal amount, at the close of the plaintiff’s evidence, and it complains of this ruling as error here.

The alleged libel consisted of an article published in the Ohio Farmer, an agricultural weekly paper of large circulation in this state and elsewhere, cautioning its readers against the plan of operations of the plaintiff in error, a corporation, whose objects are fairly implied in its name, the Farmers Co-operative Harvesting Machine Company of America.

The petition, after alleging that the plaintiff had acquired plants for the manufacture of agricultural machines together with a stock of the products in question and being about to engage in the sale of said products, sets forth the alleged libel in these words:

“A Word op Warning.
“We are receiving a large number of inquiries from our subscribers regarding the so-called Farmers’ Co-operative Harvesting Machine Company (meaning plaintiff), whose headquarters are at 'Springfield, Ohio, and who have large numbers of -agents going about the country selling stock to farmers. It seems clearly our duty to state that what information we have about this concern or scheme (meaning the method or plan of business of said plaintiff), to our readers. We would further call farmers’ attention to the fact that under modern systems a corporation (meaning p’aintiff), can make a great showing on paper when it would not stand a business investigation. No good business man would buy stock in a corporation (meaning the plaintiff), simply on the representation of agents. We know further there is not profit enough in the manufacture and sale of harvesting machines at the present time to any where near justify the expense of selling stock, and the representation regarding future dividends, that we are informed are made by the traveling agents (meaning the plaintiff’s agents), selling this stock. We have received information to the effect that several prominent farmers, whose names were used in connection with this corporation (meaning plaintiff) at first, have recently withdrawn from it entirely. ’ ’

The petition further alleges that this publication was made with the malicious intent of ‘ ‘ causing it to be believed and suspected by farmers and people generally, that plaintiff was engaged in a ‘scheme’ to defraud and cheat; that plaintiff had made a false and fraudulent showing on paper of its business condition, with intent to defraud; that plaintiff has caused its agents to make false and fraudulent- representations as to its business opportunities with intent to deceive and cheat; that several prominent farmers who had been connected with plaintiff have recently withdrawn from it, because it was engaged in a ‘scheme’ to cheat and defraud and because it had done the other fraudulent and wrongful acts above referred to.”

The petition concludes by averring that “it has been greatly injured in its good name and reputation and its business has been seriously injured and retarded and the number of subscribers for its stock has been greatly diminished, and that by reason of the premises it has sustained damages in the sum of one hundred thousand dollars. ’ ’

Upon the trial the proof of special damages seems to have been confined, to evidence that the sale of its shares was so hindered by this publication that the corporation had to abandon its enterprise of securing subscriptions to its capital stock, and of building up a co-operative business in the sale of agricultural supplies to its own stockholders.

The gist of the article complained of is moreover a warning to farmers, not against the quality or kind of farm machinery and supplies which the plaintiff corporation was organized to manufacture and sell, nor against purchasing from or dealing with the corporation in respect of those objects for which, as declared by its articles of incorporation, it was organized; but is against the purchasing of the stock of the corporation, considered as a business investment.

The reported cases in which a corporation has sued for libel or slander are very few, and the number of those in which the corporate plaintiff has succeeded is negligible.

Davis, J., in Brayton v. Cleveland Special Police Co., 63 O. S., 83, says at page 85:

“Although a corporation may sue for a slander upon it in the way of its business or trade, it can not sue for a slander upon one of its stockholders or officers, if the slander be not in direct relation to the trade or business of the corporation. ’ ’

The Knickerbocker Life Insurance Company v. Ecclestine, 11 Abbott’s Practice (New Series), 385, holds likewise, that upon proof of special damages a corporation may sustain an action for libel, but the complaint must set forth special damages if the matter is not libelous, pet’ sc.

It appears clear to us that the averments and proof in the present case, show nothing else by way of a libel than is involved in a discouragement of subscriptions to its capital stock upon the ground that the co-operative enterprise was visionary and that investment in the stock was not a good business venture.

Incidentally, of course, the failure of such a corporation to obtain subscriptions to its capital stock must involve the failure of the whole co-operative enterprise, but the case is very different from that of a newspaper criticism of the business methods or products of a- manufacturing corporation fully organized, by which the prosecution of the business in which it is engaged and for which it was incorporated is cut off through distrust disseminated amongst present or prospective customers who are not otherwise connected with the company. We hold that a corporation can not maintain an action for a libel where the sole damage shown is the hindrance of subscriptions to its capital stock. The fact that the corporation is thereby disqualified from carrying out the professed objects of its incorporation in the marketing of its products does not alter the ease, and that being substantially the state of facts before us, we hold that the court did not err in directing a verdict for only nominal damages.

Judgment affirmed.


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    WRONGFUL DISTRIBUTION OF WILL CLAIMED BY BENEFICIARIES.
    Circuit Court of Cuyahoga County.
    Frank Van Develde et al v. Mary Van Develde et al.
    Decided, December 14, 1908.

      Wills — No Action for Destruction of.

    Beneficiaries under a will can not maintain an action- lor its wrongful destruction during the testator’s lifetime.

      J. P. Dawlei and Thompson & Eine, for plaintiffs in error.

      E. G. Schwan, contra.
    Henry, J.; Winch, J., and M'arvin, J.. concur.
   The action below was brought to recover damages for the destruction of a will prior to the testator’s death, whereby plaintiffs were deprived of legacies. Demurrer to the petition was sustained and judgment rendered for defendants.

However wrongful such conduct as that here ascribed to the defendants may be, there appears to be no precedent for the remedy invoked. What right of- the plaintiffs was invaded? They had no vested interest in the expected legacies during the testator’s lifetime. There was not even an inchoate right created in them by the mere execution and publication of the testator’s will containing provisions in their behalf.

The judgment is affirmed.


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    RENT OF PROPERTY OCCUPIED BY A RECEIVER NOT A PREFERRED CLAIM.
    Circuit Court of Cuyahoga County.
    The McIntosh Hardware Corporation v. Otto I. Leisy, Trustee, et al.
    Decided, May 24, 1909.

      Receivers — No Preference Among Creditors During Receivership.

    There is no preference in favor of the landlord of premises upon which a receiver is conducting the business for which lie is receiver as against creditors of the receiver who have sold materials to him tó be used in continuing the business under the court’s order.

      Thompson & Hiñe, for plaintiff in error.
    Solders, Thayer & Mansfield and Walter L. Flory, contra.
    Henry, J.; Marvin, J., concurs.
   The plaintiff in error is a creditor of the Standard Wire & Iron Company’s receiver for materials furnished during the •receivership, in pursuance of the order of the court of common pleas that the receiver operate the business and purchase the necessary supplies therefor.

The defendant in error, Leisy, is the owner of the premises which the receiver has occupied. On the winding up, the receivership fund in the receiver’s hands is insufficient to pay both the ¿[aim of the plaintiff in error and also that of the defendant in error for rent due' from the receiver. The court below gave the rent claim priority, upon the theory apparently that the premises upon which to operate the business and keep the property, were a fundamental necessity of the receiver and that the claim for compensation in rent therefor is of superior merit to the claim for the purchase price of materials furnished the receiver.

We know of no such rule of preference. The cases cited by the defendant in error go only to the point that rent of premises whereon to keep the property or operate the business committed by the -court to its receiver, is a proper charge against the fund and takes precedence over the creditors’ claim antedating the receivership. This is upon the theory that the receiver is entitled to be reimbursed out of the fund for his necessary expenses in conserving the same and in obeying the court’s orders in reference to it, but the same is true, also, with regard to materials furnished to the receiver and necessarily procured by him to enable him to obey the court’s order to operate the business.

The hazards of such operation ought to make a court extremely cautious, in granting an application to have a purely private business, without public duties, continued in operation by its receiver when, financially embarrassed; but where such an order is made upon a clear showing of its necessity for the conservation of the fund, or upon the consent of all parties to the litigation, those who extend credit to the receiver stand upon an equal basis in regard to the priority of the claims.

In ease of deficiency of the fund, through no fault of the receiver, their only remedy is to invoke the possible discretion of the court to have the deficiency assessed as costs against the party who applied for the order or orders which resulted in the deficiency.

The distribution of the fund in this case gave precedence to the claim for rent and is therefore erroneous, and the judgment of the court of common pleas is reversed, and the cause remanded.


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    APPEAL BOND SUBJECTED TO PAYMENT OF CLAIM,
    Circuit Court of Cuyahoga County.
    George O’Donnell v. Allen A. Armstrong.
    Decided, May 24, 1909.

      Debtor and Creditor — Creditor May Subject Appeal Bond of Garnishee by Interpleader,

    One who has garnished a judgment debtor in an action which, has been appealed from a justice court, may, upon the bankruptcy of the garnishee, intervene in that case and by filing a cross-petition subject the appeal bond to the payment of his claim.

      Klein & Harris, for plaintiff in error.

      Solders, Thayer & Mansfield, contra.
    Henry, J.; Marvin, J., concurs.
    Plaintiff in error sued George K. Closs before a justice of the peace and obtained judgment; whereupon Closs appealed. The defendant in error meanwhile sued the plaintiff in error in the court of common pleas and garnisheed Closs, who subsequently. was adjudged a bankrupt. Thereupon the defendant in error intervened in the former case and filed an answer and cross-petition in which he set up bis garnishment lien on the fund recoverable in that action..
   The plaintiff in error recovered judgment against the bankrupt garnishee, and the cross-petitioner, defendant in error here, was awarded the relief he sought by order providing “that if the defendant Closs, or any one in his behalf pays the judgment rendered in the case, the same shall be paid by him to the clerk of this court.”

Error is assigned upon the phrase “or any one in his behalf. ’ ’ The manifest object of this phrase is to hold the appeal bond, in view of the garnishee’s bankruptcy. The plaintiff in error insists that the cross-petitioner should have garnisheed the surety on the appeal bond instead of undertaking to intervene in the action below and subject the bond to the payment of his claim.

We fail to see any objection to the course pursued. The defendant by virtue of his garnishment process had acquired an interest in the very chose in action which was the subject matter of the litigation between the original parties to the action below, and he therefore had a right to become a party defendant and set up his claim.

Upon the bankruptcy claim of the garnishee, he was, upon familiar' principles, properly subrogated to the right of the bankrupt garnishee’s creditor in the security of the appeal bond.

Judgment affirmed.


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    FIXING THE GRADE OF LARCENY.
    Circuit Court of Cuyahoga County.
    Antonnio Taddeo and Tony Taddeo v. State of Ohio.
    Decided, May 24, 1909.

      Trials — Prejudicial Remarle of Prosecutor Before Trial — In Hearing of Juror — Value of Substituted Article Will Not Reduce Grade of Larceny.

      1. A prejudicial remark of the prosecuting attorney made.before (lie trial in the presence of certain jurors, furnishes no ground for excusing all the jurors.
    2. In a larceny case the value of'a substituted article left in the place of the one stolen can not be considered to reduce the offense from grant to petit larceny.

      J. V. Zatlerelli, for plaintiffs in error.

      John A. Cline, contra.
    ITenry, J.; Winci-i, J., and Marvin, J., concur.
   The plaintiffs in error were convicted of grand larceny for having stolen a diamond from Scribner & Lohr’s store. In place of the diamond taken they left a stone of less value.

The first error complained of is the refusal of the court to excuse all the jurors and allow a new panel because some of them had heard a remark of the prosecuting attorney, the day before the commencement of the trial, that it was “necessary and would have a salutary effect to have the court issue a capias at once for the defendants,” notwithstanding that their attorney had stated that one of them was in Conneaut.

■If there was any prejudice in this remark of the prosecutor, it afforded no ground for excusing all the jurors, when the claim was not that all, but merely that most of them had heard it, and only two were affirmatively shown to have heard it. One of these disclaimed that he was influenced by the remark and no other juror was particularly inquired of on the subject. There was no error in this ruling.

The second error assigned is upon the failure of the court to take proper action regarding the comment of a bystander upon the claim of one of the defendants that he could not understand a question put to him as a witness in his own behalf in connection with the demand of his attorney for an interpreter. The comment was: “He (the witness) is a liar, he spoke good English to me.” The trial judge said he did not hear it, but that he would take the exception under advisement. No action was taken, except that an interpreter was allowed. It does not affirmatively appear that the jury heard the remark, and we find no prejudicial error in the incident. The prosecutor also insisted that the witness could speak English and objected to the calling of an interpreter; but we find that there is no misconduct in this amounting to reversible error.

The next error assigned is upon the refusal of the court to admit the bill of sale of the diamond left in place of the one taken, as tending to show that the stohes were of nearly equal value and hence that the exchange was due to mistake and not to a criminal motive. The evidence was not competent for that purpose. The defendants were, however, permitted to show the facts by oral testimony.

But it is claimed that the court should have charged the jury that if the difference in value of the stones was less than $35 they could not convict the defendants of grand larceny. This, of course, is not the law. The value of goods taken can not thus be offset to diminish the degree of the crime.

The sole remaining assignment of error relates to admission in evidence of conversations between detectives and a cousin of the defendants below in the latter’s presence. The detective told him he ought to tell the truth about this diamond, that it would be better for him, and it is urged that the subsequent statement from the cousin incriminating one of the defendants should have been excluded as an involuntary confession.

The rule as to confessions applies only to confessions of defendants on trial, not to admissions or statements of third persons in their presence.

Hence, even if the statements and admissions were involuntary, which we do not decide, there was no error in admitting the evidence thereof.

We find no error in the record and the judgment is affirmed.


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    EVIDENCE REQUIRED TO SHOW MISTAKE IN A WRITTEN CONTRACT.
    Circuit Court of Cuyahoga County.
    Asa Anderson v. Godfrey Fugman et al; two cases.

    Decided, May 10, 1909.

      Reformation of Contracts — JUviclence Must he Clear and Convincing.

    To entitle plaintiff to the reformation, of a written contract the evidence of fraud or mistake must he clear and convincing.

      J. J. McCormick, for plaintiff.

      Smith, Taft & Artcr and C. K. Fauver, contra.
    Henry, J.; Winci-i, J., and Marvin, J., concur.

       Affirmed without opinion, Anderson v. Fugman, 85 Ohio State, 441.

   These two appeals from the same judgment will be consolidated. Plaintiff seeks the reformation of a lease under which he is the tenant. The lease was made before the premises were improved. The improvements were made in accordance with plans agreed upon between lessor and lessee, and are connected with and a part of an improvement of the remainder of defendant’s lot not covered by the lease. At present the leased premises located chiefly in the rear of said lot consist of a large dancing academy with an entrance gallery or corridor, giving means of ingress and egress to and from the street on which the lot fronts. The front of the lot is occupied by a building, which except for the corridor aforesaid, is used for stores and offices. The dispute here centers in the boiler room in one of the rear corners of the basement under this store building. The lease as actually executed excludes this boiler room, whereas the plaintiff claims that both parties understood it to be included.

After the execution of the lease and during the erection of the building the lessor installed his heating plant, consisting of a boiler in the room now in dispute, with pipes leading therefrom to both buildings. This mode of construction plaintiff acquiesced in, claiming now, however, that it was simply an experiment which he consented to for the landlord’s convenience, with a view to seeing whether both buildings might not be adequately heated from a common plant. This, however, proved unsatisfactory to him and he now insists upon his right to the exclusive use of this boiler room and such heating plant as may now or hereafter be installed therein of a capacity sufficient for his needs in heating his dancing academy. To this end he seeks a reformation of the lease.

In support of this contention he points out in the building plans, and in the store building, as erected, ample provision of smoke stack, flues, etc.,'by means of which a separate heating plant could have been and may be installed for the use of the store building alone.

The defendants claim on the other hand, that there was no mistake in leaving the boiler room out of the description of the leased premises, the intention of the parties all the while being that the lessor was to furnish the lessee with heat and that the lessee was to pay the lessor the reasonable cost or value thereof.

The provisions of the lease in regard to the tenant’s payment of rent, etc., seem to us to support the defendants’ contention in this behalf. Those provisions are:

“Said second party is to pay a rental in the sum of twenty-three hundred ($2,300) per year for the first period of ten years and the sum of twenty-seven hundred ($2,700) for the second period of ten jrears, of which said annual rental for first year has been paid in advance, upon terms and conditions stated in a receipt given therefor, and thereafter said annual rental is to be paid in quarterly installments in advance. In addition thereto, said second party is to pay for such lights, heat and water as he may use in said premises, and is to do all the interior repairing at his own expense.”

This provision is less consonant with the idea that the plaintiff, as lessee, was to furnish his own heat than that the lessor was to furnish it to him. In order to do so the lessor must necessarily control the heating plant and the room where it is located. At all events the evidence of a contrary contention is not so clear and convincing as the rule in such cases requires in order to authorize a reformation. It is not claimed that the lessee entered into this particular covenant under any mistake of fact. If there was any mistake on his part as to what the language meant, it was a mistake not of fact, but of interpretation of the contract; that is to say, an error of law, against which he can not have relief in equity.

There are certain other errors in the description of the premises which both parties concede. For example, the description of the land covered by the dancing academy fails to correspond by a few inches in some cases with the lines of the building as actually constructed. Moreover, certain rooms on the first and second floors of the store building adjacent to the corridor aforesaid, occupied by the plaintiff with the acquiescence of the defendants, are either not described or misdescribed in the lease, and the rights of plaintiff in the basement under the rear part of the corridor are not clearly defined. In these respects the lease should be reformed, but not as to the boiler room. If the plaintiff is not furnished such heat as he reasonably requires for his dancing academy, he has his plain remedy at law under the lease.

The plaintiff may take a decree to the extent thus indicated, but inasmuch as the defendant appears to have been ready to concede such reformation of the lease as the court now awards, the plaintiff must pay the costs.


text:
    BURDEN ON A DEFENDANT DENYING THE REALITY OF THE INJURY COMPLAINED OF.
    Circuit Court of Geauga County.
    The Cleveland Electric Railway Company v. Augusta L. Powell.
    Decided, February 23, 1909.

      Evidence of Particular Ailment Admissible Under General Averment of Injury — Burden Upon Plaintiff to Prove Nature and Reality of Injuries.

    1. Evidence that plaintiff had become afflicted with neurasthenia and - curvature of the spine as a result of injuries is admissible under an allegation that she "was greatly and permanently injured, in that her head was cut open and she was made sick, sore and lame.”
    2. The burden is upon the plaintiff in a personal injury suit to show the reality as well as the cause and' nature of the injuries of which she complains, and in a case in which, it is claimed that she has simulated injuries it is error for the court to charge that the burden is upon the defendant to prove malingering upon the part of the plaintiff.
    PJenry, J. (sitting in place of Metcalfe, J.) ; Laubie, J., and Cook, J., concur.
   The parties to this proceeding in error stand in the relation opposite to that in which they stood below. The action was for damages for personal injuries resulting from the fall of a trolley pole from a suburban car at the southeast corner of the Public Square in the city of Cleveland on December 18, 3904. Plaintiff below was a pedestrian crossing the street behind the car and was struck by the pole itself, for which she recovered a verdict and judgment.

The first error assigned is upon the admission of evidence that plaintiff had become afflicted with neurasthenia and curvature of the spine as a result of the injury, without allegation in her petition to that effect. The petition’s avennents that she “was greatly and permanently injured, in that her head was cut open and she was made sick, sore and lame,” are broad enough to admit this evidence.

The second error assigned is upon the exclusion of the answers to these questions, viz,:

“Q. I will ask you to state whether there was an inspector of that road at Beech Park? A. Yes, sir. The car was inspected before we took it.
“Q. And at what time was that inspection made? A. Well, the car got in there, I should judge about 8:10 or 8:05 along there, and was inspected before we took it.”

The witness was the conductor of the car in question. It appeared to the trial court, and appears to us. that his personal-knowledge was not such as to qualify him to give this testimony, especially as it amounts to a conclusion or opinion.

Further assignments of error are made upon various instances of alleged misconduct of counsel for plaintiff below. We shall not discuss these, further than to say that comments by counsel upon the evidence, or upon anything connected with the case, in the hearing of the jury during the production of evidence, are wholly out of order unless addressed to the court tona- 'fide on interlocutory questions. But we find no. prejudicial error warranting a reversal, in any of the instances cited.

The charge of the court is complained of, and we find error in this language:

“It is claimed on the part of the defendant that the neurasthenia, if any, with which the plaintiff claims to be suffering, results not from the injuries received at the time of the accident, but from the diseased condition of the female organs. If you find that such neurasthenia is the result of diseases of 1he female organs, or that it results from any other cause than the accident, it would be your duty to wholly disregard it in estimating damages.
“It is claimed on the part of the defendant that the plaintiff is malingering, or pretending the various ailments with which she claims to be suffering. While the bqrden is on the plaintiff to prove that her injuries and diseases result from the injury, the burden is on the defendant to prove malingering by a preponderance of the evidence.”

We remark that the defendant did not claim to account for neurasthenia in the plaintiff, but denied its existence. What it did claim was that she suffered from hysteria, and it sought to account for this from female disease not referable to the injury. Moreover, malingering by the plaintiff was claimed not as an affirmative defense, but as a challenge of the good faith of plaintiff’s testimony and actions in respect to her injuries. The burden was on the plaintiff, and not upon the defendant, to show the reality as well as the cause and nature of the injuries.

The fourteenth written request to charge before argument was improperly refused:

"(14) The Cleveland City Railway Company was only required to transport the ears of the Lake Shore Electric Company to and around the public square and back to Rocky river, unless you find that by mutual agreement between the parties a different ■ point of destination in the city of Cleveland was agreed upon between the parties.”

AAUiile, as indicated in the general charge, a presumption may arise from the regular routing of the suburban cars in question, for months before the accident, to the new terminal beyond the defendant’s tracks, that- this was done by consent of the parties within the express contemplation of the original contracts (to one of which both city companies and all the interurban companies were parties), yet such presumption was clearly rebuttable, and it was for the jury to say 'whether the preponderance of the evidence showed that, the crew of the car were at the time of the accident in defendant’s service and the car itself in the defendant’s custody. Unless the jury found an express or implied agreement, supplemental to the original contract, which would support these claims, the defendant company could not be held liable for plaintiff’s injury beyond its own line. The special finding of fact by the jury, implying that ihe car was turning westward on the defendant’s track, instead of eastward on the track of the other city company, though supported by some evidence, is reconcilable with all the evidence only on the theory that the car started to turn westward by oversight of the motorman in failing to throw the switch.

"We do not reverse the judgment for excessive damages, although we are impressed with the extreme liberality of the jury whose verdict of $15,000 considerably exceeds our own estimate of plaintiff’s' damages. But for the errors already pointed out, which are all we find in the record the judgment is reversed and the cause remanded.


text:
    LIMITATION OF THE RULE IN SAGE v. HINKLE.
    Court of Appeals for Hamilton County.
    Hiram C. Bolsinger, Administrator, v. Betty Halliday.
    Decided, May 28, 1915.

      Action by Daughter — For Board and Lodging for Her Deceased, Mother —Buie as to Uneqxnvccal Proof Applies to Existence of a Contract Only, and Not to Other Features of the Controversy — Axnendment Alleging an Express Pastead of an Implied Contract Does Not Introdxi.ee a Nexo Cause of Action — Nor Destroy Bights Under the Statute of Limitations.

    .1. The substitution, by apt allegations in an amended petition, of an express agreement for an implied agreement to do the same thing, is not a departure from the cause of action in the first instance, but merely provides a different method of proving the action already in court.
    2, Inasmuch as the running of the statute of limitations was halted by the filing of the original petition, the contention does not lie that leave to file an amended petition setting up the same claim, but as arising under an express instead of an implied agreement, deprived the defendant of the benefit w'hich would otherwise have come to him by reason of the statute.,
    3. In an action by a daughter, on a claim for boarding and lodging her deceased mother, the court is compelled under, the rule in Sage v. Hinkle to charge the jury that the contract between the mother and daughter must be established by clear and unequivocal proof, hut as to the other issues in the ease the rule of preponderance of evi- ' denee applies; and the giving of both rules, each in its own sphere and neither one being permitted to usurp the duty of the other, is not error.

      J. G. DeFosset and W. A. Hicks, for plaintiff in error.-

      George S. Htmke, contra.
    Grant, J.; Meals, J., and Carpenter, J., concur (sitting in place of Judges Jones, Jones and Gorman).
    This is a petition in error, the purpose and prayer whereof are the reversal of the judgment of the court of common pleas.
   The parties are here in the inverse order of their standing in the court below, but for the' sake of clearness and to obviate confusion, they will in this opinion be designated as they were there.

The plaintiff is a daughter of the defendant’s intestate. She presented a claim to the defendant administrator for board and lodging bestowed upon his intestate by her, which, upon requisition made by one of the heirs at law, was rejected, as the statute in such case commands. Whereupon the plaintiff sued the claim in the present action, and the defendant administrator, upon a like compulsion, defended against it, as he was by law bound to do.

In her first petition in the suit the plaintiff declared upon a simple indebtedness arising from furnishing the board and lodging referred to, apparently — but without saying 'so by the petition — upon an implied contract to pay the debt.

After a motion to this petition has been sustained, an amended one was filed, the new matter in it being to the effect that the commodities named were furnished at the instance and request of the intestate, that they were of the reasonable worth of the sum sued for, and that the decedent had agreed to pay it. This last allegation was then stricken from the pleading on motion.

Then the defendant answered, denying generally the charging parts of the petition, but admitting the presentation and rejection of the claim, under requisition as already stated. The answer then set up the relationship of the intestate and the plaintiff as that of mother and daughter.

The case standing thus, and no reply having been filed, the defendant moved for a judgment on the two pleadings — namely, the amended petition and the answer to it.

The motion was denied and an exception was saved.

While this motion was pending and .undisposed of, the plaintiff asked leave to file a second amended petition. This leave was granted, over the objection and exception of the defendant, and this was on the same day upon which the motion for judgment on the pleadings was refused. This amended petition contained the additional averment that the board and. lodging mentioned were supplied under an express verbal promise and agreement on the part of the intestate to pay for them at the rate claimed and sued for.

To this pleading an answer was interposed, to the same purport and effect as that previously made, with an added allegation to the effect that if the things charged fo;r were ever bestowed at all they had been fully paid for.

There was no reply, so far as the transcript in the case shows, nor do we find a reply among the attached pleadings, although in the charge given to the jury one is purported to be read. Upon the issues thus joined, the cause was put upon its trial to a jury.

There was a verdict for the plaintiff, upon which the judgment here complained of was entered, a motion for a new trial, seasonably made, having been overruled.

Three principal grounds of error are assigned and have been argued, for which the judgment should be reversed as it is said.

The first of these is the refusal of the trial court to enter judgment on the pleadings, upon motion made by the defendant. Connected with this and to be considered as a part of it, is the concurrent allowance of the filing of an amended petition in the casé. The new pleading was permitted by the same entry which denied the judgment on the pleadings. The denial was, no doubt, bottomed upon the known fact that the amended petition on its face healed the infirmity in consequence of which the judgment was asked. The discretion of the trial court in allowing amendments is limited only by the justice of the case, and the substantial identity of the proposed pleading to be substituted by amendment for the fatally defective one on account of which the motion for judgment was made. We think the amended petition fairly meets both of these conditions. Dealing with them in the inverse order of our statement of them, we can not regard the substitution of an express contract by apt allegation for an implied agreement to do the same thing, as stating a new, or different cause of action, or as in this case a departure from the cause of action of first instance. The cause of action is an agreement to pay for certain commoclities furnished, or.rather the furnishing of them. The form of the agreement, whether implied or express, is only the mode of proving the cause; it is evidence that the cause of action exists, but is not itself the cause of action. A plaintiff may bring forward his pieces of evidence to make good his claim of right of action in such shape as to him may seem best, whether in the form of an express contract to pay, or some less direct and satisfactory way of proof. _ In this case it would have been sufficient, but for the rule laid down in Sage v. Hinkle, 67 O. S., 256, to prove 'the furnishing at the request of the intestate. The law would have supplied the promise to pay. Having found that this method would not meet the requirement of the rule stated, the amended pleading offered to make good the deficiency by alleging an express agreement to pay. This, to our apprehension, did not propose a new action, or cause of action, but a different way of proving the action already in court.

If this view is the correct view, then the justice of the case called for an allowance of the amendment. The defendant was not thereby called on to meet a new case, but the same case to be differently substantiated.

There is another and cogent reason why, in our estimation, we may with propriety come to the same conclusion. • The motion for a judgment on the .pleadings was bottomed, confessedly, on the insufficiency of the petition as it then stood to justify a recovery in a point of controlling substance, to-wit: the inability to show an express promise to pay. So the brief says, and such undeniably is the fact. The objection went to the substance of the pleading and was not at all concerned in the question of its regularity or the want of it.

In Finch v. Finch, 10 O. S., 501, a similar motion was denied on the ground stated in the opinion, p. 506, as follows:

“The motion being based, not on any alleged irregularity connected with the filing of the answer, nor upon any matter pertaining to its form merely, but-on its alleged insufficiency in matter of substance the objection ought to have been taken by demurrer. ’ ’

Our conclusion on this point is that the allegation of error is without merit.

Holding, as we thus have held, that the amended petition did not introduce a new or different cause of action from the' one pleaded at first, but only brought into the case another method of proving the case already in court, this consideration appears to us to meet the next contention of the argument for plaintiff in error, to the effect that the permission to file the amended petition destroyed the benefit, otherwise coming to him from a statute of limitation.

Remembering here also that the thing that is barred by the statute in six months, unless suit is brought within that time, is the claim of a plaintiff, and the argument breaks down of its own weight. The “claim” is for a named sum of money, earned as compensation for board and lodging furnished. That was the “claim” alleged in the original petition. It also was the “claim” in the second petition. There was no change made in its amount-or its subject. The amount was the same in each pleading, and in each it was declared to be in consideration of the same service or commodities. The aid of an alleged express contract was called in by the amendment to help prove the right to recover the sum prayed for alike in both petitions, and that was all; at most it was but an application of the “claim” once for all presented, rejected and sued on. As against that only “claim,” the running of the statute was effectually stopped by the bringing of the suit, and this halted that “claim” totally and for ^all time. We think there is nothing in the point.

We now come to the last and most difficult question raised by the record as presenting a case of manifest error, for which a reversal of the judgment complained of should be awarded. It has to do with the instructions of the learned trial judge given in charge to the jury.

In order properly to exhibit this particular assignment of error, it will be necessary to give the court’s language in respect of the weight and character of the evidence required by applicable law to allow a recovery to the plaintiff or a denial of such recovery. It is as follows:

“The burden of proof in this case rests with the plaintiff to establish by preponderance of the evidence that she had an agreement with her mother, an express agreement that she was to board and lodge her mother for $2.50 a week, and that the mother promised and agreed to pay her $2.50 for the-board and lodge. By the preponderance of the evidence is meant the greater weight of the evidence, not the great number of witnesses. You are the sole judges of the credibility of the witnesses, and of the preponderance or the weight to be given to the testimony of the witnesses. In determining what credibility you shall attach to the testimony of the witnesses, what weight you shall give to their testimony, you should take into consideration not only what the witnesses have said upon the witness stand, but their demeanor upon the witness stand, their conduct, -their appearance on the witness stand, their manner of testifying, their relationship to the parties, if any there be, their bias or their prejudice, if any has been shown in the case by their evidence, their interest in your verdict, if any they have, the opportunities each have had of knowing the things concerning which they have testified, and the probabilities or improbabilities of the various statements, and every other fact and circumstance which will aid you in determining whether or not the preponderance of the evidence lies with the plaintiff or does not lie with the plaintiff, and in determining what credibility you will attach to the testimony of the witnesses.”

Afterwards, in the charge,, appears the following language:

“If the testimony in this case is evenly balanced, your verdict must be for the defendant. If the preponderance of the evidence, or greater weight of the evidence, under the rule as I have given it to you is on the side of the plaintiff, then your verdict should be for the plaintiff.”

At a still later period in the order of instruction, is found this charge:

“Now, in this case if you should find from the evidence that the plaintiff, Bettie Holliday, was the daughter of Mahala Talbott, and I may say that fact is admitted by the pleadings and by the evidence, that she was a daughter, during the time Mrs. Talbott lived and boarded with the plaintiff from November 7, 1908, to November 4, 1911, then I charge you as a matter of law that the plaintiff can not recover in this action unless you find from the evidence that there ivas an. express contract betiveen the plaintiff and the deceased mother, that the mother would pay for the board and lodging, and that the plaintiff bound herself to furnish the board and lodging. The evidence to establish this contract or agreement must be clear, unequivocal that there was an actual agreement, either in writing or verbal, to perform the services for pay on the one side, and upon the other side to receive the services of board and lodging and to pay for them. Cases of this kind are odious in the eyes of the laiv and not favored by the law, because there is an opportunity for fraud against estates of deceased persons, a great temptation to perjure by disappointment or avaricious relations. ' Therefore, the court lays doAvn the rule, in order to recover in cases of this kind, where the relation of parent and child exists, or some such close relation, an express contract between the parties must be established by clear and positive, or unequivocal evidence, that such contract or agreement was entered into by the parties. °
“By an express contract is meant an express promise on the one side to do something, and an express promise on the other side to pay therefor. In this case, if the evidence shows that Mahala Talbott asked her daughter, Bettie Holliday, to board and lodge her and that she said she would pay for it at Avhatever rate she said she would pay, and the daughter, Bettie Holliday, accepted the proposition and said she Avould board her and lodge her for pay, and lodged and boarded her therefor, or Avords to that effect, that would be an express contract, and the other, Mahala Talbott, would be liable on that express contract just as any stranger Avould be.”

The remainder of the charge, material to the present consideration, is in the following Avords:

‘ ‘ If you find there was an express agreement, then the plaintiff is entitled to recover notwithstanding the fact Mahala Talbott AAras her mother. She had a right to make a contract of that kind, just as she had a right to make a contract with a stranger. If, on the other hand, you find plaintiff has failed by a preponderance of the evidence to establish that there was such a contract as this, then the plaintiff is not entitled to recover. She can not recover simply because her mother lived with her and lodged with her during the three years, or practically three years of her life.
“Now, in this ease yon should take into consideration all the circumstances of the case, the relationship of the parties, and everything I have heretofore alluded to, and weigh and determine whether or not this agreement was made as claimed by the plaintiff, and if it was she is entitled to a verdict at your hands. If in your opinion no such agreement was made, or no similar agreement as an express agreement, then plaintiff is not entitled to recover.”

Here we have, it is said, two separate and distinct rules, under either of which the plaintiff is allowed a recovery. But one of these can be correct — such is the argument — and no one can tell which the jury followed — the right one or the wrong one. And the conclusion drawn is that at best and in any event, the charge in this respect is clearly and fatally misleading. The claim is that the rule of preponderancy is given, which, under the law of this case is'the wrong rule. Then, it is said the requirement of clear and unequivocal evidence as a condition, if not the sole condition of recovery, is made, but without any withdrawal of the rule of greater weight already given. And, finally, so it is argued, the court comes back to the first rule of preponderancy, and on that condition at last sends the jury to consider of their verdict. The two rules, it is said, are destructive of each other.

This confusion of rules, as it is charged to be, would necessarily and hopelessly beget- a resulting confusion in the minds of the jury, for which a new tidal should have been, and therefore should now he, awarded — such is the argument.

It is barely possible that the confusion — if such there is— resides elsewhere.

Before passing to a consideration of this part of the charge as a totality, we may observe that the defendant produced no evidence by his own witnesses; his efforts — -perhaps unavoidably— were limited to a cross-examination of the witnesses for the plaintiff. What was thus extracted we do not know — the bill of exceptions exhibiting no part of the testimony given at the trial, but only its tendency as supporting or contradicting the verdict. It is possible that the negative inference that something may have been developed by the cross-examination to bring the question of weight into the ease, so that an instruction of some sort upon that point was proper, if proper otherwise.

Coming to consider the charge as a whole, and looking at it in its relations and with a sense of proportion, we see that in laying down the hard and fast rule o£ clear and convincing evidence as a condition of recovery, the court followed the imperative.mandate of the Supreme Court in Sage v. Hinkle, supra. As there stated in the syllabus, it is this:

“2. Such contract” (i. <?., a contract between two meinbers of a family agreeing to pay for support furnished by one of them) “may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof. ’ ’

It is to be said at the outset that this deliverance is wholly evolved from the breast of the court; it is “'judge-made law,” a thing with which no inconsiderable part of the Supreme Court of Ohio, as now constituted, is greatly at variance. It was thought necessary to strike out this new rule of law in the case referred to — admittedly so, in the opinion — because, it is said, “cases of this kind are odious and not favored by the courts.” The fact is mentioned only to conclude that a law thus brought into being is not to be stretched beyond the needs of this non-favorite class of eases.

Premising this, it is to be observed that the requirement of ‘ ‘ clear and unequivocal proof, ’ ’ goes only to the establishment of the contract between the parent and the child. All-other issues raised in a case of which such a contract forms only a part, are to be “resolved by the rules of evidence prevalent before the court made this especial rule. Tn the case at bar there were such other issues calling for proof measured by the standard of preponderancy, undoubtedly. Nor were they unimportant issues, either. The furnishing of- the board and the like — matters quite apart from the special contract to pay for them — were denied by the answer, and so called for evidence to be tested by some rule. The ease of Sage v. Hinkle furnished no rule as to them; they were left as they were before.

The court charged the jury as to the express contract pleaded, in the exact words of that case, fully and lucidly, and was at the pains of giving also the reasons brought forward by the Supreme Court for-enunciating it in the first place. This still left the other questions involved to be settled by some other rule; and, since the rule of “clear and unequivocal proof” could not well be extended to them, the rule to be given could have been, and therefore should have been, none other than the rule which the court carefully and discriminatingly gave, namely, that of the preponderating evidence. The court sorted out the express contract part of the ease and told the jury that to establish that the high grade of - proof named in the SageITinkle case must be forthcoming, or no recovery could be had; he completely isolated this issue from the rest of the case, and it is difficult to see how the jury could have inferred that an application of the rule of preponderaney was expected to be transferred from this clearly segregated issue to the other issues. It is true that in the converse of this process of separation on the part of the court, the issues as to matters apart from the express contract were not in terms as clearly eliminated from the operation of the “clear and unequivocal proof” requirement as that question had been aparted from them. But we think the jury could hardly have mistaken its duty not to apply the rule of preponderaney to the express contract issue — so plainly had the court set off that question by itself and applied to it, not only the proper rule, but the peculiar and coercing reason for creating the rule in the first instance, as this appeared to the Supreme Court. And no more particular instruction in athis respect was asked.

The matter may perhaps be looked at from another angle, from which a like conclusion can be reached.

Preponderancy goes to the weight of a thing. Clearness and unequivocalness go to the character of a thing. Weight is the correct translation of preponderancy from its parent word in another tongue. The rule of preponderancy has to do with the quantity or' amount of the evidence necessary to work a recovery. The rule that the proof must be clear and unequivocal has regard to the quality of the evidence requisite to reach a given result — in this case, the establishment of an express agreement. These attributes are not the same. They are not- the synonyms or equivalents of each other. They are not interchangeable terms, to be used indifferently, one for the other. It would be looseness of language to so treat them. They do not even shade into each other so imperceptibly that a person can not say where the office of one ends, with respect to the other, or when that of the latter begins. On the contrary, they are distinct in the service they are to render in their application to the facts of any ease, and the function of one of them nowhere overlaps the duty of the other.

We think the distinction a real one, embodying a real difference, which in its application to the case m hand should have been level with the apprehension of a juryman — the circumstances considered.

The amount, the quantity, the tueight, of the evidence necessary to a recovery, was the preponderating amount. This went to all the issues in the case, and should have been so charged — • as it was charged. The Idncl of evidence — a thing quite apart from its weight — requisite to establish one particular issue in the ease — to-wit, the issue of an express contract — was the ‘1 clear and unequivocal” kind; its required characteristic was quality and not quantity. And accordingly, that characteristic was named as an essential thing without which the express agreement could not be by law established.

Perhaps this distinction is not sufficiently attended to in many eases, and that the office of the one rule is often confounded with that of the other. For this reason we have been at pains to try and point it out, being willing to risk the imputation of being tedious rather than not to be sure of being understood. Taking the charge together, we are clear that both rules were proper to be given, each in its own sphere, and neither being allowed to usurp the duty of the other. If the court had given the ‘ ‘ clear and unequivocal proof ’ ’ rule, without more, the charge would have been open to the accusation that the facts to. be proved, aside from the express contract' — for again let it be remembered that the “clear and unequivocal proof” rule is limited to that one consideration — were sent to the jury without any instruction at all. If he had spread that harsh and exacting rule over the whole case, it would have been quite without warrant of law.

We are informed by the bill of exceptions as follows:

‘ ‘ The defendant on cross-examination offered evidence tending -to show the surroundings and circumstances under which said deceased lived with the plaintiff, and her resources and means and opportunity to use and apply them to the payment of •said alleged claim during her lifetime, and introduced the checks given by her and the bank book, all as evidence tending to show that no such contract was made.”

Of the range taken by this .cross-examination we are not informed, but in view of the denials of the answer, we are not warranted in concluding, as we think, that there was nothing in it calling for some instruction upon matters other than the express agreement. And if as to these there should have been an instruction given, it must have been the rule that was given, that of preponderancy or the greater weight. If in the estimation of counsel the landmark between the two subjects was not in the charge made as plain as it should have been, a request to make it so would have been timely and proper. We can not say, as matter of law, that in this respect the instructions objected to misled the jury to the prejudice of the party now complaining.

This case it appears has twice been tried to a jury, with the same verdict in both instances. The record shows us that the tidal court used every proper effort to set before the jury the law applicable to the facts, with an apparent single desire to see substantial justice done as between the contending, parties.

After a painstaking examination, with no other desire, we are unable to say that substantial justice has not been done.

Finding, therefore, no error in the record before us, the judgment complaiñed of is affirmed.


text:
    INJURY TO ONE ATTEMPTING TO BOARD A CAR..
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Jennie Riskey.

    Decided, February, 1913.

      Negligence — Woman Injured hy Premature Starting of Street Oar— Oharge of Court — Competency of Testimony of Physician.

    1. In charging a jury the law should be stated by the spoken word of the judge himself, and not by reference to any paper which may have been filed in the case.
    2. It is competent for the physician who treated the plaintiff for the injuries complained of and who saw the marks on her body to testify that the accident of which she told him and the marks of which he had seen on her person caused the condition which he had described.

      Paxton, Warrington •<& Seasongood, for plaintiff in error.

      Hoffman, Bode & LeBlond, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.

      Affirmed without opinion, Cincinnati Traction Co. v. Riskey, 90 Ohio State.

   The issue of fact in the trial of this case was a simple one. If as plaintiff claimed in her petition and evidence the car had stopped for the purpose of allowing her and other persons to board it and was started by defendant’s employees while she was in the act of stepping upon the platform, defendant is liable. If plaintiff tried to board the car while it was in motion and was injured as a result of such attempt, defendant is not liable.

This issue makes unnecessary any discussion by the court, in its charge, of the question as to when a person becomes a passenger.

The court undertook to instruct the jury upon this question and, we have no doubt, erred in the manner pointed out in the brief of plaintiff in error.

This portion of the charge was: ■

“I believe the law holds that a person is regarded as a passenger of a company when they undertake to enter a car of the company as alleged in this petition. If they are on board the vehicle of transportation they a're said to be a passenger, whether or not they have up to that time paid their fare, but enter with the intention of paying their fare, or, if they are in the act of entering upon the vehicle of the company, they then have all the rights of a passenger to this extent, that the carrying company is charged with the highest degree of care with reference to the transportation and care of that passenger.”

In charging the jury a court should not undertake lo do so by reference to the allegations of any paper. The law should be stated by the spoken word of the judge himself. It was particularly erroneous to refer the jury to the petition in this ease as it states plaintiff “boarded the car” and then, by subsequent allegations, places her on the step in the act of stepping to the platform. The allegations of the petition are conflicting.

On page 95 of bill of exceptions will be found a correct statement of the law as follows:

“If you find from the evidence that the plaintiff undertook to get on the car after it had started, then she assumed the risk of such action and could hot recover for any injury resulting thereby; if on the other hand, that while the plaintiff, in the exercise of ordinary care was in the act of entering the car, and after she had placed her foot upon the car while stopped, and that the car was suddenly started, and that she was injured because thereof, then she would be entitled to recover for her injuries. ’ ’

This portion of the charge is clear and unambiguous, correctly states the law upon the pleadings and evidence in this case and in our opinion cures the error pointed out above. In the reply brief it is claimed that in this portion of the charge the court omitted to say that before plaintiff can recover it (the jury), must also find that “she was not given a reasonable opportunity to enter the car before it started.” We think there was nothing in the evidence, or claim of defendant to make this necessary.

The following portion of the charge is objected to:

“This compensation would include the pain she has already suffered, as well as the pain she may continue to suffer if her injuries are of such nature as to cause her pain in the future. ’ ’

It is true that this language is not that approved by our Supreme Court in Pennsylvania Co. v. Files, 65 O. S., 403. The language there used and indorsed by the syllabus is — “Where prospective damages are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury.”

The use of the words- “may suffer” has been held to be erroneous, but we think the words which follow made it incumbent upon plaintiff below to, at least,'show future pain or suffering “reasonably certain” if indeed they do not require a higher degree of proof.

The court instructed the jury that it must find her injuries “are of such nature as to cause her pain in the future” before anything could be included for future pain. We are of the opinion that while this is not a model charge on the point in question it substantially conforms to the rule and can not be said to be prejudicial to the party complaining.

The special charge which was refused by the trial court was not a full statement of the law upon the question involved. It places emphasis upon the jerking of the. car and entirely ignores the complaint that the car was started while plaintiff was trying to hoard it. Under the evidence the charge that “a sudden jerk is no evidence of negligence” would be error, the testimony showing, as it does in' this case, that the car had stopped for plaintiff and others and that there was no lack of diligence or alacrity in boarding it.

We find no prejudicial error in the exclusion or admission of evidence.

The evidence of the physician who treated her before and after the accident as to the cause of the “floating kidney” was admissible. Had he been called in purely as an expert who had no previous knowledge of the patient it would be otherwise. But he was called to treat the patient for these injuries, saw the marks on her body and treated her for a long time. It was competent for him to say that the accident which she told him about and of which he saw the marks on her body caused the condition described by him. Especially is this so when no attempt is made to prove nor is there any intimation that she had suffered any other violence.

We find no error in the record prejudicial to plaintiff in error and are of the opinion that the judgment should be affirmed.


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    VERDICT NOT VITIATED BY ERROR IN CHARGE AS TO ONE BRANCH OF THE CASE.
    Circuit Court of Geauga County.
    The Cleveland City Railway Company v. Augusta L. Powell.
    Decided, 1909.

      Trials — General Verdict for Plaintiff Makes Mrroneous Charge as to One Branch of Case Immaterial.

    Where a jury has returned a general verdict in favor of the plaintiff and there was an erroneous charge as to one branch of her claim, but no error as to another branch of the case which of itself would entitle her to recover the judgment which she obtained, the judgment will not be disturbed.
    Henry, J. (orally); (sitting in place of Metcalfe, J.); Cook, J., concurs; Laubie, J., dissents.
   This is a proceeding in error prosecuted to reverse a $10,000 judgment recovered for personal injuries sustained by the defendant in error on account of the falling upon her of a trolley pole from an electric car in the city of Cleveland. She- was a pedestrian upon the street. We do not care to discuss all the assignments of error that were made in this case. We have examined them all and we find only one which we deem worthy of discussion in the time that is at our disposal now. We find nowhere any prejudicial error in the assignments that we may thus pass over.

It is conceded, however, that there was error in the charge as to one branch of the claim pf the plaintiff below; but it is contended on her behalf that there was another branch of the case which of itself would entitle, her to recover the judgment which she obtained, and with respect to which no error intervened.

A number of authorities are cited to us to establish the proposition that where a jury finds a general verdict upon the issues in a case in favor of either party it is presumed that the verdict is founded upon a finding in favor of the prevailing party upon all -the issues; and if there were, for example, two defenses interposed in an action and with respect to one of those defenses the court erroneously charged the jury, and with respect to the other no error intervened, and a general verdict upon all the issues was returned in favor of the defendant, the error was not available to the defeated party, because the defense with respect to which there was no error will be deemed to have been one at least of the defenses upon which the verdict of the jury was founded. It is, however, said that the cases cited to this point, among which are Stites v. Haverstick et al, 23 O. S., 626; Union Central Life Insurance Company v. Sutphin, 35 O. S., 360; Tood v. Wick, 36 O. S., 370; Beecher v. Dunlap et al, 52 O. S., 64, and McAllister v. Hertzell, 60 O. S., 69, are all cases whei’e the verdict was in favor of the defendant; and it is suggested that the rule can not apply in like manner when the verdict is in favor of the plaintiff upon a cause of action predicated indifferently on any or all of two or more grounds, and that for that reason'it is not applicable to this case.

One case in the Supreme Court, not cited by counsel and not accurately placed in Bates Digest, so that we were put to considerable trouble to find it, though it was known by one member of the court, at least, to have been cited on a former occasion (the case of The Pennsylvania Company v. Miller & Company, 35 O. S., 541), seems to give some countenance to that distinction, if we give it full credit at this time. The form of the verdict for the plaintiff is not recited in the report of that case, and hence it does not clearly appear that the rule there laid down applies to this precise point. But, in any event, a majority of the court are unable to reconcile that decision, in its attempted application to this case, with the other decisions of the court of last resort in this state which I have already cited. In ,view of a decision by the Supreme Court in the case of Butler v. Kneeland et al, 23 O. S., 196, which, though of earlier date, is seemingly inconsistent with Pennsylvania Company v. Miller & Company, and in view also of this long line of authorities in some of which in the syllabus, the rule is stated generally, and not limited to the case of a verdict for the defendant, a majority of the court are constrained to hold that the distinction urged upon us by the defendant in error is well founded and that the admitted error in the charge on the question of the degree of proof necessary to defeat a prima facie case made by the plaintiff is rendered immaterial by the general verdict of the jury, upon all the issues in the case, in favor of the plaintiff. The verdict here is sustainable as including a finding- of negligent failure to hold the trolley line; and that suffices, since we find no error in that aspect of the matter. Although we come to this conclusion with some hesitation and with dissent on the part of our brother Laubie as to the point I have discussed we nevertheless think the judgment below ought to be affirmed and it is affirmed.


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    CREDITOR. BOUND BY HIS BOOKKEEPER’S APPLICATION OF PAYMENTS.
    Circuit Court of Cuyahoga County.
    Wm. L. Rice, Trustee of Charles T. Todd, v. The McIntyre-Skinner Trunk Co.
    Decided, December 7, 1908.

      Application of Payments.

    Where a creditor through his bookkeeper has made a certain application of payments received from his debtor, he will not be permitted later to make an application different from that indicated upon his books.

      Blandin, Rice & Ginn, for plaintiff.

      Weed, Miller & Nason, Paul Howland and Klein & Hams, contra.
    Henry, J.; Winci-i, J., and Marvin, J., concur.
   This is án appeal of an action to enforce the primary and secondary liability of stockholders for rent and reimbursement of taxes due from the defendant corporation. The tenancy was at first under a written lease and later by holding over, and the rent was payable monthly but fell into arrears during the original term and was never fully caught up by the several sums afterwards paid. The question now is one of the application of payments, as to which no direction was given by the tenant when he made them. If the sums paid by the tenant during the period of holding over are applied not on the rent then accruing but on its old arrears, the amendment of the Constitution, which meanwhile became effective, would prevent the right of recourse to the stockholders liability for the remainder from arising. The plaintiff herein kept an account by his bookkeeper, wherein the debits for installments of rent and disbursements are balanced in regular order of time by the payments made so far as they go. This application was not communicated to the tenant, and after the latter’s failure, the plaintiff sought by his petition herein to make a different application suited to the relief which he asks. TIis right to make any application he pleased is undoubted in the absence of a direction expressed by the tenant or implied by the circumstances. But the circumstances here, while not making a case of partial payments on an open running account, is nevertheless so closely analogous thereto as to imply in law an intention to apply them precisely as the bookkeeper did apply them. The result is that no resort can be had to the secondary liability of the stockholders. As to the primary liability of two subscribers to the -capital stock who sought to withdraw from all connection with the company before any part of the liability accrued, it is enough to say that the subscriptions were never lawfully or effectually canceled, and a decree may therefore be taken for the amount thereof.


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    HEAVY PIECE OF FURNITURE LEFT IN STREET OVERTURNS ON CHILD.
    Circuit Court of Cuyahoga County.
    The Isaac Leisy Brewing Company v. Alphons Kapl, an Infant.
    Decided, December 7, 1908.

      Negligence — Turntable Cases Not Applicable Where Dangerous Appliances are Left in Public Streets.

    One who leaves a heavy article in the public streets in unstable equilibrium. and in such manner as would be likely to attract children, is liable in damages to a child who has been attracted to it and is injured by having it fall upon him while playing about it.

      Solders, Thayer & Mansfield, for plaintiff in error.

      Hawley & Meals, contra.
    Henry, J.; Marvin, J., concurs;' Winch, J., dissents.
   In the action below the defendant in error recovered a verdict and judgment for injuries sustained by him from the overthrow of a bar fixture which had been temporarily placed during removal, in the space between sidewalk and curb,in the street, in front of the plaintiff’s premises. It was left in unstable equilibrium, and the defendant in error, a child of six years, inter-meddled with it so that it fell over on him.

Because this was a.public street where the child had a right lo be and where it was to be expected that small children would exercise their childish instincts, a majority of the court are unwilling to hold that the doctrine of Railroad Co. v. Harvey, 77 O. S., 235, as applicable to private premises, rules in this ease; especially as that decision distinguishes, instead of in terms re-' versing, Harriman v. Railway Co., 45 O. S., 11.

Judgment affirmed.


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    OPPORTUNITY TO KNOW DISTINGUISHED FROM CONSTRUCTIVE KNOWLEDGE.
    Circuit Court of Cuyahoga County.
    The Interstate Steamship Company v. Joseph Chanfordi.
    Decided, November 30, 1908.

      Negligence — Opportunity to Knoio Not Equivalent of Knowledge — Error to Charge as to Truth of Facts Not Admitted.

    1. In an action for injuries caused by defendants’ negligence in which it is alleged that defendants’ neglect occurred after they had knowledge of plaintiff’s position, it is error to charge that defendants are liable if they knew or had opportunity to know of plaintiff’s presence and proximity.
    2. It is error to charge the jury that any given fact in issue has been proved, even.though the oral testimony in support of that fact is wholly uncontradicted, unless it amounts to an admission by the opposite party.

      Goulder, Holding & Hasten, lor plaintiff in error.

      -Fitzgerald and George B. Marty, contra.
    TIfnry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand in the relation opposite to that in which they stood in the court of common pleas. There, the plaintiff, Chanfordi, recovered a verdict and judgment for injuries sustained by him through the negligence of the defendant, while he was in the employ of the Pittsburg & Lake Erie Dock Company, at Fairport Harbor, Ohio, May 20, 1906.

The plaintiff’s petition alleges that while he was engaged in making repairs upon a certain ore loading machine known as a whirley, and was standing on the dock between said machine and the steamer, B. F. Jones, owned by the plaintiff in error, the agents and servants of the defendant in charge of said steamship “with full knowledge of the presence, and position of the plaintiff, undertook to move said steamer along the dock,” by making fast a cable to a cleat on the dock and winding the same on a drum operated by a deck engine on said steamship. ITe further says that they so carelessly and negligently handled said steamship, her deck engine and cables, that a cable leading from the steamer on the port or left hand side forward, to a cleat on the dock below, where plaintiff was at work, suddenly and without any warning whipped or flew up and struck plaintiff violently on the body and head,' painfully and permanently injuring him, without any fault or negligence on his part.

The answer admits, among other things, “that on the day aforesaid, as its said steamer was being moved along said dock, a person to defendant- unknown was between one of said unloading machines and said steamer, and was struck by one of said cables.” The answer further denies any negligence on its part, but alleges that said injury was caused wholly by the negligence of the person injured.

Upon the trial, and as app'ears from the bill of exceptions, “in the statement of the case, the defendant’s counsel said that the defendant’s agents- and servants handled the line in the usual and ordinary way,” and that “the plaintiff through his own negligence was struck by the line whipping up.”

The only evidence offered at the trial was that produced by the defendant in error, and it tends to show that the plaintiff below with four other men, were, engaged on this occasion in removing part of the steel framework of the whirley on the side of the machine which was nearest the face of the dock. The work consisted in cutting off and driving out the rivets which held a part of the framework in place, and taking the same out and replacing it with a new part, marking holes in the new one and then having it drilled to fit into the place of the old one. When the work had progressed so far that the rivets had been cut off and driven out and they were about to remove the old frame, the steamer B. F. Jones which had been lying some distance below or south of the machine, was moved down stream along the dock, so that that part of her which was just aft of the forward house was abreast of the whirley, which was being repaired. In pulling on the line to haul the vessel astern, in the manner alleged in the petition, it was obviously dangerous for the men to work in close proximity to the cable, and recognizing this danger, they stood aside for some minutes. Thereupon, apparently supposing (whether with or without reason, is a controverted point), that they could return in safety, they went back and took out the old beam, carried it to a point south of the whirley and were again returning to clean the grease and dirt off the eastings at each corner of the machine so that the new beam could be. placed in position and marked, when the cable which had been taut, suddenly slackened and then whipped up, causing the injury to plaintiff.

A motion to direct a verdict for the defendant below having been overruled and no further evidence being offered, the trial judge charged the jury, among other things that:

“If you find that the plaintiff was engaged upon repairing a machine on the dock in close proximity to the defendant’s steamer and in a position where he would be likely to receive injuries, if the cable or hawsers of said steamer were suddenly relieved of tension or slackened, and then quickly drawn taut, and the defendant’s agents and servants in charge of said steamer had knowledge or had opportunity to know of the plaintiff’s presence and proximity to* said line, then it was the duty of the defendant to exercise such skill, care and precaution to prevent injury to the plaintiff as would be exercised by an ordinary prudent person under like or similar circumstances, and the defendant had not the right to handle said line in such manner as might suit its convenience regardless of the presence of the plaintiff.”

This proposition was charged in pursuance' of plaintiff’s re- . quest number one, and defendant excepted thereto.

We think the exception is well taken in respect of the phrase “or had opportunity to know” of the plaintiff’s presence or proximity to said line. This phrase is objectionable for two reasons: First, because no issue of constructive knowledge is presented by the pleadings, the allegation of the petition being, as already stated, that the defendant had “full knowledge of the presence and position of plaintiff.” Nor does the evidence sc clearly disclose constructive knowledge on the part of the defendant at the moment of the injury to plaintiff as to warrant its being imported into the ease by the charge of the court, upon the theory of an immaterial variance, within the meaning of Section 5295, Revised Statutes of Ohio.

Secondly, even if the issue of constructive knowledge were presented by the pleadings, or clearly made in the eevidence, it is not properly stated in the charge. “Opportunity to know” is not necessarily equivalent, under the circumstances of this case, to knowledge which the defendant, by the exercise of ordinary care, would have had. On the contrary, the jury might well have inferred from the language of the charge, as given, that the defendant, though without actual knowledge, would be chargeable with constructive knowledge, if it could have found out by the exercise of extraordinary' care and diligence, though it would not have known by the exercise of merely ordinary care, that plaintiff was in a situation of danger from the handling of the line.

Error is further alleged of the charge regarding matters of fact as to which the court said, that there was no controversy in the evidence.

This statement of the court was literally true, for the defendant produced no evidence whatever, and there was no inconsistency in these respects in the testimony of plaintiff’s witnesses; but the case is otherwise when the court charged upon the subject of damages:

“If you find for the plaintiff in the issue of fact joined here under the court’s instructions, you will assess to him such damages as you, in your judgment, believe him to be entitled to under the evidence in this case for his injuries, loss of his teeth, there being no controversy in the evidence that as a result of his being struck by the cable he lost three teeth, and injury to his head, neck — whatever you find to be his injuries from the evidence, give to him such a sum as would fairly and reasonably compensate him for the injury received and the pain he suffered, I say to you that there is nothing to be allowed in the way 'of compensation for any permanent injury in this case other than that of the loss of the teeth, by the pleading filed by the plaintiff in this case.”

This was practically a binding instruction upon the jury that in case they found for the plaintiff, the loss of his teeth was an injury, a permanent injury, and as such, an element of damage recoverable by him.

Under the law in this state, the jury is the sole judge of the credibility of witnesses, and it is not proper for the court to instruct that any given fact in issue has been proved, even though the oral testimony in support of that fact is wholly uncontradieted, unless it amounts to an admission by the opposite party. No such admission appears in the record in this behalf, and the charge in question was clearly erroneous.

Upon the whole evidence the plaintiff in error urges that there is no negligence disclosed on the part of the defendant and that there is pegligenee on the plaintiff’s part clearly shown by the weight of the evidence. We are not prepared to endorse either -of these contentions, and we rest our reversal of the judgment below upon the two errors in the charge already pointed out.