author: Lieshlet, J.

text:
    FAILURE TO SIGN WILL AT THE END THEREOF.
    Court of Appeals for Cuyahoga County.
    Herbster et al v. Pincombe et al.
    Decided, February 18, 1918.

      Wills — Signature Made by Mark — But Not at End of the Will — Rendering Document Invalid — Directed Verdict Proper — Creditors of Heirs Interested Parties.

    1. A will is hot signed at the end thereof, as required by the statute, where the testator’s name and the words “his mark” appear in the handwriting of the serivner, on the line where the signature of the testator is customarily inserted at the end of the testimonium clause and the space ¡between the words “his” and “mark” is blank, but an X appears between the given name and the surname of the testator on the first line of the attestation clause.
    2. Upon motion by plaintiffs to direct a verdict in an action to contest a will, in the absence of ambiguity appearing on the face of the will, it becomes the duty of the court to determine as a matter of law from the will itself whether or not it has been executed and attested in compliance with the requirements of the statute.
    3. Where in an action to contest a will, filed by creditors of a son of the deceased, the court finds that the will was not signed at the end, the court should grant a motion by the plaintiffs to direct a verdict invalidating the will, even though answers were filed denying generally the claims of plaintiffs that they were interested parties.

      Smith, Griswold, Green & Haddon, for plaintiffs in error.
    W. H. Boyd and Robert H. McKay, for defendants in error.
   Lieshlet, J.

Heard on Error.

The parties stood in the same order in the court below.

Plaintiffs filed their petition in the court of common pleas to contest the will of "William Pincombe, deceased, alleging that they are judgment creditors of William S. Pincombe, only son of said testator, and are therefore interested in said will. Said plaintiffs named said William S. Pincombe and the children of said William S. Pincombe as defendants or contestees. The ease came to trial before a jury, -and the contestees, or proponents of the will, introduced the order of probate and the original will, which were admitted. The proponents then offered to supplement the same with oral testimony bearing upon the due execution and attestation of said will, to which objection was made and sustained. A motion was then made by the contestants or plaintiffs to direct a verdict that said paper writing was not in fact the-last will and testament of William Pincombe, deceased, which was overruled. The plaintiffs then rseted, and defendants made a motion for a directed verdict sustaining the will, which was granted. Error is prosecuted to this court to reverse the judgment of the court below sustaining the validity of said will.

The following is a copy of so much of said will as is necessary fo disclose or exhibit the errors complained of:

“In Witness "Whereof, I have set my hand to this, my Last Will and Testament, at Cleveland, Ohio, this 11th day of Oct. in the year of our Lord, One Thousand Eight Hundred and Ninety Seven.

“his

1 - William Pincombe.

“mark

“The foregoing instrument was signed by the said William X Pincombe in our presence, and by him published and declared as and for his Last Will and Testament, and at his request, and in our presence, and in the presence of each other, we hereunto subscribe our Names as Attesting Witnesses, at Cleveland, Ohio, this 11th day of Oct., A. D. 1897.

“A. Marks Flick, resides at 753 Republic S't.

“Walter M. McMahon, resides at 45 Mather St.”

The plaintiffs claim that their motion to direct a verdict invalidating the will should have been granted, on the ground that the will is not signed by the testator at the end thereof, or is not signed at all by the testator.

The statute provides that the order of probate and the will shall constitute prima facie evidence of the due execution, attestation and validity of the will. By order of probate is meant the judgment of the probate court admitting the will, and does not include the testimony or evidence upon which the order of probate was made. Kettemann, Exrx., et al v. Metzger, 3 C. C., (N. S.), 224.

When this motion was made by plaintiff to direct a verdict, in the absence of ambiguity appearing on the face of the will it became the duty of the court to determine as a matter of law from the will itself whether or not the will had been executed and attested in compliance with the requirements of the statute. .The court decided that it had been so executed and attested.

An examination of the original will will disclose that the words “William Pincombe” and the words “his” and “mark” are in. the handwriting of the scrivener, and on the line at the end of the will where customarily the signature of the testator appears. The space between the words “his” and “mark” is blank. Certainly this writing at the end of the will can have no legal force and effect standing aleñe, without the same having been adopted by the testator as his signature and its adoption evidenced by the making in said space his X.

It is claimed by the defendants, in their offer to prove, that the testator did in fact make an X, intending the same to be a signature to this will, but that he mistakingly or inadvertently made the same in the attestation clause between the words “William” and “Pincombe,” said words appearing in the attestation clause in the space reserved for the description by name of the person signing the will. This X is not identified by any words such as “his mark;” it is merely a cross or X. It is claimed -by the defendants that this X should be considered by the court as the signature of the testator, intended to be placed at the end of the will, and testimony was offered to show that the testator so intended.

The defendants rely for authority to support this will upon the case of Giddings v. Schmuck, Exr., 20 C. C. (N. S.), 142, in which case the name of the testator appeared twice in different handwritings in the space reserved in the attestation clause for the description by name of the testator. The court held that one name answered the requirement of the attestation clause, and the other as the signature to.the will.

Are there two names in the attestation clause in this will? It reads “William X Pincombe.” For the purposes of the attestation clause we should read this as “William Pincombe,” omitting the X. For the purposes of a signtaure to the will we should include the X, although not designated as his mark.

In the case of Sears et al v. Sears et al, 77 Ohio St., 104, the testatrix did not sign the will at the end thereof, but wrote her name in the space in the attestation clause. The court held that this failed to answer the requirements of the statute. In the case at bar what appears at the end of the will amounts to a nullity until adopted by the testator as his signature by inserting his X. In our opinion this case is no stronger than the case last above cited. As stated in the Sears case, it is not a question of what the testator intended, but what the testator did. Although the X is not identified by any words to identify the makin'g thereof as the act of the testator, the court is asked to say that this X is the signature of the testator at the end of the will. From the face of the will, it is not signed at the end thereof. There is no mark identified as the mark of the testator. Granting that the cross in the attestation clause was made by the testator, and that he thereby intended to sign the will, we have the precise claim that was made in the Sears case.

Quoting from the opinion in the case of Sears et al v. Sears et al, supra, at page 128:

“True, the statute does enact that the order of probate shall be prima facie evidence; but the legislature did not contemplate that a will not signed, or not signed at the end thereof, or not witnessed, ever would be ordered to be probated; and so the matter is not controlled by the statute. It was assumed that the 'end of the/will was self-evident, and the statute was adopted in order to leave no room for the abuses and litigation that had been invited by the efforts of the courts to give effect to the intentions of testators. When the facts are known, the question whether the will is signed at the end is one of law; .and when the will itself shows that it is not signed or attested as required by the statute, it becomes the duty of the court so to insruct the jury. The statute enacts that the order of probate shall be prima facie evidence; and so it is; but it also enacts that the defendant shall offer the will, which he did; and, it appearing from the will itself that it was not signed at the end thereof, the prima facie case made by the order of probate was overcome. But if it be said that this is technical, and that what the legislature manifestly intended was that the will and the order of probate should make a prima faice ease, then we have only to say that the legislature could not have intended that it ever should be left to a jury to determine that a will not signed as required by the statute was valid because they found that the testator intended to comply with the statute.”

We are of the opinion that this will was not executed, if it was signed, at all, by the testator in accordance with the requirements of the statute, and the motion of plaintiffs below to direct a verdict that said paper writing was not the last will and testament of William Pineom'be, deceased, should have been granted.

It is claimed by the defendants, however, that the judgment of the court below should be affirmed for the reason that the record fails to disclose any interest which these plaintiffs may-have in said will; that there is no proof in the bill of excep-. tions disclosing that they are judgment creditors as claimed in their petition. It is urged that the defendants filed answers denying generally the claims of the plaintiffs that they were interested parties, and thereby issue was joined which required proof thereof to confer a right in the plaintiffs to contest the will.

The statute provides that any one interested in a will may file a petition to contest the same. The procedure in a will contest is special, and regulated by statute. The issue sought to be determined, and for the determination of which this special proceeding is had, is the decision of whether or not a particular paper writing is or is not the last will of the testator.

The statute provides that the proponents of the will after an issue has been made up shall offer the will and order of probate and rest. Up to this point of time the plaintiffs are not called upon to make any proof. After the will and order of probate are admitted in evidence, if the will appears not to have been signed at the end thereof it then becomes the duty of the court as a matter of law to determine whether or not there has been execution of the will as provided by law. Under the state of the pleadings in this case, and holding as we do that this paper writing is not a valid will, and that the motion of the plaintiffs to direct a verdict invalidating the will should have been allowed, we conclude that this claim of the defendants is not well taken.

The judgment of the court below is reversed for error in overruling the motion of the plaintiffs, made after the introduction of the will and order of probate, to direct a verdict invalidating the will, and, coming now to render the judgment which the court of common pleas should have rendered, final judgment is rendered for the plaintiffs in error, and we hold that the paper writing purporting to be the last will and testament of William Pincombe, deceased, is not the last will and testament of William Pincombe, deceased.

Judgment reversed and judgment for plaintiffs in error.

Grant, J., concurs. •

Dunlap, J., dissents.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 11, 1918.


source: Caselaw Access Project

author: Jones, Oliver B., J.

license: Public Domain

text:
    PRIOR RIGHTS AT A STREET CROSSING.
    Court of Appeals for Hamilton County.
    Sidney Curlis v. Euretta G. Brown.
    Decided, February 5, 1917.

      Negligence• — As Between an Automobile and a Street Gar at a Street Grossing — Automobile Arrives First — Passenger on Street Car Injured.

    1. Where an automobile arrives at a street crossing in advance of a street car, the driver of the automoble has the prior right to cross and in so doing such driver can assume that the street car will approach the crossing in a careful and prudent manner and that it will be under proper control.
    2. Where a passenger on a street car is injured in a collision between the street car and an automobile, the owner of the automobile cannot be held liable unless such injury was caused by the negligence of the owner of the machine or its driver.
    3. Error can not be predicated on the failure of a special charge to contain all the law of the case, since it is not contemplated that any one special charge should cover every branch of a case.

      Kinkead & Rogers, for plaintiff in error.

      DeCamp & Sutphin, L. J. Brumleve and Gregor B. Moorman, for defendant in error.
   Jones, Oliver B., J.

Heard on error.

This action was brought as the result of a collision between a street car, on which plaintiff was riding, and an automobile, belonging to the defendant, in which she was riding. The facts are unusual in that an occupant of the street car rather than of the automobile was injured.

This collision occurred about noon on May 16, 1914, on McMillan street, at its intersection with Alms Place. The street car was an open, summer car, with a step or running board along its right-hand side, on the front end of which plaintiff was standing. The street ear was running westwardly on the north track, and the automobile came east along the south side of McMillan street from Park avenue and turned north across the tracks toward Alms Place, slowing down before passing over the tracks and proceeding into Alms Place, in order to permit two automobiles to pass, one following the other rapidly westward along the north side of McMillan street., The running board of the street car came in contact with the rear part of the automobile, and a portion of the running board, six or seven feet in length, on which plaintiff was standing, was ripped off and he fell to the street and received severe injuries. The rear fender or mud-guard of the automobile was struck and bent or smashed, and a dent was made in the wooden body, and the automobile was pushed or shunted ten feet or so toward the west curb of Alms Place.

The evidence clearly shows that the automobile arrived at the crossing first and that it was under the control of its driver and had almost stopped before it was started up to cross the north track. It appears that plaintiff, who was an inspector of the Cincinnati Traction Company, and Mr. Wickersham, who was a division superintendent for the same- company and at the time of the accident was sitting on the brake wheel on the front platform of the same car, with the motorman, were both on their way to the scene of a fire in the city, that the street car, just prior to the collision, was running as .fast if not faster than usual, and that the motorman did not slacken the ear as he approached Alms Place until he was so near that he saw the collision was unavoidable, when he' reversed the car and it stopped; but it was not until after the collision and it had passed beyond the west line of Alms Place.

The trial resulted in a verdict . and judgment for defendant. Plaintiff in error seeks to secure a reversal of that judgment.

The errors relied upon by plaintiff in error relate to the charge of the court. It is contended that in the general charge the court misstated the issue, in practically stating that the issue was whether the plaintiff was injured through the negligence of the defendant by-means of the automobile or through the negligence of the motorman in operating the car on which plaintiff was then riding. This, of course, was not the direct issue, for as a matter of law he might have been injured by the negligence of neither, or as the result of his own negligence. But any error found in this respect is not to the prejudice of plaintiff, but rather to that of defendant. Generally speaking, when two vehicles collide at a street intersection, as in this instance, it is usually the fault of one or the other, possibly of both, of the drivers. Defendant could not be held liable unless the injury was caused by her negligence or that of her driver.

Plaintiff in error also complains that the special charges which the trial court gave to the jury at defendant’s request contained undue repetitions of the same legal propositions, in such a manner as to give them improper emphasis, and that the giving of such charges therefore constituted reversible error. These spec-, ial'charges were given to the jury before argument, as authorized under the fifth clause of Section 11447, General Code. They were ten in number, and while in stating necessary facts there was some repetition, yet none of them is unnecessarily long or involved, and each seems to have been directed to specific propositions. Counsel might possibly have reduced the number of these charges and still have covered all the ground. Unnecessary repetitions with little variation are reprehensible and not allowable, but we can not say that the rule laid down in American Steel Packing Co. v. Conkle, 86 Ohio St., 117, has been violated, or that defendant’s right to special charges was unreasonably exercised; or that the court abused its discretion in giving them. It is not contemplated that any one special charge should cover every branch of a case. Swing, Trustee, v. Rose et al., 75 Ohio St., 355, 369.

The giving of defendant’s special charge 2 is claimed as error. It is in the following words:

“The court instructs you that if you find that the automobile of the defendant arrived at the crossing at Alms Place and McMillan street in advance of the street car on which the plaintiff was riding, then the driver of said automobile of defendant could assume that the street ear would approach the crossing in a careful and prudent manner and that it was under proper control.”

The law stated in this charge is supported by Mansfield Ry., L. & P. Co. v. Kiner, Admx.,2 Ohio App., 82; West, Recr., v. Gillette, 22 C. C., (N. S..), 369, and Steubenville & Wheeling Trac. Co. v. Brandon, 87 Ohio St., 187.

This charge does not pretend to be determinative of the case, or to state all of the law involved, but only as to one of the issues. Error can not be predicated upon its failure to contain all of the law of the case. Cincinnati Interurban Co. v. Haines, 8 C. C., (N. S.), 77.

We find no error in the record to the prejudice of the plaintiff in error.

Judgment affirmed.

Jones, E. H., P. J., and Gorman, J., concur.


author: Chittenden, J.

text:
    APPELLATE JURISDICTION.
    Court of Appeals for Lucas County.
    Toledo Pulp Plaster Co. v. Long et al.
    Decided, December 11, 1917.

      Appeal — Action tor Money and Foreclosure of Mechanics Lien — Not Appealable, When.

    Where a petition sets forth an amount due for labor and material furnished in the construction of a house for the defendant, and a mechanic’s lien to secure the same, and prays for a personal judgment and foreclosure of the lien, and the answer raises an issue only as to the amount due, the action is not' appealable.

      Warren J. Duffey and George C. Bryce, for plaintiff.

      John Schlatter; John O. Zabel and Rupert Holland, for defendants.
   Chittenden, J.

Heard on appeal.

Upon argument of this case it was said that the only question presented was whether an action to foreclose a mechanic's lien is appealable under the constitution and laws in effect at this time. The record before this court is such that this question does not arise for decision, as this cause is not appealable, even though it were to be conceded that an action only to foreclose a mechanic’s lien is an appealable action.

The petition of the plaintiff sets out an amount due upon an account for labor and material furnished in the erection of a house for the defendants, John Wamsher, Jr., and Anna Wamsher, and a mechanic’s lien perfected to secure the account. The petition prays for personal judgment and a foreclosure of the lien. The defendants, Wamsher, by answer make only an issue on the amount due. The same situation exists between these defendants and other cross-petitioners. In this state of the record the cause is not appealable. (F. P. Rusher Lumber Co. v. Troxel et al., 10 C. C., (N. S.), 83, affirmed 76 Ohio St., 626, without opinion.) The circuit court in this county reached a similar conclusion in Ashley v. The Conant Brothers’ Furniture Co. et al., 12 C. C., 537.

The appeal will be dismissed.

Kinkade and Richards, JJ., concur.


author: By the Court.

text:
    ATTORNEY PAID IN ADVANCE FOR SERVICES IN SUIT AFTERWARD DISMISSED.
    Court of Appeals for Hamilton County.
    Boldt v. Baker et al, Executors.

    Decided, May 3, 1920.

      Attorney and Client — When Attorney May Deal With Client at Arm’s Length — iEmployment Ceases in AUmony Case When Decree is Entered — Fees Faid in Advance Can Not he Recovered Because of Early Termination of Suit, When.

    1. Prior to the relationship of attorney and client, a lawyer may bargain for his services with a prospective client and deal with him at arm’s length.
    2. The employment of an attorney to prosecute an alimony case, in the absence of special circumstances to the contrary, terminates upon the entry of a final decree.
    3. Where a client enters into a contract with a lawyer to defend a suit, as her attorney, and at the time pays him for same a specified amount, the attorney is to perform with reasonable diligence all professional services required on her behalf in the case named, and if such ease is subsequently dismissed without prejudice by the plaintiff, the attorney having performed all services required of him up to the time of the dismissal, the client can not recover, on the ground of failure 'of consideration, any part of the sum paid the attorney.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      John C. Healy, for defendants in error.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 19, 1920.

   By the Court.

Heard on error.

Plaintiff in error, wbo was plaintiff below, brought an action against the executors of the late Charles W. Baker, an attorney at law, practising in Cincinnati. The action was in form similar to the old action for money had and received, plaintiff claiming that the decedent had been unjustly enriched at her expense.

On October 31, 1912, she had entered into a contract with Charles W. Baker, and, on that day paid to him $4,000, as payment in advance for services in an action for divorce which had theretofore been filed against her by her husband, Charles Boldt. The plaintiff voluntarily dismissed the divorce case on August 18, 1913. Her claim for relief is based on two contentions.

The first is that at the time of the making of said agreement the relation of attorney and client existed between her and said Baker, and that the exaction of said payment was exorbitant and unreasonable, but that this was unknown to her and'she relied upon the good faith of her said attorney. She asks that there be returned to her the sum of $4,000, less reasonable compensation for the services rendered by Baker in the divorce case, which she sets at $250, leaving a balance of $3,750 claimed by her.

The second contention is that at the time she employed Mr. B'aker in the divorce case it was an implied condition of said advance payment of $4,000 that said case would be tried, and not dismissed without trial by plaintiff in the divorce case. She says that the divorce ease never came to trial, hut, on the contrary, plaintiff therein voluntarily, and without any procurement on the part of said Charles W. Baker, did, on August 18, 1913, dismiss said case without prejudice to another action. By reason of this there was a failure on the part of Baker to perform the services that were within the contemplation of the parties at the time the contract was made, and that she is entitled, as a matter of law to the return to her of that portion of the fee to be earned by services'that were to have been rendered, but, which, in fact, never- were performed.

The answer of the defendants contains recitals of fact and averments which are allegations of evidence, but the answer denies that the relation of attorney and client existed between the decedent and the plaintiff at the time of the employment in the divorce suit and the payment alleged in the petition. It also alleges that decedent rendered such legal services for the plaintiff in the divorce case as were required by the contract of employment.

The case was tried to a jury in the court of common pleas, and, at the conclusion of the evidence of plaintiff, the court directed the jury to return a verdict in favor of the defendants. Judgment was entered on the verdict and plaintiff prosecutes error.

The defendants at the outset make the contention that the plaintiff could not maintain an action at law, but was first required to proceed in equity to set aside the agreement. That this doctrine, applicable to deeds to real estate and to releases in personal injury eases, is not of universal application is settled in this state by the case of Taylor v. Brown, 92 Ohio St., 287, 299. "Where the remedy at law is adequate and full, it may be had without a judicial rescission.

We will, therefore, take up the two grounds on which plaintiff bases her claim to recovery.

The record shows that on November 8, 1909, plaintiff employed Baker as her attorney to bring-an action against her husband for alimony in the court of insolvency of Hamilton county, Ohio. From a decree in her favor, the defendant appealed to the circuit court, and while the suit was pending the parties made a contract of separation, and adjusted their financial matters, and this contract was incorporated in the final decree of the circuit court, entered December 14, 1911. Under the terms of this agreement, Mrs. Boldt was to pay her own attorney’s fees, and she did pay decedent a cheek for $3,500 that she received by the contract and decree. There is no evidence of any further employment or continuance of the relation of attorney and client between Baker and'Mrs. Boldt prior to the agreement here in question, except such as is furnished by the following:

In August, 1912, there was a reconciliation between Mrs. Boldt and her husband, and, on August 19, 1912, a letter addressed to Charles W. Baker and signed by Charles Boldt was delivered to Mr. Baker's office by Mrs. Boldt, wherein Mr. Boldt said that a reconciliation had been effected, and that he had agreed to make certain payments.

On October 2, 1912, Mr. Baker sent to Mrs. Boldt a bill for $1,000 for professional services, and, on October 11, caused a letter to be written to her calling her attention to the fact that the bill was unpaid and requesting her to pay.

The domestic felicity of the Boldts terminated shortly after the reconciliation, and, on October 29, Charles Boldt brought an action for divorce in the court of common pleas. Two days later, Mrs. Boldt entered into a written contract with Charles W. Baker, which is as follows:

“Mrs. Amalia W. Boldt has this day employed C. W. Baker as her attorney in the ease of Boldt v. Boldt, No. 151955, court of common pleas.
“She now pays him for same, and for amount One Thousand ($1,000) Dollars heretofore due, Five Thousand ($5,000) Dollars.
“If the court in ease No. 151955, makes any allowance for fees such allowances are to be turned over by Mr. Baker to her.
“Charles W. Baker,
“Amalia M. Boldt.”

She then paid the sum therein stipulated. Baker then took charge of plaintiff’s case, filed an answer and took depositions. At the expiration of nine months Charles Boldt dismissed his petition without prejudice. Mrs. Boldt testifies that she was not aware of the dismissal of the action, until after the death of Mr. Baker on April 14, 1917.

The relation of attorney and client imposes upon the attorney a duty of trust and confidence towards his client in any dealings had between them while the relation exists. The law requires that all dealings between them shall be characterized by th utmost fairness and good faith. 6 Corpus Juris., page 686; 2 Thornton, Attorneys, Secs. 428-430, and Weeks, Attorneys, Sec. 268, 276.

Prior to assuming the relation of attorney and client a lawyer may bargain for his services with one proposing to employ him and may deal with him at arm’s length. Carlton v. Dustin, 9 Dec. Re, 51 (10 Bull., 294). If the relation of attorney and client which had once existed between the parties in the conduct of the alimony suit had ended, and the parties no longer stood in. their former relations to each other, Baker could legally enter into such a contract on October 31, 1912, as he deemed advantageous. As a general rule, and in the absence of special .circumstances to the contrary, employment' of an attorney to prosecute an alimony ease presumptively terminates upon the entering of a final decree. Reynolds v. Reynolds, 31 O. C. A., 129; Newkirk v. Stevens, 152 N. C., 498 (67 S. E., 1013), and 1 Thornton Attorneys, Sec. 142.

The termination of the litigation, while it ends the power of the attorney to bind the client, does not necessarily end the duty of the attorney in dealing with the client. There are cases which show that the doctrine of uberrima ftdes-m&j outlast the relationship itself, and that the rule should be applied so long as the influence arising from the relationship is proved to exist. See 6 Corpus Juris., 689; 1 Perry, Trusts (6 ed.), Sec. 202, and Hill v. Hall, 191 Mass., 253 (77 N. E., 831).

As shown by the case last mentioned, this doctrine is usually applied in connection with dealings between the attorney and the client concerning the fruits of the litigation.

In the case at bar there is no evidence that the influence of the attorney persisted subsequent to the.termination of the alimony suit in any other sense than that Mrs. Boldt had the confidence in Baker which a-client has in the capacity of the lawyer who successfully conducts his litigation.

Counsel for plaintiff in error have stressed the argument that the employment of Mr. Baker was for the “marital troubles” of Mrs. Boldt, of which the alimony suit was only part. The basis for this is a phrase in the cross-examination of Charles Boldt, occurring in the question of counsel for plaintiff in error directed toward the time of Mr. Baker’s employment. Charles Boldt had no knowledge other than hearsay of what the employment of Mr. Baker was, nor does his testimony fairly construed show that he intended to testify as to the terms of her contracb. All that the record fairly shows in connection with his employment in the alimony ease is that he was Mrs Baker’s counsel in that suit. There is no evidence that he was first employed to represent her in any other marital affairs than that. What then is the effect of the bill by' Baker and the letter by Boldt? The bill does not recite the services which are the basis of the charge, and there is no presumption of law that they'were subsequent to the rendition of the alimony decree. One may owe a bill for legal services to an attorney, whose services and whose employment have entirely ceased, nor does the fact that the bill remains unpaid tend to establish that there is any influence still existing. The contention of the plaintiff in error, carried to its legal conclusion, would subject every attorney re-employed by a client, to a suit in which he would have the burden of proof to show affirmatively that the new contract of employment was fair.

The letter by Charles Boldt to Mr. Baker shows that Mrs. Boldt desired Baker to know of the new promises by her husband. It falls short of establishing that Baker thereby charged himself with new duties and disabilities. It must be remembered that the letter was written to him, and not by him. If he did not regard himself as attorney for Mrs. Boldt at that time, he was not called upon to answer the letter of Mr. Boldt. No authority has been found justifying any presumption that the influence presumably gained over a client by an attorney in litigation survives the termination of the services performed for a period of ten months in a transaction not about the fruits of the original litigation. There was no evidence that Baker and Mrs. Boldt occupied the relation of attorney and client on October 31, prior to the making of the written contract, and the burden of proof of fairness does not devolve upon the administrators of the attorney, now deceased.

The argument of the plaintiff in error as to the construction of the contract is as follows:

The contract is for services to be rendered regarding a particular subject-matter. The subject-matter has ceased to exist without - fault of either party, and, therefore, performance is excused. The argument is illustrated by examples of painting a portrait of a particular person, contracts of marriage, contracts for repairing a particular building or vessel, for services of a specific person, for purchase of a specified crop from a specified tract of land. In the enumerated instances, if the person whose portrait is to be painted die, if the engaged person die before marriage, if the chattel perish, if the person who is to render services die, the contract is at an end and need not be performed. The continued existence of the thing is- an implied condition of performance. See Taylor v. Caldwell, 3 B. & S., 826, and 6 Ruling Case Law, page 1005.

The agreement of the parties in this case shows that “Mrs. Amalia W. Boldt has this day employed C. W. Baker as her attorney in the ease of Boldt v. Boldt, No. 151955, Court of Common Pleas. She now pays him for same * ® By the terms of the agreement, Baker was to perform all professional services required on her behalf in that ease with reasonable skill and diligence. The parties were contracting with reference to a pending lawsuit. Just what might be required before its termination no one could forecast with certainty. The litigation might have required a great amount of labor, or it might have been completed after a short time, and with comparatively little effort. The services contemplated the termination of the lawsuit and not its continued evistence. Such is the intention of the parties as shown by the agreement itself, and, if it does not correctly express their agreement, relief should be had by reformation and not by construction contrary to the meaning of the words used.

Unlike the cases used in illustration of the argument for plaintiff in error, the contract is aleatory in its nature. When Mrs. Boldt had made the payment agreed upon, the risk-as to the amount of work that would be required to perform it was upon Baker. It never could be completely performed until the lawsuit ended. In this respect it bears a closer resemblance to a contract to support a person during life, such as the case of Drefahl v. Rabe, 132 Ia., 563. While such an agreement relates to the life of an existing person it is only fully performed when such person dies. The occurrence of the death before the parties expected would not require a repayment of any part of the consideration. The party to a contract who gets what he bargained for may not complain of failure of consideration, though' the consideration may have been more easily furnished than he anticipated. Mrs. Boldt must have known that the plaintiff could dismiss the action for divorce. A case further' illustrating one of the principles here involved is Woodward v. Cowing, 13 Mass., 216, There the plaintiff; paid money to an officer of a privateer for a one-fourth share of the prize money that he might make during the cruise on which he was then bound. A few days later, a treaty of peace between the United States and Great Britain required a cessation of the cruise. The court held:

“Where money has been paid upon a consideration, which has failed, it may certainly be recovered back by the party who shall have paid it. But such, in our opinion, was not the case. before us. There were many risks, equally known to the parties, and which must be presumed to have been considered by chem, when making their contract. The return of peace must have been one. The plaintiff purchased a chance to obtain money by captures from an existing enemy. The government of their country annihilated that chance, by making such captures unlawful. We have no hesitation in saying that the defendant has a right to retain the money paid him. ’’

If the lawyer had been disabled from performing the services agreed upon, and, therefore, did not perform, he could not retain the entire fee which had been p'aid in advance. Baylor v. Morrison, 2 Bibb (Ky.), 103; Callahan v. Shotwell, 60 Mo., 398; Baird v. Ratcliff, 10 Tex., 81, and Coe v. Smith, Admr., 4 Ind., 79 (58 Am. Dec., 618).

Mr. Baker represented Mrs. Boldt from the-time of his employment until the case was terminated. He completed the task for which he was employed. The record shows, therefore, that there was no prevention of performance on has part by any unforeseen contingency, but that he performed the agreement in accordance with its terms.

The conduct of the trial court in directing a verdict in favor of the defendants was not erroneous.

Shohl, Hamilton and Cushing, JJ., concur.


author: Washburn, J.

text:
    GROUNDS OF DENIAL OF APPLICATION JV1UST BE ALLEGED.
    Court of Appeals for Cuyahoga County.
    Russitto v. Otis Steel Co.

    Decided, November 28, 1919.

      Appeal — From Action by the Industrial Commission — Denying Application of Injured 'Workmen for Continuance of Compensation— Grounds for the Denial Must be Alleged.

    A petition which does not allege the grounds upon which the industrial commission denied the right of an applicant to continue to participate in the workmen’s compensation fund, does not state facts sufficient to show the right to prosecute appeal under Section 1465-90, General Code (107 O. L., 162), and is subject to demurrer.

      G. E. Morgan, for plaintiff in error.

      Squire. Sanders & Dempsey, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by- the Supreme Court, February 17, 1920.

   Washburn, J.

Heard on error.

The determining question in this ease may be stated without the labor of detailing the facts. It is as follows:

A workman is injured and files his claim with the industrial commission, which claim is allowed, and paid until the commission determines that his earning capacity is no longer impaired and denies him the right to further participate in the fund. Can he prosecute an appeal to the common pleas court from the order of the commission denying him the right to further participate in the fund, without alleging in his petition the grounds upon which such denial was made 1

Such an appeal was attempted in this case, and, a demurrer to the petition being sustained, judgment was entered against the workman. The question here presented was not raised or argued in the case of Di Cicco v. Industrial Commission, 30 O. C. A., 166 (11 O. App., 271). That ease was tried upon an agreed statement of facts, and the only question presented or determined was the meaning of the term “earning capacity,” as capacity'.” as used in the statute.

This record [presents the question of the right to appeal when the grounds of denial by the commission are not set forth in the petition. That right depends upon the provisions of Section 1465-90, G. C., as amended 107 O. L., 162, which is, in part, as follows:

‘ ‘ The commission shall have full power and authority to 'hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in ease the final action of such commission denies the right of the claimant to participate at all or to continue to participate in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty (30) days after the notice of the final action of such commission, may, by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it.”

A reading of this statute without reference to any changes made in it by amendment since its original enactment would lead to the natural conclusion that, the right of a claimant to appeal, whether he had been denied the right to participate or the right to - continue to participate in such fund, is granted only when the denial of such right is on the ground that the injury is self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon some other ground going to the basis of the plaintiff’s right; in other words, if the commission determined that it had no jurisdiction because the claimant had no rights in the fund, then the right of appeal was granted, but if the commission determined that -the claimant had some rights in the fund, and made a tona fide award, then there was no appeal. This seems to be the plain meaning of the language used, and the only doubt about that being the proper construction is the fact that under that construction one who is denied the right to continue to participate seldom, if ever, could appeal, for the reason that it would seldom, if ever, happen that one who was denied the right to continue to participate would be denied that right on the grounds set forth.

The statute as it was first enacted is in all respects the samé as quoted above, with the exception of the clause, “or to continue to participate,” so that the statute then gave the right to appeal only in the case the commission denied the right of the claimant to participate at all in the fund, and then only when the denial was upon the grounds stated, which, as has been said, was not changed by the amendment.

When the statute so read it came before the 'Supreme Court for construction in the case of Snyder v. State Liability Board of Awards, 94 Ohio St., 342, and it was there determined that “as a condition precedent to the right of claimant to file his appeal in the court of common pleas, there must be a denial of his right to participate at all in such fund, based upon one of the jurisdictional matters enumerated in the section. ’ ’

In the opinion the court say, at page 347:

“It is to be observed that the statute which confers the right of appeal does so upon condition that final action of the board denies the right of the claimant to participate at all in the fund, upon one of the grounds therein enumerated. This right of appeal proceeds upon the theory that there has been a finding by the board that it is without jurisdiction to act in the matter. If the board should find that the injury complained of was self-inflicted or that the injury did not arise in the course of employment, or that there was some other ground which went to the basis of claimant’s right, then the board, being without jurisdiction, must necessarily deny the right of claimant to participate. The claimant then under the provision in the statute in question has his day in court, and it is expressly provided that after the appeal is perfected and the pleadings are filed .the court or a jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate in the fund. That is the first question to be determined by the court or jury. If it is determined adversely to the claimant, that is the end of the matter. If there is a finding in his favor then the court or jury goes further and fixes the compensation within the limits and under the rules prescribed by law, and the judgment so obtained shall be paid out of the insurance fund.”

This case authoritavely settled the construction which was to be placed upon this statute, when there was no attempt to confer the right of appeal upon a claimant who had been denied the right to continue to participate. After-that decision the Legislature inserted in the statute the words “'or continue to participate. ’ ’

It may be conceded that the Legislature, by so amending the law, intended to confer some sort of right of appeal upon a claimant who had. been granted the right to participate, but later had been denied the right to continue to participate, but it provided that in order that such right of appeal might exist the denial of the commission had to be upon the same grounds as applied in the case where the commission denied the right to participate at all; that is, upon grounds which the Supreme Court had determined were jurisdictional matters.

The result is that the amendment either conferred the right of appeal upon a workman who is denied the right to continue to participate, but limited that right of appeal to cases where the denial was upon grounds that can seldom, if ever, exist, and therefore,-for all practical purposes, conferred no right of appeal at all, or else it conferred the right of appeal regardless of the ground upon which the commission’s denial is based. If we adopt this latter conclusion, then the result will be that the claimant whose right has been recognized, and thereafter his right to further continue to participate in the fund has been denied, may in all cases appeal to the common pleas court. We do not think that the language of the statute, when construed with the other sections of the statute governing the wrork of the commission, authorizes us to say that the Legislature intended to confer a right of appeal in ail eases where the claimant has been denied the right to continue to participate in the funds. The commission is given authority to pass upon all claims made, and a continuing power to increase or decrease allowances and exercise jurisdiction over its awards, and the statute provides that its decisions shall be final upon all questions within its jurisdiction, except only that the right of appeal is given where the denial of the claimant’s right to participate or to' continue to participate is on the jurisdictional grounds above referred'to.

We know of no rule of construction which will permit the court to ignore and totally disregard the plain meaning of the words used in the statute, where such meaning has been established by the Supreme Court in construing the original statute, and where the same language is used in the amended statute, even though such meaning conflicts with a supposed but not plainly expressed intention of the Legislature in making the amendment to the statute. Especially is this so if to ignore such meaning would ascribe to the Legislature an intention to confer the right of almost unlimited appeal, and thus reinvest the courts with jurisdiction which it was the object of the compensation act to take away from courts.

This construction gives to the amendment a limited application which is of no practical effect, and that is that a denial to continue to participate on a ground going to the basis of the claimant’s right means such ground as, if known to the commission or properly considered by it at the time of the original award, would have established lack of jurisdiction to make the award; but we are of the opinion that in any event.it does not mean a ground based upon the character and extent of the claimant’s injuries or the degree to which he has recovered his health and strength.

Moreover, the statute allowing the appeal does not provide for an appeal in the sense in which an appeal is taken from the decision of a court (State v. Creamer, 85 Ohio St., 349). and the statute provides that the claimant shall file his petition within thirty days after the notice of the final action of the commission.

All the information that is contained in the petition in reference to this subject is in the paragraph which follows:

“Subsequent to such injury plaintiff applied to the Industrial Commission of Ohio to require defendant to pay compensation to plaintiff, and such industrial commission awarded to plaintiff compensation at the rate of $11.60 per week .from one week after the date of such injury until March 1st 1918, being entitled to $662.80, whereupon said Industrial Commission refused to order defendant to pay further compensation to plaintiff,'and plaintiff filed his appeal to this court on February 18, 1919.”

The petition in this case does not set forth the grounds upon which the commission denied the plaintiff’s right to continue to participate in the fund, and it does not state facts sufficient to show plaintiff’s right to prosecute the appeal, and therefore it does not set forth facts sufficient to constitute a cause of action. .

The demurrer to the petition was properly sustained.

Dunlap and Vickery, JJ., concur.


author: Hamilton, J.

text:
    INSUFFICIENT PROOF AS TO CONTRACT TO PAY MEMBER OF THE FAMILY FOR SERVICES.
    Court of Appeals for Hamilton County.
    Heidotting, Exr., v. Heidotting.
    Decided, February 26, 1917.

      Express Contract to Pay for the Services of a Daughter4n-Law — Not Shown by Expressions of Gratitude, Etc.

    1. A daughter-in-law can not recover compensation for services rendered to her father-in-law while residing in his home with her family, in the absence of an express contract established by clear and convincing proof.
    2. In such case expressions of gratitude by the father-in-law towards his daughter-in-law for her care and kindness, and some expressions of an intention to remember her in his will, are not sufficient proof of an express contract to pay for the services.

      Moulinier, Beitman & Hunt, for plaintiff in error.

      Geo. H. Kattenhorn, for defendant in error.
   Hamilton, J.

Heard on error.

The plaintiff below, Charlotte Heidotting, recovered a judgment against the plaintiff in error on a claim for personal services rendered Johan Albert Heidotting during the last years of his life.

The suit was 'brought against the executor of the estate of Johan Albert Heidotting, the said plaintiff declaring upon a contract 'both express and implied, and no election as to the bind of contract was requested or required.

The plaintiff below, the defendant in error herein, was the wife of said executor, defendant below, who was the son of Johan Albert Heidotting.

For about two and one-half years prior to his death the said Johan Albert Heidotting was in failing health and afflicted with a cancer of the face. He was the owner of the residence wherein he resided, and upon the death of his wife he desired one of his sons, of whom there were two, with his family, to move in with him. One son, Joseph Heidotting, refused to move in with his father unless his father would first deed to him the said residence property. This the father did not do. Thereupon the son Henry Heidotting, and his wife, the plaintiff below, and their children, then moved in with the father and lived in his residence until his death two and a half years later, during which time the plaintiff below rendered services of the character alleged in her petition. The said father occupied a room on the second floor of his residence, staying therein a part of the time, and receiving his meals there a part of the time, delivered to him by his daughter-in-law, and a part of the time taking his meals with the family. No restrictions were placed by either party upon the use of the whole or any part of the premises by either the father or the son Henry and his family. No rent was charged Henry by his father, and no board was charged his father by Henry. The father devised the said residence property to his said son Henry, who is now in possession of said premises.

The question is: Did the family relation exist between these parties? The evidence discloses that the family relation existed, and brings the case clearly within the rule laid down in the case of Hinkle et al, Exrs., v. Sage, 67 Ohio St., 256, and as modified in Merrick v. Ditzler, 91 Ohio St., 256, requiring “clear and convincing” proof of an express contract.

It therefore follows that to enable the plaintiff to recover she must produce evidence to show a contract by “clear and convincing” proof. This we think the evidence fails to do. The only evidence tending to show a contract is contained in expressions on the part of the father of gratitude towards his daughter-in-law for her care and kindness to him, and some expressions of an intention to remember her in his will. This falls far short of being clear and convincing proof of an express contract to pay for the services as claimed.

The judgment of the common pleas court is reversed and the ease remanded for a new trial.

Jones, P. J., and Gorman, J., concur.


author: Cushing, J.

text:
    LIABILITY OF THE PULLMAN COMPANY FOR LOSS OF A PASSENGER’S EFFECTS.
    Court of Appeals for Hamilton County.
    The Pullman Co. v. Laws.
    Decided, March 10, 1919.

      Instructed Verdict — Motion for Must be Renewed at Close of the Evidence — Pullman Company Not an Insurer, or Common Carrier, or Innkeeper.

    1. It is necessary when a motion for an instructed verdict is made and overruled at the conclusion of plaintiff’s evidence that such motion should be renewed at the conclusion of all the evidence, and if there is no evidence of negligence appearing in the case up to its conclusion it is the court’s duty as a matter of law to instruct a verdict; but if evidence appears which tends in any. degree to establish negligence by the defendant the court must submit the question to the jury.
    2. A sleeping-car company is not liable as insurer of a passenger’s baggage or effects, nor is its obligation that of a common carrier or innkeeper, but it is liable for negligence only in failing to exercise ordinary care.

      Mortimer Matthews, for plaintiff in error.

      DeCmip & Sutphin, for defendant in error.
   Cushing, J.

Heard on error.

The facts developed at the trial were that the plaintiff,' Florence E. Laws, and her husband engaged, paid for and occupied a stateroom in a sleeping car of plaintiff in error, operated from Ned Orleans to Cincinnati; that shortly after the- train to which the Pullman was attached left New Orleans, at 7:30 p. m., March 30, 1917, they went to the dinning-car at the .rear, leaving the hand bag here in question in the stateroom, the door off which was open; that on leaving the Pullman they notified the porter that they were going to the diner; that they were absent about an hour or an hour and a half; that the hand bag and its contents were stolen while they were absent; that the porter was in the Pullman during the entire time; that he was engaged in making down berths; and that a number of persons from other parts of the train passed through this Pullman while the porter was thus engaged.

The petition in the court below charged that the Pullman Company was negligent in assigning and permitting the porter to perform too many duties, and the porter was negligent in failing to watch the aisles and the drawing-room while strangers to the car were passing through it to and from the dining-car.

The Company’s answer was a general denial.

There were three Pullmans on the train. There was one conductor. Each Pullman had a porter.

The several questions presented by the record are:

1. Was the defendant negligent in any of the particulars stated in the petition in the court below?

2. The care that a sleeping car company must use in guarding the baggage and personal effects of persons occupying space in such car.

3. The error, if any, of the trial court in overruling a motion for an instructed verdict for defendant at the close of plaintiff’s evidence and such motion at the conclusion of all the evidence.

4. The refusal of the trial court to give special charges, properly presented, on the question of ownership by defendant in error of the several articles in question as her separate property.

5. The claim of plaintiff in error that the verdict was not sustained by the weight of the evidence and was contrary to law.

Plaintiff below did not offer any evidence as to where the porter was or what he was doing during the interval in question. Her evidence was limited to what happened prior to and at the time they left the Pullman to go to the diner and to their discovery of the theft on their return from the diner.

On this state of the record, at the close of plaintiff’s evidence, defendant moved for an instructed verdict. The motion was overruled. ■

Had defendant below rested its case at that point the court should have directed a verdict in its favor.

The Pullman Company elected to offer evidence in the court below. It called as its principal witness the porter, Gaines. He testified in substance that the stateroom door was open; that Mr. Laws told him when leaving the Pullman that he and his wife were going to the dining-car; that they were gone about an hour or a little more; that on their return they notified him of the theft; that as soon as the train started from the New Orleans station he was engaged in making down berths; that persons from other parts of the train passed through his car on their way to and from the diner; that he would raise up from a stooping position or step aside while mailing down berths to allow such persons to pass; and that the aisle of the car and the drawing-room door could at all times have been observed by him, but that he did not watch strangers to his ear while they were passing the drawing-room door.

This was evidence tending in some degree to establish plaintiff’s allegations of negligence. The case at this point was properly submitted to á jury.

It is necessary under Ohio practice when a motion is made at the conclusion of plaintiff’s testimony for an instructed verdict, and overruled, that it should be renewed at the conclusion of all the evidence. The reason for so doing seems to be that if there is' no evidence of negligence' appearing in the case up to its conclusion it is the court’s duty as a matter of law to instruct a verdict; but if evidence appears, offered either by the plaintiff or the defendant, which tends in any degree to establish the negligence of the defendant company, the court must submit the question to the jury.

In the case of The Cincinnati Traction Co. v. Durack, Admx., 78 Ohio St., 243, the Supreme Court said, at page 247:

“There are perhaps three views taken of the subject which are properly present for our consideration. One is that where the court overrules the motion of the defendant for a verdict at the close of the plaintiff’s evidence, and the defendant introduces his evidence to make out the defense, and rests without renewing the motion the exception to the ruling on the motion made is waived and error can not be assigned on such ruling. Another view suggested is, that where such motion made at the close of plaintiff’s evidence is improperly overruled, and the evidence afterwards introduced by the defendant, and by plaintiff in rebuttal, in no manner strengthens the plaintiff’s case, the motion for verdict at the close of plaintiff’s evidence must be given force, since defendant’s waiver of it by going into the defense only goes to the extent of allowing plaintiff to benefit by the evidence aftrwards introduced.
“The third view is that the exception to the decision of the court denying a motion for verdict at the close of plaintiff's evidence is not waived by putting in the evidence for the defense, but lives throughout the trial, survives an' adverse judgment, and remains as a basis for assigning error in the reviewing court. The latter and perhaps the preceding view is held by the plaintiff in error, but the reasons advanced for the claim are lacking in force and will not bear analysis. ’ ’

On the question of the degree of care that must be exercised by a sleeping car company the weight of authority is that it is held only to ordinary care.

Courts are almost unanimous in holding that a sleeping car company can not be held to the liability of a common carrier, nor of an innkeeper.

While such company must exercise ordinary care", some courts have made a distinction between the care in daytime and at night. The distinction is -based on the time when the occupant is awake and charged with the duty of exercising ordinary care for the protection of his own property, and when he is asleep and not in a position to guard his property.

It is not necessary for us to pass on that question here. The undisputed facts in this case are that defendant in error was awake, in either the sleeper or diner, from the time she and her husband boarded the train until after the property was stolen.

On the question that a sleeping car company owes to occupants ordinary care, we cite the following:

“A sleeping-car company is not liable to a passenger for the loss by theft of personal effects taken into the car by the passenger for his own use and of which he retains possession, either under the rules which apply to an innkeeper for the loss of the goods of his guest, or those as to a carrier for the loss of baggage intrusted to it to transport. Such a company owes to a passenger the duty of exercising reasonable care to guard the property of the passenger, from theft, and if through the want of such care the personal effects o the passenger, such as he might reasonably carry with him, are stolen, the company is liable therefor.” Pullman’s Palace Car Co. v. Hall, 106 Ga., 765.
“ It is the duty of a sleepin-car company to exercise reasonable care to guard the personal effects of the passengers from theft, and if, through the want of that care such personal effects as a passenger may properly carry with him on his journey be stolen, the company will be liable therefor. The personal effects which a passenger may carry with him on a journey may include articles of personal adornment, such as jewels.” Pullman Co. v. Schaffner, 126 Ga., 609.

Thus a sleeping car company does not assume the liability of insurer of a passenger’s baggage nor the obligation of a common carrier or innkeeper, but its liability for loss must be predicated upon negligence. Goldstein v. Pullman Co., 161 App. Div., 756, 147 N. Y. Supp., 133; Dings v. Pullman Co., 171 Mo. App., 643, 154 S. W. Rep., 446, and Robinson v. Southern Ry. Co., 40 App. D. C., 549.

Before argument the defendant company requested a number of special charges, of which the following is a sample:

‘ ‘ The jury is instructed that the plaintiff can not recover in this action the value of the black seal hand bag for the reason that there is no evidence tending to show that it was her separate property.”

The other charges are similar as to the various items of property.

Both the defendant in error and her husband testified that all . the articles were her property.

Section 8001, General Code, reads as follows:.

“A married person may take, hold and dispose of property, real or personal, the same as if unmarried.”

On the question as to whether the verdict is contrary'to the evidence and the law. We have .stated the rule of negligence, the liability of a sleeping car company in negligence cases, and the law of Ohio as to the wife’s separate-property. It follows that the verdict was not contrary to the evidence or law.

The judgment will be affirmed.

Shohl, P. J., and Hamilton, J., concur.


text:
    SCOPE OF EMPLOYMENT COVERS LUNCH HOUR
    Court of Appeals for Warren County.
    Taylor v. Industrial Commission.

    Decided, July 19, 1920.

      Workmen’s Compensation — Employee Injured While Resting, Lunching and Smoking — His Right to Compensation Upheld — Declaration by Him Immediately After the Injury not Hearsay.

    1. On appeal from the finding of the Industrial Commission of Ohio, denying the right of a claimant to participate in the state insurance fund, evidence of a statement by the party injured declaring the circumstances of the injury,, where the statement is made immediately after the injury, in the presence of the person testifying, who asserts the circumstances as observed by him, constitutes an exception to the hearsay rule, and is admissible.
    2. Where a workman does such things as are usually and reasonably incidental to the work of the employer, including the taking of refreshment, rest-and smoke, which are not forbidden by the employer and in so doing is injured, it can not be said as a matter of law that the injury was received outside the course of his employment.

      Howard W. Ivins and H. S. Stevenson, for plaintiff in error.

      John Cr. Price, Attorney General; B. B. Zurmehly, and F. M. Cunningham, Prosecuting Attorney, for defendant in error.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled, October 19, 1920.

   Hamilton, J.

Heard on error.

The action below was an appeal from the finding of the Industrial Commission of Ohio denying the right of the' claimant, Gussie Taylor, .as the widow of John Taylor, to participate in the state insurance fund.

The case was tried to a jury. At the close of plaintiff’s evidence, the defendant, the Industrial Commission, moved for a directed verdict on two grounds: First, that there was no direct or circumstantial evidence of the injury complained of; and, second, that the injury complained of was not received by the decedent in the course of his employment, nor did it arise out of a hazard incident to his employment. The trial court refused the motion on the first ground, but sustained it on the second, and directed a verdict for the defendant.

Did the trial court err in directing a verdict for the defendant ?

While the trial court based its instructed verdict on the second ground of the motion, if the defendant was entitled to an instructed verdict on either ground the judgment would stand; as the court may have rightly instructed the jury, but for the wrong reason.

We will first consider the question whether or not there was any evidence of the injury complained of. The evidence tends to showr that Taylor, the deceased, was a nightwatehman at the Peters Cartridge Company’s factory at King’s Mills, Ohio, and was on duty on the night the injury is claimed to have occurred; that he went on duty at 5:11 p. m. and worked until 6:02 a. m. approximately 13 hours. With the sanction of the employer, about 12 o’clock, an hour for lunch, rest and recreation was taken. On the night in question, during the recreation hour, Taylor, who at the time appeared all right, stepped out of the company’s shop on to the company’s property to smoke. In going out he passed down some concrete steps leading from the shop. In a very brief period of time, approximately two minutes, he returned, holding his back and seemingly in pain, and immediately stated to other workmen, as testified to by them, that in going out he had fallen on the concrete steps and injured his spine. Taylor continued to suffer and died there weeks later. There was medical evidence of an injury to the spine.

It is urged by defendant in error that evidence of the workmen as to what Taylor stated regarding the circumstances of the injury was hearsay only, and was improperly admitted over the objection of the defendant, and that without this evidence there is no evidence of any injury. The trial court admitted the evidence of the workmen regarding these statements of deceased on the ground that they were a part of the res gestae.

The general rule is that evidence of the statement by the party injured declaring the circumstances of the injury, made a considerable time after the happening, is hearsay and inadmissible, but where the statement is made immediately after the injury, in the presence of the person testifying, who asserts the circumstances as observed by him, this evidence constitutes an exception to the hearsay rule and is admissible. (3 Wigmore, Evidence, Sec. 1746). Many eases where the courts have admitted such evidence, are cited by this excellent author, some on the ground that the statements were a part of the res gestae. some under the verbal-act doctrine, as being a part of the principal fact, and some as an exception to the hearsay rule. He then observes:

“It cannot matter what names or phrases the courts chance to use, — whether they disguise the ruling under the phrase res gestae or otherwise. The material thing is what the courts actually do, not what names they use.”

And, again, this same author in See. 1747 uses this language :

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken- as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him, and may therefore be received as testimony to those facts.”

In the case of State v. Wagner, 61 Me., 178, 195, the court held such statements admissible as being analogous to dying declarations, to which necessity and sincerity impart character. Further, in 3 Wigmore on Evidence, Section 1746, above cited, the author says that within the last generation the admissibility of such evidence is firmly and unquestionably established.

The evidence was properly admitted.

This conclusion is further supported by the case of Insurance Co. v. Mosley, 75 U. S. (8 Wall.), 397; also by Travelers’ Protective Association of America v. West, 102 Fed., 226.

In Insurance Co. v. Mosley, supra, the court held the principal fact to be the bodily injury. This was an insurance case.

The case of Travelers’ Protective Association of America v. West, supra, was where one West came up out of a cellar and made statements of having bumped his head on a gas fixture. West died, and witnesses were permitted to testify to the statements made 'by West at the time. There was no direct evidence of the alleged accident. The United States circuit court of appeals on review held the evidence admissible as res gestae, on the authority of Insurance Co. v. Mosley.

Union Casualty & Surety Co. v. Mondy, 18 Col, App., 395 [71 Pac. 677], is also in point.

The next question then for consideration is, Did the trial court err in instructing the jury for the defendant on the second ground of the motion, that the injury complained of was not received in the course of the employment?

Again adverting to the facts appearing in the record, there was evidence tending to show that decedent was under the continuous employment of the cartridge company from 5:11 p. m., May 6, 6:02 a. m., May 7, with a rest and recreation period, with the sanction of the company, about the midnight hour; that during the rest period decedent went out of the shop of the employer, on the premises of the employer, to smoke, and fell on the. concrete steps leading down from the shop, resulting in injury to the spine.

It was contended by defendant in error, and was so decided by the trial court that in going out to smoke decedent was on his own business and the injury was not received in the course of his employment.

Many cases are reported where the facts *are somewhat analogous, and are of assistance in arriving at what in our opinion is the trend of authority.

In the case of Chludzinski v. Standard Oil Co., 176 App. Div., 87 [162 N. Y. Supp., 225], an employee in an oil refinery went into his locker room for some unknown reason, and, after a short time, rushed out with his shirt in flames. It was held that he suffered injuries from the fire by accident arising out of his employment, and the court observes that even if it could be found that the fire was caused by his lighting a match, for the purpose of smoking, it would not prevent a recovery, since smoking was not forbidden.

“The procuring of food or other refreshment is recognized as essential to a workman, and he does not, as a- matter of course, go outside of his employment where he leaves off active work to secure food or drink.” L. R. A., N. S., 1916A, p. 58.

In Gronyea v. Canadian Pac. Ry., 7 B. W. C. C., 1041, the court said at page 1045:

“The result of these cases [cited] would seem to be that, if any workman, during the hours of his employment, with the permission of his employers, ceases working for a short time for purposes of his own, the continuity of his employment is not thereby impaired.”

An oft-cited case on questions arising from compensation acts is the ease of M’Lauchlan v. Anderson, 4 B. W. C. C., 376, 48 Sc. L. R., 349. In that ease it appears that a workman in the course of his employment was sitting on a wagon being drawn by a traction engine. He dropped his pipe, and, in attempting to recover it, fell and was injured. The Lord President said:

“He had a right to be at the place, riding on or walking beside the wagons; he was within the time during which he was employed, because the accident happened during the actual period of transit; and he was doing a thing which a man while working may reasonably do, — a workman of his sort may reasonably smoke, he may reasonably drop his pipe, and he may reasonably pick it up again.”

In the case of Earnshaw v. Lancashire & Y. R. Co., 5 W. C. C., 28, 115 L. T. Jour., 89, it was held that an employee in respondent’s warehouse, who, with the knowledge of his employers, goes to a cabin upon the railroad’s premises for tea, is not. while returning from the cabin, outside of his employment, and he is entitled to compensation for injuries received at that time.

In the case of Morris v. Lambeth Borough Council, 22 Times L. R., 22, it was held that an injury to a night watchman, caused by the falling of a shanty, into which he went to cook some food, because it was raining, may, in the absence of any prohibition against the use of the shanty, be considered as arising out of and in the course of his employment.

The procuring of food or other refreshments by an employee although personal in character is considered so far incidental to the employee’s work that injuries received while procuring such food and refreshments may be found to arise out of and in the course of the employment, provided the employee acts in a reasonable and prudent manner, and the injuries occur while he is upon the employer’s premises, or is subject as an employee to the employer’s control. See Borin’s Case, 227 Mass. 452 [ 116 N. E. 817], and cases there cited.

In the case of Holland-St. Louis Sugar Co. v. Shraluka, 64 Ind. App., 545 (116 N. E., 330), the court says at page 549:

“Such acts as are necessary to the life, comfort and convenience of the workman while at work, though personal to himself, and not technically acts of service, are incidental to the service; and an accident occurring in the performance of such acts is deemed to have arisen out of the employment. ’ ’

In the case of Dzikowska v. Superior Steel Co., 259 Pa. St., 578, the syllabus is as follows:

“Where an employee, during an intermission in his work, while waiting for material, struck a match for the purpose of lighting a cigarette and as a result his clothing, saturated with oil, by reason of the work in which he was engaged, caught on lire and he was fatally burned, an award of compensation to his dependents was properly made.”

And in the opinion the court says:

“Nor do we regard the fact that the accident resulted from his striking a match for the purpose of enabling him to smoke at that time and place, as being sufficient to debar him and his dependents from the benefits of the statute. It is not unreasonable for workmen to smoke out of doors, during intervals of work, where it does not interfere with their duties.”

See also case of Whiting-Mead Commercial Co. v. Industrial Accident Commission, 173 Pac., 1105.

The conclusion is that Avhere a workman does such things as are usually and reasonably incidental to the 'work of the employer, including the taking of refreshments, rest and smoke, which are not forbidden by the employer, and, in so doing, is injured, it cannot be said as a matter of law that the injury was received outside the course of his employment.

Whether or not the injury occurred in the course of the employment is a question of fact, and if there is any evidence tending to show this fact it becomes a question for the jury to determine. It has been uniformly held that the Workmen’s Compensation Law should be liberally construed to give effect to its beneficent purposes. We are, therefore, of opinion, upon reason and authority, supported by the cases above cited, that it was error for the trial court to say as a matter of law that there is no evidence of the.injury complained of, or that the injury complained of was not received by the decedent in the course of his employment. The case should have been submitted to the jury. For this reason the judgment will be reversed and the cause remanded for a new trial.

Shohl and Cushing, JJ., concur.


text:
    THE DEFENSE OF INSANITY IN A PROSECUTION FOR HOMICIDE.
    Court of Appeals for Hamilton County.
    Hauser v. State of Ohio.

    Decided, January 12, 1920.

      Criminal Law — Preponderance of Evidence Sufficient to Establish the Defense of Insanity — Charge of Court.

    A preponderance of the evidence is all that is required to establish the defense of insanity in a criminal prosecution. Therefore, when the language used in the charge indicates to the jury that more than a preponderance is required — that they must be satisfied by a preponderance or greater weight of the evidence, it imposes upon the defendant more than the law requires.

      M. F. Galvin, for plaintiff in error.

      Louis H. Capelle, Prosecuting Attorney, and Louis Schneider, Assistant Prosecuting Attorney, for defendant in error.

      Affirmed by the Supreme Court, December 6, 1920.

   Hamilton, J.

Heard on error.

The plaintiff in error, Albert Hauser, was indicted in Hamilton county for murder in the first degree for killing his vafe. Upon trial of the ease he was convicted of murder in the first degree, with recommendation of mercy, on which verdict judgment of life imprisonment was imposed by the trial court, and from this judgment, proceeding in error is prosecuted to this court.

The specifications of error are: The verdict was against the weight of the evidence; insufficient evidence; the giving of special charges requested by the state; error in the admission of certain evidence; and misconduct of counsel for the state.

The first question which we will consider is raised by special charge No. 3, requested by the state, and given by the trial court, which charge is as follows:

“I charge you that the law presumes every .man to be sane until the contrary is shown by sufficient evidence, and the law presumes further that a man possesses a sufficient degree of reason to be responsible for his crimes until the contrary is shown. Such proof in support of insanity must be affirmatively established by positive or circumstantial evidence which must satisfy yon that he was not sane. Before you can find Albert Hauser was insane at the time he committed the crime with which he is charged, if you find that he did commit such crime, you must he satisfied by a preponderance or greater weight of the evidence, that at the time the act was committed, Albert Hauser was not capable of judging whether the act was right or wrong, or, that he didn’t know at the time that it was an offense against the laws of God and man, that he was not a free agent in forming the purpose to kill.”

This charge involves the question of the burden of proof where insanity is set up as a defense. Some authorities hold that while, this burden rests upon the state, the presumption of sanity was sufficient to support this burden. However the greater weight of authority and the settled rule in Ohio is that the burden of proving insanity rests upon the defendant. (State v. Austin, 71 Ohio St., 317). If Hauser sustained this burden he could not be held responsible for the crime charged, and, as insanity was the only defense urged, the measure of the burden of proof is of prime importance, and if special charge No. 3 requested by the state imposed on him a greater burden than the law prescribes it was prejudicial error. The rule in Ohio is that to establish the defense of insanity a preponderance of the evidence is all that is required. It is, therefore, clear, if the language used in the charge indicated to the jury that more than a preponderance is required, that the charge would violate the rule of law and impose upon the defendant Hauser more than the law required. Kelch v. State, 55 Ohio St., 146, and Sharkey v. State, 4 C. C., 101, 2 Circ. Dec., 433, and cases cited.

In the case of Kelch v. State, supra, Judge Bradbury has collated and! commented on the authorities of the different states, relative to this question, and clearly lays down the rule. The language, “must satisfy you that he was not sane,” “you must be satisfied by a preponderance or greater weight of the evidence,” used in the charge in the instant case, contains in substance the language disapproved by the authorities above cited, and upon which a judgment of reversal was rendered.

In the case of Kelch v. State, the trial court in charging the jury said:

“It is not required, however, that this defense be established beyond a reasonable doubt; but it is sufficient if the jury is reasonably satisfied by the weight or preponderance of the evidence that the accused was insane at the time of the commission of the act. # * #
“The proof must be such as to overcome the legal presumption of sanity; it must satisfy you that he was not sane.”

And other language of similar import.

The court held that under this charge “it is not sufficient, * * * that the fact of sanity be made probable, something more than that is required; the jury must be satisfied that it existed. To satisfy the mind according to the common notion of mankind is, to free it from doubt; to set at rest.”

We are of opinion that the language used in special charge No. 3 is not distinguishable in substance from the charge given in the case of Kelch v. State, supra, held to be prejudicial.

For application of the rule in civil cases see Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St., 289, and Cincinnati Traction. Co. v. Forrest, 73 Ohio St., 1.

It is urged by defendant in error that while the language complained of may be subject to criticism, taking the charge as a whole, the jury could not have been misled thereby. But when we consider that practically the only defense offered is the question of insanity, and that the special charge given covered the whole question of the quantum of the proof to establish insanity, it must appear at once that' the charge was prejudicial. Moreover, an erroneous special charge is not cured by a correct general charge. Pittsburgh, C. & St. L. Ry. v. Krouse, 30 Ohio St., 222.

Complaint is made of the conduct of the prosecuting attorney at the trial. The record does not disclose any objection or exception at the time to the conduct of the prosecutor. It is sought to raise the question by affidavits of counsel for defendant present at the trial. This does not properly raise the question and these assignments of error will’ not be considered Iron Co. v. Street, 19 Ohio, 300; Templeton v. Kroner, 24 Ohio St. 554; Fitzgerald v. Cross, 30 Ohio St., 444; State v. Young. 77 Ohio St., 529, and Berman v. State, 16 C. C. (N. S.), 106, affirmed, 81 Ohio St., 508.

We have considered the other errors assigned, but do not find that they are prejudicial, and in view of the probable retrial of the cause we will not comment on the weight of the evidence.

For error in giving special charge No. 3, requested by the state, the judgment will be reversed and the cause remanded for a new trial.

Shohl and Cushing, JJ., concur.


text:
    PROSECUTION FOR BLACKMAIL.
    Court of Appeals for Cuyahoga County.
    Judges Jones, Gorman and Hamilton, of the First Appellate District, sitting by designation in place of the Judges of the Eighth Appellate District.
    Smith v. The State of Ohio.

    Decided, January 16, 1918.

      Criminal Law — Sufficiency - of Indictment for Blackmail — Allegation as to a Conspiracy — Testimony of Co-Conspirator Admissible — Conviction of One Defendant and, not the Other Justifiable, When.

    1. An indictment for blackmail need not set forth that the threat or menace was to do an unlawful act or unlawful thing, but it is sufficient to charge therein that the threat or menace was to injure one in his property or reputation, or to humiliate him so that he might be induced thereby to give money rather than be subjected to a charge that might have a tendency to affect him, or to humiliate him, in his rights, his property or his reputation.
    2. It is not necessary to allege a conspiracy in order to sustain a joint indictment for blackmail.
    3. If the evidence establishes a conspiracy beyond a reasonable doubt,the testimony of one conspirator is admissible against his co-conspirator.
    4. Where two are jointly indicted for blackmail, the fact that one defendant takes the stand in his own behalf and denies having uttered statements attributed to him while the other defendant remains silent, is sufficient to justify the jury in finding the former not guilty and the latter guilty.
    5. Evidence of similar facts and circumstances is admissible to prove scienter, guilty knowledge or intent, but not for the purpose of proving guilt of the charge under trial.

      Payer, Winch, Rogers & Minshall, for plaintiff in error.

      Samuel Doerfler, Prosecuting Attorney, for defendant in error.

       Motion for an order directing the Court of Appeals to certify its record in this case overruled April 2, 1918-

   By the Court.

Heard on error.

The plaintiff in error and John G. Owens were jointly indicted by the grand jury o£ Cuyahoga county on the charge of blackmail, under Section 13384, General Code. The substance of that

section which pertains to the indictment is as follows:

“Whoever, with menaces, orally * * * demands of another * * * money * * * with intent to extort or gain from him * * * money ® * * muy be fined, ’ ’ etc.

The indictment, after the formal parts, sets out:

“In the name of and by the authority of the State of Ohio the Jurors of the Grand Jury do present and find that Charles B. Smith and John G. Owens, late of the county aforesaid, on or about the 1st day of December in the year of our Lord one thousand nine hundred and fifteen, with force and arms at the county aforesaid, with the following menaces, to-wit — by saying to one Frank A. Collins, then and there being: ‘You know you have got a great big job here and you are bound to have more or less labor trouble on it. We like you and we like the Gill company, but in order to go down the line for you, it is asking a whole lot of us. I think that Kerm Gill ought to give in and give us a nice little Christmas present. It is going to take a couple of years to build it and we have got to go to the mat for you fellows, and wo figure Kerm Gill ought to give us some money. We are afraid there is going to be trouble around here. If Kerm Gill wants to be that kind of a cheap skate, he can get out of this town. I want to tell you something, Frank, wo are going to make this a regular town like New York and Chicago. We are letting you off mighty easy. We are only asking you two thousand dollars ($2,000). It would have, been a whole lot better for you to have had us along with you all through this big job than have us against you. We like you personally, Frank, but we are going to make Kerm Gill’s firm live hard from now on,’ did demand of the said Francis A. Collins and o.ne Kermode F. Gill, money in the amount of two thousand dollars ($2,000) with intent to extort from them, the said Francis A. Collins and Kermode F. Gill, money in the amount of two thousand dollars ($2,000), contrary to the form of the statute in such.ease made and provided and against the peace and dignity of the State of Ohio.”

Both defendants pleaded “Not guilty” to the indictment. Thereafter the plea was withdrawn, and a motion to quash was filed, and overruled, and a demurrer to the indictment was filed and overruled. The accused thereupon renewed their pleas of “Not guilty.” Trial was had, resulting'in the conviction of Smith and the acquittal of Owens.

Error is prosecuted by Smith.

It is claimed by counsel for plaintiff in error that the indictment did not sufficiently set out any menace to extort money, because it fails to set out that plaintiff in error threatened ColJins wdth an unlawful act.

It is not necessary that the threat or menace should be to do an unlawful act or unlawful thing. It is sufficient that the threat or menace be to injure one in his property or reputation, or to humiliate him so that he might be induced thereby to give money rather than be subjected to a charge that might have a tendency to affect him, or to humiliate him, in his rights, his property or his reputation.

It is further urged that the indictment does not charge a conspiracy, and inasmuch as it is a joint indictment it is necessary to charge that they conspired to extort money by menace and threat.

It is held by the Supreme Court in Elliott v. The State, 36 Ohio St., 318, at page 324, that the crime “may be committed by one or more persons, and for which they may be jointly indicted without alleging a previous conspiracy.”

It was not therefore necessary to charge a conspiracy in- order to have a joint indictment against Smith and Owens.

It is further urged that the testimony of one of these parties could not be used against the other. But the record discloses that whatever was said and done touching the matters set out in the indictment was done or said by one or the other when they were both present, and therefore the evidence of a conspiracy was produced to the jury, and.it was a question of whether or not that evidence established a conspiracy -beyond a reasonable doubt. If it did, and the jury were the judges whether or not it. did, then the. testimony .of. one. was. admissible .against the other, under the rule laid down in Ditzler v. The State of Ohio, 4 C. C., 551.

Tt is urged by plaintiff in error that the evidence was not sufficient to warrant the jury in returning a verdict against Smith in view of the fact that Owens was acquitted. It is urged that the evidence in the • record does not show that the offense was proved against Smith beyond a reasonable doubt, and that it is not conceivable that Smith could be convicted and Owens acquitted on the same identical evidence.

Collins testified that Smith and Owens came to his office and demanded of him $2,000. Owens was the spokesman, and this is the language that he used, as Collins testified:

“ ‘Frank, you have got a great big job here and you are bound to have more or less labor trouble on it. We like you and we like the Gill company. We like Kerm Gill, but we are going to have to go down the line for you. It is getting near Christmas and we think Kerm Gill ought to kick in with a Christmas present for us. You know how it is. We have got to do a whole lot for you to get your work over. I think he ought to kick in with a Christmas present for us.’ I [Collins] said: ‘Well, I will take it up with Mr. Gill and see what he says,’ which I did.”

Two or three days after, Owens and Smith again went to see Collins, and they had another talk with him. Collins testified that the following occurred:

“I had gotten fifty dollars from Mr. Robinson of The Guardian Bank, which I brought to them, and Mr. Smith remarked, ‘Why,’ he says, ‘Jack and I spend more than that much every day’’ very contemptuously. I said, ‘Well, how much did you expect?’ He said, ‘Why, at least two thousand dollars.’ I said, ‘I don’t know.’ I said, ‘I didn’t think you wanted any amount like that. I will see them again and see what he says, ’ which I did. ’ ’

Thereafter Collins testified that Smith and Owens again came to see him, in about a week, and this occurred between Collins and Smith and Owens:

“Q. Tell us what you said in that respect.
“A. I said théy wouldn’t give that much money. They thought fifty was all right. They wouldn’t give that much. That’s all there is to it. Mr. Smith said, ‘Well, if .Kerm Gill is that sort of a cheap skate he can get the hell out of Cleveland. He can’t build in this town.’
“Mr. Payer: Who said that?
“The Witness: Mr. Smith. He said, ‘Why, do you know how they settle jobs like this in New 'York and Chicago ? They charge you one per cent, of the total contract. How much is your contract here?’ Well,’ I said, ‘it will amount to about two and a half million.’ ‘Well,’ he says, ‘that is twenty-five thousand dollars, isn’t it?’ ‘Now,’ he says, ‘I think we are letting you off mighty easy with two thousand dollars. If he wants to be a cheap skate he can get the. hell out of Cleveland. He can’t build in this town.’ I said — '
“Q. Did he say anything else? What did you say?
“A. No, they started out then, and Mr. Smith further remarked, ‘Well, we will make you live hard from now on, Frank.’ I immediately took up the remark and said, ‘Charley, haven’t I always been square with you?’ He said, ‘Yes, you have. We like you personally, but we are going to get Gill, and we are going to get him good.’
‘ ‘ Q. Anything else ?
“A. No, they left then.”

This is but a part of the evidence as to what took place between Smith and Owens, on the one hand, and Collins, on the other, but we think the evidence is sufficient to warrant the jury in finding that both Smith and Owens had endeavored to extort money from Collins, who was an employee of Gill, by threats and menaces.

But it is said that .upon this evidence the jury should have found Owens guilty, as well as Smith, or, rather, having found Owens innocent they should also have returned a verdict of not guilty as to Smith.

It appears from the record that Owens took the witness stand on his own behalf and denied ever having uttered these statements attributed to him by Collins, and denied that he had asked Collins for two thousand dollars or any other sum, whereas Smith failed to testify in the case, and failed to deny the testimony of Collins as to his utterances. Under such a state facts the jury might well have concluded that the state had failed to establish the guilt of Owens 'beyond a reasonable doubt; but, in the absence of any denial on the part of Smith, the evidence was sufficient to establish in the minds of the jury the guilt of Smith, beyond a reasonable doubt. This, we think, is sufficient to account for the fact that the jury returned a verdict of “guilty” against Smith' and “not guilty” against Owens.

It is further claimed that the court erred in the admission of evidence of similar facts and -circumstances. There was a great mass of testimony admitted, of instances in which Owens and Smith, or Smith alone, had received money from contractors and builders and owners of buildings in the city of Cleveland, covering a period of one or two years prior to tjie'time of the indictment. Many of these cases were instances like those set out in the indictment, in which the contractor or owner of a building was threatened with disaster or strikes, or trouble, unless money was paid. Other instances' showed that money was paid to avoid strikes and trouble, and in order to settle strikes and labor trouble, and we think that on the whole the court did not err in admitting evidence of this character. The court charged the jury that the purpose of admitting this evidence was to show scienter, guilty knowledge or intent, and that it could not be used for the purpose of establishing the guilt of the defendants upon the charge against them in this case; that even though they had been guilty of all these former and subsequent offenses, nevertheless, unless the. evidence established beyond a reasonable doubt that they were guilty of the offense charged in the indictment, it would be the duty of the jury to acquit them. In thus charging the jury we find that the court committed no error.

A careful consideration of the entire record in the case fails to "disclose any error prejudicial to the plaintiff in error which would warrant us in reversing this judgment of conviction. The plaintiff in error had a fair and impartial trial, ably defended by able counsel. The court’s rulings during the trial were fair, impartial and just; and his charge to the jury, including the special charges, was fair and impartial, and substantial justice was done in this case.

The judgment of the court of common pleas is therefore affirmed.

Jones, Gorman and Hamilton, JJ., concur.