text:
    ATTACHMENT AND GARNISHMENT — PLEADING.
    [Hamilton (1st) Circuit Court,
    November 27, 1909.]
    Giffen, Smith and Swing, JJ.

      Citizens National Bank of Washington, Pa., v. Union Cent. Life Ins. Co. et al.
    1. Designation in Judgment on Promissory Note by Initial Letters of Maker’s Name as in Signature, does not Void Judgment.
    A promissory note is a “written instrument” within the meaning of Sec. 5010 Rev. Stat. the signature of which being by initial letter, authorizes action against parties thereto by name so designated; hence, a note having been merged in a judgment in which the maker is designated in the same manner as upon the note, the judgment becomes an evidence of debt under such name; in any event such judgment is not void in the sense that, in an attachment proceeding on the judgment, it excuses the judgment debtor from making a meritorious defense therein.
    2. Defects in Service by Publication not Available in Attachment on Judgment against Nonresident Defendant unless Defense to Vacate is Set Forth.
    Failure of a nonresident defendant in attachment, which is based on a judgment upon a promissory note, to set forth his defense in his petition to vacate such judgment, as required by Sec. 5358 Rev. Stat., precludes objection to constructive service upon him by publication for defects therein — notice by publication not being process.
    3. Issuing Order of' Attachment before Constructive Service Attempted does not Defeat Attachment.
    An action in attachment is “commenced” within the meaning of Sec. 5032 Rev. Stat., by filing a petition and issuing summons thereon; hence, such requirements having been complied with, an order of attachment will not be set aside as in violation of Sec. 5521 merely upon the ground that the order was issued before, instead of “at or after,” constructive service by publication had been attempted.
    Error to Hamilton common pleas court.

      Jones & James, for plaintiff in error.
    Jos. W. O’Hara, for defendant in error.

      Dismissed by consent, Union Cent. L. Ins. Co. v. Bank, 55 Bull. 184.

   GIFFEN, J.

The plaintiff bank in its amended petition sets up a judgment obtained in the state of Pennsylvania against the defendant, W. F. Wright, for $1,343.17, and proceedings in attachment commenced in this county wherein judgment by default was taken against W. F. Wright, and the defendant insurance company was, as garnishee, ordered to pay the amount of the judgment and interest into court, which it failed to do.

The defendant, W. F. Wright, by answer and cross petition with amendment thereto, avers that the court in the attachment suit acquired no jurisdiction of his person nor of the subject-matter, and that the judgment- and order therein are null and void because—

1. He was described in the petition by his initials, viz,, W. F. Wright.

2. That no affidavit was filed, that the residence of defendant was unknown and could not with reasonable diligence be ascertained. That in fact the residence of defendant was at all times well known to plaintiff.

3. That the order of attachment was issued before service by publication was begun or attempted.

The court dismissed the petition and enjoined further proceedings under the attachment and set aside all orders and judgment thereunder as null and void.

The findings of fact show that the promissory note upon which judgment was rendered in the state of Pennsylvania was signed by the defendant as “W. F. Wright” and the judgment was so entered.

Section 5010 Rev. Stat. provides:

“Parties to a written instrument by initial letter, or a contraction of the name, may be so designated in an action thereon.”

The purpose of this section would seem to be to allow the designation of a party by initial letter in an action upon any written instrument which is evidence of the debt or obligation, and in which he is so designated.

The word “instrument” has been defined in law as “the formal expression -in writing of some agreement or obligation, or of some act upon which the rights of parties are dependent.”

It is true that the note was merged in the judgment, but being sued by name as signed in the note, the judgment was so entered and became evidence of a debt owing by him under that name. Furthermore, it does not appear from the record that he has any other name, and he-himself uses it in his answer and cross petition.

If the statute was not broad enough to cover such a case, still the-judgment was not void in the sense that defendant was not required’ to show a meretorious defense to the action.

The second objection is aimed at the service or attempted service-by publication.

In the case of Paine v. Mooreland, 15 Ohio 435, 444 [45 Am. Dec. 585], it is said:

“Notice by publication is not process, but, in certain cases in contemplation of law, is equivalent to service of process. The process in-attachment is the writ authorizing and directing a seizure of the property. No process is issued against the person, because the proceeding-is in rent. The statute, however, regards it but just that notice should be given to the debtor, not for the purpose of giving the court jurisdiction over the subject-matter, but to permit the debtor to have an opportunity to protect his rights and directs that the writ shall be-quashed if it be not given.”

As held in that case so in this case the judgment was only voidable.

The most serious objection under this head is the statement of plaintiff that the residence of defendant “is unknown,” when it well knew that he resided in Buffalo, N. Y.; but even in such case the defendant must in his petition to vacate the judgment set forth his-defense to the action. Section 5358 Rev. Stat.

The third objection is that the attachment was not issued “at or after” the commencement of the action but before. Section 5521 Rev.. Stat. The petition had been filed and a summons issued thereon, whereby the action was commenced within the meaning of the attachment-law. Section 5032 Rev. Stat.

The defendant was entitled to have the judgment vacated only after showing a good defense. This he probably cannot do, as the court substantially found that lie had no defense to the action in Pennsylvania nor the judgment therein.

The judgment will be reversed and the cause remanded for further proceedings according to law.

Swing and Smith, JfJ., concur.


source: Caselaw Access Project

author: DUSTIN, J.

license: Public Domain

text:
    NEGLIGENCE — RAILROADS.
    [Fayette (2nd) Circuit Court,
    1909.]
    Sullivan, Dustin and Allread, JJ.

      Baltimore & O. Ry. v. Hugh K. Stewart.
    Person Approaching Railroad Crossing is Bound to' Exercise Proper Cabe.
    In a railroad crossing injury case, where the evidence shows that plaintiff was familiar with the crossing and its surroundings and ‘ the schedule of the trains, and that others similarly situated as himseltwith - reference to the crossing heard the warning whistle and saw the approaching train in ample time for him, had he exercised due care, to havé become aware of the approach of the train and avoided the collision, it was error to overrule a motion to direct a verdict for the defendant.
    Error to Fayette common pleas court.
    Cummings, McBride & Woife and F. A. Durban, for plaintiff in error.
    Humphrey Jones, for defendant in error.

      Affirmed, no op., Stewart v. Railway, 77 O. S. 603.

   DUSTIN, J.

We do not deem it necessary to state here the issues between the parties and upon which the judgment, sought to be reversed by the plaintiff in error, was entered in the court below, since they fully appear on the face of the record. A number of grounds of error are set forth in the petition in error, and yet but two were seriously urged' and relied upon by counsel, viz.: That the court below erred in overruling the motion of plaintiff in error to direct the jury to return a verdict in its favor at the conclusion of the testimony of plaintiff below, and, that the whole testimony produced to the jury shows the verdict, is manifestly against its weight. If the record shows upon its face either of these errors to be manifest, then the other grounds set forth in the petition in error are of no importance.

Upon the first ground, counsel for plaintiff in error claims that the testimony of plaintiff below shows that Mrs. Stewart was negligent in approaching the crossing where the accident occurred, and that her negligence was the proximate cause of her injuries. The care required of her depended upon the surroundings of the crossing, her knowledge of the same, and of the time trains were scheduled and expected to pass at this point. The testimony of plaintiff below shows that Mrs. Stewart knew the crossing, well, and its surroundings, from having frequently used it coming from and going to her home; also that she knew that it was near or about the time that the train with which she collided was expected to pass. As she was passing along in front of the cemetery, named and located in the record as a point from which a train coming from the east could be seen, after passing the elevator located at the station to the east, many of the witnesses called by the plaintiff below, who were in and about this cemetery, heard the whistle sounded on the approaching train. Some of those who heard it watched Mrs. Stewart, because notwithstanding the signal she continued on toward the crossing, apparently not heeding the signal and unconscious of the train’s approach.

These witnesses were located at the time the signal was given precisely as Mrs. Stewart was in relation to the crossing, and the buildings claimed to have been obstructions. The wind was from the same direction as to them as it was to her. She claims to have been listening for signals and the noise of an approaching train, and heard neither. There was no occasion for these other witnesses listening for either, and yet they heard the signal distinctly. The care devolving upon her was to look and listen — to look for the purpose and with the intent of seeing, and to listen for the purpose and with the intent of hearing the approach of a train. Neither the wind nor the obstructions near the station interfered with the plaintiff’s other witnesses below from hearing the signal; hence the query naturally follows, if she was listening, with the purpose and intent of hearing, why did she not hear the whistle? If it was the noise of her buggy, it was her duty to have stopped it. Pennsylvania Co. v. Morel, 40 Ohio St. 338.

A railroad crossing is a known place of danger. Where the surroundings increase the danger, greater care must be observed by the traveler upon the highway in approaching for the purpose of crossing. As Mrs. Stewart approached the crossing, the care devolving upon her increased as she neared it; and after she passed into the cut, where she could not see, her duty to listen continued, and if prevented from hearing by the noise of her. buggy, it was her duty to have stopped the noise and listened with the purpose and intent of hearing. As she could not see up and down the track just before going upon the crossing, it was her duty to have stopped and listened before attempting to cross. According to her own testimony and that of other witnesses called by plaintiff below, she did not do this at any point before going upon the crossing. This was all shown by the testimony of the witness called by the plaintiff below, and in our opinion was negligence upon the part of Mrs. Stewart, but for which the accident would not have occurred. The negligence charged against the railroad company may be conceded, but notwithstanding its negligence, had Mrs. Stewart not been negligent, she would not have been injured. ■ The testimony of defendant below did not support the averments of the petition of plaintiff below that Mrs. Stewart was not negligent.

Therefore the motion of plaintiff in error for a verdict in its favor, at the conclusion of the testimony of plaintiff below, should have been sustained and the petition of plaintiff below dismissed. There are no other errors apparent upon the record prejudicial to plaintiff in error. The judgment of the court below will be reversed and the judgment which should have been rendered upon the motion in the court below will be rendered here, and the petition of defendant in error dismissed at his costs. Exceptions for defendant in error may be noted.

Wilson and Sullivan, JJ., concur.


author: GIFFEN, J.

text:
    BROKERS — EMBEZZLEMENT.
    [Hamilton (1st) Circuit Court,
    January 8, 1910.]
    Giffen, Swing and Smith, JJ.

      Charles J. Buddeke v. State of Ohio.
    Conversion op Collateral Stock Shares by Broker not Embezzlement.
    Where a broker holds as collateral shares of stock belonging to a client, the relation between them is not that of principal and agent, but of debtor and creditor, and the conversion of the stock by the broker to his own use does not constitute embezzlement within the meaning of Sec. 6842 Rev. Stat.
    L. J. Dolle, Ulric Sloane and J. B. O’Donnell, for plaintiff in error:
    A pledgee is not a person described in the statute as one who may commit embezzlement. Mechem, Agency Sec. 936; Jones, Pledges Sec. 496; Hennequin v. Clews, 111 TJ. S. 676 [4 Sup. Ct. Rep. 576; 28 Jj. Ed. 565]; Hennequin v. Clews. 77 N. T. 427 [33 Am. Rep. 641]; Tindle v. Birkett, 205 TJ. S. 183 [27 Sup. Ct. Rep. 493; 51 L. Ed. 762]; Crawford v. Burke, 195 TJ. S. 176 [25 Sup. Ct. Rep. 9; 49 L. Ed. 147]; Palmer v. Hussey, 119 TJ. S. 96 [7 Sup. Ct. Rep. 158; 30 L. Ed. 362];
      Upshur v. Briscoe, 138 XL S. 365 [11 Sup. Ct. Rep. 313; 34 L. Ed. 931]; ■Gaylord, In re, 113 Fed. Rep. 131; Wenmam, In re, 153 Fed. Rep. 910; Barrett v. Prince, 143 Fed. Rep. 302 [74 C. C. A. 440]; Orebaugh v. State, 31 O. C. C. 388 (11 N. S. 603); Campbell v. State, 35 Ohio St. 70.
    Depositing of stock as a pledge amounts in law to a mutuum and! does not require the return of the exact stock. 1 Dos Passos, Stock Brokers 194, 250; 22 Am. & Eng. Enc. 874; Richardson v. Shaw, 209 XJ. S. 365 [28 Sup. Ct. Rep. 512; 52 L. Ed. 835]; Chase v. Washburn, 1 Ohio St. 244 [59 Am. Dee. 623]; Exchange Bank v. Hines. 3 Ohio» St. 1; Fosdick v. Greene, 27 Ohio St. 484 [22 Am. Rep. 328]; Lawrence v. Maxwell, 58 Barb. (N. Y.) 511, affirmed, Lawrence v. Maxwell, 53 N. Y. 19.
    The felonious intent must have been concomitant with the act of conversion, and that if the defendant did not use the money or property without intending to deprive his principal of it, but was prevented by his failure in business from returning it, he should be acquitted. May, Crim. Law 285, Sec. 304; People v. Hurst, 62 Mich. 276 [28 N. W. Rep. 838]; People v. Wadsworth, 63 Mich. 500 [30 N. W. Rep. 99] ; Myers v. State, 2 Circ. Dec. 712 (4 R. 570) ; Richardson v. Shaw, 209 XT. S. 365 [28 Sup. Ct. Rep. 512; 52 L. Ed. 835],
    The first count of the indictment did not charge a crime. Neiler v. Kelley, 69 Pa. St. 403; Jones v. Davis, 35 Ohio St. 474; Bradley v. Bander, 35 Ohio St. 28 [38 Am. Rep. 547] ; Fisher v. Bank, 71 Mass. (5 Gray) 373; Cook, Stockbrokers (2 ed.) 583, Sec. 464; Cates v. Baxter, 97 Tenn. 443 [37 S. W. Rep. 219]; McClung v. Colwell, 10-7 Tenn. 592 [64 S. W. Rep. 890; 89 Am. St. Rep. 961]; People v. New York (Tax Comrs.) 23 N. Y. 192; Skowhegan Bank v. Cutler, 52 Me. 509; Arnold v. Ruggles, 1 .R. I. 165; Donnell v. Wyckoff, 49 N. J. Law 48 [7 Atl. Rep. 672],
    Henry Hunt, Pros. Atty., Coleman Avery, for defendant in error:
    Election between the counts of the indictment.' State v. Hensley, 75 Ohio St. 255 [79 N. E. Rep. 462; 9 L. R. A. (N. S.) 277; 116 Am. St. Rep. 734]; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233]; Bailey v. State, 4 Ohio St. 440; Whiting v. State, 48 Ohio St. 220 [27 N. E. Rep. 96]; Searles v. State, 3 Circ. Dec. 478 (6 R. 331); Hotelling v. State, 2 Circ. Dec. 366 (3 R. 630) ; Beale, Crim. PI. & Prac. Sec. 302.
    Indictment states facts which constitute the crime of embezzlement. Johns v. Johns, 1 Ohio St. 350; Ball & Am, Exch. Bank v. Manufacturing Co. 67 Ohio St. 306 [65 N. E. Rep. 1015; 93 Am. St. Rep. 682]; Peo

      pie v. Williams, 60 Cal. 1; 2 Cook, Corporations (6 ed.) 1584, Sec. 576; Payne v. Elliot, 54 Cal. 339 [35 Am. Rep. 80]; McAllister v. Kuhn, 96 U. S. 89 [24 L. Ed. 615]; Galkins v. State, 18 Ohio St. 366 [98 Am. Dec. 121].
    Broker is an “agent” within the meaning of the statute defining embezzlement. Norfolk & W. By. v. Cottrell, 83 Ya. 512 [3 S. E. Rep. 123]; Porter v. Hermann, 8 Cal. 619; People v. Karste, 132 Mich. 455 [93 N. W. Rep. 1081]; Beg v. Christian, L. R. 2 C. C. 94; Commonwealth v. Cooper, 130 Mass. 285; 2 Dos Passos, Stock Brokers 219, 258, 260, 777, 783, 804; State v. Cunningham, 154 Mo. 161 [55 S. W. Rep. 282]; White v. Brownell, 3 Abb. Prac. N. S. 318; Galigher v. Jones, 129 U. S. 193 [9 Sup. Ct. Rep. 335; 32 L. Ed. 658] ; Taussig v. Hart, 58 N. Y. 425; Mechem, Agency Sec. 13, 936, 952, 955; 15 Cyc. 498; Wynegar v. State, 157 Ind. 577 [62 N. E. Rep. 38]; State v. Smith, 57 Kan. 657 [47 Pac. Rep. 535].
    The fact that plaintiff may have had an interest in the property, the shares of gas stock, does not prevent a conversion thereof from being embezzlement. Campbell v. Slate, 35 Ohio St. 70; People v. Birnbaum,. 114 App. Div. 890 [100 N. Y. Supp. 160]; Commomvealth v. Jacobs, 126 Ky. 536 [104 S. W. Rep. 345; 13 L. R. A. (N. S.) 511].
    Sale of twenty-three shares of gas stock was a conversion. Thomas v. Taggart, 209 U. S. 385 [28 Sup. Ct. Rep. 519; 52 L. Ed. 845]; Lawrence v. Maxivell, 53 N. Y. 19; Sillcocks v. Gallaudet, 66 Hun 522 [21 N. Y. Supp. 552]; Skiff v. Stoddard, 63 Conn. 198 [26 Atl. Rep. 874; 28 Atl. Rep. 104; 21 L. R. A. 102]; Richardson v. Shaw, 209 U. S. 365 [28 Sup. Ct. Rep. 512; 52 L. Ed. 835]; Markham v. Jaudon, 41 N. Y. 235; Taussig v. Hart, 58 N. Y. 425; Gruman v. Smith, 81 N. Y. 25; Miller v. Miller, 29 O. C. C. 353 (9 N. S. 315).
    A bailee may be convicted of embezzlement as “agent.” Wynegar v. State, 157 Ind. 577 [62 N. E. Rep. 38].
    The gas stock came into the possession of plaintiff not as pledgee, or by virtue of his employment as pledgee but by virtue of his employment as agent. Thomas v. Taggart, 209 U. S. • 385 [28 Sup. Ct. Rep. 519; 52 L. Ed. 845]; 2 Dos Passos. Stock Brokers 250, 804; May, Crim. Law 297, Sec. 302; Hedley, Ex parte, 31 Cal. 108; State v. Rue, 72 Minn. 296 [75 N. W. Rep. 235]; State v. Schilb, 159 Mo. 130 [60 S. W. Rep. 82]; People v. Birnbaum, 114 App. Div. 890 [100 N. Y. Supp. 160]; Commonwealth v. Jacobs, 126 Ky. 536 [104 S. W. Rep. 345; 13 L. R. A. (N. S.) 511]; Calkins v. State, 18 Ohio St. 366 [98 Am. Dec. 121]; Krebs v. Forbñger, 10 Dee. Re. 506 (21 Bull. 313) ; Henne

      quin v. Clews, 111 U. S. 676 [4 Sup. Ct. Rep. 576; 28 L. Ed. 565]; Chapman v. Forsyth, 48 U. S. (2 How.) 202 [11 L. Ed. 236],
    Intention to return money. People v. Jackson, 138 Cal. 462 [71 Pae. Rep. 566] • People v. Warren, 122 Mich. 504 [81 N. W. Rep. 360; 80 Am. St. Rep. 582]; People v. Butts, 128 Mich. 208 [87 N. W. Rep. 224]; Bex v. Creed, 1 Car. & K. 63; Bex v. Jackson, 1 Car. & K. 384; Bex v. Wottley, Temp. & M. 636; 2 Den. C. C. 339; 5 Cox. C. C. 382; Commonwealth v. Tuckerman, 76 Mass. (10 Gray) 173; Commonwealth v. Berry, 99 Mass. 428; Myers v. State, 2 Circ. Dec. 712 (4 R. 570).
    An error in a charge must be injurious to the party complaining; if the record shows that it could not have prejudiced him there is no ground for reversal. Cricket v. State, 18 Ohio St. 9; Berry v. State, 31 Ohio St. 219 [27 Am. Rep. 506]; Courcier v. Graham, 1 Ohio 330.
    Mere error and exception thereto is not reason to reverse, it must also be prejudicial. McHugh v. State. 42 Ohio St. 154; Scovern v. State, 6 Ohio St. 288; State v. Barlote, 70 Ohio St. 363 [71 N. E. Rep. 726]; State v. Ferrell, 69 Ohio St. 521 [69 N. E. Rep. 995]; Manson v. State, 24 Ohio St. 590; Gandolfo v. State, 11 Ohio St. 114; Moran v. State, 5 Circ. Dec. 234 (11 R. 464).

       Affirmed, no op., State v. Buddeke, 55 Bull. 352; 83 O. S. 000.

   GIFFEN, J.

Charles J. Buddeke was indicted and convicted under Sec. 6842 Rev. Stat., of ’unlawfully and fraudulently embezzling and converting to his own use twenty-three shares of the capital stock of the Cincinnati Gas & Electric Co., which came into his possession and care by virtue of his employment as agent of one George Schulte.

The record discloses that Charles J. ■ Buddeke was a stock broker doing business as such under the name of Charles J. Buddeke & Company. On May 4, 1907, he purchased for and on request of George Schulte eight shares New York Central Railroad stock at 1.17 — $938. On May 9, 1907, Schulte transferred and delivered to Buddeke twentyfiye shares Cincinnati Gas & Electric stock and obtained the following receipt:

“Cincinnati, May 9, 1907.

“Received of Geo. Schulte Ctf. No. 26968 for 23 sh. Cin. Gas & Elec.- stock as collateral on account. ^

“Charles J. Buddeke & Co.,

“Per T. J. Cooney.”

On May 15, 1907, Buddeke purchased for Schulte ten shares New York Central Railroad stock at 1.14 — $1,142.50. On June 5, 1907, Buddeke purchased for Schulte twenty shares Toledo Railway & Light Co. stock. On June 6, 1907, Schulte paid $132.50 on account. He never had possession of the stock hut paid interest on the account and was credited with dividends on the N. Y. C. stock. On June 16, 1908, Buddeke converted the twenty-three shares of gas and electric stock to his own use.

The question to be decided is whether by so doing he was guilty of embezzlement, and the answer depends on whether or not he was acting as agent of Schulte with reference to the gas stock.

In purchasing stocks for Schulte, the broker, Buddeke, was undoubtedly acting as his agent; but that did not prevent him from assuming any other legal relation to the stocks purchased or the stock transferred as collateral, as, for example, purchaser or pledgee. If the broker has been instructed by his customer to sell the twenty-three shares of Cincinnati Gas & Electric stock and invest the proceeds in New York Central stock, but failed to do so and converted the gas stock to his own use, he would be guilty of embezzlement because he received and held the stock, until misappropriated, as the agent of his customer. So, likewise, had he received the money from the customer for a like purpose and converted it to his own use. The stock was actually received however “as collateral on account,” and for no other purpose. At that time the account stood George Schulte, debtor, to eight shares New York Central stock, $938, and Charles J. Buddeke, doing business as Charles J. Buddeke & Co., was a creditor of Schulte in that amount. It was no doubt intended that the collateral stock should, and it did, cover not only the indebtedness existing at the time of the transfer but also any indebtedness subsequently incurred in the purchase of stock on Schulte’s account; but aside from that the relation of debtor and creditor already existing and the gas stock being transferred to protect him in that relation, the transaction was a pledge, and the stock never was received by Buddeke as agent. The legal effect of the act and the legal relation of the parties thereto determines the capacity in which they act. When a broker advances money in purchasing stocks for and on the order of a customer, there is a promise, express or implied, to repay the same, the effect of which is to create a debt and the relation of debtor and creditor; and when the debtor delivers other stock as collateral security for the fulfillment of that promise, the creditor receives it, not by virtue of his employment as agent to purchase stocks, but by virtue of the debt created by contract, and to secure which it was given. Markham v. Jaudon, 41 N. Y. 235; Hennequin v. Clews, 111 U. S. 676 [4 Sup. Ct. Rep. 576; 28 L. Ed. 565].

So it was the duty of Buddeke to- return the collateral stock to the owner, Schulte, when it had served the purpose for which it was pledged, and in no event to convert it fraudulently to his own use; ¡but he cannot be held to answer for a crime when there is a failure of proof of the essential element of the offense .charged. Barber v. State, 39 Ohio St. 660.

We think that the court erred in overruling the motion made at the conclusion of all the evidence to direct the jury to return a verdict for the defendant.

The judgment will be reversed and the prisoner discharged.

Smith and Swing, JJ., concur.


author: SMITH, J.

text:
    ERROR — INTERROGATORIES.
    [Hamilton (1st) Circuit Court,
    December 24, 1909.]
    Giffen, Swing and Smith, JJ.

      Charles M. Stanley v. I. M. Martin.
    Sustaining Demurrer to Interrogatories Annexed to and Seeking Disclosure of Unknown Parties Referred to Therein is not a Final Order.
    Sustaining a demurrer to interrogatories by virtue of Sec. 5099 Rev. Stat. annexed to a petition declaring a single defendant but which seeks dis- ' closure of the names of unknown parties of whom it is alleged plaintiff was given to understand defendant was acting as agent and manager, does not constitute a final order under See. 6707, upon which error proceedings may be predicated.
    Error to Hamilton common pleas court.
    Hosea St Knight, for plaintiff in error.
    Pogue & Pogue, for defendant in error.

      For decision below, see Stanley v. Martin, 19 Dec. 864.

   SMITH, J.

Plaintiff in error filed his petition in the court of common pleas, alleging that he entered into a contract with the defendant in error as general manager of Chester Park, Winton Place, in this county, to furnish, maintain and exhibit daily a submarine boat for a period of seventeen weeks, commencing May 9, 1908, or longer at the option of the defendant in error, for which defendant in error agreed to pay him the sum of $40 weekly, and that the contract was in writing, sighed by the parties. A copy was attached to his petition. He further alleged that on June 13, 1908, defendant in error ordered him to cease further performances and compelled him to remove his apparatus, and that there is due him on such contract the sum of $480, for which he asks judgment.

The petition also alleges that plaintiff in error was given to understand that the defendant in error was acting not only in his own behalf brit as agent and manager of others interested as owners of said park or in the profits arising therefrom, whose identity was not disclosed fo plaintiff but whose names plaintiff asks leave to add to the petition as defendants when ascertained.

Plaintiff in error also annexed interrogatories to his petition which he asked to have answered by defendant in error under oath.

To these interrogatories defendant in error demurred, which demurrer was sustained by the trial court. No further proceedings were had in the court below, and error is prosecuted to this court to the •■sustaining of said demurrer.

Section 6707 Rev. Stat. defines a final order as “an order affecting a, substantial right in, an action, when said order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in, •an action after judgment.”

The interrogatories are attached under Sec. 5099 Rev. Stat., which permits “a party to annex to his pleadings, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath by the party to whom they are propounded.”

It is evident, therefore, in determining this question, that we must look to the petition, together with the interrogatories, to ascertain whether or not the order sustaining the demurrer is such an order as is contemplated under Sec. 6707 Rev. Stat. The petition declares upon an amount due under a written contract entered into between plaintiff in error and defendant in error, as general manager of Chester Park, and alleges that defendant in error agreed to pay him a certain sum weekly during the life of the contract. It further alleged a breach •on the part of the defendant in error, and claims there is due him on the contract a certain sum of money. It nowhere alleges that others; than defendant in error were interested in said contract, or that persons •other than defendant in error agreed to pay plaintiff in error, or that others than the defendant in error committed a breach of the contract. It nowhere alleges or sets up an action jointly against two or more defendants, which it is the duty of the plaintiff to allege and prove if he wishes to maintain such an action. French v. Construction Co. 76 Ohio St. 509 [81 N. E. Rep. 751; 12 L. R. A. (N. S.) 669].

In this state of the record we think the order of the court below is not such a final order as affects a substantial right which determines the action and prevents a judgment, or is an order affecting a substantial right made in a special proceeding.

In our opinion, the petition as it stands is one against the defendant in error alone, and therefore, the order sustaining the demurrer to the interrogatories on the ground that they are not pertinent' to the issue is merely an interlocutory one to which error will not lie at this stage of the case. Armstrong v. Brewing Co. 53 Ohio St. 467 [42 N. E. Rep. 425]; Krause v. Stichtenoth, 8 Circ. Dec. 291 (15 R. 199); Newburg Petroleum Co. v. Weare, 44 Ohio St. 604 [9 N. E. Rep. 845]; Longstreth & A. Mfg. Co. v. Halsey, 2 Circ. Dec. 563 (4 R. 307).

The case at bar upon the record still stands in the court of common pleas and plaintiff in error’s action may be proceeded with there against defendant in error.

An order may be taken striking the error proceedings from the. files.

Giffen and Swing, JJ., concur.


author: HURIN, J.

text:
    CRIMINAL LAW — HOMICIDE.
    [Wyandot (3rd) Circuit Court,
    December 30, 1909.]
    Hurin, Donnelly and Kinder, JJ.

       James F. Goodlove v. State of Ohio.
    1. Indictment foe First Degree Murder Sufficiently Apprising Accused of Charge not Invalid for Nonprejudicial Omission or Surplusage.
    An indictment in tbe usual form for charging first degree murder, averring that accused with a certain pistol “unlawfully, purposely and of deliberate and premeditated malice did discharge * * * strike, penetrate and wound with the intent aforesaid * * * in and upon, (deceased) * * * one mortal wound * * * of which he died,”' but failing, after the words “intent aforesaid,” to contain the statement “then and there giving to him * * * with said leaden bullets aforesaid,” may be deficient in ‘perspicuity; but such omissions, not having-prejudiced the substantial rights of accused in failing to give him accurate information of the crime charged, does not under Sec. 7215 Rev. Stat. invalidate the indictment.
    2. Strike, Penetrate and Wound the Deceased a Wound Held Equivalent toi Giving a Wound.
    A phrase in an indictment for first degree murder charging that accused' “did strike, penetrate and wound (the deceased, naming him) * * * one mortal wound” with a pistol and leaden bullets, is equivalent to charging the giving of such wound and such indictment having stated, all the essentials to charging such crime, is valid under Sec. 7215 Rev.. Stat.
    3. “Alias” as Applied to Accused and Person Injured Construed.
    The term “alias” as applied to an accused person is distinguished from' that applied to the person wronged by accused in that greater strictness is required in identifying accused than is necessary in identifying the-victim.
    4. Indictment Charging Killing of a Person Designated by one Name Alias-. Another Sufficient if Deceased be Identified by the Alias Name.
    An indictment for homicide charging the killing of the deceased, giving, deceased one name alias another name, and repeating the alias name, without again referring to the former name is sufficient to support a conviction for the killing of deceased under the second mentioned name, particularly if the deceased person killed was identified by the alias: name and in the absence of evidence that deceased was ever known by-the former name.
    5. Technicalities not Permitted to Override Justice.
    The policy of criminal law and practice does not allow mere technicalities! to override justice but accused persons are guaranteed such perfect protection that none shall be punished for crime except upon fair' trial, including every step from accusation to verdict and judgment.
    [Syllabus approved by the court.]
    Error to Wyandot common pleas court.
    Meek & Stalter and J. W. Sheets, for plaintiff in error.

      H. H. Newell, Pros. Atty., and D. C. Parker, for defendant in error:
    Cited and commented upon the following authorities: "Wharton, Homicide 837, 850, 851, 852, 853, 854, 855, 856; 21 Cyc. Law & Proced. 846; McDonnall v. People, 168 111. 93 [48 N. E. Rep. 86]; Jones v. iState, 35' Ind. 122; Territory v. Godas, 8 Mont. 347 [21 Pac. Rep. 26]; Caldwell v. State, 28 Tex. App. 566 [14 S. W. Rep. 122]; Adams v. State, 28 Fla. 511 [10 So. Rep. 106]; State v. Florenza, 28 La. Ann. 945; Veatch v. State, 56 Ind. 584 [26 Am. Rep. 44]; State y. Yandell, 34 Wash. 409 [75 Pac. Rep. 988] ; State v. Cronin, 20 Wash. 512 [56 Pac. Rep. 26]; Green v. State, 154 Ind. 655 [57 N. E. Rep. 637]; State v. Silk, 145 Mo. 240 [44 S. W. Rep. 764; 46 S. W. Rep. 959]; State v. Freeman, 1 Spears (S. C.) 57; State v. Vaughn, 26 Mo. 29; McGill v. State, 34 Ohio St. 228; Hayward v. Calhoun, 2 Ohio St. 164; Eastman v. Wight, 4 Ohio St. 156; Parks v. State, 4 Ohio St. 234; Kenrick y. Beppard, 23 Ohio St. 333; Watts v. Buth, 30 Ohio St. 32; Byan v. State, 30 O. C. C. 305 (10 N. S. 497) ; State v. Dickerson, 77 Ohio St. 34 [82 N. E. Rep. 969; 13 L. R. A. (N. S.) 341; 122 Am. St. Rep. 479]; Gandolfo v. State, 11 Ohio 114; Griffin v. State, 14 Ohio St. 55; State v. Boderick, 77 Ohio St. 301 [82 N. E. Rep. 1082; 14 L. R. A. (N. S.) 704]; Marts v. State, 26 Ohio St. 162; Bucklin v. State, 20 Ohio 18; 5 Am. & Eng. Enc. Law 875; Lemmon v. State, 77 Ohio St. 427 [83 N. E. Rep. 608].

      Reversed, Goodlove v. State, 82 O. S. 365.

   HURIN, J.

Plaintiff in error was indicted for murder in the first degree. He was convicted of manslaughter and sentenced to the penitentiary. From this judgment he now prosecutes error.

The various errors assigned as grounds for reversal will be considered in their order.

First, it is claimed that the indictment is bad in that it charges nothing more than an assault with intent to kill one Percy Stuckey, alias Frank McCormick, and also the shooting with intent to kill, but not homicide.

It appears that the indictment is in the usual form for charging first degree murder but that the scrivener, in copying that form, omitted one phrase usually inserted, i. e., immediately after the statement “did strike, penetrate and wound with intent aforesaid” he omitted the following averment “thereby then and there giving to him, the said Frank McCormick, with said leaden bullets aforesaid.”

The omission of these words is said to make such a complete break in the language of the indictment that it in fact nowhere charges that the accused gave the deceased any mortal wound.

To make clear the effect of such omission it will be necessary to recite all of that portion of the indictment, which follows the clauses reciting the assault with intent unlawfully, purposely and of deliberate and premeditated malice to kill and murder the said Frank McCormick .and which reads as follows:

“And that the said James F. Goodlove, a certain pistol then and there charged with gunpowder and leaden bullets, which said pistol he, the said James F. Goodlove then and there in his right hand had •and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, ag'ainst and upon the said Frank McCormick, with the intent aforesaid, and that the said James F. Goodlove, with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said James F. Goodlove then and there discharged and shot off as aforesaid, him, the said Frank McCormick, in and upon the upper right side of the back of him, the said Frank McCormick, then and there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate, and wound, with the intent aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said James F. Goodlove, in and upon the upper right side of the back of him, the. said Frank McCormick, one mortal wound of the depth of four inches and of the breadth of half an inch, of which mortal wound he, the said McCormick, then and there died.”

It is urged that, because of the omission of the words before quoted, this indictment nowhere charges that James F. Goodlove gave to Frank McCormick a mortal wound; that there is nothing to connect the alleged shooting with the wound of which McCormick died, and hence the indictment is fatally defective; and that the prisoner should be discharged.

There can be no doubt that the indictment thus recited is deficient in perspicuity. The serious question is, does it fail to contain such averments as would fairly apprise the accused of the nature of the crime with which he is charged?

As was said in Lamberton v. State, 11 Ohio 282, 284:

“Every indictment should contain a complete description of the offense charged. That it should set forth the facts constituting the crime, so that the accused may have notice of what he is to meet, * * * and * * * the court, applying the law to the facts, charged * * *, may see that a crime has been committed.”

In Anderson v. State, 7 Ohio (pt. 2) 250, 255, it was held that,,

“The indictment must state every circumstance of knowledge, intention or action that constitutes the criminal design.”

The care necessary to be observed in drawing an indictment and' the reasons for such care are well set forth in the case of Fonts v. State, 8 Ohio St. 98, 114, where, after reciting the constitutional provisions, that,

“No person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury”' and that “in any trial, in any court, the party accused shall be allowed to demand the nature and cause of the accusation against him,, and to have a copy thereof,” the court says, “Why these provisions in the fundamental law of the state? Why the ceremony and expense of a grand jury to find and return an indictment setting out the ‘nature- and cause of the accusation’? and why guarantee to the accused the right to demand and have a copy of the indictment, if the writtenaverments, descriptive of the crime, are not required to be made with certainty and truth, charging the overt act with all the substantial and distinguishing ingredients which the statute creating the offense has-, made essential to constitute the crime?”

The reasoning of this opinion is undoubtedly sound and the case-has been frequently cited with approval and never disaffirmed by the Supreme Court. See also, the case of United States v. Cruikshank, 92 U. S. 542 [23 L. Ed. 588], and the case of United States v. Cook, 4 O. F. D. 241 [84 U. S. (17 Wall.) 168, 174; 21 L. Ed. 538].

In the ease of Knight v. State, 54 Ohio St. 365, 377 [43 N. E. Rep. 995], it was held that a failure “to aver all the material facts necessary to a conviction * * * is fatal as well since the statute as at common law.”

The statute there referred to is Sec. 7215 Rev. Stat. and. in the case at bar the prosecution relies upon its provisions as excusing the omission in the indictment.

Omitting the parts not especially applicable to this case;, that statute provides that,

“No indictment shall be deemed invalid * * * - for any surplusage, or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor for want of averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

The question then narrows itself to this one issue, was the omitted •allegation of this indictment so essential thereto that such omission was prejudicial to the rights of the accused, depriving him of accurate Information as to the crime with which he was charged?

It may be stated as a general proposition that if an indictment substantially apprises the accused of the charge preferred against him, no mere technical omission and no surplusage will render that indictment invalid, and this is the plain intent of the statute just quoted.

Whatever may be said of the law and practice in criminal cases in other jurisdictions or at other times, it is not now the policy of the Ohio laws, to allow technicality to override justice, to magnify the shadow and conceal the substance. Yet it has been ever the boast and the just pride of our state that to every man is guaranteed such perfect protection that no one can be punished for crime except upon a fair trial which includes every step from the accusation to the verdict and judgment.

It was well said by Judge McIlvaine in the case of Rufer v. State, 25 Ohio St. 464, 468:

“While an indictment should not be construed favorably for the state, still the rule of pleading does not require the greatest certainty of averment in every particular of which the language is capable. It is sufficient that the facts constituting the crime be stated with certainty to a certain intent in general.”

And our Supreme Court in the recent case of DuBrul v. State, 80 Ohio St. 52, has stated the test as follows:

“A criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged of that which he may expect to meet and be required to answer, and so that the court and jury may know what they are to try and the court may determine without unreasonable difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what the party has been put in jeopardy.”

It is contended by the prosecution that the only defect in the indictment as it stands, is that it contains superfluous phrases and that by omitting the phrase next following the place of the already omitted phrase, the indictment makes good sense and that therefore these phrases are superfluous and should be regarded as surplusage and ignored.

Let us see — Omitting for the moment, for the sake of simplicity,, all the modifying clauses and phrases, the indictment would then read :•

“That the said James F. Goodlove, him, the said Frank McCormick,, did strike, penetrate and wound one mortal wound, of which mortal wound, the said Frank McCormick then and there died” or if we-transpose this sentence into the modern English order of words, without otherwise changing it, it would read, “That the said James F_ Goodlove did strike, penetrate and wound him, the said Frank McCormick, one mortal wound, of which mortal wound the said Frank McCormick then and there died.”

All of this sentence, together with certain modifying clauses and. phrases, descriptive of the manner of wounding and the intent, etc.,, is certainly to be found in the indictment.

The question is, did this language reasonably and sufficiently apprise the accused of the crime with which he was charged? If it did, the mere fact that other phrases, not essential to the sense, were also-inserted would not under the statute make the indictment bad. Such phrases, if in fact unnecessary to the indictment must plainly be regarded as surplusage and under Sec. 7215 Rev. Stat. must be disregarded.

That it is an unusual use of words to say that one “did strike, penetrate and wound” a man “one mortal wound” is true.

It is common to use the expression, “to strike a blow” or “to cut. a gash” or “to penetrate a cavity” or “to wound a person” but can we say that one did strike another - a wound, or that he did penetrate-him a wound, or that he did wound him a wound? There is notin'ngessentially inconsistent with good English usage in the use of any of these expressions and especially the last one. But each is unusual.

The use of the cognate accusative was as common in the Latin language, from which much of our legal phraseology is derived, as-it is in English.

To fight a fight, to live a life, to dream a dream, to think a thought, are familiar modern examples. “Thank me no thanks.” “Vow me no-vows.” “Plot me no plots” and like expressions appear frequently in the writings of Shakespeare, Beaumont and Fletcher and their contemporaries, though sometimes used rather as oddities of speech than, as common expressions.

In the case at bar, if the use of the expression “did wound him a wound or did strike or did penetrate him a wound” is at all legitimate, then the meaning of the indictment is clear. And we are not without judicial authority for the use of this exact expression in an indictment, for in the ease of McDonnall v. People, 168 Ill. 93 [48 N. E. Rep. 86], the indictment charged that defendants “did strike, penetrate and wound” the deceased “one mortal wound,” and this was held good. The court in that ease said “To wound a person a mortal wound is fairly equivalent to giving such wound. The nature of the charge, could be readily understood by the jury, and a judgment on that count could be pleaded in bar to a further prosecution for the same offense”; and, while we have been cited to no other case, and have found none, where this exact expression is judicially approved, we can see no reason why, in view of the evident intent of Sec. 7215 and the equally evident intent of the indictment as drawn, the accused was not fairly apprised of the charge against him.

We are of the opinion, therefore, that this indictment, while unfortunately drawn, does contain within it language which, if certain superfluous words be ignored, as is expressly authorized to be done by Sec. 7215 Rev. Stat., not only states the crime of murder in the first degree, but so states it that no one could reasonably be misled as to the nature of the crime charged.

In reaching this conclusion we have not ignored the well settled principle that nothing in an indictment can be left to inference.

It is only because, in our judgment, this indictment does, if not as clearly as might be desirable, yet certainly and sufficiently, state every essential fact necessary to acquaint the accused with the nature and degree of the crime charged against him, that we have reached the conclusion just announced.

The phrase omitted, viz., “thereby then and there giving to him, the said Frank McCormick with said leaden bullet aforesaid” and even the entire additional phrase following that phrase and which appears meaningless without that omitted phrase, viz., “so as aforesaid discharged and shot out of the pistol aforesaid by the said James F. Good-love, in and upon the upper right side of the back of him the said Frank McCormick” in reality adds nothing to what has been already averred, and both of these phrases are in fact mere repetitions of what had been previously stated.

That this is true will clearly appear from a reading of the indictment with all of these phrases, which we think superfluous, omitted. I quote as follows from what is left of that part of the indictment: “and that the said James F. Goodlove, a certain pistol then and there charged with gunpowder, and leaden bullets, which said pistol he, the said James F. Goodlove then and there in his right hand had and held, then and there, unlawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said Frank McCormick, with the intent aforesaid, and that the said James F. Goodlove, with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said James F. Goodlove then and there discharged and shot off as aforesaid, him the said Frank McCormick, in and upon the upper right side of the back of him, the said Frank McCormick then and there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate and wound with the intent aforesaid, one mortal wound of the depth of four inches and of the breadth of half an inch, of which mortal' wound he, the said Frank McCormick then and there died.”

It is evident that every essential idea, included in all of these omitted phrases, is expressed in what is left after their omission and that these omitted parts are in fact mere repetitions and hence superfluous.

What is left in this indictment fairly, and we think plainly, charges murder in the first degree without the aid of any inference" whatever.

We are cited to numerous cases from other states where the omission of apparently unessential words in an indictment was held to be fatally defective, and to one of these cases where the omission of the word “did” before the words, beat, bruised and wound, was so held. The courts of this state have never sanctioned such extreme technicality and in our opinion the legislature has plainly declared that no such palpably technical objection shall be upheld, and such a construction is sanctioned not only by the Ohio authorities cited but by the United States courts and those of other states. See United States v. Fero, 18 Fed. Rep. 901.

The case of Drake v. State, 145 Ind. 216 [41 N. E. Rep. 799; 44 N. E. Rep. 188], is in many respects similar to the case at bar. There “an indictment charged ‘that Ranph D’ killed deceased, shooting at and mortally wounding her with a revolver, ‘which said revolver he, the said Ralph Drake, then and there had and held in his hands,’ of which mortal wound deceased instantly died.” It was held, “that the indictment was not bad for uncertainty of defendant’s name, as the words “the said Ralph Drake” might be eliminated, and yet leave the indictment sufficient.

“In such indictment the entire allegation ‘which said revolver he. the said Ralph Drake, then and there had and held in his hands,’ might be rejected as surplusage.”

It will also be observed that in that case there is, strictly speaking, no direct averment that Ranph Drake did wound the deceased. There is only the participial phrase “shooting at and mortally wounding her with a revolver” followed by the clause “of which mortal wound deceased instantly died.” Grammatically this is bad English, yet its meaning is perfectly plain and the court held that language good in the indictment.

It follows from all of these authorities and from the reasoning suggested that the contentions of the attorneys for the plaintiff in error are unsound and that the indictment does fairly charge murder in the first degree.

The conclusion thus reached disposes not only of the first claim of error but also of the second, which is based upon it, viz., that if the indictment does not charge murder in the first degree, then the jury, which was impaneled under See. 7275 Rev. Stat., was illegally impaneled and that there was consequently a mistrial.

But another and third objection to the indictment is urged as a ground for reversal, and that is that, while the indictment charges an assault upon one “Percy Stuckey, alias Frank McCormick” the name “Percy Stuckey” nowhere again appears in the indictment but the deceased is constantly referred to as “the said Frank McCormick.”

It is claimed, that this can only mean the Frank McCormick whose real name was Percy Stuckey; and in connection with this claim is the singular' fact to which our attention is- called, that there is no proof that the deceased was ever known as Percy Stuckey.

It is proved that the man killed was commonly known by the name, Frank McCormick; that this was not his real name but an alias— a name assumed by him in order to avoid detection as a deserter from the United States army. His sister was called upon to testify to these facts and she did so. Certainly she must have known his real name but she was not asked to give it, and did not. No other evidence was offered as to what that real name was. There is absolutely no proof that any one named Percy Stuckey was ever killed.

All of the proof was directed to the killing of Frank McCormick, and the killing of a man known by that name was not denied.

A very serious question is thus raised, viz., whether the indictment which charges an assault upon Percy Stuckey, alias Frank McCormick and which proceeds to charge the murder of the said Frank McCormick, without again naming him as Percy Stuckey, can support a conviction, for killing a Frank McCormick who is not shown to have been ever known as Percy Stuckey.

Had the indictment charged that the real name of the deceased was unknown but that he was known as Frank McCormick, no difficulty would have arisen. United States v. Davis, 25 Fed. Cas. 774 [4 Cr. C. C. 333]; Brooster v. State, 15 Ind. 190; White v. People, 32 N. Y. 465.

Or, had this been merely a case of variance between the name used in the indictment and the name proved by the evidence, the variance would have been cured by Sec. 7216 Rev. Stat. which provides that:

“When, on the trial of an indictment, there appears to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description, of any person therein named or described, or in the name or description of any matter or thing therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant.”

The trial court in this case made no such finding. Nor can we conceive of any possible prejudice that could arise to the accused from such variance, unless it be on the question as to former jeopardy in case of a future indictment and bearing. But of that later.

None of the cases cited as throwing light on the meaning of this-section really aid us in the consideration of the case at bar.

In the case of Mead v. State, 26 Ohio St. 505, it was held that the names “Elisha Davidson and Elijah B. Davison are different names, and the description of a person” in an indictment “by one of these-names is not, in the absence of statutory provision, supported by proof of a person bearing the other name; but * * * a variance of this kind cannot work an acquittal of the defendant, unless it is found to be ‘material to the merits of the case or prejudicial to the defendant.’ In order to prevent its working such acquittal, however, it must appear that the person intended to be described in the indictment is-identical with the person described in the proof, the variance arising-from a mere mistake in the name.”

But in the case at bar the difficulty arises from no mere mistake-in the name charged and proven, nor does the case fall within the line of cases where the doctrine of “idem sonans” excuses a variance im proof. As e. g., in the ease of State v. Witt, 34 Kas. 488 [8 Pac. Rep. 769].

. Nor is it a case where there is, strictly speaking, a variance in the description as to the person charged and the one proven as having been killed.

We are cited to a Massachusetts case where the indictment described one Laura A. Fairbanks as of Worcester, county of Worcester, Mass., and it did not appear that there was any one of that name residing in Worcester, but it did. appear that the witness who had testified (falsely it was claimed) resided in New Hampshire. This was held a fatal variance. Commonwealth v. Stone, 152 Mass. 498 [25 N. E. Rep. 967].

In Commonwealth v. Stone the court held that,

“Although, in an indictment for subornation of perjury, the person alleged to have been procured to commit perjury need not be described by his residence, if such residence is alleged it must be proved, and a variance in the proof is fatal.”

But the case at bar does not, in our opinion, present the question of variance between indictment and proof. There is in fact identity of proof as to the person killed bearing one of the names given in the indictment, the alias.

If the indictment is good as alleging the killing of Frank McCormick, and if the name Percy Stuckey is either surplusage or a mistake, not vital to the case, the proof is ample that a man known as Frank McCormick was actually killed and the verdict must stand unless set aside for other errors occurring at the trial.

And here it must be observed that there is a well recognized distinction as to the importance of the use of the term “alias” as applied to the name of the accused and the same term as applied to the party injured by the accused, greater strictness being always required in the former case, because the identity of the accused is always vitally important whereas in the case of the injured person, the name by which he is known is not always of vital importance.

And the gist of all of the distinctions prescribed by statute and insisted on by courts is the protection of the accused from possible injustice.

The great purpose behind the statutes which require the preparation of indictments is that the accused, as well as the court and jury, may known precisely the facts essential to the charge, especially the fact as to who is accused and of what crime he is accused.

A mistake or defect in the indictment which can mislead the accused to his prejudice is always vital, and is fatal.

At common, law. and by the practice and statutes in many jurisdictions the utmost strictness was required to prevent such prejudice.

In Ohio the former rules are greatly modified and Sec. 7215 Rev. Stat. before referred to, is again in point. To again quote from that statute, it provides that,

“No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceeding be stayed, arrested, or in any manner affected * * * for any surplusage, or repugnant allegation, when there is sufficient matter alleged to indicate the crime and, person charged; * * * nor for want of averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Under a similar statute in Massachusetts, it was held that where the victim of the accused’s, act was named in the indictment as “Peddy Harvey” and also as “Peddy Hunt” thus “in and upon one Peddy Harvey did make an assault, and her, the said Peddy Hunt, then and there did beat, wound and illtreat,” etc., the clause “and her, the said Peddy Hunt, then and there, etc., may be rejected as surplusage.” Commonwealth v. Hunt, 21 Mass. (4 Pick.) 252. See also, Commonwealth v. Randall, 70 Mass. (4 Gray) 36.

“And where by mistake the indictment stated that defendant * * * did feloniously assault and wound one Dunlop, by means of which wounding the life of the said Craighead was then and there endangered, etc., the defect was cured by the statute of that state; the mistake being merely clerical and in no way tending to prejudice the substantial rights of the defendant.” State v. Craighead, 32 Mo. 561.

Anri, if the name “Percy Stuckey” had been altogether omitted and the indictment had referred to the deceased merely by his assumed name “Frank McCormick” the indictment would undoubtedly have been held good for the accused could not have been prejudiced.

Thus, it was held in New York that, “An indictment for homieide, which states the name by which deceased was known among her acquaintances, is sufficient, even though it be not her true name.” Walter v. People, 32 N. Y. 147.

Again in Texas it was held that:

“The requirement that an indictment must allege the name of the injured party is to apprise the accused of the accusation against him, and is sufficiently done in an indictment for murder where the evidence shows that he was known to the accused by the name alleged.” Rye v. State, 8 Tex. App. 163.

In the ease at bar it is abundantly proven that the man killed was known to the accused as Frank McCormick, and it is clear that the indictment does apprise him of the fact that he is charged with killing Frank McCormick.

So “In an indictment for murder, the person murdered may be described by the name by which he is commonly called and known, though differing from his name of baptism. Commonwealth v. Desmarteau, 82 Mass. (16 Gray) 1; see also Pyke v. State, 47 Fla. 93 [36 So. Rep. 577]; People v. Woods, 65 Cal. 121 [3 Pac. Rep. 466].

It will be noticed that in all of the cases cited, and others might be cited indefinitely, the determining thought is the protection of the accused by requiring in the indictment sufficient certainty to fully apprise him of the crime with which he is charged. If it does not do this, it is bad. If it does do this, it is good.

The supreme court of the United States has stated the rule thus: “The true test” of an indictment “is, not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” Cochran v. United States, 157 U. S. 286 [15 Sup. Ct. Rep. 628; 39 L. Ed. 704]; citing, Evans v. United States, 153 U. S. 584 [14 Sup. Ct. Rep. 934, 939; 38 L. Ed. 830].

As illustrating the application of this test the case of People v. Lake, 110 N. Y. 61, 63 [17 N. E. Rep. 146; 6 Am. St. Rep. 344], is interesting. There “the indictment (in a case of incest) gave the name of the daughter as ‘Georgiana Towne, commonly known as Georgiana Lake.’ There was no question of her identity, for she was present during the trial and was identified by the witnesses. The proof shows that she was named Georgiana Jeanette, and, by an abbreviation of the middle name was generally spoken of as Nettie Lake.”

“It was no misnomer (says the court) to describe her as Georgiana Lake. Her name was Georgiana and she was commonly called Labe. Her father acknowledged her as his daughter, and she commonly bore his name, so that her true name in full was Georgiana Jeanette Lake and it was no variance to describe her as Georgiana Lake, and the question of identity was put at rest by her presence. ’ ’

From the somewhat meagre report of that case, it appears that like the case at bar, the name first given, Georgiana Towne, was not again used but the name Lake was constantly used, yet, the identity of the person being established, the indictment was held good.

So in the case of Moree v. State, 83 S. W. Rep. 1117, 1119 (Tex.):

‘ 'Appellant filed a motion to quash the indictment because it did not carry throughout the entire indictment the aliases of appellant. In the beginning of said indictment it is alleged that ‘Anee Moree, alias John Thomas,’ did unlawfully, etc. ‘Alias John Thomas’ is omitted in the succeeding portions of the indictment, but in stating the name oi appellant, he is styled ‘the said Anee More.’ This, (said the court) is sufficient, and the court did not err in refusing to quash the indictment.”

And in Kennedy v. People, 39 N. Y. 245, it was held that:'

“It is manifestly immaterial, where a person is known by two names, and the pleader, for greater certainly, deems it necessary to aver such fact in his pleading, which of the two names is first stated, and, also, in such case, which was the real name, and which was after-wards acquired.”

In the three eases last cited the reason behind the decisions was evidently the same; that is, that no prejudice could accrue to the accused from any change or omission of one or more of the names given in the indictment, as those of the deceased, or even of the accused, if the identity of the deceased or accused was established by the proof.

Under the rule in' Ohio, parol proof of the name of the deceased and of the identity of the deceased with the person named in the indictment was properly admitted and such identity was clearly established.

The indictment informed the accused that he was charged with killing a person having two names by which' he had been known, one of which was Frank McCormick. The proof showed, without denial, that a person known as Frank McCormick, though that was not his true name, had been killed by the accused as charged in the indictment and that the accused knew him as Frank McCormick at the time of the killing.

There is no possibility that the accused was mislead by the indictment as to the person whom he was charged with killing.

So far, he could not have been prejudiced.

But it urged that possibly at some future time, a new indictment might be framed against him, charging him, not with killing this Frank McCormick but with killing Percy Stuckey, or some other Frank McCormick, and that he might not then be able to plead his former conviction in this case, as a bar to such indictment.

This is one of the elements of the test as previously stated in the quotation from the decision of the Supreme Court of the United States in the ease of Cochran v. United States, supra.

But we are clearly of the opinion that a conviction in the case at bar might be pleaded as a bar to any future indictment for the killing of the man killed in this case. As to any other killing there is no reason why it should be pleaded in bar.

Should the accused in this ease be again indicted for the killing of Percy Stuckey he might on a plea in bar establish by parol proof or otherwise the fact of the identity of such Percy Stuckey with the person named in this indictment, if such were the fact.

By whatever name the deceased might be called in the future indictment, the fact, if it be a fact, that such deceased person was identical with the person named in this indictment could be proved on a plea in bar and such plea must then be sustained.

This view is sustained by the case of Bainbridge v. State, 30 Ohio St. 264. Evidently then this conviction under this indictment cannot deprive the accused of his right to plead it in bar and prove it in bar, in the possible event of his being hereafter indicted for the killing of Percy Stuckey or one known by any other name if such person was in fact the person shown in this case to have been killed.

We can conceive of no other prejudice which the accused has sustained from the form of the indictment and cannot therefore reverse the ease on this ground.

Other errors are claimed by counsel for the accused, such as misconduct of counsel, misconduct of the audience during the trial and excessive sentence. But we are unable to find in any of these matters ground for reversal of the sentence imposed.

That sentence, while possibly more severe than we would ourselves have been willing to impose under all the circumstances proved in this case, was clearly within the limits of the law, and was within the discretion of the court.

The judgment of the trial court will therefore be affirmed.

Kinder, J., concurs.

Donnelly, J., dissents.


author: HAYNES, J.

text:
    BRIDGES — COUNTY COMMISSIONERS — DAMAGES.
    [Sandusky (6th) Circuit Court,
    December, 1907.]
    Haynes, Parker and Wildman, JJ.
    Maria M. Yunker, Admx., v. Sandusky Co. (Comrs.).
    Bridge on Former State Road not within Sec. 845 Rev. Stat. and Commissioners not Liable for Negligence.
    The bridge on a highway which was formerly a state road, the control of which has been taken over by the board of commissioners of the county in which it is located, does not come within the meaning of Sec. 845 Rev. Stat. making such commissioners liable for negligence or carelessness in keeping in repair bridges established by such commissioners, and damages cannot be recovered for injuries resulting from such negligence or carelessness.
    Error to Sandusky common pleas court.
    Love & Culbert, for plaintiff in error.
    Wilson, Hunt & Garn, for defendant in error:
    Cited and commented upon the following authorities: Trott v. Sarchett, 10 Ohio St. 241; Hamilton Co. {Comrs.) v. Mighels, 7 Ohm St. 109; Crimwood v. Summit Co. {Comrs.) 23 Ohio St. 600; Dunn v. Brown Co. Agrl. Soc. 46 Ohio St. 96 [18 N. E. Rep. 496; 1 L. R. A. 754; 15 Am. St. Rep. 556]; Brown Co. {Comrs.) v. Butt, 2 Ohio 348; Finch v. Toledo {Bd. of Ed.), 30 Ohio St. 37 [27 Am. Rep. 414]; Black, Interp. Laws See. 99; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886]; Felix v. Griffiths, 56 Ohio St. 39 [45 N. E. Rep. 1092]; Fremont v. Dunlap, 69 Ohio St. 286 [69 N. E. Rep. 561]; Circleville v. Sohn,. 59 Ohio St. 285 [52 N. E. Rep. 788; 69 Am. St. Rep. 777]; Chase v. Cleveland {City), 44 Ohio St. 505 [9 N. E. Rep. 225; 58 Am. St. 843]; Oak Harbor v. Kallagher, 52 Ohio St. 183 [39 N. E. Rep. 144].
   HAYNES, J.

The petition in this case was filed on March 15, 1902, by the plaintiff, Maria Yunker as administratrix of the estate of David Yunker, deceased, and sets forth, among other things, that the defendants, the county commissioners of this county, had charge of the highways and bridges within the county, and especially the bridge over the Sandusky river in the city of Fremont, on the Maumee & Western Reserve turnpike.

For cause of action the plaintiff sets forth that the commissioners granted a franchise and right of way along the Western Reserve turnpike, and said bridge thereon over the Sandusky river in the city of Fremont, Ohio, to the Toledo, Fremont & Norwalk railroad for the purpose of constructing and operating thereon, and over said highway, and over and upon the bridge aforesaid an electric railway.

That while said company was engaged in the construction of its electric line, it went upon said bridge for the purpose of repairing and strengthening the same, and that the defendants negligently and carelessly allowed said company to take up and remove, from said bridge, a large part of the floor thereof and said defendants, on or about March 18, in violation of their duty, carelessly and negligently failed to require said company to repair the same, or cause the same to be replaced, on the eighteenth day of March aforesaid.

Then it sets forth the location of the bridge over the river and the height above the waters, and it sets forth that the defendants further carelessly and negligently failed to keep said bridge in proper repair, by permitting the floor thereof to be torn up and left open and unguarded and unprotected, and without causing it to be covered, protected and guarded where said floor was so removed as aforesaid in a sufficient manner to caution and advise the traveling public, and especially foot passengers, that the floor of said bridge had been thus removed; and that it was impossible to travel over said part of said bridge, or to cross from one side thereof to the other, as was the custom of pedestrians so to do, where the floor had been thus carelessly and negligently removed.

Then she avers that the deceased party had fallen through said bridge, without any fault on his part, etc.

It is a matter of public history that this Maumee & Western Reserve road was built first under grant from the government, and a certain amount of the road was built, and it was afterwards completed by the state of Ohio, and it was a state road, owned and controlled by the state of Ohio down to a certain period, some years ago — I think it was in the ’80’s — when by an act of the legislature of the state the commissioners of this county and the commissioners of Wood county were authorized to take over that part of the road in their respective counties and keep the same open and in repair as a public road, the object, perhaps, being to do away with it as a toll road, as it had been during the time it was under state control.

The plaintiff relies upon this fact, that the commissioners have control of this road, and are bound to keep it in repair, and keep it open as a public road, for the use of the public and safe for the public, and upon that account it is argued that the commissioners are liable.

I will not stop to read that act. There is nothing in the act that throws any light on this question, and so far as the liability of the commissioners is concerned, the plaintiff, if she recovers, must recover by virtue of the act of the legislature, Sec. 845 Rev. Stat.

At that time, on April 13, 1894, Sec. 845 was amended so that there was inserted in it,

“And any such board of county commissioners shall be liable in its official capacity for any damages received by reason of the negligence or carelessness in keeping any such road or bridge in proper repair.”

In the history of the case, a demurrer was interposed to plaintiff’s petition. That demurrer was overruled, and the defendants given leave to answer, and they filed an answer, and to that answer a demurrer had also been interposed. The ease had been pending two or three years, and had run along, and finally the matter was submitted, and I suppose an entry was made by the court. At any- rate the judge passing upon the demurrer to the answer, held that the demurrer searched the record and that the plaintiff’s petition did not state a cause of action, and thereupon the petition was dismissed, and judgment rendered against the plaintiff, and error was prosecuted here to reverse the action of the court.

Now it is argued on behalf of the defendants that this road was not out of repair at all. No repairs were being made to it. That in pursuance of the power vested in the county commissioners, they had granted the electric road the right to pass along this street, and the right to pass across the bridge, and in order to have the bridge sufficiently strong to sustain the cars passing over it, it became necessary to strengthen the bridge, rather than repair it, and they claim that is one reason why there is no liability on the part of the defendants.

But we have passed that by, and have considered this statute, and its application to this case, and this class of cases. In the case of Morgan Co. (Comrs.) v. Transfer & Stor. Co. 75 Ohio St. 244 [79 N. E. Rep. 237], the case came in the Supreme Court, and it will be remarked that the decision is by Judge Shauek, and that it refers largely to the construction of the statute in question.

The syllabus of the case is:

“Consistently with the rule that statutes in derogation of the common law should not be extended beyond the plain meaning of their terms, the amendment of Sec. 845 Rev. Stat., providing that county commissioners shall be liable for negligence ‘in keeping any such road ■or bridge in proper repair’ cannot be interpreted as creating a liability for negligence in tbe operation of a free ferry. ’ ’

There was a ferry across the Muskingum river, which was claimed to have been built and operated as part of a public road, — public highway — and some person was crossing with his team, and as he approached the shore on one side his horses went through and were drowned. He ■sued the county commissioners, claiming that a proper construction of the statute would make that part of the highway. Judge Shauck says:

“The view urged by counsel for the plaintiff is that we should regard the phrase of the amendment ‘any such road or bridge’ as including a free ferry which the commissioners might see fit to establish and maintain. Since ferries are not mentioned in either the amendment or the amended section, it is obvious that the suggested interpretation would extend the section beyond the natural meaning of its terms. If, in contemplation of the legislature, bridges and ferries are synonyms, it would scarcely have regarded a special section as necessary to authorize the establishment and maintenance of the latter. We need not consider the suggestion that ferries, as well as bridges, are within the reason of the amendment; for interpretation requires that the meaning of the legislature be ascertained from what it has enacted. We cannot assume that the provision authorizing the establishment of free ferries was absent from the minds of the members of the legislature when they enacted the amendment because it was in a different section of the statute, nor are we permitted to indulge in conjecture respecting their action if the provision had been in their minds. Nor is it a ease in which a statute should be construed liberally for the purpose of accomplishing a clearly indicated purpose and to prevent the failure of the statute. If the suggested interpretation is rejected the statute will still operate, and its operation will be as broad as the ■appropriately indicated purposes of the' legislature. The argument does not really tend to show that the legislature has provided for a liability of the commissioners because of their negligence in operating ferries, but rather it is a legislative argument that ferries, as well as bridges, might have been included. To adjudge a liability on that view would be to legislate rather than to adjudicate. These and other like ■considerations have led to the formulation of the elementary and oft-repeated rule that statutes in derogation of the common law should not by interpretation be extended beyond their terms. Propriety will be ■observed, and certainty of interpretation will be promoted, if we assume that the legislature acts in view of all legislation relating to the subjects in hand and with a comprehension of the established rules by which their intention will be ascertained.”

Thereupon the Supreme Court reversed the circuit court and affirmed the common pleas judge who found in favor of the commissioners.

The Supreme Court had this statute before them again during this.' same session, in the case of Ebert v. Pickaway Co. (Comrs.) 75 Ohio St. 474 [80 N. E. Rep. 474].

The syllabus reads:

“Consistently with the rule that statutes in derogation of the common law should not be extended beyond the natural meaning of their terms, the amendment of April 13, 1894; of Section 845 Rev. Stat., that ‘any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence- or carelessness in keeping any such road or bridge in proper repair’’ cannot be interpreted as creating a liability for injuries sustained by one whose horse takes fright at stones which the commissioners had collected by the roadside for the purpose of repairing a road or bridge, there being no defect in either road or bridge contributing to the injury.”

Now the statute reads:

“The board of commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and; of bringing, maintaining -and defending all suits, either in law or in equity, involving an injury to any public, state or county road, bridge or ditch, drain or watercourse established by such board in its. county, and for the prevention of injury to the same and any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in proper repair.” etc.

We think that under these decisions, without discussing the matter at any great length, that a proper construction of that statute is that they should only be liable for the damages incurred by reason of negligence in not keeping in repair any bridge established by them.

The statement of facts that I have made shows the character of this bridge; by whom it was built, and by whom it is occupied; and the petition of the plaintiff wholly fails to state, in any manner of form, that this bridge was established by the county commissioners; it does not do so because as a matter of fact this is not the case.

For this reason, and upon these decisions, we hold that the court of common pleas did not err in sustaining the demurrer to the petition, and dismissing the case.

Having decided this point, we do not care to discuss further the others that were raised in the case.

Parker and Wildman, JJ., concur.


author: KINKADE, J.

text:
    CUSTOM AND USAGE — EVIDENCE—PRACTICE—SALES.
    [Lucas (6th) Circuit Court,
    June 26, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Voorhees Rubber Co. v. Union Supply Co.
    1. Motion to Strike Out Answer to Incompetent Question Improper Practice.
    Objection to and motion to strike out an answer given in response to a question calling for an incompetent answer is not proper practice, such objection should be made before the answer is given, and refusal of such motion is not error.
    2. Motion to Strike out Evidence Must State Clearly Evidence Objected to.
    A motion to strike out evidence should state clearly what part of the evidence is asked to be stricken out, otherwise the motion should be refused.
    2. Breach of Warranty may be Shown by Reasonable Test as to Part or Goods Warranted.
    To demonstrate a breach of an express warranty in the sale of goods, it is not necessary that the purchaser place all of the goods with his customers for trial when a reasonable test has been so made.

      4. Custom Cannot Change Plain Provisions op a Contract.
    Customs of a trade cannot be substituted for the plain provisions of a contract, and in contradiction of them.
    Error to Lucas common pleas court.
    H. J. Chittenden and C. W. Kirkley, for plaintiff in error.
    E. E. Davis, for defendant in error.
   KINKADE, J.

Jury waived and tried to the court. The errors relied on are, first, admitting, incompetent evidence; second, excluding competent evidence; and third, verdict contrary to the evidence. We have examined the record with care, and if counsel will read the record with equal care we think they will see that the claims urged in argument as to the errors of the trial court on matters of evidence are not sustained by the record in this, that the objections and motions to strike out are not timely or properly made. We do not regard it as correct-practice to defer objecting to a question or answer until after counsel-sees what the answer is to be, and then object and move to strike it out. Where a question calls for conversation which is. regarded as. incompetent evidence, counsel may not delay objecting until the conversation is given, and then if found to be undesirable object and move to strike out. When a motion is made to strike out evidence the motion should state clearly what part is asked to be stricken out; otherwise the motion should be denied. Counsel would have some difficulty in this case in designating just what was embraced in certain-motions of this kind that were made.

The contention of counsel for plaintiff in error that a traveling-salesman whose duty is only to sell goods has no power to modify a contract made for his employer is correct as a general -proposition. But it is not necessary to hold that Mr. English had power to modify the contract between the parties in order to sustain the decision of the trial court. That he performed services for his employer in connection with completing the contractual relations between the parties and later on, in adjusting differences that arose, somewhat out of the ordinary duties of a traveling salesman, is clearly manifest. As general sales manager he seems to be about the only one speaking for his corporation employer, except one Mr. Covalt, occupying a like position and performing similar services.

With the element of express warranty as to the quality of these goods, the defendant in error needed no modification on which to base an action for breach of warranty. Counsel are familiar with the ease of Dayton v. Hooglund, 39 Ohio St. 671, and other decisions of our Supreme Court, that where there is an express warranty the buyer does not need to return the goods in order to recover for breach of warranty. That there was an express warranty in this ease we think was clearly shown, and that there was a breach of that warranty was established, by the evidence presented by the defendant in error. The tests made by the defendant in erroi were sufficient to show that the goods were-of inferior quality. It was not the duty of the defendant to further-demoralize its own business by shipping out to its customers for trial the remainder of the goods, as the only method of demonstrating their unfitness for use. Such a course could not benefit either party to the contract.

Much of the evidence offered on the trial for the purpose of establishing a custom which was claimed would have defeated the counterclaim was properly excluded by the trial court. We think even more, of it might have been excluded. We do not see how. the custom eon-tended for could in any way be permitted to contradict the contract between the parties. Custom often aids in construing a contract, but it cannot be substituted for the plain provisions of a contract at variance with the terms of the custom. In order to maintain that one party. to a contract has empowered the other party to the contract to decide any and all questions which might arise between them touching the subject-matter of the contract, we are inclined to think the party making such claim would need something stronger than a custom of the trade. We are not unmindful of the wonderful scope sometimes given to this doctrine that parties must have entered into a contract with reference to the well known and fully established custom, but we are not aware of any well considered case extending the doctrine to the length contended for here.

We find no prejudicial error in the record, and the judgment of the court of common pleas will be affirmed.

Parker and Wildman, JJ., concur.


text:
    EVIDENCE — MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    April 17, 1909.]
    Giffen, Smith and Swing, JJ.
    Laidlaw-Dunn-Gordon Co. v. George J. Miller.
    1. Doctrine of Assumed Risk not Applicable where Master is Bound bv Statute.
    The doctrine of assumed risk has no application where the alleged risk assumed is in violation of a master’s statutory obligation to protect-machinery and appliances.
    2. Evidence of Expert as to Exposure of Cogwheels not Admissible.
    "Whether cogwheels were exposed or not is an issue of fact which the jury can determine, and it is not error to refuse to admit the opinion' of one claiming to be an expert.
    Error to Hamilton common pleas court.
    Robertson & Buchwalter, for plaintiff in error.
    Strieker & Johnson, for defendant in error:
    Where a duty is imposed by statute to enclose exposed cog-wheels, shafting and the like, failure to comply with such requirement iff negligence per se. Ziehr v. Paper Go. 28 O. C. C. 342 (7 N. S. 144); Bresewski v. Brush & Broom Go. 28 O. C. C. 752 (8 N. S. 457), affirmed, Boyal Brush & Broom Go. v. Bresewske, 76 Ohio St. 593.
    The doctrine of assumed risks has no application where the alleged risk assumed is the violation of a penal statute. Narramore v. Railway, 10 O. F. D. 7 [96 Fed. Rep. 298: 37 C. C. A. 499]; Ziehr v. Paper Co. 28 O. C. C. 342 ( 7 N. S. 144); Breseioski v. Brush & Broom Co. 28 O. C. C. 752 (8 N. S. 457), affirmed, Royal Brush & Broom Co. v. Bresewske, 76 Ohio St. 593; Spring Val. Coal Co. v. Patting, 210 111. 342 [71 N. E. Rep. 371]; Island Coal Co. v. Swaggerty, 159 Ind. 664 [62 N. E. Rep. 1103; 65 N. E. Rep. 1026]; Green v. Car & Foundry Co. 163 Ind. 135 [71 N. E. Rep. 268]; Murphy v. Veneer Works, 142 Mich. 677 [106 N. W. Rep. 211]; Durant v. Mining Co. 97 Mo. 62 [10 S. W.. Rep. 484]; Kilpatrick v. Railway, 74 Yt. 288 [52 Atl. Rep. 531; 93 Am. St. Rep. 887]; Green v. Western American Co. 30 Wash. 87 [70 Pac. Rep. 310]; Hall v. Mill Co. 39 Wash. 447 [81 Pac. Rep. 915]; Hailey v. Railway, 113 La. 533 [37 So. Rep. 131]; Elmore v. Railway, 132 N. C. 865 [44 S. E. Rep. 620]; Missouri, K. & T. Ry. v. Goss, 31 Tex. Civ. App. 300 [72 S. W. Rep. 94]; Chicago-Coulterville Coal Co. v. Fidelity & Casualty Co. 130 Fed. Rep. 957; Weblin v. Ballard, 17 Q. B. Div. 122; Thomas v. Quartermaine, 18 Q. B. Div. 685.
    A question to a witness which calls for his opinion on the precise issue of fact, which the jury is sworn to determine from the witness, is incompetent. Fowler v. Delaplain, 79 Ohio St. 279; Republic Iron & Steel Co. v. Yanuszka, 166 Fed. Rep. 684.
    The court did not err in refusing any of the special charges submitted by the defendant. Ziehr v. Paper Go. 28 O. C. C[. 342 (7 N. S. 144) ; Bresewski v. Brush & Broom Co. 28 O. C. C. 752 (8 N. S. 457), affirmed, Royal Brush & Broom Co. v. Bresewske, 76 Ohio St. 593; Narramore v. Railway, 10 O. F. D. 7 [96 Fed. Rep. 298; 37 C. C. A. 499].
   SMITH, J.

The acts of negligence complained of in the amended petition are:

1. “That the defendant carelessly and negligently failed to enclose said cogwheels in a casing, box, or in any other manner to properly guard or protect him against danger while engaged in the operation of said lathe.”

2. “That the defendant further negligently and carelessly caused and permitted oil and grease to accumulate upon the floor on which the plaintiff was obliged to stand to operate said lathe, thereby causing the floor to become slippery, unsafe and likely to cause the plaintiff to fall while operating said lathe.”

It will be seen from the above that this action is brought under act 94 O. L. 42 (Lan. Rev. Stat. 7344; B. 4364-89c), relating to protection against injury by machinery.

The jury in addition to its general verdict in favor of defendant in error, also in answer to an interrogatory propounded by plaintiff in error, found that the approximate cause of the injury was, “in that the defendant knowingly allowed the cogwheels to be exposed in a manner that was dangerous to the man operating the machine.”

From the evidence in the record and the finding of the jury, we are satisfied that plaintiff in error was negligent in respect to a duty imposed upon it by this statute. This law has heretofore been before the courts and construed. Ziehr v. Paper Co. 28 O. C. C. 342 (7 N. S. 144); Bresewski v. Brush & Broom Co. 28 O. C. C. 752 (8 N. S. 457); Republic Iron & Steel Co. v. Yanuszka, 16 O. F. D. 000 [166 Fed. Rep. 684].

Under the statute and these decisions the doctrine of assumed risk has no application where the alleged risk assumed is in violation of a master’s statutory obligation to protect machinery and appliances.

We do not think there was error in the trial court refusing to admit the testimony of the witness Muller as to his judgment as an expert as to whether gearing on the lathe in question was an exposed gearing or whether the cogwheels were exposed or not. This was the issue of fact which the jury were called upon to determine. They had viewed the premises and had the evidence, and the judgment or opinion of a witness in this regard could not have availed them anything.

“A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent.” Fowler v. Delaplain, 79 Ohio St. 279 [87 N. E. Rep. 260; 21 L. R. A. (N. S.) 100].

We find no error in the court refusing the special charges asked by plaintiff in error. Some contain the question of assumption of risk on the part of the plaintiff by reason of' the exposed cogwheels, while •others relate to the oily condition of the floor.

In the view we take of the case, the assumption of risk on the part of the defendant in error not being in the case, and the jury having specifically found in answer to the interrogatory propounded that the accident was due to the cogwheels being exposed, the second act of negligence complained of is also out of the case.

We do not think the verdict ($3,000) is excessive. The statute act 97 O. L. 547 (Lan. Rev. Stat. 7350; B. 4238o-1), provides, that for injury not resulting in death, plaintiff may recover a “sum of $3,000' as it (jury) may find proportioned to the pecuniary damages resulting from said injuries.”

This, therefore, being strictly within the province of the jury to determine from all the evidence, such finding will not be disturbed. There being no errors in the record the judgment will be affirmed.

Giffen and Swing, JJ., concur.


text:
    SALES.
    [Hamilton (1st) Circuit Court,
    July 24, 1909.]
    Giffen, Smith, and Swing, JJ.
    J. Weller Co. v. Columbia Conserve Co.
    Deductions in Goods Sold, not Contemplated by Contract of Sale, may Justify a Repudiation of Contract by Seller.
    If merchandise is sold on contract whereby it is to be measured at point of shipment, such provision is a condition precedent, and if deductions; are made from the invoice price by the buyer for shrinkage as shown by measurements at some other place, such deductions may justify the seller to repudiate the whole contract when the shrinkage is only such as might be expected from the nature of the commodity.
    Error to Hamilton common pleas court.
    Phares, Gusweiler & Phares, for plaintiff in error.
    Paxton, Warrington & Seasongood, for defendant in error.
   GIFFEN, J.

This action is based upon an alleged breach of a contract of sale of 600 barrels of catsup at 16% cents per gallon f. o. b. cars Cincinnati, terms — cash ten days, less 1% per cent. Delivery to be made 75 barrels at a time, as follows: October 1, 8, 15, 22, 29 and November 5, 12 and 19, 1906. Barrels to be tightly coopered, and to be correctly gauged, and goods to be billed at net measurement, The failure to deliver the balance of the installments after delivery of the first two, constitutes the alleged breach of the contract.

The plaintiff, the Columbia Conserve Company, also avers full performance on its part. The defense is an alleged breach by the; plaintiff in making payment long after the ten days from shipment, in deducting 1 y2 per cent, and in deducting as shortage 199 gallons on the first car and 220 gallons on the second car.

Plaintiff, by reply, admits delay in payment a few days beyond the period of ten days and deduction of 1% per cent, but avers that the delays were with the consent of the defendant. It is nowhere averred, however, that the defendant consented to or waived the alleged breach in deducting 419 gallons from the amount billed. Upon the question of waiver the court charged the jury as follows:

“If the defendant waived all breaches of the material items and provisions of this contract committed by the plaintiff, then the defendant had no right to rescind the contract and refuse to carry out its part thereof, and by so doing rendered itself liable to respond in damages to the plaintiff.”

No waiver was pleaded to the most important breach by the defendant, and hence it was error to give this instruction. Eureka Fire & M. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57].

The following special instruction was given to the jury before argument at the request of plaintiff:

“If you find from the evidence that the plaintiff made certain deductions from the amount of the defendant’s invoice on account of a claim of deficiency in the amount actually delivered you are not to take such deductions as a breach of contract sufficient to justify a rescission by the defendant, unless the deductions so made were made in such a way as to evince a renunciation of the contract by the plaintiff and a refusal to abide by its terms.”

In view of the evidence that the measurement was made and deficiency ascertained by the plaintiff at Indianapolis where the cars were unloaded, the words “actually delivered” contained in this instruction would naturally lead the jury to believe that delivery was to be made at Indianapolis, although the court after argument instructed the jury in the general charge that the contract required delivery at Cincinnati, the place of shipment, and they might well find that the measurement thus made was correct, and therefore the deductions thus made did not evince a renunciation of the contract by the plaintiff.

Assuming that the question was one to be submitted to the jury, there was left to the jury too much room for speculation as to what way of making deductions would evince a renunciation of the contract. If the conduct of the plaintiff in measuring the catsup at Indianapolis instead of Cincinnati, and deducting in accordance with measurement Tegardless of what loss occurred between such points, showed an intention on the part of plaintiff to treat subsequent shipments in the same manner, it evinced a plain renunciation of the contract in one of its important elements, which justified a rescission by the defendant.

The same objection may be urged to special instruction No. 6 which, after quoting the terms of sale, time of deliveries and manner ■of gauging and billing goods, reads as follows:

“Before the seller under the contract is entitled to discontinue shipments and claim a cancellation by reason of an alleged breach on the part of the buyer, there must have been such breach on the buyer’s part as evinced an intention not to be bound by the contract as a whole. ’ ’

Just what particular breach or number of breaches would evince ■such intention the court does not say, although it does say in conclusion of this instruction:

‘ ‘ The mere fact that the discount was deducted after ten days had ■elapsed was not such a breach of the contract of sale as would warrant the defendant in refusing to continue deliveries.”

The provision of the. contract that the gauge or measurement of the catsup should be made at the place of shipment is a material incident amounting to a condition precedent to any shipment, and if the plaintiff refused to be bound by this condition the defendant was justified in repudiating the whole contract.

This principle is announced in the case of Norrington v. Wright, 115 U. S. 188 [6 Sup. Ct. Rep. 12; 29 L. Ed. 366]:

“In a mercantile contract, a statement descriptive of the subject-matter or of some material incident, such as the time of place of shipment, is ordinarily to be regarded as a warranty or condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract.”

The retention by the plaintiff of the 1% per cent discount does not come within the rule, although we do not question the decision of Contractors & Builders’ Supply Co. v. Cement Co. 26 O. C. C. 49 (4 N. S. 225), upon the facts there disclosed. We are of opinion therefore that these two instructions were misleading and prejudicial. The question whether the barrels should be filled, measured and bunged up while the catsup is hot or after cooling was fairly presented by special instruction No. 5 requested by the defendant, and there being no like instruction in the general charge it was error to refuse it.

The plaintiff gives no good reason for delaying payment several days beyond the ten days allowed, and the fact that its own measurement of the catsup at Indianapolis shows an outage of precisely two gallons in every barrel of the 177 shipped except four is convincing proof that the barrels were full when bunged up, and that the two gallons outage represents the shrinkage in cooling.

The testimony fairly shows that it was customary and necessary to run the catsup into the barrels and close the same while hot. It was impliedly contemplated therefore by the parties that the shrinkage should be borne by the purchaser. It follows that the verdict was not sustained by sufficient evidence.

Judgment reversed and cause remanded for a new trial. ■

Swing and Smith, JJ., concur.