text:
    ORDINANCES PROVIDING FOR VEHICLE LICENSES.
    [Circuit Court of Wood County.]
    Henry Sterling v. The City of Bowling Green.
    Decided, April Term, 1904.

      Constitutional Law — Toll in the Form of License — May be Legally Imposed by a Municipality — For Vehicular Use of Its Streets— Reasonableness of Ordinance Fixing License Fees — Effect of an Invalid Feature — Discrimination—Municipal Code.

    1. Power is conferred upon municipal corporations by Section 1536-100 (4tb Ed.), Revised Statutes, to exact a license fie from residents and non-residents using borses and vehicles upon the streets of the municipality, and to impose a penalty for the enforcement thereof. The word “vehicles” used in said section, includes all classes and kinds of conveyances, whether used for hire or not.
    2. A municipal ordinance making it unlawful for the resident owner 'of any vehicle to use or draw the same upon the streets without obtaining a license and paying a fee therefor, which fee is graduated according to the number of horses, the use of the streets, etc., and which ordinance, with reference to non-residents, applies only to those hauling heavy articles or peddling milk and vegetables, is not unreasonable, nor an unwarranted and unconstitutional interference with the rights of citizens and private property guaranteed by the Bill of Rights (Sections 1, 2, Article I, Ohio Constitution); nor does such ordinance discriminate unfairly between residents and non-residents.
    3. Judicial power is not conferred upon a city auditor and chief of police by an ordinance which provides that if the former is not satisfied with the description of vehicles furnished by an applicant for a vehicle license, the matter shall be referred to the latter for examination and report. Such provision does not take away the right to test the matter in the courts.
    4. Part of a municipal ordinance may be void and the remainder valid. Where the parts are not so connected in subject-matter, or inseparable in their provisions as to warrant the conclusion that the council would not have passed the ordinance without the invalid portion, the valid part will be upheld and the invalid portion rejected.
    Hull, J.; Haynes, J., and Marvin, J. (sitting in place of Parker, J.), concur.
    The plaintiff in error in this ease was convicted before the Mayor of the City of Bowling Green of the violation of a city ordinance, was fined and assessed the costs, and from this judgment of the mayor he prosecuted error to the court of common pleas, where the judgment of the mayor was affirmed, and error is here prosecuted to reverse both judgments.
   The ordinance, which the plaintiff in error was convicted of violating, and which it appears to be conceded he did violate, was passed by the council of the city of Bowling Green to provide for a license fee for vehicles drawn upon the streets of that city, and provides .for a penalty for the enforcement of the ordinance. It is claimed by the plaintiff in error that the city of Bowling Green had no authority to pass such an ordinance under the statutes' of this state, and that if it had, the ordinance passed is unconstitutional and void, and that therefore the judgment should be reversed. The ordinance provides .for the imposition of a license fee upon all residents of the city of Bowling Green who make use of the streets by the use of automobiles or any kind of a vehicle drawn by horses; and certain provisions are made to apply to those persons who live outside of the city of Bowling Green who come into the city and make use of its streets with their vehicles.

Section 1 of the ordinance provides that it shall be unlawful for a resident or residents of said city, being the owner or owners of any vehicle drawn upon the streets of the city to use or draw said vehicles upon said streets without first having paid the license fee to said city as required in the following •sections of the ordinance.

Section 2 provides for the license fee to be imposed upon residents of Bowling Green for the use of different kinds of vehicles, and describes the vehicles: one-horse wagons, two-horse wagons, hacks, buggies, surreys and all kinds of vehicles, including automobiles and other vehicles of that character propelled by electricity or gasoline, and a license fee is imposed under this section running from one dollar for a one-horse buggy to five dollars on an automobile, with intervening amounts imposed according to the character of the vehicle, and the effect that the use of the vehicles would have upon the streets; imposing a larger license, fee for a two-horse vehicle, and imposing a still larger fee for drays and heavy wagons and vehicles of that character. The purpose being to require a license fee for the use of the streets with any kind of a vehicle by the citizens of Bowling Green, that is, vehicles drawn by horses or propelled by electricity, etc., for we do not think the ordinance covers vehicles such as hand carts.

Section 3 of the ordinance relates to persons who live outside of the city of Bowling Green, and requires such persons to pay a license fee when they come into the city using vehicles for the purpose of hauling heavy articles, such as coal, brick, tiling, etc., or engaged in the business of peddling milk or vegetables over and upon the streets of Bowling Green. The license fee in such ease is $3. It is provided further that on occasions of large meetings, as at the county fair, vehicles for carrying passengers shall pay a license fee of five dollars per day for those carrying five passengers, and for those carrying more than five passengers, ten dollars per day. Except these provisions, there is nothing in the ordinance imposing license fees on persons residing outside of the city who may use the streets of the city when they come within its limits.

The ordinance provides for the fixing of a plate or tag upon • the vehicles showing that the license has been paid; provides for the making of an application to the city auditor for the license, and provides that if the auditor is not satisfied with the description of the vehicle given by the owner, he may refer . the matter to the chief of police, who shall report to the auditor. The ordinance also provides that where a man has one horse and more than one .vehicle he shall not be required to pay but one fee; but if he has two horses he shall pay two license fees.

The general intent and purpose of this ordinance is to require all the citizens of Bowling Green to pay a license fee or tax or toll for the use of the streets of the city when used by such vehicles as are mentioned in the ordinance. The power to pass such an ordinance, it is said by the plaintiff in error, has not been conferred upon the city by the statutes of this state.

Section 1536-100 (4th Ed.), Revised Statutes (96 O. L., 21, Section 7), provides:

“All municipal corporations shall have the following general powers, and council, may provide by ordinance or resolution for the exercise and enforcement of the same.' ’

Then Subdivision 9 provides:

“To regulate the use of carts, drays, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes, and to license and regulate the -use of the streets by persons who use vehicles, or solicit or transact business thereon.”

It is said that the provision of this section in regard to license, .refers only to the kind of vehicles mentioned in the first part of the statute, to-wit, carts, drays, wagons, hackney coaches, omnibuses, automobiles and every description of carriages kept for hire or livery stable purposes. This follows, however, “to license and regulate the use of the streets by persons who use vehicles or solicit or transact business thereon.” Before the passage of the new code, the power relating to this subject was found in Section 1692, Subdivision 10, in this language:

“To regulate the use of carts, drays, wagons, hackney coaches, omnibuses, and every description of carriages which may be kept for hire, or livery stable purposes.”

That was all there was of the section at that time, but when the new code was passed this further provision was added: “and to license and regulate the use of the streets by persons who use vehicles or solicit or transact business thereon.”

It seems to us that it was the intention of the Legislature by the passage of this act in this amended form to grant a greater power than had been conferred by. the former act; the language of that act expressly restricting this power to the regulation of the kind of vehicles there named “which may be kept for hire or livery stable purposes.” Under that act it had been held that a license fee might be imposed upon those who used vehicles of this character, but the new and amended act in express language gives the power to municipalities to license and regulate the use of all kinds of vehicles, the language being the use of the streets by persons who use vehicles; using most general .terms; the word “vehicles” covers all classes and kinds of conveyances, whether used for hire or not, and seems to contemplate the licensing of all persons who use the streets with any kind of vehicles. We see no reason why such a power as this can not be conferred upon a city, unless there is something in the Constitution to prohibit it.

It is said that the power attempted to be exercised under this ordinance, even if it be conferred by statute, is unconstitutional; that it is an unwarranted and unconstitutional interference with the rights of citizens and the right of private property which is guaranteed to the citizens under Sections 1 and 2 of the Bill of Rights.

Section 1, Article 1, provides:

“All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.”

Section 2, Article 1, provides: “All political power is inherent-in the people. Government is instituted for their equal protection and benefit,” and it is urged that the attempt to restrict the use of the streets in such a manner as this is in violation the use of the streets for such a purpose as this is in violation of these provisions of the Constitution; that a man who is the owner of a horse and buggy has a right to use it and drive it upon the streets of the city when he sees fit and without obtaining permission of the council or any officer of the city, and without paying any license fee therefor; it is urged, that it would be no more unreasonable to require pedestrians walking upon the sidewalks to pay a license fee for that privilege. And the cases in some of the states sustain this proposition, especially the state of Illinois. It is there held that such a license fee as this can not be imposed by the municipality'; that such license can only be required of those who are engaged in special occupations, such as teamsters and hackmen, and others whose business has an unusual tendency to wear out the streets and put them out of repair, and the license fee thus imposed is held by the Supreme Court of Illinois to be rather in the nature of a tax on occupation than a license fee for the privilege of using the streets. This was held in The People v. Palace Car Co., 175 Ill., 125, and in another decision by the Appellate Court of Illinois, In re Chicago v. Barker, decided October 6th, 1903, which case has not yet been reported, but a. transcript of the opinion is before us. In that case it was sought to enjoin the enforcement of an ordinance similar to this one, and the injunction was allowed.

There is no decision of the Supreme Court of this state directly upon the question involved here, and we are. aware this is the first ordinance of this kind ever passed in this state. But in Marmet v. The State, 45 O. S., 63, the validity of a statute similar in some respects to this ordinance was involved.

This is from the syllabus:

“The General Assembly has power (except as limited by Section 18 of the schedule to the Constitution) to regulate occupations by license, and to compel by imposition of a fine, payment of a reasonable fee, where a special benefit is conferred by the public upon those who follow an occupation, or where the occupation imposes special burdens on the public, or where it is injurious to or dangerous to the public.”

This statute authorized the city of Cincinnati to impose, a license fee not only upon those engaged in special occupations, but upon the owners of all vehicles used upon the streets of the city, and in the second paragraph of the syllabus this is. found:

“The provisions of Sections 1, 2, 22, 26 and 35 of the act of April 16, 1883 (80 O. L., 129), and Section 29 as amended March 25, 1884 (81 O. L., 78), which require that in cities of the first grade of the first class each proprietor or lessee of a theatre, etc., and all keepers or owners of livery, sale or hoarding stables, every dealer in second-hand articles and keepers of junk shops, and the owners of all vehicles used upon the streets of the city shall pay license as therein provided; that no person shall engage in any such business until a license therefor shall have been obtained, and that any person who shall violate any of the provisions of the act shall be punished by fine, are not in conflict with the Constitution.”

So that we have here a statute, which so far as imposing a license on vehicles is concerned, was similar to the ordinance involved in this case, and its provisions apparently were as broad as those of this ordinance.

This statute went further and imposed a license fee upon theatres, junk-shops, etc., but it provides in regard to vehicles that the owners of all vehicles used upon the streets of the city shall pay annual license fees, and recites the various kinds of vehicles and the fees. It is said by counsel for the plaintiff in error that Marmet was not using ordinary vehicles, but was engaged in transporting heavy articles over the streets of the city of Cincinnati, and that is true, and therefore it is urged that this case is not decisive of the point in question here. But in discussing the question, Judge Spear, who delivered the opinion, considered the whole question as to the validity of the provision imposing a license fee upon all persons, and he says, on page 75:

“Nor is this exercise of power as to vehicles generally an unreasonable exercise of it. The ownership of the streets is in the city, and the duty is imposed to keep them open, in repair and free from nuisance. This involves, in many ways, the expenditure of large amounts of money. It calls for constant vigilance as to all streets, and for extensive payments upon the more important ones. These, ordinarily, are laid at the expense of the owners of the abutting property. If neglected, they soon wear out and then, in most cases, another burden is imposed on the same property for repaving. It matters not that a particular property owner has not kept a vehicle, and has not had direct agency in the destruction of the street. If enough pressure is brought to procure the city’s order for a new pavement, he must, nolens volens, pay the assessment, and meantime pay the general tax upon his property for the making of repairs to such of the streets as the authorities see fit to repair.”

And on page 76, speaking of those who use the streets with vehicles, he says:

“Thus, they receive a special direct benefit by the original outlay, and by the repairs from time to time, and by such use impose burdens upon the property owners and the public at large. A proportion of them, those who own taxable property, contribute in taxes toward the repair fund (and may be among those whose property is subject to assessment for the original improvement); but many do not, and thousands of property owners use no vehicles of any kind. Why should not those favored ones pay a small sum toward making good that which they wear out. Especially wearing on the streets are the heavy loads transported by those in occupations similar to that of the plaintiffs in error, Marmet and Hill, and the heavier the load the greater number of horses necessary to propel it. Hence the license fee is properly graded according to the number of horses used. The principle involved is not different from that upon which the establishment of toll-roads, and the authority to collect tolls of those traveling upon them, and to grade the amount charged in proportion to damage inflicted or use made by the traveler, is sustained. Then, too, there is force in the point made by counsel that special police regulation is needed upon the streets of large cities to prevent accidents, to protect pedestrians at crossings, to prevent fast and reckless driving, and to prevent blockades.”

This case seems to sustain the proposition that a license fee may be imposed, as was done by this statute, upon all those who use the streets. If a statute containing these provisions is valid and not in conflict with any provision of the Constitution, an ordinance passed by a municipality pursuant to the power conferred upon it by the Legislature is not invalid. The difference between the use of the streets by drays, omnibuses and vehicles of that kind, and the use by ordinary vehicles is one of degree only. They wear out the streets faster, perhaps, than one would in driving about with an ordinary wagon or buggy, but each and all have the privilege of using the streets, being the owners of such vehicles, and one engaged in ordinary business outside of these particular classes may use the streets approximately as much as one of those.

The plaintiff in the case at bar, it seems, was a retired farmer, living in the city of Bowling Green, and on the date in question was driving about the streets in a one-horse buckboard collecting rents.

A doctor with a large practice in a city might use the streets as much as the owner of a hack; a groceryman with a delivery •wagon going about the streets might use them as much as one of those particular classes, and one might mention others, and if the municipality has the power to impose a license fee upon those who are engaged in those particular classes of business, upon the theory that they make a special use of the streets, it seems to us that it has power to impose such a license fee upon all who use the streets.

was framed, was before the Supreme Court of Indiana in City of Terre Haute v. Kersey et al, 64 N. E. Reporter, 469. The general provisions of that ordinance were very similar to this one, and after a full discussion of the question by Judge Jordan, who delivered the opinion, the ordinance was sustained. The authorities aré collected in this opinion and reviewed. On page 472 of the opinion the court say:

“When such power is, however, clearly conferred upon such municipalities, courts have generally upheld the proper exercise thereof. The running of hacks, carriages and other vehicles over the streets of a city, whether used thereon for public or private purposes, will necessarily, in course of time, impair and wear them out; and by reason of this well-recognized fact, ■cities are subjected to large expenditures of money to repair the wear and tear upon their streets due in the main to the use ■of running vehicles thereon. Under such circumstances there is nothing unjust or wrong in a city, when so empowered by the Legislature, requiring the payment of a properly or reasonably graduated tax, as in the case at bar, which must be considered in the nature of a toll imposed for the exercise of the privilege of using the streets by the means of vehicles.”

And on page 473 the court say:

“The fact that a vehicle is not used by its owner for hire, but is only used on the streets in his own business or for his own pleasure, is of no special importance when the power is conferred to license and tax vehicles generally.”

Further along on the same page the court say:

“While it is true that a public street of a city or a town is a public highway open alike to travel thereon of every citizen, still this in nowise prevents the state, through the agency of its municipalities, from subjecting the right to use the street to reasonable conditions and restrictions. As cities in this state, under the law, are required to keep their streets in repair, the Legislature, in the exercise of its discretion, appears to have deemed it proper to authorize common councils thereof, if they so desired, to exact that those who used them with wagons, carriages and other vehicles, should contribute to such repairs by the payment of a reasonable amount on account of such use. The ordinance in question seems to so grade the tax imposed that the owners of vehicles whose use of the streets in the course of time would subject them to the most wear are required to-pay the greater tax.”

It seems to us that the provisions of this ordinance are not unreasonable or unconstitutional. If this power is conferred upon the municipality, as we hold it is by this statute, it has the right to use the power and impose this license fee or toll, as it is called by Judge Spear, upon all those who have the use of the streets. There is nothing unjust in requiring those who use the streets, who have the benefit of the paving and other improvements, to pay these fees in addition to the general tax imposed upon all citizens — to pay this beyond what those pay who do not make such use of the streets. A court should not declare a statute unconstitutional unless it is clearly so — practically beyond all reasonable doubt; and finding as we do that this power is conferred upon the municipality by the statute, to hold that the ordinance was void would be in effect to hold that the statute was unconstitutional. It is not for us to say whether it was.good policy or bad policy to enact such an ordinance, but if the city of Bowling Green, through its council, had the power to pass such an ordinance as this, then it is a valid ordinance.

It is urged that there are other provisions of the ordinance which are unjustly discriminating and unfair, that therefore the ordinance is unreasonable and void. One of them is the provision requiring hackmen from outside of the city at the time of the county fair to pay a license fee of five dollars a day, and ten dollars a day for larger vehicles. It is said they would be required to pay this for the entire year, which would be exhorbitant, but whether this would require the payment of more than that sum per day for the time engaged at the fair we need not determine; nor need we determine whether this extra fee imposed on outsiders is valid. No one is complaining of having been injured by this, and we do hold simply that if that requirement is invalid, that would not affect the validity of the remainder of the ordinance. It is not of such importance that it can be said the council would not have passed the ordinance with this part omitted.

The same rule applies to an ordinance as to a statute. In City of Piqua v. Zimmerlin, 35 O. S., 507, it is held that “A part of an ordinance may be void and the remainder valid.” And on page 511 of the opinion the court say:

“If it be true that the second section, either in whole or in any of its parts, is open to the objection stated, that circumstance does not affect the provisions of the first section, unless the two sections are so connected in their subject matter, and inseparable in their provisions, as to lead to the inference that the first section would not have been adopted without the second. The same rule applies to a by-law or ordinance that applies to a statute; and that is that where the statute consists of severable and independent parts, having no general influence over one another, and a part is valid and a part is void, the part which is valid is operative, and will be carried into effect.”

Another objection made to the ordinance is that it discriminates unfairly, in that it permits persons living outside to come into the city and use the streets without paying the license fee. That was true in the statute before the Supreme Court in the Marmet case, where farmers Were permitted to come into Cincinnati without paying the fee, and Judge Spear discussed that question and says there are very good reasons why they should be permitted to come in and bring the necessaries of life into the city. That provision of the ordinance is not unreasonable.

There are one or two other objections of like character, but we will simply say there are none of them of sufficient importance to warrant us in declaring the ordinance invalid. We will not undertake to pass upon them, as they are not involved in this case. The purpose and object of this ordinance was to impose these license fees upon all residents who use the streets in this manner, and these minor provisions of the ordinance, if invalid, are not so inseparably connected with the general purpose of the ordinance as to invalidate it.

Nor do we think it is invalid as urged on the ground that it confers judicial powers upon the city auditor and chief of police. The provision heretofore referred to provides that if the city auditor is not satisfied with the description of the vehicle, ¡he shall refer it to the chief of police, who shall examine and report a correct description of the vehicle to the auditor. The citizen still has his right, if he is not satisfied with the finding of these officers, to test the matter in the courts. The provision that if a person who' has one horse and more than one buggy, the license shall be on one buggy, and if he has two horses, the license shall be on two vehicles, is not unreasonable, the theory being that the man who has two horses would probably use the streets more than the man with only one. This may not work exact justice in all cases, but it is not so unreasonable that it should be declared void by the court. As said by Judge Spear in Marmet v. State, supra (page 69) :

“It may be added that absolute equality as to burdens, whether applied to taxes or other subjects of legislation, is not to be expected in our laws. The wisdom of man has not yet devised a system of equalizing burdens so perfect in its application and so thorough, in its enforcement as to leave no room for adverse comment or criticism.”

Baldwin & Harrington, for plaintiff in error.

P. J. Chase, City Solicitor, for defendant in error.

I have endeavored to cover in a general way the objections that were made to this ordinance. We are of the opinion that it does not violate any provision of the Constitution of this state or of the United States, and that no part of it is so unreasonable that the court should declare the ordinance invalid.

The judgment of the court of common pleas and of the


source: Caselaw Access Project

license: Public Domain

text:
    CONDITIONAL SALES.
    [Circuit Court of Wood County.]
    Jefferson Richcreek v. Eva O’Donnell.
    Decided, November Term, 1903.

      Sales Conditional — And Sales Absolute — Statutes Relating Thereto— Chattel Mortgage and Effect of Execution- of — Evidence as to the Character of the Sale — Replevin.
    1. Where a sale of chattel property is made upon the condition that the title shall be retained by the vendor until payment therefor has been completed, the sale is a conditional sale, notwithstanding the giving of a chattel mortgage in the usual form by the vendee.
    2. But oral testimony may be introduced to show the character of the contract between the parties, and where the testimony establishes that the sale was absolute, the transaction is taken out of the statute, and replevin of the property can not be resisted by the vendee on the ground that the vendor has not made good the installments paid, less loss or damage to the property from its use by the vendee.
    Haynes, J. (orally); Parker, J., and Hull, J., concur.
    Error to tbe Court of Common Pleas of Wood County.
   This case comes here on error from the court of common pleas, and the testimony discloses that there was a sale of a buggy by the plaintiff, Richcreek, to Mrs. O’Donnell; that he received in payment for the same an old buggy valued at a certain sum, and the balance of the purchase price was to be paid in cash in installments from time to time. To secure the payment of this balance, Richcreek received from Mrs. O’Donnell. a chattel mortgage and certain notes evidencing the amount to be paid and the terms of the payment. Some payments were made upon the purchase price, but finally Mrs. O’Donnell fell into arrears in her payments, and thereupon Richcreek replevied the buggy and sold it under and by virtue of the terms of his chattel mortgage. Upon the trial of this replevin suit in the court of common pleas it was set up and claimed that the transaction, the sale, giving of the note and mortgage, and the payments and endorsements, brought it within the provisions of Sections 4155-1, 4155-2 and 4155-3 of the Revised Statutes of Ohio, and the case proceeded to trial upon that theory upon the issues. Testimony was permitted to be given orally by Mrs. O’Donnell as to the terms of the sale, and also by other witnesses. The court charged the jury that if the sale was a conditional one, that the plaintiff Richcreek would have no right to replevin the property until he had paid back to Mrs. O’Donnell at least the amount of the purchase money that had been paid, less the amount of the loss to or damage to the buggy by reason of its usage. The jury brought in a verdict for the defendant and gave her judgment for $15. She had paid in all, it is claimed, $36, and thereupon the case was brought to this court upon error.

The case seemed rather simple at first, but we found, upon investigation, that there were a good many questions of law that had been discussed and decisions by different courts that required considerable attention before we arrived at a conclusion in the matter, some of us feeling at least that the case is a •close one. There was cited to us by counsel on behalf of the plaintiff, cases in the 12th C. C., 118; 7 C. C., 460; 35 W. L. Bull., 379; and we have examined the 4th C. C., 494; 35 Bull., 37; 31 Bull., 350; 5 N. P., 94, and Baker v. Speyer, 59 O. S., 11. There is a ease in the 55th O. S., 638 (Singer Machine Co. v. Crawford), wherein the judgment of the circuit court was affirmed upon the ground stated in the opinion of the circuit court, and that ease would appear to be favorable to the contention of the plaintiff.

We have made an examination of this ease in the 59th Ohio St. (Baker v. Speyer), and think it substantially settles the law: of the question and along the line of the charge that was made by the court of common pleas. In that case there was a sale of personal property — household goods — in Hamilton county, and a chattel mortgage was taken back providing for the payment of certain sums of money from time to time and with the usual conditions and clauses that are ordinarily found.in chattel mortgages. The syllabus of the case substantially holds that where a chattel property is to be sold and paid for in part installments, and conditioned that it shall belong to the purchaser when the amount paid thereon shall be a certain sum, or the value of the property, the title to remain in the vendor until such amount shall be paid, was within the statute; and the rights of the purchaser, under the statute, are unaffected by the execution of a mortgage on the property, at the time of sale, to secure installments of the purchase price. That where a purchaser at such sale has made payments on the property, he is entitled to its possession, though in default as to other installments, until there shall be refunded or tendered back the amount so paid, less a reasonable compensation for the use of the property and for any damage done to it while in his possession, and the amount which he is so entitled to have refunded should be awarded him as damages when the property is taken in replevin at the suit of the vendor; that that law would govern any sales of that kind made and that the replevin proceedings would have to be made upon the terms and conditions of the contract.

In that case counsel for the defendant contended that the giving of the chattel mortgage recognized the property as the property of the mortgagee and took the case out of the statute and converted it into a sale absolute, and the court of common pleas so charged the law to be, but the Circuit Court of Hamilton County reversed the common pleas court, and the case went to the Supreme Court, and the action of the circuit court was affirmed, and,-without reading the decision, I will say that the Supreme Court stated the law to be that if the sale is a sale upon condition that the property should be retained by the vendor, then the statute governed'; but the fact that a chattel mortgage was given in a regular form will not take the case out of the statute; it still remains a conditional sale notwithstanding a chattel mortgage was given as if the mortgagee owned the property and we recognize the fact that the law is that oral testimony may be given to show what the contract of sale really was -as between the parties. In other words, the party may establish his contract of sale by oral evidence, and that the question of whether the statute will apply or not will depend upon the fact as to whether there was a contract of sale conditioned that the owner should retain the title to the property. The charge of the court of common pleas was along that line and the jury found for the defendant, practically finding there was a conditional sale.

W. S. McMillen, for plaintiff.

S. P. Harrison, for defendant.

Unfortunately for the defendant, .Mrs. O’Donnell, she testified in, the case, and she testified as strong as language would permit her that the sale was not a conditional sale, but an absolute sale; that the property was hers, and belonged to her, and she took it and gave a mortgage back; Richcreek, she says, agreeing to be lenient and letting her pay from .time to time. The testimony of the other parties was along the same line.

We are constrained to hold therefore upon the clear weight of the testimony so far as the testimony is concerned, that the sale was not a conditional sale, but was an absolute sale, and that the jury should have so found, and should have found for the plaintiff, Richcreek, instead of finding for Mrs. O’Donnell.

The judgment of the court of common pleas will therefore be reversed, as the court should have granted a new trial, and the cause will be remanded to that court for further proceedings according to law.


author: Hull, J,

text:
    INJURY FROM OPERATING AN OIL PUMP.
    [Circuit Court of Wood County.]
    David W. Bowe v. Charles F. Bowe.
    Decided, April Term, 1903.

      Negligence — Operation of Machinery 6y an Inexperienced Minor — Evidence as to Experience Required — Damages—Physician’s Bill not an Element -of, When — Nor are Services of Mother as Nurse, When — Nor Wages Lost, When — Immaterial Questions Prejudicial, When — Charge of Court.

    1. In a suit for damages for personal injuries resulting from an employer’s negligence in permitting inexperienced plaintiff to perform a certain act in connection with the pumping of an oil well, the admission of questions as to the length of time it would require .one of ordinary intelligence to acquire sufficient experience to pump a well with safety, etc., is error. Such questions are not only indefinite in meaning, hut are too broad in application; they should have been directed to the particular act, which might in fact have required little or no experience.
    2. A charge to the jury in a suit for personal injuries caused by defendant’s negligence, that they should consider physician’s charges in making up the amount of damages, when it appears that defendant paid the bill, and plaintiff incurred no liability therefor, is improper.
    3. In such case, the plaintiff can not recover for the value of the services of his mother as nurse, in the absence of a special contract between them, or proof of his manumission.
    4. Under such circumstances, a charge which submits to the jury the consideration of the question' of the length of time plaintiff had been earning wages, where it appears that plaintiff had not been emancipated, and that, therefore, his time belonged to his parents, is improper.
    5. Under the above facts the admission of questions as to whether defendant employed “child labor,” concerning his financial responsibility, as to subsequent promises of employment made to plaintiff, as to his conduct toward plaintiff, etc., is prejudicial to defendant, and is error.
    Parker, J. (orally); Haynes, J., concurs.
    The action in tbe court below was by Charles F. Bowe against David W. Bowe, an action in which he charged the defendant below, as his employer, with negligence in furnishing him with unsafe and improper machinery and appliances to work with, and putting him at a dangerous occupation without warning him of the dangers incident thereto, he, the plaintiff, it is said, being a youth and inexperienced in that kind of work. The trial resulted in a verdict in favor of the plaintiff below for $3,500. A motion for a new trial was overruled and judgment entered upon the verdict. Error is alleged in the action of the court in overruling the motion for a new trial, and in various matters upon the trial of the case.
   It is charged in the petition, in substance, that the defendant, David W. Bowe, being the owner of a farm upon which oil wells have been drilled by him, and which he was operating, employed plaintiff and put him to work as a pumper; that one of the wells, No. 9, was not properly equipped; that is to say, that a certain part of the apparatus called the adjuster rod was too long, and that it was connected with another appliance called a “Dix grip,” so that in the ordinary operation of pumping the well it became unscrewed, and that one of the results of this unscrewing of the Dix grip from this too lengthy adjuster rod, was that the Dix grip would fall or be carried downward, and being connected by the rods to which it was fastened, the Dix grip would strike upon a certain other part of the apparatus called the stuffing box; whereas if it had been properly adjusted it would not have struck upon this stuffing hox but would have remained 'above it. It is also said that one of the duties of the plaintiff below was to turn the rods in the well; that it became necessary to do this every day, and that the proper apparatus for turning rods was either a wrench or “Crombie” tongs; that he was not furnished a wrench or Crombie tongs, but that he was furnished with a stick and rope and instructed to use those in the operation, and that those were not safe nor proper appliances; also, that in this operation of turning the rods by the use of the rope and stick, the plaintiff below was required to or would naturally put his hand upon a part of the apparatus called a polish rod, or upon the lower part of the Dix grip near the polish rod, and that while he was carrying on this operation with a stick and rope with his hand upon the lower part of the Dix grip near to or upon the polish rod, the Dix grip became unscrewed from the adjuster pipe, the weight of the rods in the. well carried the Dix grip down to and upon the stuffing box, and his right hand being In the position described, was caught between the Dix grip and the stuffing box in such a way as to lacerate it and sever the . thumb and some of the fingers.

It is said that he was young and inexperienced and did not know that he was required to work with an unsafe appliance, and did not know of the danger of working with this devise, or that it was dangerous for him to use it in the manner required; and the defendant being advised of his inexperience and being aware of these dangers, was guilty of negligence in failing to inform plaintiff and instruct him as to the proper'method of doing this work, and the incidental dangers.

All this alleged negligence is denied by the defendant below. It is denied that the appliances furnished were unsafe or improper and that the connection and adjustment of the apparatus was wrong, and it is averred that the plaintiff’s injury came about from his own negligence contributing directly thereto.

It appears that the plaintiff was nearly eighteen years old at the time of the accident. How long he had been working at operations of this kind is somewhat uncertain, but it was somewhere between two and five months. On the occasion in question he was working by himself, having no overseer or instructor. It does not appear that he had ever before turned rods by the use of a rope and stick, but that part of the case may be as well be disposed of at once, and it can be done in a very few words. "We find that it is very clear from the evidence that the rope and stick are as proper and safe an appliance as either the Crombie tongs or a wrench. We find that any verdict of the jury based upon a finding that it was not as safe as either of the others, would not be supported by the evidence.

That leaves for consideration the question of the alleged improper adjustment of the machinery and the alleged failure to warn the plaintiff below of latent dangers incident to the employment, even if that adjustment and appliance were proper, he being, as alleged, young and inexperienced.

A great many witnesses were called on behalf of the plaintiff, . and these were met by witnesses called on behalf of the defendant, to testify as experts upon various subjects connected with oil operations, as to tbe proper appliances and proper adjustments thereof; proper modes of operation, etc., and among other things asked of those so-called expert witnesses was a question respecting the length of time that one must be employed in work of this character in order to become so skillful and experienced as to enable him to do the work with safety. I will read the form of the question as stated in one or two> places. It is not varied much. I read from page 79, A. J. Fowler testifying on behalf of the plaintiff is asked the question: “State what in your opinion is the usual and ordinary time required for a person of ordinary intelligence to acquire sufficient experience tS enable him to pump an oil well with safety?” Now with safety to what, or safety to whom is not suggested in this question. Whether it meant with safety to the machinery, or safety to the operator, or with safety to someone else, or something else, is altogether uncertain. The uncertainty is perhaps emphasized as the question is somewhat varied at pages 36 and 37 where there is another impropriety involved in the question in that it is not applied to the bind of apparatus that was in use upon this lease. This is the question: “State what in your opinion is a proper time required for a person of ordinary intelligence to acquire sufficient experience to enable him to pump an oil well with safety when that well is pumped from a power and with a Dix grip attachment on the polish rod and adjusting rod?”

It appears that the wells in this case were not pumped from a power. Now whether that would make any difference or not, whether it would take more or less time, of course we can not say. The «answer was: “It would be owing to how smart the man was. Some would not learn as quick as others, but I should think a man ought to have at least six months’ experience to be a pumper with safety;” and the answers generally were that it would take from six months to a year; one witness showing that ■he did not know whether it applied to a question of safety to the machinery or to the operator when he answered that he would mot trust his machinery in the hands of a man who had not at least six months’ experience.

Now the real question here was on this branch of the case: What if any knowledge had the plaintiff of the defects in the machinery and the danger incident to operating the same, or if youthful and inexperienced, what if any knowledge of the dangers incident to the work at which he was put, independent of any question of defects. In this case the question should be directed to the particular defects alleged, or to the particular work and the dangers incident to that work.

How long it might take a person of ordinary intelligence and of the plaintiff’s age to learn to perform all the operations required upon a lease in pumping for oil, we think is too broad a question. How long it might take a person of ordinary intelligence, of the plaintiff’s age, to learn the particular part of the duty in which he was engaged at the time he was injured, might do, but the question should not be broader than that. It is somewhat doubtful if this is at all a subject-matter of expert evidence. How can a so-called expert, tell how long it will take a person of ordinary intelligence to gain such knowledge. There can be no rule upon it. It depends upon a great variety of circumstances. One person put to work pumping oil wells might learn it the first day and first hour of his employment as fully as if he had been at it six months; I mean the particular part of the work that the plaintiff here was engaged in performing at the time he was injured. On the other hand he might work his full six months and not learn it at all; might not learn a thing about it; indeed he might not be called upon to perform such service until near the end of the period. Such operations might not be carried on upon the lease, or if so, they might be carried on by someone else than him. Now it is ap- ¶ parent that if a person put to work upon an oil lease as a pumper should be required ‘to toggle up the machinery and keep the surface rods in repair; to keep the steam boxes in repair, etc., and in performing that duty, in attempting to drive a nail, should mash his finger, it would be altogether improper, if he were attempting to recover damages from his employer, to ask a person denominated an expert, how long it would take a person on an oil lease working as a pumper to learn all the intricate work incident to that employment. And that was substantially the course pursued here.

According to the testimony of the witnesses, this was a very simple operation; and something which, with proper instruction and observation, a reasonably intelligent person ought to learn in a very short time; and yet witnesses are asked how long it will take a person to become competent as a pumper. We know from common experience, as well as the testimony of witnesses, that some of the duties of a pumper require a knowledge somewhat intimate of machinery and appliances; of the proper firing of the boiler and the proper management and operation of an engine, and a great many things of that sort which are not to be compared of course to some of the simpler, ordinary duties devolving upon a pumper on a lease.

We think this was prejudicial to the defendant below for the reason that it is charged -in the petition here that the plaintiff was inexperienced and that he received this injury somewhat through his inexperience, and by these questions and answers the jury are led to the thought and conclusion that a person who has not been upon an oil lease for at least six months is an inexperienced person and is to be so considered by them, while as I say, it is apparent that as far as the particular operation is involved he might be a thoroughly experienced person in a very short time. In fact, some of the plaintiff’s own witnesses on cross-examination, testified that a person ought to learn how to perform the particular operation in fifteen minutes.

It appears that after the plaintiff had received this injury he required and had the services of a physician and surgeon, and that the bill of the physician and surgeon was $40, and that this was paid by the defendant; also that the plaintiff incurred no liability and paid nothing, and yet the court submitted to the jury among other things for their consideration in making up the amount of damages resulting to the plaintiff from this injury, the matter of the doctor’s bill. There was no evidence in the record authorizing a submission of that item.

Again, it appears that while the boy was disabled, his mother served him as a nurse and helper. The boy was a minor. He was living at home. It does not appear that he incurred any liability to any other person, and he could not incur any liability to his mother unless the circumstances were very special; unless he had been manumitted or there was some contract between them which was shown. A liability might arise then, but certainly not under circumstances like those appearing here. And yet the court submitted to the jury for their consideration the question of the value of her services and the liability incurred on that account.

Another and still more serious error upon this question of damages, is this: It appears that something like three years intervened between the time the boy received this injury and the time he attained his majority. It does not appear that his time was his own. He was living at home with his father and mother; his time belonged to them, and yet the court submitted to the jury for their consideration the question of the time he had lost, including this period of minority. He had been earning wages at the rate of $2 a day when at work. His time in three years would, if he were steadily employed,, bring him therefor the sum of $1,878. If there was nothing else wrong in the case except this doctor’s bill; if there was nothing wrong besides his mother’s services, which I think it is indicated in the testimony were of the value of $100, the mischief might be obviated by a remittitur damnum; but in order to correct the verdict as to this matter of damages due to the supposed loss of earnings, the court would be required to make remittitur of the most that the testimony shows he might have earned during that entire period, or $1,878, and that added to the $40 doctor’s bill, and the $100 for his mother’s services would require a remittitur of over $2,000, wMeh might be very unjust to the plaintiff, if he should be entitled to anything. We have never undertaken, and do not know of any case in which a court has undertaken to exercise the authority to require remittitur to that extent.

It appears to us also that there was considerable extraneous matter brought before the jury here that was immatexüal and should not have been let in and was likely to be prejudicial to the plaintiff in error. He was asked, and required to answer, whether he was not engaged in the employment of “child labor” down there on Ms lease. The fact had been brought out that he had one boy who had worked for him, and in addition to this, his own children when not at school. They were not of age, bnt at' what particular employment they were engaged or what they were required to do, the evidence does not advise us. But we think that the court should not have required the defendant to submit to interrogation upon that point. He was not being prosecuted for employing child labor, and the result to the plaintiff below was the same and the liability of the defendant below was the same, whether he had employed child labor or not.

Another matter was the injection of the question of the wealth of the' defendant. This was entirely improper. To be sure it was not excepted to, yet we think it proper to make mention of the fact that we regard it as improper, and we think it helps us to see how the result obtained was probably reached or brought about. The plaintiff was entitled to a judgment for as much if the defendant were a pauper as he would be if the defendant were a millionaire. The question of defendant’s wealth had nothing to do with it. The question was the extent of the damages to the plaintiff below.

Another matter proved was the fact that the plaintiff below cried in the presence of the defendant; that he cried about his injury, and that the defendant below promised.him employment and did not give it to him.° Defendant was not sued on a promise to give employment or for a breach of such promise. The damage was the same to the plaintiff below and the defendant’s liability was the same whether defendant had been guilty of a subsequent breach of promise of that character or not.

Another thing proved was the fact that the defendant failed to speak to the plaintiff. That, we think the court should have excluded. It was not a case where animosity or feeling on the part of the jury should have been stirred up on account of any bad treatment that the defendant below might have been guilty of after this injury was received; because plaintiff’s right to recover, if he had any right at all, occurred the moment his hand was mashed, and his right to damages could not be increased or swollen by any contemptuous, ugly or unfriendly conduct on the part of the defendant thereafter.

We speak of these things because the case must be sent back to be retried, and I want to say in this connection that this criticism is not directed against counsel for plaintiff below only; because there is some excuse and possibly some measure of justification for this line of inquiry to be found in the fact that counsel for defendant below had inquired whether this suit had not been begun without any demand or anything of the sort: and it seems that to excuse the fact that no previous demand had been made, counsel for plaintiff undertook to show that the parties were- not on speaking terms and that therefore there was no opportunity offered for a previous demand. The whole matter on both sides should have been excluded. The case is not reversed on this point, but after consultation we deem it proper to say something about it so that if the case should come before us these same matters, or other like irrelevant matters may not again appear in the record.

James 0. Troup, for plaintiff in error.

James & Beverstock, for defendant in error.

In the motion for a new trial one of the assignments of error is that the verdict is against the weight of the evidence, and we are required by law to pass upon this assignment. In view of the fact that we intend to reverse this judgment and send the case back to be retried, I shall not discuss this question, but will simply say that a majority of the court are of the opinion that the court below erred in refusing to sustain the motion on this ground.

"We find no other errors in the record that we regard worthy of mention or sufficiently prejudicial to require a reversal of the judgment, but on account of those pointed out, the judgment will be reversed and the ease remanded for a new trial.

Hull, J,

I concur with the rest of the court in the reversal of this judgment for the errors indicated in the opinion of Judge Parker, but I dissent in the opinion that the court of common pleas erred in refusing to set aside the verdict on the ground that it was against the weight of the evidence.

In my judgment, under the decision of the Supreme Court, it would have been an invasion of the province of the jury for the court of common pleas to have granted a new trial on that ground.


text:
    CORRECTION OF ERRONEOUS PROCEEDING AGAINST INFANT,
    [Circuit Court of Huron County.]
    H. David Palmer, an Infant, v. Hubbard Palmer et al.
    Decided, November 13, 1903.

      Record — Precipe for Summons not a Part of — Erroneous Proceeding Against an Infant, 'How Vacated — Where Error is not Apparent Upon the Record.

    1. A precipe for summons is not a part of the record within the meaning of Section 5334, and a petition in error will not lie to review a judgment against a minor on the ground that no guardian ad litem was appointed or answer filed, where the fact of infancy does not appear in the record and only in the precipe for summons.
    2. In such a case the erroneous proceeding may be vacated or modified in the common pleas after the term, under the authority of Par. 5 of Section 5354, Revised Statutes.
    Haynes, J. (orally); Parker. J., and Hull, J., concur.
    A petition in error is filed in this case for the purpose of setting aside the judgment and verdict that was rendered in the case which was tried in the court of common pleas, being the case of Margaret Parker et al v. Hubbard D. Palmer et al. That action was brought for the purpose of setting aside a will.
   It is averred in the petition in error in the case at bar, that H. David Palmer was an infant of perhaps the age of fourteen years; that he was made a party defendant in the original action, but was never served, but was brought in by publication of notice, being a resident of the state of New York, and that he never had any guardian appointed for him ad litem. It did appear, however, that through certain attorneys he had filed an answer and cross-petition in the case.

It is claimed now that the court of common pleas erred in hearing the case and in rendering judgment against him in the original action without having appointed a guardian ad kitem, and having the requisite answer filed.

In reply, it is claimed that it nowhere appears in the record of the case that he was an infant; he appears there as a person of full age and answers as a person of full age by his attorneys.

It is claimed, however, that it- appeared in the precipe that was filed in the action below that he was a minor and that it was stated that he was a minor over fourteen years of age at that time. It is claimed, it nowhere being in the record that he was a minor, that a petition in error does not lie; that the method of correcting the error, if an error occurred, lies by other means and by other processes.

The first question, it seems to us that is material here, is to know whether it does or does not appear in the record that he was a minor.

Section 5334, Revised Statutes, provides:

“The record shall be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if items of an account, or copies of papers attached to the pleadings, are voluminous, the court may order the record to be made by abbreviating the same or inserting a pertinent description thereof, or by omitting them entirely.”

Now, we feel very 'dear under the statute, that the process or precipe for summons was no part of the record in the case; the record, in fact, had never been made up. The petition in error was filed and with it the original papers including precipe for summons, if it were duly recorded, we would deem it our duty to pay no attention to it.

It is well settled by the Supreme Court, and it is a matter upon which we act very frequently, that any matters carried into the record that are not properly of the record should not be recognized upon the hearing of the ease in a court of error. We shall assume, therefore, that the record nowhere shows that this person was a minor.

Section 6709, Revised Statutes, provides:

“A judgment rendered or final order made by any court of common pleas, may be reversed, vacated or modified by the circuit court of the county wherein such court of common pleas is located, for errors appearing upon the record.”

It is only for errors appearing upon the record that judgment may be reversed.

It should be observed in passing that at the time the code was adopted, it was provided by what is now Section 6731, Revised Statutes:

G. P. Wickham and Stephen M. Young, for plaintiff in error.

6r. T. Thomas, Horace Andrews, Homer Johnson and P. W- Ymi Dusen, for defendants in error.

“Writs of error and certiorari to reverse, vacate, or modify judgments or final orders in civil cases are abolished; but courts shall have the same power to compel transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, completed, or perfected, as they heretofore had under writs of error and certiorari.”

The effect of that, as we understand it, is to bring the record here by petition in error and to examine it under the statutes that I have referred to, and the only question before us is, whether there is error manifest in the record that is produced before us on the petition in error.

We think the contention of the defendant in error is correct; that no error appearing on the face of the record this question can not be raised in the form of a petition in error; that it belongs to that class of errors that must be reached in another form.

It is provided in Section 5354, Revised Statutes:

“The common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the term at which the same was made.”

Paragraph five reads:

“For erroneous proceedings against an infant, or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings.”

It would seem that the Legislature had this in view at the time this act was passed, that if, upon the face of the record, there is error, then this can be reached by petition in error. If there is no error apparent upon the face of the record, then erroneous proceedings against an infant may be reached under this paragraph by proceedings filed in the court of common pleas, and in that manner the questions that are raised or the questions that are made may be brought up in the record before the reviewing court.

There have been a great many questions made and argued in this case, but the view that we take is, we think, decisive of the case. The petition in error will therefore be dismissed.


text:
    JURISDICTION OF MAYOR..
    [Circuit Court of Wood County.]
    Arthur Hillier v. The State of Ohio.
    Decided, November 28, 1904.

      Criminal Law — Distinction Between Jurisdiction of Mayor and Magistrate — Plea of Guilty — Constitutes a Waiver of a Jury Trial.

    1. The entering of a plea of guilty is a waiver of a trial by a jury.
    2. A mayor having complete jurisdiction in cases of misdemeanor, a plea of guilty entered before him is to be given the same effect as in the courts of higher jurisdiction.
    Parker, P. J. (orally); Hull, J., and Haynes, J., concur.
    Error to the Court of Common Pleas of Wood County.
   Complaint was filed against Arthur Hillier before the Mayor of .the City of Bowling Green, charging him with a misdemeanor, to-wit, cohabiting with one Martha Shupe in a state of fornication, under Section 7020, Revised Statutes. He was brought before the mayor, and plead guilty to the offense with which he was charged. Thereupon he was sentenced to pay a fine of fifty dollars and costs of prosecution, and to be committed to the Toledo Work House’ for a period of thirty days, and to stand committed to said work house until said fine and costs should be paid, or until he was otherwise discharged by due process of law.

After entering this plea of guilty and being sentenced, the defendant filed a petition in error in the court of common pleas, averring that the judgment of the mayor was contrary to law; that the court had no jurisdiction to render the judgment it did, and generally, that there were other errors prejudicial to the defendant.

The judgment of the mayor was affirmed by the court of common pleas, and now error is prosecuted to this court and upon the same grounds; that is to say, that the judgment of the court was erroneous and in fact void, because the mayor had no jurisdiction to proceed to sentence upon this plea of guilty.

Our attention has been directed to a number of sections of the Revised Statutes bearing upon the question of the jurisdiction of the mayor, viz., Sections 1816 to 1822, inclusive. It is said that but few of these sections have any special bearing upon the case at bar. Section 1817 provides he shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the Constitution, entitled to a trial by a jury; and his jurisdiction in such cases shall be co-extensive with the county.

Section 1818 provides that he shall have such jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial the accused waive a jury trial. "The last two sections” refer to Sections 1816 and 1817, the first of which covers prosecutions under an ordinance.

Section 1820 provides:

"If the charge is the commission of a misdemeanor prosecuted in the name of the state, and the accused, being entitled to a jury, does not waive the right, the mayor may, nevertheless, impanel a jury and try the case on the affidavit, in the* same manner and with like effect, as such cases are tried in the court of common pleas on the indictment.”

It will be observed that this section gives to the mayor full and complete jurisdiction in cases of prosecution for misdemeanors ; to proceed to trial without the intervention of a jury if a jury is waived, or to proceed to trial with a jury if a jury is not waived.

Section 1821 gives the mayor discretionary powers to decline to have the. ease tried before him by a jury and to hold the accused to answer to a higher court.

It will be observed in the case at bar that the accused did not expressly waive a jury; that if he waived a jury, he did so by his plea of guilty.

In a case to which our attention has been called, the case of Hanaghan v. State, 51 Ohio St., 24, it was held, with respect to proceeding of a like character before a justice of the peace, that such justice of the peace was without jurisdiction to sentence upon a plea of guilty, or to proceed to trial in case of a misdemeanor unless the accused expressly and in writing waived a jury. The sections bearing upon the question, and referred to in the opinion of Judge Williams, are Sections 7146 and 7147 of the Revised Statutes. It will be observed, however, upon reading these sections, that Section 7146 undertakes to safeguard the interests of society so as to prevent collusion between the accused and some friend by whom he may be brought into court, and without the magistrate being advised of the gravity of his offense, or the aggravating circumstances that may attend it, the offender may enter a plea of guilty and have a sentence imposed that would be wholly inadequate to the punishment of the offense of which he is guilty. That section provides that if the complaint is not by the party injured, and the party accused pleads guilty, the magistrate shall require the party so accused to enter into a recognizance to appear at the proper court, as provided in a case where there is no plea of guilty, and the magistrate upon inquiry finds that he is probably guilty.

There is a similar provision in the statutes with reference to the proceedings of mayors in like cases, and Section 7147 contains a provision with reference to the waiving of a jury, that it must be in writing, subscribed by the accused and filed before or during the examination.

Now, with respect to that provision, it was held by the Supreme Court in this case that it was jurisdictional; a prerequisite — that is to say, the filing of this waiver in writing by the accused — without it such magistrate was without jurisdiction to proceed to trial. His jurisdiction was much more limited than that of a mayor. A mayor’s jurisdiction in such case is to all intents and purposes as broad and complete as the jurisdiction of the probate court or the court of common pleas. It was held that where one entered a plea of guilty before a magistrate who had not complied with the statute or had not followed the statute with respect to waiving a jury by a writing filed in the ease, signed by him, that such plea of guilty should be regarded as having the effect of waiving an examination into the facts, 'and it then devolved upon the magistrate to hold him by recognizance to answer to a higher court. But before a mayor having complete jurisdiction in cases of misdemeanor, we can not see why the same effect should not be given to a plea of guilty as is given to such a plea in any other court having full jurisdiction in the matter.

Beverstoclc & Donahay, for plaintiff in error.

H. G. McClelland, Prosecuting Attorney, for defendant in error.

Now, that the entering of a plea of guilty authorizes a court to proceed to judgment and sentence in a case — that it has all the force and effect of a verdict of a jury, is a rule so well known and understood by the profession that we think it does not require the citation of authority in its support. We know that it is everyday practice in the probate court and in the court of common pleas for a person to enter a plea of guilty, for judgment to be passed thereon, and it can hardly be claimed by any member of the profession that the accused could prosecute error because among the records was not found a written waiver of a jury. No written waiver of a jury is required in those courts or before the mayor. The provision is general that he may waive a jury. So that we think that this case cited in the 51 Ohio State is not opposed to the view we have expressed— that before a mayor the plea of guilty has the same force and effect as a plea of guilty in the probate court or the court of common pleas.

We have been cited to some authority as to the effect of a plea of guilty, and I call attention to a single sentence from the opinion of the court in the ease of Hirn v. State, 1 Ohio St., page 23, where it is said: “In a criminal case in this state a defendant can not waive a jury trial in any other way than by a plea of guilty.” It seems to be recognized as not only a proper way, but the only way; though, as we have pointed out, there is now another way provided in proceedings before a justice of the peace.

Entertaining this view of the matter, we hold that the magistrate had full and complete jurisdiction; that he did not err, and consequently the court of common pleas did not err in affirming his judgment, and the judgment of the court of common pleas will be affirmed by this court.


text:
    PURCHASE OF DEBENTURES AS CONSIDERATION FOR BEING GRANTED A MORTGAGE LOAN,
    [Circuit Court of Hamilton County.]
    Michael G. Heintz and F. R. Williams, Receivers of the Interstate Savings Investment Company v. Harley E. Sawyer et al.

    Decided, March 2, 1904.

      Foreclosure of Mortgage — Transaction in Obtaining Loan Against Public Policy — Debentures of the Nature of a Scheme of Ohance.

    Where a loan of money was evidenced by a note with a real estate mortgage given to secure repayment, and as part of the consideras tion of the transaction the mortgagor, by a contemporaneous written contract, agreed to purchase shares or debentures in the lending company, which debentures partook of the nature of scheme of chance or lottery, the lender can not maintain a suit to foreclose such mortgage, nor can the mortgagor have affirmative relief by cancellation or in a court of equity, as the transaction is against public policy and void, and the court will refuse its aid to either party.
    Gippen, J.; Swing, J., and Jelke, 'J., concur.
    The petition presents an ordinary ease in equity for the foreclosure of a mortgage executed by the defendants Harley E. Sawyer, Jeanette Sawyer, Walter G. Hopkins and Lillie F. Hopkins, to secure a loan of twelve hundred ($1,200) dollars evidenced by a promissory note, payable five (5) years after date, with interest at eight (8) per cent.

       Affirming 1 N. P. — N. S., 149.

   The answer contains two defenses: First, that at the same time the loan was made the defendants purchased of the investment company ten (10) certificates of twenty (20) coupons, and it was agreed that if said twenty coupons were kept in force for not less than three (3) years each and the monthly installments were paid thereon, no interest should be charged on said loan, and that in.the event that any or all said coupons should be redeemed before the final payment of said mortgage, then the amount actually paid in by the party of the second part on said coupons so redeemed together with one-half (%) of the surplus earnings on said, coupons, should be credited to the payment of said mortgage loan, and the remaining one-half (%) of said surplus earnings should be retained by the investment company as a further consideration for making said loan.

The defendants made payments each month for thirty-six (36) months to the time the company went into the hands of a receiver; and during said period of time certain redemptions were made according to the scheme of said company and credited to the loan; that said transaction was illegal and void.

For the second defense, the payments made on the certificates are set forth together with the amount of the redemption fund which the defendants claim should be credited on the loan in the event that the court holds the transaction to be legal. The contracts of the investment security, or certificates of this company, were held unlawful in the case of The State, ex rel, v. The Interstate Savings Investment Company, 64 O. S., 283. It is claimed, however, that the loan and mortgage securing the same is an independent contract separate from the purchase of the certificates of investment, but the two transactions were had at the same time and constituted but one contract. The consideration moving from the defendants on the one hand was the execution of the note and mortgage together with the purchase of the ten certificates, and on the other hand the consideration moving from the investment company was the loan of $1,200, together with the promise to release the defendants from the payment of interest in the event that the installments upon the certificates were paid for not less than three years and to apply the amount actually paid in on the certificates together with one-half of the'surplus earnings to the payment of the mortgage loan.

If the court were to enforce the mortgage and remit the defendants to an action upon the certificates, it would not only sever the transaction into two contracts not contemplated by the parties, one legal and the other illegal, but would thereby be giving relief to one party and denying it to the other. The defendants would be prevented from applying the payments made upon the certificates to the satisfaction of the loan as provided in the agreement, and if they undertook to enforce collection upon the certificates, they would be met by the defense that the transaction-was illegal.

Counsel for the plaintiffs relied on the case of Ohio, ex rel, v. Board of Education, 35 O. S., 519. In that case the board of education agreed to borrow a sum of money at an aggregate rate of interest of fifteen (15) per cent, for the amount so to be borrowed ; bonds were to be issued bearing the authorized rate of interest, and for the excess interest orders on the treasury were to be issued to be payable at the same time as 'the legal interest. Bonds were regularly issued bearing eight (8) per cent, interest, sold at par, and the money so received used as authorized. For the excess of interest, orders on the treasury were at the same time issued and delivered to the purchaser but were never presented for payment. Meld: That this agreement to pay excess interest is void, and having never been executed in whole or part, will not avoid a recovery on the bonds.

. The case before us differs from that one in that the money loaned was not the only consideration for the promise made by the defendants,, but they were supported by the further consideration that the investment company would apply the payments made upon the certificate and the surplus earnings, to the payment of the loan, and that the contract was partly executed. If the defendants in this ease for the single consideration of the loan of $1,200 had executed the note and mortgage and merely agreed to subscribe for the certificates, and such agreement had never been executed, then it would be within the terms of the case cited.

It was further contended by counsel for plaintiffs that the investment company, being insolvent, held the assets of the company in trust, and could not enter into an illegal contract to the prejudice of the beneficiaries of the trust fund. But the difficulty of applying such principle in this case is that the stockholders and certificate holders, the beneficiaries of the fund, are alike guilty with the company in promoting and sustaining an unlawful scheme of chance.

C. W. Baker, for plaintiffs.

Walter A. DeCamp, for defendants.

Neither the plaintiffs nor the defendants are entitled to any affirmative relief; the petition will-, therefore, be dismissed.


text:
    CONTRACTS CONTRA BONOS MORES.
    [Circuit Court of Hamilton County.]
    Edward Pape v. Standard Oil Company.

    Decided, December 3, 1903.

      Contracts — Violating Morality or Public Policy— Not Actionable— And It is not Necessary the Defendant Plead the Objection— Duty of Courts with reference Thereto.

    A contract by tbe terms of wbicb tbe parties undertake to deceive and defraud tbe public is not enforceable, and where tbe defendant does not plead tbe objection, a court will refuse upon its own motion to entertain an action founded tbereon.
    • The plaintiff alleged in his petition that he had been the driver of an oil wagon, and originally in the employ of one J. W. Austin, an oil dealer, who in 1894 sold out to the Standard Oil Company. The plaintiff continued as driver on the same route after the sale, but at the request of the Standard Oil Company he placed his own name upon the wagon instead of that of the company. He alleged that in consideration for his so doing the company agreed to pay him' $15 a week, plus whatever his services might be reasonably worth on account of his holding himself out as the owner of the route. He continued under this arrangement for seven years, making the bills during all of that time in his own name, and leading his customers in other ways to believe that the route belonged to him. The company when called upon refused to allow him anything beyond the $15 per week which had been regularly paid to him, and he thereupon brought suit for $10,500 for the special services thus rendered during the seven years.

      Swing, J.; Giffen, J., and Jelke, J., eoncnr.

       Dismissed by tbe Supreme Court for want of preparation, October 18, 1904. For opinion in tbe court below, see 2 N. P. — N. S., 514.

   The gist of the plaintiff’s action is thus stated in his petition:

“Plaintiff further avers that if the various customers knew that the Standard Oil Company was furnishing the oil, that it (the Standard Oil Company) would lose all of its customers; and by reason of said knowledge, and knowing that it would lose said customers if it were made known that the defendant, the Standard Oil Company, was the owner of said route; and for the further reason that the Standard Oil Company instructed and directed said plaintiff to state that he was the owner of said oil route, and by his name, the defendant, the Standard Oil Company, reaped a great profit which it otherwise would not have received; and by placing his name upon said oil wagon, and by rendering bills and receipting them in his own name and making it known to the various customers that he was the owner of said oil route, his services in that respect were valuable and profitable to the defendant, and that for such services in using the name of the plaintiff said defendant, the Standard Oil Company, made a great profit.”

In other words the plaintiff’s claim is founded on an agreement with the defendant to lie to and deceive and defraud the public, and having thoroughly performed his part of the contract, he asks a court of justice to compel the defendant to perform its part.

Ex turpi causa non oritur actio is a maxim of the law (Broom’s Legal Maxims, 729).

In Wright v. Rindskopf, 43 Wis., 348, the court says:

“They do not hold, we know of no case which does, that where a contract is in terms contra bonos mores, it is necessary for the ' defendant to plead the objection; or that a court will proceed to judgment upon it, both parties even assenting. If the objection be not made by the party charged, it is the duty of the court to make it on its own behalf. Courts owe it to public justice and to their own integrity to refuse to becolne parties to contracts, essentially violating morality or public policy, by entertaining actions upon them. It is judicial duty always to turn a suitor upon such a contract out of court, whenever and however the character of the contract is made to appear.”

David Davis, for plaintiff in error.

James B. Jordan, contra.

No other authorities need be cited. The judgment should be affirmed.


text:
    INJURY IN ALIGHTING FROM A STREET CAR.
    [Circuit Court of Lucas County.]
    The Toledo Railway & Light Company v. Carrie Ketrow.
    Decided, October 20, 1904.

      Variance — Between Petition and Proof — As to Whether Gar had Gome to a Full Stop — At Time Accident Occurred — Negligence of Passenger in Alighting — Or of Conductor in Starting Gar — Weight of Evidence — Penalty—Street Railways.

    1. A variance between petition and proof as to whether a street car had come to a full stop at the time an accident occurred, whereby plaintiff was injured in alighting from a car, or stopped three feet further on, is too slight to work prejudice to the deféndant.
    2. In a close case as to weight of evidence there is reasonable ground for filing a petition in error, and a penalty will not be inflicted for so doing when the judgment is affirmed.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.
   This action was brought by the defendant in error, plaintiff below, against the railway company to recover damages for personal injuries which she claims to have sustained on account of the negligence of the company. She claimed in substance, in her petition, and testified at the trial, that on the day of her injury she was riding on a car of the plaintiff in error along Erie street, in the city of Toledo, and that she desired to get off' at Hobart street where, it crosses Erie; that she notified the conductor where she wished to alight; that the signal was given for the car to stop at the Hobart street crossing; that she was sitting in the rear of the car very near the door — it not being an open car — and that she went out on the platform and stood on the step, waiting for the car to stop, and that the car did stop at the Plobart street crossing — the south crossing— the car going south, and that just as she was about to alight and before she had time to get off, the conductor rang the bell and the car started with a sudden jerk, so that she was thrown off. It is admitted that she did fall in some way, and one of her arms was broken near the wrist. The jury returned a verdict in her favor in the amount of $225, for which judgment was entered.

It is claimed by the plaintiff in error that the verdict was against the weight of the evidence; that the plaintiff did not establish her claim, and that the court below erred in overruling the motion for a new trial. The company claims that the car had not stopped when she got off, and that she was thrown down on the ground by reason of her getting off or trying to get off a moving car, and that it was unsafe and negligent for her to undertake to do so. She claims, as I have stated, that the ear had in fact stopped. Quite a large number of witnesses were called on behalf of the defendant, but on the part of the plaintiff the, only witness called was herself, and the statement of a boy which had been taken was used as his testimony in behalf of plaintiff. A number of small boys, most of them newsboys, were called by the defendant. They were standing near the crossing at the time of the accident, waiting for papers. The most of them testified that at the time plaintiff got off, the car was moving. Some of them say it was moving at some speed and others that it was moving very slowly; and one boy who was in the car, as a passenger, testified to that in substance. The conductor testified that she undertook to get off about the middle of the street; that a man got off just before her, jumping off near the north crossing — that is, the first crossing — while the ear was moving south with some speed. The conductor testifies that she remained on until the car was within about three feet of the other crossing, and while it was yet moving she jumped off and fell down. He testifies on cross-examination that she took hold' of the hand bar with her right hand, with her face turned to the back end of the car, and that that had something to do with her falling down. The conductor testifies that the car was moving slowly, that it moved only about three feet, in his judgment, after she got off. He says that it all happened very quickly; she was sitting at the rear end of the ear, and says that she came out quickly on the platform and turned around and jumped off.

It appears pretty clearly from the evidence that the man did jump off before she did, and that the ear was then moving. One of the boys testified that he saw her get off; that the car was moving slowly at the time, but that it gave a sudden jerk and she was thrown off. He says:

“The first I saw, the car gave a jerk and she fell, and the ear was moving-just slowly when she fell.”

It is rather difficult to tell from this testimony, taking it all together, whether the car at the time she undertook to get off had come to a full stop or was moving slowly — very slowly. If moving at all, it must have been very slowly, for the conductor says it only went about three feet after she got off.

Plaintiff testified positively that the car had come to a full stop; that she was standing on the step and just ready to get off, and the signal was given for the ear to start, and she was jerked off arid fell. She staggered a few feet after she got off the car, according to the testimony, and then fell, and when she did fall she was very near to the south crossing where the car should stop.

While there is this conflict in the testimony, and the witnesses called by the defendant outnumber those of the plaintiff, we would not feel justified in finding that the verdict was so clearly and manifestly against the weight of the evidence, that the judgment should be reversed and a new trial granted. The whole transaction happened in a very few moments. Those observing it might very easily honestly differ as they do differ in some of the details of the occurrences. It all happened almost in an instant.

We think the evidence is pretty clear that the car was moving when the man got off, although the plaintiff testified that the car had stopped when he got off and she was about to get off when it started. Taking the testimony all together, it is quite clear that the car had not come to a stop when the man jumped off.

But we are of the opinion that if the car had not come to an absolute stop, if it was moving very slowly, and just about to stop, apparently, and she was standing on the step of the ear ready to get off, and the ear was started suddenly with a jerk and she was jerked off, that she might recover under that state of facts, although she alleges in her petition that the ear had stopped, and that before she had reasonable time to get off she was thrown off by the starting of the car. Such a variance as that would not be material in our judgment; it would not be of such character as to mislead the defendant or prejudice it. It would be substantially the same state of facts, and require the same testimony to meet it, and the only variance would be that the car did not come to a full stop but was moving very slowly at the time the plaintiff was jerked off. The gist of her action after all was that she was a passenger on a car; had notified the conductor where she wished to get off, and that the signal for the ear to stop was given, and that she had gone out on the platform and was on the step ready to get off and was soon to get off; and that when she was in that position the car was jerked, and she was thrown off. If the car only had a foot or two feet more to go before making a full stop, it could be said to be moving, but that would be a variance so slight, from the allegations of her petition, that it certainly could not work any prejudice to the railroad company.

The case, however, was submitted to the jury by the court upon the proposition that they must be satisfied that the car had stopped as she alleged in her petition, and that as she was about to get off it was started without warning to her and she was thrown off. Upon the question of whether such a variance as that would be material, we call attention to the case of Holmes v. The Ashtabula Rapid Transit Co., 10 O. C. D., page 638, a ease in which one of the members of this court sat, where a similar question is discussed. Our conclusion is that the verdict of the jury should not be disturbed.

. Counsel for the defendant in error insist that a penalty should be imposed upon the plaintiff in error. We think that there was reasonable ground for filing tbe petition in error in this court. The ease upon the facts might be said to be a close one, therefore no penalty will be inflicted; but the judgment of the court of common pleas will be affirmed.

Smith <& Balter, for plaintiff in error.

Alonzo G. Duer and O. S. Brumbach, for defendant in error.


text:
    PROOF AS TO BREACH OF EXPRESS GUARANTIES AS TO » MACHINERY SOLD.
    [Circuit Court of Cuyahoga County.]
    Cleveland Punch & Shear Works Co. v. Consumers Carbon Co.
    Decided, September, 1904.

      Pleading — Averments of Gross-Petition as to Guaranties — Good for Purpose of Letting in Proof — Showing Special Damages Sustained-—Evidence—Contracts for Machinery with Express Guaranty.

    Suit was brought for balance due under a written contract for machinery sold defendant with certain express guaranties.
    Defendant answered, admitting the contract and delivery of machinery, but denying that it complied with said guaranties.
    By cross-petition, in addition to averring that the machinery did not comply with the expressed guaranties, defendant averred that being about to engage in a certain business involving a large investment for the purchase of land and the erection of buildings and machinery, and the employment of many operators at large expense, and needing certain machinery without which its business could not be operated, all of which was known to plaintiff, and which machinery plaintiff professed to be able to furnish, it invited plaintiff to furnish the same, and plaintiff professing to comply with said agreement, delivered to defendant certain items of machinery which it represented would comply with said terms, and defendant, relying upon said representations, placed the same in position and expended large sums in its attempt to use it; that by the failure of said machinery as aforesaid, defendant’s plant could not be fully operated, to its damage, etc.
    Motion was made to strike out said additional averments in the cross-petition, which was overruled.

      ■Held: That while proof could not be received under said averments ' to establish implied guaranties, different from or additional to the guaranties expressed in the contract, the averments were proper for the purpose of letting in proof as to special damages sustained by the defendant by reason of the breach of the expressed guaranties, and the motion being addressed to the sound discretion of the trial court, the judgment will not be reversed for the overruling of said motion.
    "Winch, J. (sitting in place of Judge Donabue); Voorhees, J., and McCarty, J., concur.
    Error to the Court of Common Pleas of Fairfield County.
   The motion to strike the bill of exceptions from the files in this case has been granted for the reasons stated in Tatje v. Pettie (unreported).

The plaintiff brought its action in the common pleas court to recover a balance due on a written contract for the sale to the defendant of three hydraulic mold presses as shown in blue prints in the possession of the defendants, one six plunger horizontal pump as shown by said blue prints, -and one accumulator of capacity of power and dimensions to take care of said set of pumps; all of said machinery was to be furnished within three months, it being guaranteed that it should have the capacity to make 330 impressions per hour on each press and to be of ample strength to stand the pressure of 6,000 lbs. per square inch, the effective stroke of said presses to be one inch.

It is alleged in the petition that the time for the delivery of said machine was extended by the defendant; that plaintiff delivered the machinery, and that it was as guaranteed in the contract; that the defendant received the machinery, accepted it, immediately put it into use, has ever since used it, and, having paid $?,000 on the contract price, refuses to pay the balance due, amounting to some $1,901.

The defendant filed an answer to this petition, admitting the making of the contract and the delivery of machinery, but denying that the machinery delivered complied with any of the guaranties contained in the contract. While admitting the payment of $2,000, the defendant says that said payment was made before the machinery could be fully tested, and before it was advised that it was not as guaranteed. The answer also contains a cross-petition, in which the defendant, in addition to setting up the failure of the machinery to comply with the guaranties in the contract, averred, in substance, that it was engaged in the construction of a factory designed for the purpose of manufacturing carbons; that a large amount of capital was being invested in grounds and buildings; that a sufficient number of expert operators had been by it employed at large expense; all of which was well known to plaintiff; that the defendant required certain presses, pumps and other machinery to enable it to successfully manufacture carbons, and without which said machinery could not be operated; that the plaintiff professed to be able to manufacture and supply said machinery to defendant; that the plaintiff knew that the operation of said plant was dependent upon the furnishing of said machinery; that the plaintiff, professing to comply with said agreement, delivered to defendant certain items of machinery, which it represented would comply with said terms, and the defendant, relying upon said representations, placed the same in position and expended large sums of money in its attempt to use it; that by the failure of said machinery as aforesaid defendant’s said plant could not be fully operated, and defendant lost in large part the use and service thereof, to its damage in the sum of $20,000, for which it asks judgment against the plaintiff.

A motion to strike out the above allegations from the cross-petition was made by plaintiff and overruled, defendant excepting. Beply being filed, the case was tried to a jury, resulting in a verdict in favor of the defendant on its cross-petition.

In this court the motion to strike the bill of exceptions from the files having been granted, there remains for consideration but one error complained of — that is, the action of the trial court in overruling the motion to strike out said allegations from the cross-petition.

It was urged in support of said motion, and it is urged in this court, that the only purpose for which evidence could be offered in support of the allegations asked to be stricken out would be to establish guaranties not expressed in the contract — implied guaranties — such as that the machinery was fit and proper for the purposes to which defendant attempted to apply it.

If it were true that evidence could be offered under the allegations complained of for said purposes alone, the case would be quite doubtful, but we are of opinion that consequential damages might be shown under said allegations as flowing directly from .a breach of the guaranties expressed in the contract. The guaranties expressed all related to the operation of the machinery in a particular business and not to its material and workmanship. It was to have the capacity of a certain number of impressions, to withstand an enormous pressure and to have a specified effective stroke.

It was designed according to blue prints prepared by the plaintiff and its operation prescribed by it. It is apparent from the pleadings that it was delivered by the plaintiff to be used in defendant’s business, and may not defendant show that the guaranties expressed in the contract were such as alone made it suitable therefor? The situation of the parties when they entered into the contract may be inquired into. The rule that parol testimony is not admissible to contradict or add to a written contract does not forbid inquiring into the object of the parties in executing it. Brick v. Brick, 98 U. S., 514.

Had plaintiff failed to deliver any machinery at all under said contract, there would be no question as to the relevancy of the allegations complained of. We would then apply the rule laid down in the recent case of Champion Ice Mfg. & Cold Storage Co. v. Iron Works Co., 68 Ohio St., 229, that consequential damages may be recovered, if the circumstances are known to the parties at the time of making the contract.

Might not the defendant be able to show — under its allegations, that the machinery was not according to the written guaranties — such failure to comply with said guaranties as amounted to a total failure to comply with the contract? If it could, or if the proof tended to establish such failure of the expressed guaranties as rendered the machinery valueless to the defendant in its business, the allegations complained of would be proper, and the purpose of them would be to give an opportunity for the introduction of testimony as to the special damages sustained by the defendant, said special damages being consequential upon a breach of the expressed guaranties and growing out of a failure to comply with the written contract and not arising from the breach of any implied guaranties as claimed by the plaintiff in its motion.

It would seem that in this case the warranties contained in the written contract were made with express reference to the particular situation of the parties. Such being the case, the •allegations in the cross-petition asked to be stricken out would not be prejudicial to the plaintiff. That the cross-petition is open to some criticism on the ground of irrelevancy and redundancy does not make the ruling of the trial judge so erroneous as to require a reversal on that ground. Good pleading excludes the statement of evidential facts, but special damages must be pleaded.

“The question as to redundancy and irrelevancy is in general addressed to the discretion of the court, and its decision usually depends upon the nature of each case.” Swan, Prac. & Prec., 219.

In this case we do not think there was such abuse of discretion on the part of the trial judge in overruling the motion to strike out as to require a reversal of the case on that ground, and the judgment is therefore affirmed.